State v. Jeremy J. Hanson

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2001 WI 70 SUPREME COURT OF WISCONSIN Case No.: 99-3142-CR Complete Title of Case: State of Wisconsin, Plaintiff-Respondent, v. Jeremy J. Hanson, Defendant-Appellant-Petitioner. REVIEW OF A DECISION OF THE COURT OF APPEALS Reported at: 238 Wis. 2d 96, 617 N.W.2d 678 (Ct. App. 2000-Unpublished) Opinion Filed: Submitted on Briefs: Oral Argument: Source of APPEAL COURT: COUNTY: JUDGE: JUSTICES: Concurred: Dissented: June 26, 2001 April 12, 2001 Circuit Waupaca John P. Hoffmann CROOKS, J., dissents (opinion filed). WILCOX and PROSSER, J.J., join dissent. Not Participating: ATTORNEYS: For the defendant-appellant-petitioner there were briefs by James B. Connell and Crooks, Low, Connell & Rottier, S.C., Wausau, and oral argument by James B. Connell. For the plaintiff-respondent the cause was argued by Kathleen M. Ptacek, assistant attorney general, with whom on the briefs was James E. Doyle, attorney general. 2001 WI 70 NOTICE This opinion is subject to further editing and modification. The final version will appear in the bound volume of the official reports. No. 99-3142-CR STATE OF WISCONSIN : IN SUPREME COURT State of Wisconsin, FILED Plaintiff-Respondent, JUN 26, 2001 v. Cornelia G. Clark Clerk of Supreme Court Madison, WI Jeremy J. Hanson, Defendant-Appellant-Petitioner. REVIEW of a decision of the Court of Appeals. Reversed and cause remanded. ¶1 ANN WALSH BRADLEY, J. The defendant, Jeremy J. Hanson (Hanson), seeks review of a decision of the court of appeals upholding the circuit court's judgment convicting him of operating a motor vehicle while his operating privileges were revoked as a habitual traffic offender (HTO).1 Hanson contends that because his HTO status was rescinded pursuant to Wis. Stat. 1 State v. Hanson, No. 99-3142-CR, unpublished slip opinion (Wis. Ct. App. June 8, 2000) (affirming judgment of conviction and order denying a motion for post-conviction relief entered in the Circuit Court for Waupaca County, John P. Hoffman, Judge). No. (1997-98),2 § 351.09 the circuit court erroneously 99-3142-CR imposed a criminal sentence rather than a civil forfeiture. ¶2 We conclude that a criminal sentence based solely upon Hanson's HTO status, which was rescinded under § 351.09 prior to his conviction, is a sentence in excess of that authorized by law and is invalid under Wis. Stat. § 971.13. However, given the state of the record, we cannot determine whether Hanson's driving record supported a criminal consideration of his HTO status. sentence even without Accordingly, we reverse the decision of the court of appeals and remand to the circuit court for such a determination. I ¶3 On four occasions in 1996, Hanson was convicted of operating a motor vehicle after his license had been revoked or suspended (OAR/OAS), contrary to Wis. Stat. § 343.44(1) (199596). As a consequence of the four OAR/OAS convictions, Hanson was classified as an HTO in December 1996 pursuant to Wis. Stat. § 351.02 (1995-96). His HTO classification resulted in the revocation of his driving privileges for a period of five years. See Wis. Stat. § 351.025(1) (1995-96). The five-year HTO revocation was one of a number of suspensions and revocations imposed upon Hanson for his numerous 1996 violations. ¶4 to other While still subject to the HTO revocation, and perhaps suspensions and revocations, 2 Hanson was caught Unless otherwise noted, all subsequent statutory references to the Wisconsin Statutes are to the 1997-98 version. 2 No. illegally driving a fifth time on October 31, 1998. 99-3142-CR Hanson was charged with his fifth violation of Wis. Stat. § 343.44(1). In the criminal complaint, the State listed the four 1996 OAR/OAS convictions and alleged that for his fifth offense Hanson was subject to a maximum fine of $2,500 and a potential sentence of one year in jail. ¶5 The complaint also set forth that Hanson's sentence was subject to enhancement due to his HTO classification. The state alleged that under Wis. Stat. § 351.08, Hanson was subject to an additional $5,000 fine and a possible 180 additional days of imprisonment. ¶6 Following the issuance of the complaint, Hanson pursued a rescission of his HTO status through the Department of Transportation (Department). As part of the 1997 legislative overhaul of the offense of OAR/OAS, which included the removal of OAR/OAS as a predicate offense that may be used to classify a driver as an HTO, the Department was authorized to redetermine a driver's HTO convictions. 151. status without consideration of OAR/OAS Wis. Stat. § 351.09; 1997 Wis. Act 84, §§ 149, In February 1999, the Department rescinded Hanson's HTO status, which was based on his OAR/OAS convictions, pursuant to Wis. Stat. § 351.09.3 3 In its brief to this court, the State argued that there was nothing in the record documenting the Department's rescission of Hanson's HTO status. However, at oral argument the State acknowledged that a reference to the "release" of Hanson's HTO status in the abstract of Hanson's driving record signified the rescission of the HTO status pursuant to Wis. Stat. § 351.09. 3 No. ¶7 99-3142-CR Subsequent to the rescission of his HTO status, in May 1999, the defendant entered a plea of no contest to the charge of OAR, fifth offense, as an HTO, as alleged in the criminal complaint. During the plea colloquy, Hanson admitted that the OAR offense was his fifth offense and that as a result the court could impose a sentence of up to one year in jail. Hanson also admitted that he had been adjudged an HTO in December 1996 and that as a consequence of his HTO status the court could impose an additional 180 days in jail. Thereafter, the circuit court accepted his plea of no contest, imposed a fine of $300, and sentenced Hanson to 20 days in jail. In rendering the sentence, the circuit court did not articulate whether the OAR offense, the HTO enhancer, or both, provided the basis for the criminal penalty. ¶8 Thereafter, challenging the requesting that Hanson imposition the pursued of circuit a a term court sentence with a civil forfeiture. post-conviction motion of imprisonment substitute the and criminal His argument was premised on the February 1999 rescission of his HTO status. Hanson argued that because his HTO status had been rescinded, it could not be the basis for the imposition of a criminal sentence. He further advanced that in the absence of the HTO enhancer, there was no basis for imposing a criminal sentence. ¶9 appealed. concluded The circuit court denied Hanson's motion, and Hanson In an unpublished that Hanson had decision, waived the the right court to of appeals challenge his conviction and sentence by the entry of his no contest plea. 4 No. 99-3142-CR II ¶10 we In order to adequately address the parties' arguments, believe a brief introduction to the recent legislative changes and relevant statutory scheme is necessary. ¶11 changes In 1997, the Wisconsin to the treatment of legislature the motor enacted vehicle sweeping offenses of operating after suspension (OAS) and operating after revocation (OAR). These changes were made in response to the recommendations of the 1995 Governor's Task Force on Operating After Revocation and Operating While Intoxicated and reflect an intent to simplify the previously confusing and complicated law of OAR and OAS. ¶12 Prior to August 1, 2000, the effective date of many of the relevant provisions of 1997 Wis. Act 84, operating after revocation and operating after suspension were treated as one offense (OAR/OAS). See Wis. Stat. § 343.44(1).4 The punishment upon conviction was dependent upon the underlying basis for the revocation convictions. or suspension and the number See Wis. Stat. § 343.44(2). of prior OAR/OAS A driver who violated a suspension or revocation imposed solely for failure to pay a 4 A brief synopsis of the statutory changes and their effective dates is provided by John Sobotik, OAR and OWS Law Changes Begin, Wis. Law., Feb. 2000, at 24-25. The author is assistant general counsel for the Wisconsin Department of Transportation and prepared the findings of the 1995 Governor's Task Force relating to OAR and OAS. The changes to Wis. Stat. § 343.44 were effective August 1, 2000 pursuant to an order of the Department of Transportation. Wis. Admin. Reg. No. 534, 24-25 (June 2000). 5 No. 99-3142-CR fine or forfeiture was subject only to a civil forfeiture. e.g., Wis. Stat. § 343.44(2)(e)2. See, The amount of that forfeiture increased with each successive OAR/OAS conviction. A driver whose privileges were suspended or revoked for any other reason was subject OAR/OAS, but offenses. ¶13 to a civil faced forfeiture potential for the imprisonment first for all subsequent Currently, as a result of the 1997 legislation, the § 343.44(1)(a) & (b) (1999-2000). revocation of driving serious violations. 2000). See Wis. Stat. The legislature has provided privileges is to occur for more See generally Wis. Stat. § 343.30 (1999- Consequently, OAR is treated as a criminal offense, the violation of which carries the potential for imprisonment. Stat. of See Wis. Stat. § 343.44(2). offenses of OAS and OAR are individual offenses. that offense § 343.44(2)(b) (1999-2000). Suspensions, on the Wis. other hand, are now reserved for more minor infractions. See generally Wis. Stat. § 343.30 (1999-2000). serious violation, forfeiture. ¶14 for which Thus, OAS is treated as a less the only penalty is a civil Wis. Stat. § 343.44(2)(a) (1999-2000). 1997 Wis. Act 84 also made changes to chapter 351, which defines and regulates habitual traffic offenders. Wis. Act 84, §§ 149-52. person who classified (1995-96). had as been an HTO 1997 Under the prior statutory scheme, a convicted of four OAR/OAS pursuant to Wis. Stat. offenses was § 351.02(1)(a)4 Classification as an HTO subjects the driver to a five-year revocation and also serves as a penalty enhancer for subsequent violations of § 343.44. 6 Wis. Stat. § 351.025 & No. § 351.08. 99-3142-CR A driver classified as an HTO who is convicted of violating § 343.44 is subject to an additional fine of up to $5,000 and an additional term of imprisonment of up to 180 days in jail. ¶15 Wis. Stat. § 351.08. Consistent decriminalize alleviate the OAS, with 1997 effect the Wis. of Act prior legislative 84 amended OAR/OAS intent chapter convictions on 351 to to repeat offenders who had been classified as HTOs as a result of those convictions. It did so by removing OAR/OAS from the list of offenses that may serve as the basis for determining HTO status. 1997 Wis. Act 84, § 149. ¶16 Most important for our purposes, the legislature also provided for the recalculation of HTO status of those drivers already determined to be HTOs because of OAR/OAS convictions through the creation of Wis. Stat. § 351.09. Under § 351.09, a driver can request that the Department recalculate a previous HTO determination without consideration of OAR/OAS convictions, and may have the HTO status rescinded and driving privileges reinstated, if appropriate: If the recalculation demonstrates that the person is not a habitual traffic offender or repeat habitual traffic offender, the department shall rescind the order declaring the applicant a habitual traffic offender or repeat habitual traffic offender. Upon the completion of the recalculation under this section, the department shall provide written notice to the person of the result of the recalculation, of the order of rescission, if any, under this section and, if appropriate, of the process for reinstating the person's operating privilege. Wis. Stat. § 351.09. 7 No. ¶17 assigned When to it the enacted 1997 Department Wis. the Act 84, authority to the 99-3142-CR legislature determine effective dates of the various provisions of the act. Stat. § 85.515. Wis. Many provisions, including the revisions to § 343.44, did not become effective until August 1, 2000. Admin. Reg. No. 534, 24-25 (June 2000). implemented the § 351.09 on an Wis. However, the Department earlier date, allowing the recalculation and rescission of HTO determinations to begin on August 1, 1998. Note, Wis. Stat. § 351.09; Wis. Admin. Reg. No. 510, 51-52 (June 1998). ¶18 As a consequence of the staggered implementation of 1997 Wis. Act 84, the case before us presents us with a blend of the old and the new. statutory scheme. the appropriate Hanson was convicted under the prior Therefore, the definition of the offense and level of punishment supplanted statutory provisions. are defined by since- However, because of the DOT's early implementation of § 351.09, this case also presents us with issues involving the new statutory scheme, namely the effect of the Department's rescission of Hanson's HTO status on his sentence. III ¶19 At the outset, the State contends that we should not reach the merits of Hanson's challenge. It argues that Hanson waived the challenge to the sentence by entering a plea of no contest. ¶20 We disagree. Hanson contests the imposition of criminal penalties by the circuit court on the grounds that the sentence imposed by 8 No. 99-3142-CR the circuit court is a penalty in excess of that authorized by law.5 As such, his argument implicates the command of Wis. Stat. § 973.13: Excessive sentence, errors cured. In any case where the court imposes a maximum penalty in excess of that authorized by law, such excess shall be void and the sentence shall be valid only to the extent of the maximum term authorized by statute and shall stand commuted without further proceedings. Wis. Stat. § 973.13. "When a court imposes a sentence greater than that authorized by law, § 973.13 voids the excess." State v. Spaeth, 206 Wis. 2d 135, 155, 556 N.W.2d 728 (1996) (applying § 973.13 to sentence imposed upon conviction for OAR). If the rescission of Hanson's HTO status precluded the use of the Wis. Stat. § 351.08 penalty enhancer and if the defendant was not otherwise subject to criminal penalties, the imposition of a criminal sentence would be void as it is in excess of that authorized by law. ¶21 Section 973.13 requires Wisconsin courts to declare a sentence void "[i]n any case where the court imposes a maximum penalty in excess (emphasis added). of that authorized by law." § 973.13 In an analogous context, our court of appeals concluded that the command of § 973.13 allowed a defendant to challenge a faulty repeater sentence despite the existence of an otherwise effective procedural bar. 5 State v. Flowers, 221 Hanson also frames his challenge as an attack on the subject matter jurisdiction of the circuit court. However, because we find his challenge to the legality of the sentence dispositive, we need not address his jurisdictional challenge. 9 No. Wis. 2d 20, 22-23, 586 N.W.2d 175 (Ct. App. 99-3142-CR 1998).6 In explaining that the mandate of § 973.13 prevents the imposition of a sentence not authorized by the legislature, the court of appeals advanced the interest of justice over the interest of finality: To adopt the State's argument would promote finality, but at the expense of justice. It would raise the specter of a defendant being incarcerated for a term (possibly years) in excess of that prescribed by law simply because he or she failed to raise the issue earlier. Such a result is in direct conflict with the explicit language of § 973.13. The State is without authority to incarcerate individuals for a term longer than the maximum term authorized by law. Therefore, we conclude that the express statutory mandate in § 973.13 to alleviate all maximum penalties imposed in excess of that prescribed by law applies to faulty repeater sentences and is not "trumped" by a procedural rule of exclusion. Id. at 29. ¶22 As in Flowers, to allow the imposition of a criminal penalty where none is authorized by the legislature, simply on the basis of waiver, would ignore the dictate of § 973.13. thus reach whether any the merits basis of existed Hanson's for the challenge imposition and of We determine a criminal sentence. A 6 The procedural bar faced by the defendant in State v. Flowers, 221 Wis. 2d 20, 586 N.W.2d 175 (Ct. App. 1998), was that posed by Wis. Stat. § 974.06(4) and this court's decision in State v. Escalona-Naranjo, 185 Wis. 2d 168, 517 N.W.2d 157 (1994). 10 No. ¶23 Hanson challenges the sentence for his conviction. imposition 99-3142-CR a criminal of He maintains that the sole basis for the criminal sentence was his HTO status and that because his HTO status was rescinded pursuant to § 351.09, the circuit court should have imposed a civil forfeiture this challenge rather than a criminal sentence. ¶24 The resolution of hinges on the interpretation of Wis. Stat. § 351.09, and in particular the words "rescind" statute. and "rescission" as they are used in that Interpretation of a statute is a question of law that we review independently of the determinations rendered by the circuit court and the court of appeals. State v. Floyd, 2000 WI 14, ¶11, 232 Wis. 2d 767, 606 N.W.2d 155. The sole purpose of statutory the interpretation legislature by first is to examining ascertain the language intent of the of the statute. State v. Vennemann, 180 Wis. 2d 81, 93, 508 N.W.2d 404 (1993). ¶25 Hanson argues that the effect of the Department's rescission of his HTO status was to nullify and, in essence, void ab initio, his HTO classification, thus precluding applicability of the § 351.08 HTO penalty enhancer. the The State argues the rescission under § 351.09 does not relate back to the date of the offense, October 31, 1998, and because Hanson was an HTO on the date he committed the offense, he was properly sentenced. ¶26 We conclude that as a consequence of the rescission of Hanson's HTO status, he could not be subject to the HTO penalty enhancer when subsequently convicted 11 of a violation of No. § 343.44(1). Accordingly, it was beyond the 99-3142-CR power of the circuit court to impose a criminal sentence based solely upon Hanson's rescinded HTO status. ordinary and accepted We base this conclusion on the meaning of the words "rescind" and "rescission," the legal implications of those words, and the legislative history of Wis. Stat. § 351.09. ¶27 We begin with the language of the statute. Wisconsin Stat. § 351.09 directs that when recalculating a defendant's HTO status "[i]f the recalculation demonstrates that the person is not a habitual traffic offender or repeat habitual traffic offender, the department shall rescind the order declaring the applicant a habitual traffic offender." (emphasis added). Wis. Stat. § 351.09 The statute also refers to the order entered upon such a recalculation as an "order of rescission." Id. (emphasis added). ¶28 When interpreting a statute, we must give effect to the ordinary and accepted meaning of the language chosen by the legislature. Wis. Stat. § 990.01(1) (1999-2000); Seider v. O'Connell, 2000 WI 76, ¶32, 236 Wis. 2d 211, 612 N.W.2d 659. We thus attribute to the operative words of § 351.09, "rescind" and "rescission," their ordinary and accepted meaning. ¶29 To "rescind" is commonly understood, when used by lawyers and non-lawyers alike, to mean "[t]o abrogate or cancel" or "[t]o make void, to repeal or annul." Black's Law Dictionary 1308 (7th ed. 1999); see The American Heritage Dictionary of the English Language 1534 (3d ed. 1993) ("To make void, repeal or annul."). "Rescission" too shares a likeness of meaning in both 12 No. legal and annulment non-legal or rescinding. contexts, abrogation of and generally something, 99-3142-CR refers i.e., the to the act of The American Heritage Dictionary of the English Language 1534 (3d ed. 1993). ¶30 and This court visited the meaning of the words "rescind" "rescission" matter of on general a prior usage occasion, the terms concluding relate to that as abrogation a or annulment: "'Rescind' and 'rescission' are words in ordinary use and should have no different signification in legal terminology than they have in other connections. 'Rescind' means to abrogate or annul, and may be applied to a variety of transactions such as a vote, a transfer of property or a contract." Illges v. Congdon, 248 Wis. 85, 95b, 20 N.W.2d 722 (1945) also carry with their (quoted source omitted). ¶31 certain The legal words "rescind" implications, ordinary and accepted meaning. and which "rescission" are consistent The legal effect of a rescission is an undoing from the beginning and a return to status quo ante. This legal effect of a rescission is expressed most clearly in the realm of contract law: The effect of a rescission of a contract is to restore the parties to the position they would have occupied had no contract ever been made. In other words, when a contract is rescinded the parties are placed in the status quo as if no contract had ever been made. Schnuth v. Harrison, 44 Wis. 2d 326, 339, 171 N.W.2d 370 (1969) (footnote omitted); see also Wagner v. Wagner, 80 Wis. 2d 299, 302, 259 N.W.2d 60 (1977) ("[T]he right of rescission . . . will 13 No. undo the mischief ab initio and the restore substantially to their original situation."). 99-3142-CR parties, The notion that rescission amounts to an undoing ab initio has been acknowledged more recently by this court: The parties have used the words "rescission ab initio" and "rescission" interchangeably. Because we can find no difference in the meaning of either expression, we have done the same. Wisconsin Housing & Econ. Dev. Auth. v. Verex Assurance, Inc., 166 Wis. 2d 636, 643 n.2, 480 N.W.2d 490 (1992).7 ¶32 Given the accepted meaning of the language of § 351.09 and the legal effect attributable to "rescind" and "rescission," we conclude that the effect of the Department's recalculation of Hanson's HTO status was an annulment status from the outset of its existence. and abrogation of that Consequently, when the circuit court sentenced Hanson, it could not properly treat him as an HTO, or for that matter as if he ever were an HTO. 7 The State directs us to one case in which the word "rescind" was construed merely as a cancellation with only prospective application. Milwaukee Elec. Ry. & Light Co. v. Railroad Comm'n, 169 Wis. 421, 427-28, 172 N.W. 746 (1919). In Milwaukee Electric Railway, this court concluded that the Railroad's rescission of a prior order, pursuant to statute, did not render the prior order void ab initio, but rather simply terminated the order from that time onward. Id. However, the court's discussion of the meaning of "rescind" in Milwaukee Electric Railway is an anomaly in light of discussions in preceding and subsequent case law, including those in the case law of the period. See, e.g., Mueller v. Michels, 184 Wis. 324, 332, 197 N.W. 201 (1924) ("'To rescind a contract is not merely to terminate it but to abrogate and undo it from the beginning.'"). 14 No. Hanson's rescinded HTO status can have no legal 99-3142-CR effect and Hanson must be treated as if it never existed. ¶33 The ordinary and accepted meanings of the language of § 351.09 and the legal implications given to those words are supported by the legislative history of Wis. Stat. § 351.09. As we explained above, § 351.09 was created by 1997 Wis. Act 84, which enacted the recommendations of the 1995 Governor's Task Force. See 1997 S.B. 470 (containing Legislative Reference Bureau); 1997 A.B. 795.8 analysis of the The task force's initial recommendation called for "Amnesty/Recalculation of HTO Status": Amnesty/Recalculation of HTO Status (Non-statutory provisions) The department shall review its orders revoking persons' operating privileges as habitual traffic offenders. If the department concludes that a person's operating privilege would not have been revoked and would not be revoked as a habitual traffic offender or repeat habitual traffic offender if offenses were counted in accordance with the provisions of Ch. 351, Stats., as amended by this law rather than the law in effect at the time of the prior order, the department shall recind [sic] the order. Legislative Reference Bureau Drafting File for 1997 A.B. 795, Recommendations of Governor's Task Force on OAR/OWI (Oct. 24, 8 The core of the provisions that became 1997 Wis. Act 84 began in the Wisconsin Assembly as 1997 Assembly Bill 795. 15 No. 1995). This recommendation was subsequently 99-3142-CR adopted by the legislature, albeit in modified form, and codified as § 351.09.9 ¶34 the We find significant the use of the word "amnesty" by Governor's Task Force in making its recommendation. It signifies to us that the Task Force intended broad relief to those who had been classified as an HTO as a consequence of the convictions for OAR/OAS, an offense believed by the Task Force to be a "minor offense." Id. We believe that this evidence of an intent to provide expansive relief to those determined to be HTOs as a consequence of OAR/OAS convictions supports our interpretation of the ordinary and accepted meaning of "rescind" and "rescission" as those terms are used in § 351.09 and the legal effect attributable to those terms. ¶35 language Contrary to the conclusions we draw from our above and legislative intent analysis, the State advances that our prior decision in State v. Orethun, 84 Wis. 2d 487, 267 N.W.2d 318 (1978), should control. In Orethun, the defendant, after being charged with operating after revocation, obtained a vacation of a speeding conviction on which the revocation of his driving privileges was based. 9 Consequently, the defendant The primary changes in the recommendation of the 1995 task force were that the provision allowing for rescission of HTO status be a statutory provision and that the rescission be initiated by a request of the driver. See Wis. Stat. § 351.09. These changes were initiated at the request of the Department. See Legislative Reference Bureau Drafting File for 1997 A.B. 795, Memorandum from John Sobotik, Office of General Counsel, Wisconsin Department of Transportation, to Paul Nilsen, Legislative Reference Bureau (July 22, 1997). 16 No. argued that a statutory provision calling 99-3142-CR for "automatic reinstatement" of his driving privileges related back to the date of his OAR/OAS offense. reinstatement did not We disagreed, concluding that the apply retroactively and that he was properly convicted of operating a vehicle while his license was revoked on the date of the offense. ¶36 The State maintains Id. at 489. that the reasoning of Orethun should apply to Hanson's HTO status, which was not undone until after he committed the OAR offense. We do not find Orethun controlling the Orethun in the relied instant upon and case for interpreted a simple reason different that statute. Section 351.09, unlike the statute discussed in Orethun, calls for a "rescission" explained, today's of Hanson's decision HTO rests status. upon the As we operation have of "rescind" and "rescission" in § 351.09. ¶37 The State also attempts to draw distinctions between the automatic reinstatement of driving privileges in Orethun and the affirmative steps required of a driver whose HTO status has been rescinded to obtain privileges under § 351.09. reinstatement of their driving We do not see how this is relevant to the discussion of the rescission of Hanson's HTO status and its use as a penalty enhancer. reinstatement of Hanson's This case is not about the driving privileges. This case concerns only the impact of the rescission of his HTO status on the appropriate penalty to be meted out for his OAR conviction. ¶38 As a consequence of the rescission of Hanson's HTO status, we conclude that the circuit court could not properly 17 No. 99-3142-CR impose a criminal penalty based solely upon that status. The imposition of a criminal penalty based solely upon that status would be in excess of that authorized by the legislature and must be declared void pursuant to Wis. Stat. § 971.13. B ¶39 Having concluded that the circuit court could not properly impose a criminal penalty based on Hanson's rescinded HTO status, we must address whether Hanson was otherwise subject to a criminal penalty for his conviction. under the prior statutory scheme. Hanson was convicted Section 343.44 formerly distinguished between OAR/OAS convictions that arose solely out of suspensions or revocations for failure forfeiture, and those that did not. to pay a fine or Convictions that arise out of suspensions or revocations for the failure to pay a fine or forfeiture are subject only to civil penalties, whereas other convictions for OAR/OAS, fifth offense, are subject to criminal penalties. See Wis. Stat. § 343.44(2)(e). If the circuit court had concluded that Hanson's conviction had not arisen solely from suspensions or revocations for failure to pay a fine or forfeiture, the court could have sentenced Hanson to up to one year in jail, even if he was court of appeals not an HTO. See Wis. Stat. § 343.44(2)(e)1. ¶40 parties The failed to discuss noted whether in this Hanson's case that driving the record supported a criminal conviction, even absent consideration of Hanson's HTO status. In their briefs to this court, the parties have referenced whether such an alternative basis for a criminal 18 No. sentence exists. However, they have taken each 99-3142-CR seemingly inconsistent positions which do not assist us in deciphering the record and applying the law. ¶41 The State advanced in its brief that regardless of the HTO penalty enhancer, Hanson was subject to a criminal penalty for his conviction under Wis. Stat. § 343.44(2)(e)1 because suspensions or revocations in effect at the time of his fifth offense were not imposed solely for the failure to pay a fine or forfeiture. argument At oral regarding argument, this however, alternative the basis State for made no imposing a criminal penalty in the present case, which, if it exists, would carry the day. ¶42 The reinstate dissent an April advances 1996 that suspension Hanson's provides a failure basis to for a criminal sentence. That result is directly contrary to the court of appeals decision in State v. Muniz, 181 Wis. 2d 928, 512 N.W.2d 252 (Ct. App. 1994). In Muniz, the court of appeals addressed the very situation the dissent describes and concluded that the failure to reinstate following a suspension based on grounds cannot other serve as violations. ¶43 than the the failure basis to to pay a criminalize fine or forfeiture subsequent OAR/OAS Id. at 932-33. The Muniz court rested its decision on the interpretation of the clause that recurs in § 343.44 that states that the civil penalties apply "'regardless of the failure to reinstate his or her operating privilege.'" 930-31 (quoting Wis. Stat. § 343.44(2)(b)2). 19 person's Id. at While the dissent No. 99-3142-CR relies on another court of appeals case, State v. Biljan, 177 Wis. 2d 14, 501 N.W.2d 820 (Ct. App. 1993), which seems to interpret the same provision to reach a contrary result, the question of law the dissent resolves on its own accord has not been briefed by the parties. Accordingly, we decline to reach out and resolve the question.10 ¶44 Hanson himself puts forth arguments that would suggest that not all of his prior OAR/OAS convictions were based solely upon the failure to pay a fine or forfeiture. Hanson's brief states that his "driving privileges were suspended for point accumulation and failure to pay fines."11 Yet, at the same time 10 The dissent also relies on State v. Doyen, 185 Wis. 2d 635, 518 N.W.2d 321 (Ct. App. 1994), which is not on point. While Doyen speaks to the failure to reinstate following a revocation or suspension, it provides no guidance in interpreting the civil penalties provisions of § 343.44, and particularly the clause appearing in § 343.44(2)(e)2 stating that the civil penalty applies "regardless of the person's failure to reinstate his or her operating privilege." Wis. Stat. § 343.44(2)(e)2. The dissent's reliance on State v. Kniess, 178 Wis. 2d 451, 504 N.W.2d 122 (Ct. App. 1993), is also misguided. Kniess would be controlling only in the event that Hanson's HTO status was valid at the time of his conviction. We have rejected that contention above. 11 Brief of Defendant-Appellant-Petitioner at 18 (emphasis added). 20 No. Hanson argues that in the absence of the HTO 99-3142-CR enhancer, no criminal penalty is applicable. ¶45 We also note that the circuit court did not delineate whether the suspensions that were in effect on October 31, 1998, arose solely from the failure to pay a fine or forfeiture. Because we are unable to do so, we must remand to the circuit court so that the parties may clarify their positions and the circuit court may make a proper determination as to whether a civil or criminal penalty is appropriate. determine whether Hanson's In doing so, it is to conviction falls under § 343.44(2)(e)2, in which case only a civil forfeiture may be imposed, or whether § 343.44(2)(e)1 applies and allows for the imposition of a criminal sentence. ¶46 In closing we note that the difficulties faced in this case are a consequence of the prior statutory scheme, which the We also note that Hanson presents an argument regarding the legislature's intent to reserve criminal punishment for serious offenses, and argues that the legislature did not intend that he be treated criminally. Hanson's reliance on this legislative intent is misplaced. The legislative intent on which he relies is that of the legislature's reclassification of the offenses of OAR and OAS in 1997 Wis. Act 84. While some of the provisions of that act, including Wis. Stat. § 351.09, were in effect on October 31, 1998, the date of Hanson's fifth offense, the reclassification of OAR and OAS did not take effect until August 1, 2000. Hanson therefore is not subject to the statutory scheme to which the proffered legislative intent applies. Rather, as we have explained, he is subject to the law of OAR and OAS under the prior statutory scheme. Under that statutory scheme he can evade a criminal penalty only if the revocation or suspension that is the basis of the violation was imposed solely due to a failure to pay a fine or forfeiture. Wis. Stat. § 343.44(2)(e)2. 21 No. 99-3142-CR 1995 Governor's Task Force described as "overly complex" and a source of confusion public defenders and the Operating Summary After of "among enforcement, courts." Revocation Proceedings law and (Oct. DAs, Governor's Operating 1995). attorneys, Task While Force on Intoxicated, Fortunately, as a consequence of the legislative overhaul embodied by 1997 Wis. Act 84 and the streamlining and simplification of the law of OAR and OAS, these are problems that our courts will no longer be asked to address. IV ¶47 In conclusion, we have determined that the imposition of a criminal penalty based solely upon Hanson's HTO status, which was rescinded under Wis. Stat. § 351.09 prior to his conviction, is a sentence in excess of that authorized by law. If there is no additional basis for the imposition of a criminal sentence, the criminal penalty is a sentence in excess of that authorized by law and is invalid under Wis. Stat. § 971.13. Because of the state of the record, however, we are unable to determine whether such additional basis exists. We thus must remand this case to the circuit court for a determination of the appropriate penalty under § 343.44(2)(e). Accordingly, the decision of the court of appeals is reversed and the case is remanded to the circuit court for further proceedings consistent with this opinion. By the Court. The decision of the court of appeals reversed and the cause is remanded to the circuit court. 22 is No. ¶48 N. PATRICK CROOKS, J. (dissenting). 99-3142.npc I cannot join the majority opinion because it abandons a long-standing rule of Wisconsin law that jurisdictional a plea challenges. of no The contest majority waives does not all non- provide a valid legal reason for its failure to apply the waiver rule. The majority record when opinion it also reaches ignores the clear conclusion information that a in the remand is necessary. ¶49 contest It is a well-established principle that a plea of no or defects. guilty waives all non-jurisdictional defenses and State v. Bangert, 131 Wis. 2d 246, 293, 389 N.W.2d 12 (1986); State v. Damaske, 212 Wis. 2d 169, 188, 567 N.W.2d 905 (Ct. App. 1997). Wisconsin courts have recognized the waiver rule time. for a long See State v. Princess Cinema of Milwaukee, Inc., 96 Wis. 2d 646, 651, 292 N.W.2d 807 (1980); Hawkins v. State, 26 Wis. 2d 443, 448, 132 N.W.2d 545 (1965). ¶50 operating In this case, Hanson pled no contest to the charge of after revocation/suspension 9), and, (OAR/OAS) (Plea Hr'g at therefore, he waived all non-jurisdictional defenses or defects. In his post-conviction motion, Hanson claimed that the circuit court could not impose criminal penalties for the OAR/OAS charge because the Wisconsin Department of Transportation, Division of Motor Vehicles, rescinded his status as a HTO. This challenge is not a jurisdictional one. Consequently, Hanson waived such a defense or defect when he pled no contest to the criminal OAR/OAS charge. 1 No. ¶51 holding The majority that Wis. opinion Stat. avoids § 973.13 the 99-3142.npc waiver demands that rule, we by address Hanson's challenge to the criminal penalties. Majority op. at ¶22. "[i]n Wisconsin Stat. § 973.13 provides that any case where the court imposes a maximum penalty in excess of that authorized by law, such excess shall be void and the sentence shall be valid only to the extent of the maximum term authorized by statute and proceedings." criminal shall stand According sentence commuted to be could the without further majority opinion, Hanson's under § 973.13, void if the rescission of Hanson's status as a HTO prevented the application of the penalty enhancer. ¶52 is no The fatal flaw in the majority opinion is that there legal justification established waiver rule. for departing from the well- The majority opinion relies upon State v. Flowers, 221 Wis. 2d 20, 586 N.W.2d 175 (Ct. App. 1998) to support its holding. Flowers presents an entirely different fact situation, one that makes its holding inapplicable to this case. ¶53 In Flowers, the defendant claimed that his criminal sentence was void as a matter of law. 221 Wis. 2d at 26. The State charged the defendant, Flowers, with two counts of retail theft, as party to a crime, §§ 943.50(1m) and 939.05, food store. Id. at 23. in violation of Wis. Stat. for stealing various items from a In addition, the State charged Flowers as a repeat offender, pursuant to Wis. Stat. § 939.62, because he was previously convicted of felony firearm possession. 2 Id. No. 99-3142.npc Flowers pled guilty to one count of retail theft as a repeat offender, but Flowers never admitted to the prior felony conviction, nor did the State enter sufficient evidence of such conviction. Id. In a post-conviction motion, Flowers claimed that his sentence as a repeater was void as a matter of law, because the State failed to establish his repeater status, and it was undisputed that he did conviction within five years. not admit to Id. at 24-25. § 973.13 The court permitted of appeals Flowers to felony The circuit court concluded challenge prior Id. at 25. denied Flowers' motion and Flowers appealed. ¶54 a that his Wis. Stat. sentence as a repeater, despite the effective procedural bar of Wis. Stat. § 974.06(4), which provides that a defendant must raise all grounds for relief in the original, supplemental, or amended post-conviction motion. Id. at 28. The court of appeals determined that the policy articulated in State v. EscalonaNaranjo, 185 Wis. 2d 168, 517 N.W.2d 157 (1994), did not prevent Flowers from challenging his criminal sentence. ¶55 Id. at 28. Here the majority opinion is overlooking a critical limitation on the Flowers holding, namely, that "if a defendant is sentenced . . . and the State has either failed to prove the prior conviction or gain the defendant's admission to such fact, then § 973.13 becomes applicable." ¶56 Id. (emphasis added). At the plea hearing in this case, Hanson admitted he had previously been found to be a habitual traffic offender, and to his prior convictions for OAR/OAS. specifically asked Hanson if 3 he The circuit court judge admitted to four prior No. 99-3142.npc convictions, and that he had been adjudged a habitual traffic offender. (Plea Hr'g at 9-10). Hanson responded "yes" to these (Plea Hr'g at 10). Flowers is, therefore, clearly questions. distinguishable and, as a result, the majority opinion provides no legal justification for departing from the long-standing rule that a plea of no contest waives all non-jurisdictional defenses and defects. ¶57 Because the majority opinion concludes that Wis. Stat. § 973.13 permits Hanson to challenge his sentence, the majority opinion does not address Hanson's claim that the circuit court did not have jurisdiction over his case. n.5. Majority op. at ¶20, Hanson contends that the circuit court lacked criminal subject matter jurisdiction over his criminal case "because his status as therefore, crime." a habitual the offense traffic with offender which he was was (Br. of Def.-Appellant-Pet'r at 17). rescinded, charged was and not a Therefore, Hanson argues that an exception to the waiver rule applies. ¶58 it I reject this claim, as the court of appeals did, when relied on Article VII, Section 8 of the Wisconsin Constitution which confers original jurisdiction on the circuit court for all matters civil and criminal within Wisconsin. In State v. Aniton, 183 Wis. 2d 125, 129, 515 N.W.2d 302 (Ct. App. 1994), it was stated that: "[t]he circuit court lacks criminal subject-matter jurisdiction only where the complaint does not charge an offense known to law." See also State v. Bratrud, 204 Wis. 2d 445, 450, 555 N.W.2d 663 (Ct. App. 1996)("various facts 4 No. 99-3142.npc relevant to a defendant's conviction are admitted when a plea is taken"). ¶59 It is important to note what the record in this case clearly establishes. teletype which Attached to the criminal complaint is a shows that suspended for two months. on April 12, 1996, Hanson was There is nothing in the record to show that Hanson had been reinstated by the time of this offense on October 31, 1998, nor does Hanson claim that he had been reinstated by that date. ¶60 The two-month suspension was a result of convictions for violation of license restriction (VOR), and that suspension served as the basis for three operating after suspension (OAS or OWS) charges that occurred on May 6 and May 29, 1996. These charges after resulted in two convictions for operating suspension (or while suspended) in Waupaca County on August 27, 1996, and in Outagamie County on July 3, 1996. ¶61 Wisconsin Stat. § 343.44(2)(b)2 states that if a revocation or suspension which forms the basis of a violation was imposed solely due to a failure to pay a fine or forfeiture then a forfeiture (rather than a crime) results. it is formed clear that the basis at for least the one of Hanson's criminal charge However, here suspensions of OAR/OAS that was predicated not on failure to pay a fine or forfeiture, but on a suspension resulting from convictions for violation of license restriction (VOR). Due to that fact, his lack of reinstatement, and his failure to apply for rescission of his HTO status prior to the offense, his violation 5 on October 31, 1998, was a No. 99-3142.npc criminal offense and criminal sanctions could be imposed. See State v. Biljan, 177 Wis. 2d 14, 21-22, 501 N.W.2d 820 (Ct. App. 1993), and State v. Doyen, 185 Wis. 2d 635, 642-43, 518 N.W.2d 321 (Ct. App. 1994). ¶62 The majority opinion claims that this conclusion is contrary to the holding in State v. Muniz, 181 Wis. 2d 928, 512 N.W.2d 252 (Ct. App. 1994). Majority op. at ¶42. In Muniz, the defendant, Muniz, appealed the sentence that resulted from a conviction of second offense OAR/OAS, in violation of Wis. Stat. § 343.44(1). imposition 181 Wis. of 2d at criminal 930. Muniz penalties argued under that Wis. the Stat. § 343.44(2)(b)1 was improper because the suspension that formed the basis for forfeiture. the OAR/OAS charge was for failure to pay a The court of appeals agreed, stating that Id. "[b]ecause we conclude that the only suspension in effect at the time of the current violation was imposed solely for failure to pay a forfeiture, even operating privileges expired, Muniz after should § 343.44(2)(b)2." ¶63 though Muniz failed another have to reinstate suspension been period sentenced his had under Id. (emphasis added). After Muniz, the court of appeals decided the case of State v. Doyen, 185 Wis. 2d 635, 518 N.W.2d 321 (Ct. App. 1994). In Doyen, a group of five defendants claimed that they were not subject to the mandatory minimum (criminal) penalties under Wis. Stat. § 343.44(2g) for their OAR/OAS violations because their suspensions (OWI) had for operating expired by the a motor time 6 vehicle each while committed intoxicated the OAR/OAS No. offense. that 185 Wis. 2d at 638. claim, concluding that 99-3142.npc The court of appeals rejected the phrase "[n]o person whose operating privilege has been duly revoked or suspended pursuant to the laws of this state shall operate a motor vehicle upon any highway in this state during such suspension or revocation or thereafter . . ." in Wis. Stat. § 343.44(1) meant that a suspension or revocation is not limited to the initial courtordered period of suspension Id. at 641. offense. or revocation for the specific With respect to four of the defendants' suspensions for OWI, the phrase "or thereafter" meant that the suspensions continued assessment order. defendant, classified until Id. at as they complied 642. an With HTO, the with respect phrase an to "or alcohol the fifth thereafter" meant that the defendant's suspension for OWI continued because the OWI conviction, in conjunction with other convictions, established her as an HTO and led to the revocation of her license. The court also noted that the operating privilege after an OWI conviction is not "automatically reinstated after the lapse of a specific time period." ¶64 Id. at 642-43. The result in Doyen is consistent with the court of appeals decision in State v. Kniess, 178 Wis. 2d 451, 504 N.W.2d 122 (Ct. App. 1993). In that case, the defendant, Kniess, claimed that the State could not impose criminal penalties for his sixth offense of OAR/OAS, because the revocation that was the basis for the charge was only for a failure to pay a fine or forfeiture. State v. Kniess, 178 Wis. 2d 451, 452, 504 N.W.2d 122 (Ct. App. 1993). The court of appeals reiterated the rule 7 No. from Biljan that criminal penalties are 99-3142.npc appropriate for an OAR/OAS violation, if the suspension in effect at the time of the OAR/OAS conjunction violation with, forfeiture.'" the was imposed "'for defendant's other failure to than, pay a or in fine or Id. at 455 (quoting Biljan, 177 Wis. 2d at 20). Because the HTO suspension (actually revocation) was imposed on Kniess for reasons other than the failure to pay a fine or forfeiture, the court of appeals concluded that criminal sanctions were appropriate for his OAR/OAS conviction. ¶65 I conclude that the reasoning of Doyen, Kniess, and Biljan, rather than Muniz, which is not applicable, controls the result of the present case. A person such as Hanson, suspended as a result of VOR convictions, is not automatically reinstated. At the time of the offense for OAR/OAS, Hanson had neither been reinstated after the suspension resulting from the VOR convictions, nor had he sought rescission of his HTO status. Therefore, Hanson's suspension resulting from the VOR convictions continued during his revocation as an HTO. ¶66 Consequently, consistent with Doyen, Kniess, and Biljan, the civil penalty requirement for a violation of Wis. Stat. § 343.44(1), set forth § 343.44(2)(b)2, is not satisfied in the present case. Hanson's failure OAR/OAS to The suspension that is the basis for violation pay a fine or was not forfeiture; resulted from the VOR convictions. reinstated his rescission of driving his HTO imposed privileges, status on 8 solely rather, the for the suspension In addition, Hanson had not nor the had date he of applied the for offense. No. Accordingly, criminal sanctions were appropriate 99-3142.npc for Hanson's OAR/OAS conviction. ¶67 While his revocation as an HTO provided yet another basis, when Circuit Judge John P. Hoffmann convicted Hanson on the record of the offense of OAR/OAS, and when the written Judgment of Conviction and Sentence was entered, no mention was made of Hanson's HTO status. (Plea Hr'g at 11-12 and Record at 10-1). ¶68 From a thorough review of the transcript of the plea hearing and of the record, it becomes quite clear, however, that Hanson's conviction and sentence were based on the fact of prior convictions for OAR/OAS within a five-year period, his suspension resulting from the VOR convictions, and his lack of reinstatement. His HTO status on the date of the offense, at a time when he had made no application for rescission, provided an additional factor. ¶69 In my opinion, the contention of the majority that a remand is necessary (majority op. at ¶43) ignores the record before this court as discussed herein. In addition to what has already been noted, it ignores the concession of Assistant State Public Defender Suzanne C. O'Neill that the charge that Hanson faced was ignores a criminal the charge information (Plea provided Hr'g by at the 11) plea and further questionnaire completed by Hanson and his attorney. ¶70 Hanson's From HTO sentencing. the face status was of that not document, expected to it play is clear any that role at Under maximum penalty, there is an entry of "$2500 9 No. + 1 Yr Jail." (Record at 8-1). 99-3142.npc Among other entries initialed with approval by Hanson there were the following: "I am giving up my right to raise any defense I may have to these charges and to have another court review any non-jurisdictional defects in these proceedings. If the judge accepts my plea, I can be found guilty of the criminal charge(s) to which I am pleading." ¶71 Id. Thorough review of the entire record makes it clear that the conviction of Hanson under Wis. Stat. § 343.44(1) made him subject to the criminal penalties provided in Wis. Stat. § 343.44(2)(b)-(e). He received a sentence well maximum penalties provided by those provisions. conviction had been for a second, rather within the Even if his than a fifth, conviction within a five-year period, his sentence would have See Wis. Stat. been a valid one within the maximums provided. § 343.44(2)(b)1. ¶72 under Clearly, such Wis. Stat. circumstances. § 973.13 The has circuit no court applicability had criminal subject-matter jurisdiction over Hanson, and, in addition, he waived all non-jurisdiction defects and defenses by entry of his plea of no contest. penalty in excess The circuit court did not impose "a maximum of that to the authorized by law." Wis. Stat. § 973.13. ¶73 Contrary statement of the majority opinion (majority op. at ¶43), the State did argue, both in its brief and during violation of oral Wis. argument, Stat. that § 343.44 criminal are penalties appropriate, for when a the suspension or revocation in effect at the time of the OAR/OAS 10 No. 99-3142.npc offense is based on grounds other than the failure to pay a fine or forfeiture, relying on State v. Kniess, 178 Wis. 2d 451, 504 N.W.2d 122 (Ct. App. 1993). (State's Br. at 14-15). The State claimed that Hanson admitted that the predicate suspensions to the OAR/OAS charge were not based solely on the failure to pay a fine or forfeiture. Id. In addition, the State noted that Hanson was suspended in April, 1996, for VOR. Id. at 15. The State claimed that this suspension established that a portion of the predicate suspensions to the OAR/OAS offense were imposed solely for failure to pay a fine or forfeiture. not Id. The State argued that, as a result, Hanson was subject to a criminal penalty, regardless of the HTO penalty enhancer. ¶74 the Id. This case was correctly decided based on the record, Wisconsin jurisdiction, Constitution, and the waiver the case law doctrine. on I subject-matter would, therefore, affirm the decision of the court of appeals, and, therefore the conviction of Hanson for OAR/OAS, since it is clear that his violation on therefore, October criminal 31, 1998, was sanctions could a criminal be, and offense, were, and, properly imposed. ¶75 For the foregoing reasons, I respectfully dissent. ¶76 I am authorized to state that Justice JON P. WILCOX and Justice DAVID T. PROSSER join this dissent. 11 No. 1 99-3142.npc

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