2020 WI 45

SUPREME COURT OF WISCONSIN CASE NO.: 2018AP1129

COMPLETE TITLE: City of Cedarburg, Plaintiff-Appellant, v. Ries B. Hansen, Defendant-Respondent.

ON MOTION FOR RECONSIDERATION Reported at 390 Wis. 2d 109,938 N.W.2d 463 PDC No:2020 WI 11 - Published

OPINION FILED: May 20, 2020 SUBMITTED ON BRIEFS: ORAL ARGUMENT:

SOURCE OF APPEAL: COURT: COUNTY: JUDGE:

JUSTICES: PER CURIAM NOT PARTICIPATING:

ATTORNEYS:

For the plaintiff-appellant, there was a motion for reconsideration filed by Johnathan G. Woodward and Houseman & Feind, LLP, Grafton, WI. 2020 WI 45

NOTICE This opinion is subject to further editing and modification. The final version will appear in the bound volume of the official reports. No. 2018AP1129 (L.C. No. 2017CV411)

STATE OF WISCONSIN : IN SUPREME COURT

City of Cedarburg,

Plaintiff-Appellant, FILED v. MAY 20, 2020 Ries B. Hansen, Sheila T. Reiff Clerk of Supreme Court Defendant-Respondent.

MOTION for reconsideration. Reconsideration granted.

¶1 PER CURIAM. The City of Cedarburg moves the court to

reconsider ¶30 of its decision in the above-captioned case, issued

February 11, 2020. See Wis. Stat. § 809.64 (2019-20). The City contends the court overlooked State v. Braunschweig, 2018 WI 113,

384 Wis. 2d 742, 921 N.W.2d 199, wherein the court unanimously

decided that the proper burden of proof the State must satisfy to

establish a defendant's prior OWI convictions is a preponderance

of the evidence. The City requests only that the court modify ¶30

of our decision in City of Cedarburg v. Hansen to reflect the

burden of proof announced in Braunschweig. No. 2018AP1129

¶2 We grant the City's motion for reconsideration to modify

¶30. Braunschweig established the proper burden of proof to be a

preponderance of the evidence. It noted that "in some PAC cases"

under Wis. Stat. § 346.63, in which the text of the statute

specifically makes "the predicate prior [] an element of the

offense," the State must satisfy the higher, beyond a reasonable

doubt burden. Braunschweig, 384 Wis. 2d 742, ¶36 & n.18. However,

the court held that "the State's burden of proving the prior OWI

conviction in second offense OWI-related offenses" is a

preponderance of the evidence. Id., ¶¶3, 32-40. That burden of

proof applies because a prior OWI offense is not among the

statutory elements of a second offense OWI. See Wis.

Stat. § 346.63(1)(a).

¶3 Accordingly, we order that ¶30 in City of Cedarburg v.

Hansen, 2020 WI 11, 390 Wis. 2d 109, 938 N.W.2d 463, be modified

to read as follows, with bold indicating the amended language and

strikethrough indicating the language removed:

A defendant's prior convictions determine his status as a repeat offender, not his guilt. State v. Saunders, 2002 WI 107, ¶3, 255 Wis. 2d 589, 649 N.W.2d 263. However, the State must prove a defendant's status as a prior offender at sentencing, where prior convictions must be established by a preponderance of the evidence. See State v. Braunschweig, 2018 WI 113, ¶¶3, 32-40, 384 Wis. 2d 742, 921 N.W.2d 199. beyond a reasonable doubt.13 Id. Importantly, the city attorney is not required to allege or prove that the defendant had no prior offenses. ¶4 By the Court.—The motion for reconsideration to modify

¶30 is granted.

2 No. 2018AP1129

1