State v. Chamblis

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Justia Opinion Summary

Defendant pleaded guilty to operating with a prohibited alcohol concentration (PAC), sixth offense. The circuit court sentenced Defendant to four years' imprisonment. The State appealed, arguing that the circuit court erred by excluding additional evidence that the State sought to submit to prove that Defendant possessed six, rather than five, prior drunk-driving related convictions. The court of appeals reversed the judgment of conviction, concluding that the circuit court erred in excluding the additional evidence and that the evidence was sufficient to prove the additional prior conviction. The remanded with instructions to enter an amended judgment of conviction for operating with a PAC as a seventh offense and to impose a sentence accordingly. The Supreme Court reversed the court of appeals and upheld Defendant’s conviction, holding that because a conviction of operating a PAC as a seventh offense carries a greater range of punishment than does a sixth offense, the court of appeals’ remedy rendered Defendant’s plea unknowing, unintelligent, and involuntary. Further, a remedy that requires a defendant to withdraw his guilty plea is violative of due process.

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2015 WI 53 SUPREME COURT CASE NO.: COMPLETE TITLE: OF WISCONSIN 2012AP2782-CR State of Wisconsin, Plaintiff-Appellant-Cross-Respondent, v. Andre M. Chamblis, Defendant-Respondent-Cross-AppellantPetitioner. REVIEW OF A DECISION OF THE COURT OF APPEALS (Reported at 354 Wis. 2d 622, 848 N.W.2d 903) (Ct. App. 2014 – Unpublished) OPINION FILED: SUBMITTED ON BRIEFS: ORAL ARGUMENT: SOURCE OF APPEAL: COURT: COUNTY: JUDGE: JUSTICES: CONCURRED: DISSENTED: NOT PARTICIPATING: June 12, 2015 March 3, 2015 Circuit La Crosse Elliott M. Levine ZIEGLER, J. concurs. (Opinion Filed.) ATTORNEYS: For the defendant-respondent-cross-appellant-petitioner, there were briefs by Steven W. Zaleski and Zaleski Law Firm, Madison, and oral argument by Steven W. Zaleski. For the plaintiff-appellant-cross-respondent, the cause was argued by Michael C. Sanders, assistant attorney general, with whom on the brief was Brad D. Schimel, attorney general. 2015 WI 53 NOTICE This opinion is subject to further editing and modification. The final version will appear in the bound volume of the official reports. No. 2012AP2782-CR (L.C. No. 2011CF644) STATE OF WISCONSIN : IN SUPREME COURT State of Wisconsin, Plaintiff-Appellant-Cross-Respondent, FILED v. JUN 12, 2015 Andre M. Chamblis, Defendant-Respondent-Cross-AppellantPetitioner. Diane M. Fremgen Clerk of Supreme Court REVIEW of a decision of the Court of Appeals. ¶1 pleaded N. PATRICK guilty concentration to (PAC) CROOKS, J. operating as a sixth Stat. § 346.63(1)(b) (2011-12).1 Andre with Chamblis a offense Reversed. (Chamblis) prohibited in violation alcohol of Wis. Prior to accepting the plea, the circuit court2 informed Chamblis that the offense constituted 1 All references to the Wisconsin Statutes are to the 201112 version unless otherwise indicated. 2 La Crosse presiding. County, the Honorable Elliott M. Levine, No. 2012AP2782-CR a Class H felony which carried a minimum penalty of 6 months imprisonment and a $600 fine and a maximum penalty of 6 years imprisonment (three years confinement and three years extended supervision) and a $10,000 fine. 939.50(3)(h)., Wis. Stat. §§ 346.65(2)(am)5., 973.01(2)(b)8. The circuit court ultimately sentenced Chamblis to four years imprisonment comprised of two years confinement and two years extended supervision. ¶2 argued The State appealed the judgment of conviction. that evidence the the circuit State court sought to erred by excluding submit to prove It additional that Chamblis possessed a sixth prior drunk-driving related conviction. Had the circuit court admitted the evidence and found it sufficient to establish the alleged prior conviction, Chamblis would have faced the decision to plead guilty to the charge of operating with a PAC as a seventh offense. That offense constituted a Class G felony and would have subjected Chamblis to an increased range of punishment. Wis. Stat. § 346.65(2)(am)6. Specifically, the minimum penalty for a seventh offense was a term of imprisonment that included three years confinement and a period of extended supervision. years imprisonment extended (five supervision) Id. years and a The maximum penalty was 10 confinement $25,000 and fine. five years Wis. Stat. §§ 973.01(2)(b)7., 939.50(3)g. ¶3 erred The court of appeals agreed that the circuit court in excluding the additional evidence. It further determined that the evidence was sufficient to prove the alleged prior conviction. As a result, the court of appeals reversed 2 No. 2012AP2782-CR the judgment of conviction and remanded the case to the circuit court with instructions to enter an amended judgment of conviction for operating with a PAC as a seventh offense and impose sentence for a seventh offense.3 ¶4 first This case presents two issues for our review. is whether additional the evidence circuit the court State erred sought to in The excluding submit to the enhance Chamblis's punishment on the basis that the State offered the evidence "too appeals' remedy rendering late." his The violates guilty second is Chamblis's plea whether right unknowing, to the due court of process by unintelligent, and involuntary. ¶5 We assume, without deciding, that the circuit court erred in excluding the additional evidence the State sought to submit to enhance Chamblis's punishment. ¶6 Although we assume error, we hold that the court of appeals' decision remanding the case to the circuit court with instructions to enter an amended judgment of conviction for operating with a PAC as a seventh offense and impose sentence for a seventh offense violates Chamblis's right to due process. Chamblis entered a knowing, intelligent, and voluntary guilty plea to operating seventh offense. with a PAC as a sixth offense, not as a Because a seventh offense carries a greater range of punishment than does a sixth offense, the court of 3 State v. Chamblis, No. 2012AP2782-CR, unpublished order (Wis. Ct. App. May 29, 2014). 3 No. appeals' remedy unintelligent, renders and Chamblis's involuntary. We 2012AP2782-CR plea further unknowing, conclude that a remedy which requires Chamblis to withdraw his guilty plea is fundamentally unfair and thus violative of due process under the facts of this case. ¶7 Accordingly, we reverse the decision of the court of appeals and uphold Chamblis's conviction. I. FACTS AND PROCEDURAL HISTORY ¶8 On November 22, 2011, Chamblis was arrested on suspicion of operating a vehicle while under the influence of an intoxicant (OWI) in La Crosse. The criminal complaint, dated November 30, 2011, charged Chamblis with the following: (1) OWI as a fifth or sixth offense and as a repeater contrary to Wis. Stat. § 346.63(1)(a); (2) operating with a PAC as a fifth or sixth offense and as a repeater contrary to Wis. Stat. § 346.63(1)(b); and (3) obstructing an officer as a repeater contrary to Wis. Stat. § 946.41(1).4 The criminal complaint alleged that Chamblis possessed five prior drunk-driving related 4 On April 10, 2012, Chamblis was also charged with battery by prisoner contrary to Wis. Stat. § 940.20(1). The State filed that charge in a separate action in La Crosse County. 4 No. convictions from Minnesota for the purpose 2012AP2782-CR of penalty enhancement under Wis. Stat. § 346.65(2)(am).5 ¶9 In January 2012, the circuit court granted the State's motion to amend the information6 to charge Chamblis with OWI as a seventh, eighth, or ninth offense and as a repeater, and operating with a PAC as a seventh, eighth, or ninth offense and as a repeater. The State claimed that Chamblis had two prior drunk-driving related convictions from Illinois in addition to the five from Minnesota and submitted documentation to that effect. ¶10 the On August 6, 2012, Chamblis filed a motion challenging purported relevant here. Illinois convictions First, he on argued two that grounds the two that are alleged convictions should be counted as one conviction because they stemmed from the same incident. Second, he contended that the 5 Under Wis. Stat. § 346.65(2)(am), repeated violations of drunk-driving related offenses are subject to increasingly severe penalties. "This graduated penalty structure is nothing more than a penalty enhancer similar to a repeater statute which does not in any way alter the nature of the substantive offense, i.e., the prohibited conduct, but rather goes only to the question of punishment." State v. McAllister, 107 Wis. 2d 532, 535, 319 N.W.2d 865 (1982). The penalty range for operating with a PAC as a fifth or sixth offense is less severe than the penalty range for a seventh offense. See Wis. Stat. § 346.65(2)(am)5.-6. 6 "The information is the accusatory pleading under our criminal system to which the defendant must plead and stand trial . . . ." Pillsbury v. State, 31 Wis. 2d 87, 93, 142 N.W.2d 187 (1966). 5 No. State had offered insufficient documentation 2012AP2782-CR to prove the purported convictions. ¶11 The circuit court held a hearing on Chamblis's motion on September 12, 2012. alleged Illinois conviction. evidence of The circuit court agreed that the two convictions should be treated as one However, it determined that the State's proffered the purported conviction——an Illinois driver's abstract——was insufficient to establish that Chamblis had been convicted of a drunk-driving related offense in Illinois. In rendering its decision, the circuit court recognized that "we are not at sentencing" and "there could be further proof that comes up." It informed the prosecutor that if "more evidence is supplied . . . we will review it at that point in time . . . ." ¶12 At the final pretrial hearing on September 14, 2012, the parties informed the circuit court that Chamblis wished to enter a guilty plea. Neither the parties nor the circuit court raised the issue of the disputed Illinois conviction. the State intended to request a presentence Because investigation report, the circuit court did not schedule a sentencing hearing to go along with the plea date. ¶13 2012. Chamblis's plea hearing took place on September 19, The parties advised the circuit court that Chamblis planned to enter a guilty plea to operating with a PAC as a fourth offense "or greater" without a repeater.7 7 Chamblis was As part of the plea agreement, the State agreed to dismiss the charges of OWI as a repeater, obstructing an officer as a repeater, and battery by prisoner (from the related case). 6 No. 2012AP2782-CR willing to admit to the five prior convictions from Minnesota but continued to dispute the alleged conviction from Illinois. Accordingly, a question remained whether Chamblis would face the penalty range for operating with a PAC as a sixth offense or as a seventh offense upon conviction. ¶14 Recognizing the uncertainty regarding Chamblis's potential punishment, defense counsel stated on the record the minimum and maximum penalties for both offenses. Defense counsel then expressed his confusion with handling the plea in such a manner. This prompted the circuit court to inquire into the status of the alleged Illinois conviction. explained that he had obtained additional The prosecutor information from Illinois and that he planned to submit an offer of proof prior to sentencing. Defense counsel objected to the State offering the new evidence at that point in the proceedings. ¶15 The attempting to circuit offer court the determined additional that evidence the "too State was late." It reasoned that Chamblis could not enter a knowing, intelligent, and voluntary minimum and guilty maximum plea without penalties understanding associated the with precise the plea. Determining that it was unfair to put off the plea date, the circuit court declared that discovery was "done." It noted that the case had "been set for trial a long time"; that the issue concerning proof of the purported 7 Illinois conviction "was No. 2012AP2782-CR flagged a long time ago"8; and that the issue prevented the parties from resolving the case "in a way that would have made more sense months ago . . . ." As a result of its decision, the circuit court indicated that it would accept a plea only to the lower charge of operating with a PAC as a sixth offense. ¶16 anyway. ensure The State chose to go through with the plea agreement The circuit court then personally addressed Chamblis to that he understood implications of the plea. the nature of the charge and the It began by asking whether Chamblis understood the plea agreement "at this point in time," to which Chamblis responded "I do now, sir." The circuit court proceeded to explain the minimum and maximum penalties commensurate with a conviction for operating with a PAC as a sixth offense. Upon accepting the plea, the circuit court sentenced Chamblis to four years imprisonment comprised of two years confinement and two years extended supervision. ¶17 court of excluding The State appealed the judgment of conviction. appeals the determined State's that additional the circuit evidence court for two erred The in reasons. First, this court's decisions in State v. McAllister, 107 Wis. 2d 532, 539, 319 N.W.2d 865 (1982), and State v. Wideman, 206 Wis. 2d 91, 104-05, 556 N.W.2d 737 (1996), provide a general rule that prior drunk-driving related convictions must be proved 8 Although Chamblis did not file his motion challenging the sufficiency of the evidence of the purported Illinois conviction until August 6, 2012, the transcript from the plea hearing indicates that defense counsel raised the issue with the State months earlier. 8 No. before sentencing. Second, the circuit 2012AP2782-CR court "explicitly invited" the State to bring forth additional evidence of the alleged Illinois conviction prior to sentencing. appeals further concluded that the The court of additional evidence sufficiently established that Chamblis had been convicted of a drunk-driving related offense in Illinois. ¶18 judgment court Consequently, the court of and remanded with conviction instructions to enter of appeals reversed the case to an amended the the circuit judgment of conviction for operating with a PAC as a seventh offense and impose sentence for a seventh offense. In fashioning its remedy, the court of appeals rejected Chamblis's contention that such relief would violate his constitutional right to due process by rendering his guilty plea unknowing, unintelligent, and involuntary.9 The court of appeals reasoned that Chamblis was "aware both of the 'specific penalty' he faced if convicted of operating with a PAC as a seventh offense, and that he faced this possible punishment if the State succeeded in proving the purported Illinois conviction." ¶19 We granted Chamblis's petition for review. II. STANDARD OF REVIEW ¶20 We are asked to decide whether the circuit court erred in excluding the additional evidence the State sought to submit 9 The court of appeals also dismissed Chamblis's second argument that the remedy violated his constitutional right to be free from double jeopardy, reasoning that it was underdeveloped. We did not accept Chamblis's petition for review on that issue. 9 No. at Chamblis's plea hearing. 2012AP2782-CR We review that decision under the erroneous exercise of discretion standard. Martindale v. Ripp, 2001 WI 113, ¶28, 246 Wis. 2d 67, 629 N.W.2d 698. "In making evidentiary rulings, the circuit court has broad discretion." Id. "As with other discretionary determinations, this court will uphold circuit legal a court decision examined standard, and, to admit the relevant using a exclude facts, evidence applied demonstrated reached a reasonable conclusion." ¶21 or if a rational the proper process, Id. We are also asked to determine whether the court of appeals' remedy in this case violates Chamblis's right to due process by rendering his guilty plea unknowing, unintelligent, and involuntary. fact. State v. Bollig, 2000 WI 6, ¶13, 232 Wis. 2d 561, 605 N.W.2d 199. historical the "We will not upset the circuit court's findings of or erroneous." of This presents a question of constitutional evidentiary Id. facts unless they are clearly "We review constitutional issues independently determinations court of appeals." rendered by the circuit court and the Id. III. DISCUSSION ¶22 Both issues in this case require us to examine the legal principles fundamental to guilty pleas. Accordingly, we begin by discussing the constitutional standard that a guilty plea be affirmatively voluntary. We court in erred then shown to be proceed to consider excluding the knowing, additional intelligent, whether evidence sought to submit to enhance Chamblis's punishment. 10 the and circuit the State We assume No. without deciding that the decision was error. 2012AP2782-CR We next address whether the court of appeals' remedy violates Chamblis's right to due process unintelligent, Finally, we withdraw by and explain his guilty rendering guilty plea involuntary, concluding that why which a plea his remedy is requires fundamentally unknowing, it does. Chamblis unfair and to thus violative of due process under the facts of this case. A. Analytical Framework ¶23 Since "[s]everal federal constitutional rights are involved in a waiver that takes place when a plea of guilty is entered in a state criminal trial," Boykin v. Alabama, 395 U.S. 238, 243 (1969), fundamental due process requires that a plea be knowing, intelligent, and voluntary. 70, ¶16, 326 Wis. 2d 492, 786 State v. Cross, 2010 WI N.W.2d 64. A defendant contemplating a guilty plea must possess "sufficient awareness of the relevant circumstances and likely consequences." v. United States, 397 U.S. 742, 748 (1970). Brady Relevant circumstances include the nature of both the charge to which the defendant is pleading and the constitutional rights he or she is waiving. State v. Van Camp, 213 Wis. 2d 131, 139-40, 569 N.W.2d 577 (1997). constitutional In this case, however, we are concerned with the requirement that defendants "'direct consequences' of their pleas." understand the Bollig, 232 Wis. 2d 561, ¶16 (quoting Brady, 397 U.S. at 755). ¶24 "A direct consequence represents one that has a definite, immediate, and largely automatic effect on the range of defendant's punishment." Id. 11 "Matters concerning the nature No. 2012AP2782-CR of the sentence that could be imposed are most likely to be viewed as direct consequences." Procedure general § 21.4(d), practice is 817 to (3d 5 Wayne R. LaFave, Criminal ed. advise 2007). defendants of maximum penalties associated with a plea. v. Erickson, 53 Wis. 2d 474, 479-80, Accordingly, the the minimum and Id.; see also State 192 N.W.2d 872 (1972) (discussing the importance of informing the defendant of the maximum penalty possible upon entry of a plea); State v. Mohr, 201 Wis. 2d 693, 700, 549 N.W.2d 497 (Ct. App. 1996) (holding that circuit courts must advise defendants of the presumptive minimum sentence associated with a plea). ¶25 A defendant's failure to understand the precise maximum punishment is not necessarily a due process violation. Cross, process 326 Wis. 2d violation 492, ¶37 where (holding the sentence that there is communicated no to due the defendant is higher, but not substantially higher, than that authorized by law). However, "when the defendant is told the sentence is lower than the amount allowed by law, a defendant's due process rights are at greater risk . . . ." Id., ¶39. Indeed, this court has previously recognized that "[c]oncepts of fundamental fairness require that a defendant not receive a greater sentence of imprisonment than that which he was told he could receive on pleading guilty." 62, 76, Inst., 248 927 N.W.2d F.2d 425 256, (1977); 259 (6th Garski v. State, 75 Wis. 2d accord Cir. Hart 1991) v. Marion (holding Corr. that the defendant's due process rights were violated when he was given a 12 No. 2012AP2782-CR sentence higher than that which he believed to be the maximum when he pleaded guilty). ¶26 To ensure that a guilty plea is knowing, intelligent, and voluntary, Wis. Stat. § 971.08, State v. Bangert, 131 Wis. 2d 246, 389 N.W.2d 12 (1986), and subsequent certain procedural duties on circuit courts. cases impose State v. Brown, 2006 WI 100, ¶23, 293 Wis. 2d 594, 716 N.W.2d 906. In Brown, we reiterated that one of those duties is to notify the defendant of the direct consequences of his or her plea. Id., ¶35. Relatedly, we explained that circuit courts must "[e]stablish the defendant’s understanding of the . . . range of punishments to which he is subjecting himself by entering a plea . . . ." Id. (citing Bangert, § 971.08(1)(a)). 132 Wis. 2d at 262; Wis. Stat. However, a circuit court's failure to comply with the above duties is not a per se due process violation, as it is possible that the defendant may learn of the implications of his or her plea from another source. 2d at 272-76. circumstances That is why we consider the totality of the in determining voluntary nature of a plea. ¶27 its the knowing, intelligent, and Id. at 258. The bottom line is that a plea made in ignorance of direct voluntary. See Bangert, 131 Wis. consequences is not knowing, intelligent, and In such situations, the plea "has been obtained in violation of due process and is therefore void." United States, 394 U.S. 459, 466 (1969). B. Error 13 McCarthy v. No. ¶28 We now turn to consider whether the 2012AP2782-CR circuit court erred in excluding the additional evidence the State sought to submit to prove that Chamblis possessed a sixth prior drunkdriving related conviction for the purpose of increasing his punishment. As noted, the circuit court determined that the additional evidence was untimely. (1) Chamblis could not enter Its reasoning was two-fold: a knowing, intelligent, and voluntary guilty plea without understanding the precise minimum and maximum penalties associated with the plea; and (2) it was unfair to put off the plea date given the State's action in delaying the proceedings The parties by failing to obtain the evidence sooner. ¶29 focus their arguments on whether the circuit court mistakenly believed it needed to determine the number of prior convictions that would count toward sentencing before accepting Chamblis's guilty plea. ¶30 Chamblis argues that in the context of a guilty plea a circuit court must determine the number of prior convictions that will count toward sentencing before accepting the plea. According to Chamblis, this is to ensure that a defendant understands the direct consequences of his or her plea. support his position, Chamblis notes that under Wis. To Stat. § 346.65(2)(am), the number of prior convictions influences the severity of a defendant's punishment for operating with a PAC. ¶31 prove The State contends that it has until sentencing to the prior convictions, citing McAllister and Wideman for support. 14 to our decisions in It also argues that the No. 2012AP2782-CR statutory scheme governing the penalties for operating with a PAC requires that a circuit court determine the number of prior convictions at the time of sentencing, once a defendant has pleaded guilty or no contest or been found guilty at trial. Where a defendant wishes to enter a guilty plea and disputes the number of prior convictions, the State maintains that a circuit court could simply advise the defendant of the different ranges of punishment that he or she might face depending on how the issue is resolved. could have operating For example, in this case, the circuit court informed with a Chamblis PAC as a of the sixth range offense of penalties and as a for seventh offense. ¶32 The circuit court correctly recognized that there are situations in which a determination of prior convictions for sentence enhancement should be made before accepting a guilty plea in order to ensure the knowing, intelligent, and voluntary nature of the plea. In a case like this one, where the defendant disputes the number of prior convictions and the issue affects the range of punishment he faces upon conviction, the better practice is to determine the number of prior convictions before accepting the plea. This assures that a defendant understands the direct consequences of his or her plea. ¶33 a Our decisions in McAllister and Wideman do not compel different conclusion. In McAllister, we held that prior violations of Wis. Stat. § 346.63(1) are not "elements of the crime of driving or operating a motor vehicle while under the influence of an intoxicant or a controlled substance, thereby 15 No. 2012AP2782-CR requiring that the question of their existence be submitted to the jury." McAllister, 107 Wis. 2d at 532-33. In Wideman, we concluded that the requirements for establishing prior offenses set forth in Wis. Stat. § 973.12(1), the general repeat offender statute, are not applicable to establishing prior offenses under Wis. Stat. § 346.65(2), the OWI/PAC penalty enhancement statute. Wideman, 206 Wis. 2d at 94-95. In both cases, we made general statements supporting the proposition that the State may prove prior drunk-driving related convictions for sentence enhancement "before sentencing" or "at sentencing." See McAllister, 107 Wis. 2d at 539; Wideman, 206 Wis. 2d at 108. McAllister and Wideman, the defendant was However, in both convicted after a trial in which the State did not need to prove the prior drunkdriving related convictions substantive charge. to meet the elements of McAllister, 107 Wis. 2d at 532-33. the Thus, McAllister and Wideman are inapposite, as neither case dealt with the constitutional considerations that are at stake where a defendant wishes to enter a guilty plea and disputes the number of prior convictions that will count toward enhancing his or her punishment. ¶34 operating either. The with statutory a PAC scheme does not governing undermine the our penalties for determination The State argues that the plain language of Wis. Stat. §§ 343.307(1)10 and 346.65(2)(am)611 provides that the time for 10 Wisconsin Stat. convictions, suspensions, offenses," provides: § 343.307(1), or revocations 16 entitled "Prior to be counted as No. 2012AP2782-CR (1) The court shall count the following to determine the length of a revocation under s. 343.30(1q)(b) and to determine the penalty under ss. 114.09(2) and 346.65(2): (a) Convictions for violations under s. 346.63(1), or a local ordinance in conformity with that section. (b) Convictions for violations of a law of a federally recognized American Indian tribe or band in this state in conformity with s. 346.63(1). (c) Convictions for violations under s. 346.63(2) or 940.25, or s. 940.09 where the offense involved the use of a vehicle. (d) Convictions under the law of another jurisdiction that prohibits a person from refusing chemical testing or using a motor vehicle while intoxicated or under the influence of a controlled substance or controlled substance analog, or a combination thereof; with an excess or specified range of alcohol concentration; while under the influence of any drug to a degree that renders the person incapable of safely driving; or while having a detectable amount of a restricted controlled substance in his or her blood, as those or substantially similar terms are used in that jurisdiction's laws. (e) Operating privilege suspensions or revocations under the law of another jurisdiction arising out of a refusal to submit to chemical testing. (f) Revocations under s. 343.305(10). (g) Convictions for violations under s. 114.09(1)(b)1. or 1m. 11 Wisconsin Stat. § 346.65(2)(am)6 provides that "any person violating s. 346.63(1) . . . is guilty of a Class G felony if the number of convictions under ss. 940.09(1) and 940.25 in the person's lifetime, plus the total number of suspensions, revocations, and other convictions counted under s. 343.307(1), equals 7, 8, or 9 . . . ." 17 No. counting the number of prior convictions 2012AP2782-CR for sentence enhancement is at sentencing, once there has been a conviction for the underlying offense. Under the State's interpretation, there will be instances in which a defendant enters a guilty plea without decision. which the understanding Specifically, court accepting the defendant how does plea, many the the not the direct State impose court convictions consequences reasons, sentence cannot will "[i]n a counted that case immediately definitely be of in after tell the because, the court cannot know how many convictions the defendant will have at the time of sentencing." ¶35 We see nothing in the plain language of Wis. Stat. §§ 343.307(1) and 346.65(2)(am)6 that prevents a circuit court from determining the number of prior convictions that will count toward sentencing prior to accepting a plea in order to ensure the knowing, intelligent, and voluntary nature of the plea. further note that the State's interpretation constitutional concerns that we wish to avoid. We raises See Am. Family Mut. Ins. Co. v. Wisconsin Dep't of Revenue, 222 Wis. 2d 650, 667, 586 N.W.2d interpretation is 872 (1998) that the ("A cardinal legislature 18 rule intended of to statutory adopt a No. 2012AP2782-CR constitutional statute and that a court should preserve a law and hold it constitutional when possible.").12 ¶36 We acknowledge the State's contention that in a case like this one, a circuit court could ensure that a defendant understands the direct consequences of his or her plea by informing the defendant of the different ranges of punishment that are possible depending on how many prior convictions the State later establishes. While that approach may be constitutionally permissible in a particular case, we note that the penalty ranges could vary dramatically depending number of prior convictions the defendant disputes. Stat. § 346.65(2)(am)1.-7. on the See Wis. For that reason, the better practice in this type of situation is to determine the number of prior convictions that will count toward sentencing prior to accepting the plea. ¶37 Although we conclude that the circuit court correctly recognized the need to determine the number of prior convictions before accepting Chamblis's guilty plea, the question remains whether the circuit court reasonably excluded the State's additional evidence of the purported Illinois conviction after explicitly welcoming the evidence a week earlier. 12 In apparent recognition of the constitutional problems created by its statutory construction, the State suggests that "any problem that result[s] from counting convictions after entry of a guilty plea could be easily remedied by a motion to withdraw the plea." But as discussed in section C(ii) below, a defendant may not wish to withdraw his or her guilty plea, and requiring the defendant to do so raises its own constitutional concerns. 19 No. ¶38 At the motion hearing on September 2012AP2782-CR 12, 2012, the circuit court made several statements indicating that it would consider additional evidence of the alleged Illinois conviction if the State came up with anything. Two days later, at the final pre-trial hearing, the parties informed the circuit court that Chamblis wished to enter a guilty plea. Notwithstanding the circuit court's inclination to determine the number of prior convictions that would count toward sentencing before accepting the plea, there was no discussion of the status of the purported Illinois conviction. the prosecutor Under these circumstances, we can see why thought he had time to submit the additional evidence. ¶39 That said, our review of the plea hearing transcript indicates that the circuit court was extremely frustrated with the manner in which the State prosecuted this case. explained at the outset of this opinion, the As we issue of the alleged Illinois conviction appeared to delay the resolution of this matter. circuit Given the situation presented, we understand the court's desire to move the case forward and Chamblis's guilty plea at the September 19 hearing. assume, excluding without the deciding, State's that additional the circuit evidence court of the accept Thus, we erred in purported Illinois conviction. C. Remedy i. The court of appeals' remedy ¶40 Assuming error, we proceed to consider whether the court of appeals' remedy in this case——a remand to the circuit 20 No. court with instructions to enter an amended 2012AP2782-CR judgment of conviction for operating with a PAC as a seventh offense and impose sentence for a seventh offense——violates Chamblis's right to due process by rendering his guilty plea unknowing, unintelligent, and involuntary. ¶41 Chamblis argues that invalidates his guilty plea. the court of appeals' remedy He maintains that he entered a guilty plea to the charge of operating with a PAC as a sixth offense with an understanding that, as a direct consequence of his decision, he faced a maximum penalty of 6 years imprisonment and a $10,000 fine. He notes that the maximum penalty commensurate with a conviction for operating with a PAC as a seventh offense is more punitive: 10 years imprisonment and a $25,000 fine. appeals' Thus, remedy according renders his to Chamblis, guilty the plea court of unknowing, unintelligent, and involuntary, thereby violating his right to due process by subjecting him to a greater sentence of imprisonment than that which he was told he could receive upon pleading guilty. He further contends that it would be fundamentally unfair to resentence him because he has already served the confinement portion of his originally imposed sentence. ¶42 The State argues that the court of appeals' remedy does not invalidate Chamblis's guilty plea. According to the State, the court of appeals correctly determined that Chamblis understood that he could be sentenced for a seventh offense upon pleading guilty. The State further submits that it would not be 21 No. 2012AP2782-CR fundamentally unfair to resentence Chamblis consistent with a seventh offense because he knew the State would be appealing the circuit court's evidentiary ruling. Thus, the State maintains that Chamblis cannot reasonably claim an expectation of finality in his sentence. ¶43 remedy We in agree with this his rendering case guilty Chamblis violates plea that his the right court to unknowing, of due appeals' process unintelligent, by and involuntary. ¶44 The record clearly establishes that Chamblis entered a knowing, intelligent, and voluntary guilty plea to the charge of operating with a PAC as a sixth offense, not as a seventh offense. Initially, there was confusion regarding the direct consequences of Chamblis's plea: it was unclear whether Chamblis was pleading carrying a guilty maximum to a sixth punishment of offense——a 6 years Class H felony imprisonment and a $10,000 fine——or a seventh offense——a Class G felony carrying a maximum punishment of 10 years imprisonment and a $25,000 fine. However, the circuit court dispelled all confusion once it engaged Chamblis in the plea colloquy mandated by Wis. Stat. § 971.08. ¶45 At the outset of the plea colloquy, the circuit court clarified that it was proceeding with a plea to the charge of operating with a PAC as a sixth offense. whether he understood the plea agreement. do now, sir." It then asked Chamblis Chamblis responded "I The circuit court informed Chamblis that the plea carried a minimum penalty of 6 months imprisonment and a $600 22 No. 2012AP2782-CR fine and a maximum penalty of 6 years imprisonment and a $10,000 fine. Chamblis stated that he understood the penalty range and pleaded guilty. ¶46 Later in the plea colloquy, the circuit court ensured that Chamblis's plea was knowing, intelligent, and voluntary to the charge of operating with a PAC as a sixth offense: THE COURT: Is there anything about your case that you don't understand at this point? THE DEFENDANT: now, no, sir. I didn't [understand] at first, but THE COURT: Okay. You feel like you fully understand everything? THE DEFENDANT: Yes. THE COURT: And it's been sort of a complicated matter. Do you feel you have a clear understanding of what these issues are? THE DEFENDANT: Yes. THE COURT: Okay. Do you understand the Court's not bound by any sentencing recommendation or any other plea agreement or any arguments made by any of the attorneys at the time of sentencing? Do you understand that? THE DEFENDANT: Yes, sir. THE COURT: And in fact, upon your plea of guilty, the court may impose a maximum penalty in spite of any agreement? THE DEFENDANT: Yes, sir. Of course, referred the and maximum Chamblis penalty understood to was which that the circuit associated court with sixth offense: 6 years imprisonment and a $10,000 fine. plea colloquy therefore demonstrates 23 that Chamblis a The entered a No. knowing, intelligent, and voluntary guilty plea 2012AP2782-CR to operating with a PAC as a sixth offense, not as a seventh offense. ¶47 However, as noted, we are not confined to the plea colloquy in Rather, we evaluating consider Chamblis's the totality due of process the challenge. circumstances in determining the knowing, intelligent, and voluntary nature of his plea. Bangert, 131 Wis. 2d at 258. That means we consider other portions of the record to determine if Chamblis understood that, as a direct consequence of his plea, he could be sentenced for a seventh offense. ¶48 The court of appeals found significance in the fact that defense counsel had stated on the record the minimum and maximum penalties associated with with a PAC as a seventh offense. prior to would the accept offense. circuit a plea court's only a conviction for operating But these statements occurred explicit to the determination lower charge of that a it sixth In fact, as we indicated above, the record clearly establishes that Chamblis did not understand the direct consequences of his plea at the time in which these statements were made. That is precisely why we require the circuit court to personally engage the defendant in ascertaining the knowing, intelligent, and voluntary nature of a plea. Wis. 2d informed 594, ¶¶50-52. Chamblis that Given the that minimum the and See Brown, 293 circuit maximum court later penalties he faced were those commensurate with a sixth offense, it cannot reasonably be argued that defense 24 counsel's statements No. 2012AP2782-CR demonstrate that Chamblis's plea was knowing, intelligent, and voluntary to a seventh offense. ¶49 The court of appeals also found it important that the "Plea Questionnaire/Waiver of Rights" form indicated a maximum punishment consistent with a seventh imprisonment and a $25,000 fine. offense: 10 years However, similar to defense counsel's statements, the "Plea Questionnaire/Waiver of Rights" form is executed of the marginal form value a day to the before present his plea issue. Chamblis hearing amid the uncertainty regarding the direct consequences of his plea.13 We further note that the form did not list the minimum penalty corresponding to a seventh offense. This deficiency exemplifies why a plea questionnaire is not a substitute for the circuit court personally addressing the defendant to ensure that he or she understands the implications the plea. See id., ¶52. Put simply, the "Plea Questionnaire/Waiver of Rights" form, executed prior to the plea colloquy in this case, does not establish that Chamblis's plea was knowing, intelligent, and voluntary to a seventh offense. ¶50 Considering the totality of the circumstances, we conclude that Chamblis entered into a plea agreement with an understanding that the minimum penalty he could face was 6 months imprisonment and a $600 fine and the maximum penalty he could face was 6 years imprisonment and a $10,000 fine. 13 That The "Plea Questionnaire/Waiver of Rights" form is dated September 18, 2012. Chamblis’s plea hearing took place on September 19, 2012. 25 No. means Chamblis entered a knowing, intelligent, 2012AP2782-CR and voluntary guilty plea to operating with a PAC as a sixth offense, not as a seventh offense. Thus, the court of appeals' remedy which subjects Chamblis to a greater sentence of imprisonment than that which he was told he could receive upon pleading guilty violates his right to due process. ii. The State's proposed remedy ¶51 In its brief and at oral argument, the State argued that even if the court of appeals' remedy violates Chamblis's right to due process, the proper remedy is to allow Chamblis to withdraw his guilty plea. Drawing on Bangert, 131 Wis. 2d at 283, the State maintains that plea withdrawal is the exclusive remedy for a defendant's plea being unknowing, unintelligent, and involuntary. While that may be true where a defendant appeals his or her conviction seeking plea withdrawal, that is hardly the situation we have here. ¶52 for In Bangert, we set forth a burden-shifting procedure circuit courts to follow when faced with a defendant's motion to withdraw his or her guilty or no contest plea on the basis that it was not knowing, intelligent, and voluntary. See Bangert, not 131 Wis. 2d at 274-76. That procedure is implicated in the instant action because Chamblis neither filed a motion to conviction. withdraw his guilty plea nor appealed his Indeed, defense counsel made clear at oral argument that Chamblis does not wish to withdraw his guilty plea. ¶53 The State suggests that Chamblis should be required to withdraw his plea anyway. According to the State, Chamblis is 26 No. not entitled to conviction and sentence for a 2012AP2782-CR sixth offense because the evidence shows that he already possessed six prior drunk-driving related convictions plea in this case.14 that Chamblis when he entered his guilty Colloquially speaking, the State argues should not get a "free pass" on the circuit court's purported mistake. ¶54 We find it fundamentally unfair and thus violative of due process to require Chamblis to withdraw his guilty plea in this case.15 fairness." "[T]he concern such demands.'" due process is fundamental State ex rel. Lyons v. De Valk, 47 Wis. 2d 200, 205, 177 N.W.2d 106 (1970). for of procedural "'[D]ue process is flexible and calls protections as the particular situation Gilbert v. Homar, 520 U.S. 924, 930 (1997) (quoting Morrissey v. Brewer, 408 U.S. 471, 481 (1972)). ¶55 Here, we can think of at least a couple reasons that requiring Chamblis to withdraw his guilty plea is fundamentally unfair. First and foremost, forced plea withdrawal deprives Chamblis of the benefit of his bargain. "A criminal defendant has a constitutional right to the enforcement of a negotiated plea agreement." State v. Smith, 207 Wis. 2d 258, 271, 558 14 Chamblis did not appeal the portion of the court of appeals' decision that concluded the State had sufficiently proved the prior Illinois conviction. 15 In response to a question at oral argument, defense counsel maintained that Chamblis could not be required to withdraw his guilty plea without violating his constitutional right to be free from double jeopardy. We choose not to address that argument because it was not briefed by the parties. 27 No. N.W.2d 379 (1997). 2012AP2782-CR "'Although a defendant has no right to call upon the prosecution to perform while the agreement is wholly executory, once the defendant has given up his bargaining chip by pleading guilty, due process requires that the defendant's expectations be fulfilled.'" ¶56 Id. (citation omitted). A substantial number of plea bargains are "no doubt motivated at least in part by the hope or assurance of a lesser penalty than might be imposed if there were a guilty verdict after a trial to judge or jury." case is no different. Brady, 397 U.S. at 752. This Chamblis entered into the plea agreement with the hope that he would face a less severe penalty than if he went to trial. As noted, the State agreed to dismiss charges of OWI as a repeater, obstructing an officer as a repeater, and battery by prisoner in exchange for Chamblis's voluntary waiver of constitutional rights. plea and Thus, a forced plea withdrawal in this case subjects Chamblis to greater punishment, not just with respect to the charge of operating with a PAC, but to these unfair, additional particularly charges in as light well. of the That fact is that fundamentally Chamblis has already served the 2 year confinement portion of his originally imposed sentence and therefore has an expectation of finality in that sentence. ¶57 to avoid withdrawn Second, we note that the State was not without options this its dilemma. plea offer For in example, response the to State the could circuit have court's determination that it would accept a plea only to the lower charge. In fact, the circuit court went out of its way to give 28 No. 2012AP2782-CR the prosecutor and defense counsel an opportunity to discuss whether the State wished to proceed with the plea given the evidentiary ruling. The State then could have sought review of the circuit court's decision by filing a petition for leave to appeal a non-final order pursuant to Wis. Stat. § 808.03(2).16 However, the State chose to go through with the plea agreement anyway, despite the constitutional implications, perhaps because it too benefits from such a bargain. Id. ("For the State there are also advantages—the more promptly imposed punishment after an admission of guilt may more effectively attain the objectives of punishment; and with the avoidance of trial, scarce judicial and prosecutorial resources are conserved for those cases in which there is a substantial issue of the defendant's guilt or in which there is substantial doubt that the State can sustain its burden of proof."). 16 Wisconsin Stat. § 808.03(2) provides: Appeals by permission. A judgment or order not appealable as a matter of right under sub. (1) may be appealed to the court of appeals in advance of a final judgment or order upon leave granted by the court if it determines that an appeal will: (a) Materially advance the termination litigation or clarify further proceedings litigation; (b) Protect the petitioner irreparable injury; or (c) Clarify an issue of administration of justice. from general 29 of in substantial importance in the the or the No. ¶58 2012AP2782-CR For these reasons, we reject the State's contention that plea withdrawal is an appropriate remedy in this case. IV. CONCLUSION ¶59 We assume, without deciding, that the circuit court erred in excluding the additional evidence the State sought to submit to enhance Chamblis's punishment. ¶60 Although we assume error, we hold that the court of appeals' decision remanding the case to the circuit court with instructions to enter an amended judgment of conviction for operating with a PAC as a seventh offense and impose sentence for a seventh offense violates Chamblis's right to due process. Chamblis entered a knowing, intelligent, and voluntary guilty plea to operating seventh offense. with a PAC as a sixth offense, not as a Because a seventh offense carries a greater range of punishment than does a sixth offense, the court of appeals' remedy unintelligent, and renders Chamblis's involuntary. We plea further unknowing, conclude that a remedy which requires Chamblis to withdraw his guilty plea is fundamentally unfair and thus violative of due process under the facts of this case. ¶61 Accordingly, we reverse the decision of the court of appeals and uphold Chamblis's conviction. By the Court.—The decision reversed. 30 of the court of appeals is No. ¶62 ANNETTE KINGSLAND 2012AP2782-CR.akz J. (concurring). ZIEGLER, Although I join the majority opinion, I depart from the majority analysis because I would not assume without deciding that the circuit court erred by excluding the State's proffered evidence of two Illinois convictions. circuit court did not err exercise its discretion.1 Instead, I would conclude that the because it did not erroneously A circuit court's decision to admit or exclude evidence is "'entitled to great deference.'" Jackson, 2014 WI 4, ¶45, 352 Wis. 2d 249, 841 State v. N.W.2d 791 (quoting State v. Head, 2002 WI 99, ¶43, 255 Wis. 2d 194, 648 N.W.2d 413). "'This court will not disturb a circuit court's decision to admit or exclude evidence unless the circuit court erroneously Weborg v. exercised Jenny, its 2012 WI discretion.'" 67, ¶41, Id., 341 ¶43 (quoting Wis. 2d 668, 816 N.W.2d 191). 1 It is unclear why the majority opinion does not explicitly hold that the circuit court did not erroneously exercise its discretion. The court of appeals in the present case held "that the circuit court erroneously exercised its discretion when, at the September 19 plea hearing, it excluded the additional evidence of the purported Illinois conviction as 'too late.'" State v. Chamblis, No. 2012AP2782-CR, unpublished order, ¶21 (Wis. Ct. App. May 29, 2014). The court of appeals reasoned that the circuit court erred because, under State v. Wideman, 206 Wis. 2d 91, 556 N.W.2d 737 (1996), and State v. McAllister, 107 Wis. 2d 532, 319 N.W.2d 865 (1982), the State was not required to prove the number of Chamblis's prior convictions until the sentencing hearing. Id. The majority opinion rejects that view of Wideman and McAllister. Majority op., ¶¶31-33. Thus, the majority opinion seems to implicitly conclude that the circuit court did not err. 1 No. ¶63 State's At the request plea to hearing, submit the circuit additional 2012AP2782-CR.akz court evidence denied of the Illinois convictions at a later hearing, deeming this request "too late." The State made that request seven days after the circuit court held that the State's original evidence was insufficient, six weeks after Chamblis filed a motion challenging the State's evidence, and six months after the State learned that Chamblis was going to challenge its evidence. Ultimately, the circuit court reasoned that "this case has been set for trial a long time," the State "had plenty of time" to prove the number of Chamblis's prior convictions, delay the case any longer. and the court did not wish to Under the facts of this case, the circuit court's decision to exclude the proffered evidence was well within its discretion. A contrary conclusion not only raises concern regarding fairness and the ability of a defendant to knowingly, intelligently, and voluntarily plead but also, it neuters the court's ability to control the docket and calendar. In the case at issue the court correctly determined that the time had come for the parties to know the scope of the charges and the potential penalties. ability to allow circumstances, a While a court is endowed with the amendment circuit of court charges should under likewise appropriate have the discretion to say enough is enough, as the court did here. I. PROCEDURAL HISTORY ¶64 A discussion of the procedural history of this case demonstrates why the circuit court appropriately exercised its discretion when it excluded the State's after-the-fact, "last 2 No. second," proffer of evidence. 2012AP2782-CR.akz On November 22, 2011, Chamblis was arrested, he appeared at a bond hearing, and $5,000 cash bail was set. Unable to post bail, he remained in custody throughout this case. State filed appearance. a Eight days later, on November 30, the complaint and Chamblis made his initial The complaint charged Chamblis with operating while intoxicated ("OWI") (fifth or sixth offense) and operating with a prohibited offense). driving alcohol concentration ("PAC") (fifth or sixth The complaint alleged that he had five prior drunk convictions from Minnesota. On December 7, 2011, a preliminary examination was held and Chamblis was bound over for trial. At the end of the preliminary hearing, the State filed an information and Chamblis pled not guilty. contained the same charges as the complaint. The information Two days later, on December 9, Chamblis filed a demand for a speedy trial.2 ¶65 On December 12, 2011, the selection for February 27, 2012. court scheduled jury Sometime in mid- to late- December, the court scheduled a jury trial for March 2, 2012.3 On December 27 the State sent an e-mail to the circuit court, requesting that March 1. The the trial date be moved State made this request ahead one day because its analyst witness was unavailable to testify on March 2. 2 to On January 4, Chamblis withdrew this demand on May 25, 2012. 3 The record does not indicate precisely when the court scheduled the trial for March 2, 2012. The only reference that the record makes to a trial date of March 2 is an e-mail from the State to the circuit court, dated December 27, 2011, in which the State requested moving the trial date from March 2 to March 1. 3 No. 2012AP2782-CR.akz 2012, the court granted the State's request and rescheduled the jury trial for March 1. ¶66 On January 12, 2012, the State filed an amended information, which charged Chamblis with OWI (seventh, eighth, or ninth offense) and operating with a PAC (seventh, eighth, or ninth offense). prior convictions The amended information alleged the same five from Minnesota that were alleged in the complaint and original information and an additional two prior convictions from Illinois. ¶67 On January 23, 2012, the circuit court moved the trial date to March 8, 2012, because the State's analyst witness was unavailable on the date for which the trial had been scheduled. ¶68 On January 30, 2012, Chamblis's attorney withdrew from representation. On February 9 the Office assigned replacement counsel. State Public Defender's On February 14 the circuit court entered an order appointing the new counsel. ¶69 Sometime shortly after being appointed, Chamblis's new attorney informed the State that Chamblis intended to challenge the alleged Illinois convictions.4 ¶70 On February 15, 2012, the circuit court held a hearing that was scheduled to be a final pre-trial hearing. 4 Chamblis's As Chamblis's new attorney explained several months later at the plea hearing on September 19, 2012, "I've been complaining about [the sufficiency of the State's evidence of Illinois convictions] for the last, over six months. [The District Attorney's Office and I] have had numerous e-mails going back and forth." The circuit court found Chamblis's attorney credible, stating that "[t]he issue was flagged a long time ago to the Court and I'm sure it was flagged, I trust [Chamblis's counsel] is saying that he told the District Attorney's office about this six months ago." 4 No. new attorney did not appear because he was 2012AP2782-CR.akz unaware of this hearing, as he was appointed counsel the previous day. letter to the court dated February 15, Chamblis's In a attorney stated that he has "not had a chance to review the file, let alone decide whether to proceed to trial." He requested that the court remove the case from the trial calendar and schedule the case for a status conference. On February 17 the court granted that request. ¶71 At a March 20 status conference, the circuit court rescheduled jury selection for June 11, and the jury trial for June 15, 2012. ¶72 pre-trial On May 25, 2012, the circuit court held another final hearing. Chamblis's attorney informed the circuit court that he had another trial scheduled for the same day as the trial in this case. Accordingly, the court rescheduled jury selection for September 24 and a jury trial for September 26, 2012. ¶73 On August 6, 2012, Chamblis filed a motion challenging the Illinois The State's convictions deadline motion was August 22. for alleged filing in a the brief amended in information. response to the However, the State did not file a brief until September 5, two weeks late. ¶74 2012, Two weeks before trial, on Wednesday, September 12, the challenging circuit court the alleged held a hearing Illinois on Chamblis's convictions. The motion court determined that the State's evidence did not prove that Chamblis was convicted in Illinois of a drunk driving-related offense. 5 No. The court stated that "if . . . more 2012AP2782-CR.akz evidence is supplied, . . . we will review it at that point in time . . . ." ¶75 Two days later, on September 14, the circuit court held a final pre-trial hearing. and no one mentioned convictions. the Chamblis's This hearing was very brief, status attorney of the alleged informed Chamblis would like to plead guilty. the Illinois court that He further informed the court that a sentencing hearing should be held on a later date than the plea hearing because the State would be requesting a presentence investigation. ¶76 On Wednesday, September 19, 2012, the circuit court held a plea hearing. Chamblis's attorney stated that, pursuant to a plea agreement, Chamblis would plead guilty to operating with a PAC as a fourth offense or greater. At that time, the pending charges were still those alleged in the January 2012 amended information, namely OWI (seventh, eighth, or ninth offense) and operating with a PAC (seventh, eighth, or ninth offense). of proof The State explained that it wished to make an offer regarding the alleged Illinois convictions at the sentencing hearing, which would be held at a later date. An Illinois conviction would have made Chamblis's PAC offense in the present case a seventh, rather than sixth, offense. ¶77 The mandatory minimum and maximum penalties for Chamblis's offense varied greatly depending on whether it was a sixth or seventh offense. A person who is convicted of a fifth or sixth OWI or PAC offense "shall be fined not less than $600 and imprisoned for not less than 6 6 months." Wis. Stat. No. § 346.65(2)(am)5. fine not years, to or 2012AP2782-CR.akz The maximum penalty for that offense is "a exceed $10,000 both." Wis. § 346.65(2)(am)5. or imprisonment Stat. § not to 939.50(3)(h); exceed see 6 also By contrast, a person who is convicted of a seventh, eighth, or ninth OWI or PAC offense "shall [receive] a bifurcated sentence . . . and the confinement portion of bifurcated sentence . . . shall be not less than 3 years." the Wis. Stat. § 346.65(2)(am)6. (2013-14); see also State v. Williams, 2014 WI 64, ¶47, 355 Wis. 2d 581, 852 N.W.2d 467. The maximum penalty for that offense is "a fine not to exceed $25,000 or imprisonment not to exceed 10 years, or both." see also Chamblis § 346.65(2)(am)6. had an Illinois Thus, if the conviction, his § 939.50(3)(g); State proved mandatory that minimum penalty would increase from six months of imprisonment to three years of increase confinement. from imprisonment. six Similarly, years of his maximum imprisonment to penalty ten would years of Chamblis did not plead to charges that carried the higher penalties. ¶78 At the plea hearing, the court stated that it was "not going to consider the new evidence" because that evidence was being offered "way too late." As Chamblis' attorney explained, "I've been complaining about [the sufficiency of the State's evidence of Illinois convictions] for the last, over six months. [The District Attorney's Office and I] have had numerous e-mails going back and forth." The circuit court found Chamblis's attorney credible, stating that "[t]he issue was flagged a long time ago to the Court and I'm sure it was flagged, I trust 7 No. [Chamblis's Attorney's counsel] office is saying about this that six he 2012AP2782-CR.akz told months the ago." District The court explained how "frustrating" it was that the case had not been resolved already. The court noted that "this case has been set for trial a long time." The court explained that the dispute over the alleged Illinois convictions had prevented "this case [from being] resolved in a way that would have made more sense months ago." ¶79 The court explained that the State contributed to the delay of this case. According to the court, the State "had plenty prove of time" to the number of Chamblis's prior convictions and "did not take this [matter] seriously enough." The court further noted that the State was two weeks late in filing its response to Chamblis's motion challenging the Illinois convictions. ¶80 The court refused to consider the State's proffered evidence in part because doing so would further delay resolution of this case. a plea without determined. date. The The court explained that "I don't think I can do [the number of . . . how prior convictions] being It is not a trial with a sentencing at a later This is a plea. court of stated many It's a different type of procedure." that prior it "want[ed] convictions the [there] determination are before we actually enter into the plea, so Mr. Chamblis knows what he's pleading guilty to." delaying the case The court expressed concern with further for a later plea hearing, stating that "[d]iscovery requires discovery to be done in a timely fashion, 8 No. 2012AP2782-CR.akz [and] to have this done last second like this . . . continues to prolong the process . . . ." The court also stated that, because Chamblis "sat in jail, days, months, waiting for [the State to determine his number of prior convictions]," it would not be "fair to him" to further delay the case by admitting the State's proffered evidence. The court concluded that it "can't justify extending things more" and that "discovery at some point has to end. . . . ¶81 The discovery is done." The court stated that "[i]f we need to put [this case] back on the trial calendar, we can." The court gave the parties 15 to 20 minutes to decide whether to proceed with a guilty plea to operating with a PAC (fifth or sixth offense). The parties then informed the court that they reached a new plea agreement. Pursuant to that agreement, Chamblis pled guilty to operating with a PAC as a sixth offense. mandatory minimum penalty of As a result, Chamblis faced a six months' imprisonment and a maximum penalty of six years' imprisonment. II. THE CIRCUIT COURT DID NOT ERRONEOUSLY EXERCISE ITS DISCRETION ¶82 "'This court will not disturb a circuit court's decision to admit or exclude evidence unless the circuit court erroneously exercised its discretion.'" Jackson, 352 Wis. 2d 249, ¶43 (quoting Weborg, 341 Wis. 2d 668, ¶41). "'A circuit court erroneously exercises its discretion if it applies an improper legal standard or makes a decision not reasonably supported by the facts of record.'" Wis. 2d 668, ¶41). Id. (quoting Weborg, 341 "'[T]he circuit court's decisions to admit 9 No. 2012AP2782-CR.akz or exclude evidence are entitled to great deference . . . .'" Id., ¶45 (quoting Head, 255 Wis. 2d 194, ¶43). ¶83 In the present case, the circuit court's concerns with fairness to the defendant and controlling the calendar by not prolonging the case any further were reasonable.5 initially requested a speedy trial. scheduled for March 2, which was Chamblis had A jury trial was first approximately after Chamblis was bound over for trial. three months The trial date was delayed three months to June 15 and then delayed another three months to September 26. Similarly, a final pre-trial hearing had been scheduled for February, was moved to May, and was then moved to September. The plea hearing was held approximately ten months after the State filed its complaint against Chamblis, and he remained in custody that entire time awaiting trial. The State learned more than six months before the plea hearing that Chamblis believed that its evidence failed to prove that he had Illinois convictions for drunk driving. Nevertheless, the State did not obtain additional evidence of Illinois convictions until September 14, which was five days before the plea hearing. Further, the State was not prepared to present that additional evidence at the plea hearing, but instead wished to offer it at the sentencing hearing at a later date.6 ¶84 speedy As noted earlier, Chamblis had initially requested a trial. At the time of that request there was 5 no The majority opinion implicitly recognizes that the circuit court did not make a mistake of law. See supra note 1. 6 The sentencing hearing was held on November 5, 2012. 10 No. 2012AP2782-CR.akz indication that the State wished to amend the charges. Had the case been tried, it appears that the charges would have remained the charges to which he ultimately pled. This is not to say that the State's hands were tied, but under the facts of this case the circuit court was not incorrect to conclude that the State was barred from essentially amending the charges and penalties post-plea. ¶85 Under erroneously exclude these exercise relevant facts, its the circuit discretion. evidence "if substantially outweighed . . . by delay . . . ." Wis. Stat. A its court did court probative considerations § 904.03.7 See also may value circuit not is of undue Wis. Stat. § 802.10(3)(d), (5)(d) (stating that a circuit court may control its calendar and speedily dispose of actions by setting a time limit for discovery and ruling on the admissibility of evidence pre-trial). Further, "[c]ircuit courts possess inherent discretionary authority to control their dockets with economy of time and effort." State ex rel. Collins v. Am. Family Mut. Ins. Co., 153 Wis. 2d 477, 483, 451 N.W.2d 429 (1990) (citing Rupert v. Home Mut. Ins. Co., 138 Wis. 2d 1, 7, 405 N.W.2d 661 (Ct. App. 1987)). See also Hefty v. Strickhouser, 2008 WI 96, ¶31, 312 Wis. 2d 530, 752 N.W.2d 820 ("Wisconsin circuit courts have discretion to control their dockets. This power is inherent to their function."); Schopper v. Gehring, 210 Wis. 2d 208, 215, 565 N.W.2d 187 (Ct. App. 1997) (citation omitted) ("The trial 7 The circuit court's explicit concerns with undue delay "tacitly invoked" Wis. Stat. § 904.03. See State v. Smith, 2002 WI App 118, ¶16, 254 Wis. 2d 654, 648 N.W.2d 15. 11 No. court has the scheduling."). "is inherent power to control 2012AP2782-CR.akz its calendar and A circuit court's power to control its calendar essential to the [circuit] courts' ability to function because it provides the courts with the authority to control their judicial business." Lentz v. Young, 195 Wis. 2d 457, 465- 66, 536 N.W.2d 451 (Ct. App. 1995) (citing Neylan v. Vorwald, 124 Wis. 2d 85, 94, 368 N.W.2d 648 (1985)). ¶86 Accordingly, the "courts cannot allow litigants to control judicial calendars." Sherman v. Heiser, 85 Wis. 2d 246, 254, 270 N.W.2d 397 (1978). See also State v. Anthony, 2015 WI 20, ¶76, 361 Wis. 2d 116, 860 N.W.2d 10 ("'The trial process would be a shambles if either party had an absolute right to control the time and content of his witnesses' testimony.'" (quoting Taylor v. Illinois, 484 U.S. 400, 410–411 (1988))). If we were to conclude that under these facts the circuit court erroneously denied the State's request to introduce evidence at a later control date, the we would circuit impermissibly court's calendar allow and the at the parties same to time endorse the idea that a defendant need not know the charges to which he pleads or their penalties. ¶87 penalties Chamblis pled guilty to a charge that had different than the charge in the amended included the unproven prior offenses. information that Knowing the potential penalties is fundamental to entering a knowing, intelligent, and voluntary plea. Wis. 2d 197, 614 See State v. Byrge, 2000 WI 101, ¶57, 237 N.W.2d 477 (citation omitted) ("When a defendant is not aware of the potential punishment, the plea is 12 No. 2012AP2782-CR.akz not entered knowingly, voluntarily, and intelligently . . . ."). This case is not one where the circuit court denied the State's attempt to amend charges to conform to the evidence or to timely amend charges so that a defendant can be on notice. Rather, this case is one where the State wished to essentially amend the charges, after a guilty plea, and have the defendant be exposed to greater penalties and mandatory minimums than those that were associated with the charge to which he pled guilty. did not erroneously State's request. exercise its discretion by The court denying the The defendant did not plead to the charges that relied upon the Illinois prior offenses and thus, carried higher mandatory minimums and greater exposure. Chamblis pled guilty to the original charge because the court determined that the State had not proven the Illinois prior convictions. The court accepted Chamblis's plea for one offense with one set of penalties. It would invoke fundamental principles of fairness to allow that plea to morph into an amended conviction for an offense to which he did not plead. ¶88 In sum, although I join the majority opinion, I would explicitly conclude that the circuit court did not erroneously exercise its discretion when it excluded the evidence that the State attempted to submit "too late." ¶89 For the foregoing reasons, I respectfully concur. 13 No. 1 2012AP2782-CR.akz