Appeals court overturns judge's erroneous ruling.

• Author: Ziemer, David

Byline: David Ziemer

A defendant who pleaded guilty to two counts of operating a motor vehicle while intoxicated (OMVWI), one as a second offense, and the other as a third offense, was improperly sentenced as a third time offender on both charges, the Wisconsin Court of Appeals held last week.
On Aug. 10, 1999, Henry T. Skibinski was arrested for OMVWI, and the offense was charged as a criminal offense due to a prior civil adjudication.
While the case was pending, he was arrested for OMVWI again, on Sept. 15, 1999.
On Dec. 16, Skibinski entered guilty pleas to both charges. Milwaukee County Circuit Judge Robert C. Crawford then ruled that the statutes permitted him to sentence Skibinski as a third-time offender on both counts.
Crawford acknowledged that the District I (Milwaukee) Court of Appeals had ruled to the contrary in a one-judge unpublished decision, but he said he thought his view would prevail if a three-judge panel ever considered the issue.
[As has been extensively reported by Wisconsin Law Journal, Crawfords maverick behavior has led the Wisconsin Judicial Commission to ask the Supreme Court to remove him from the bench.]
Therefore, Crawford sentenced Skibinski to seven months in the House of Correction on the first case, and 12 months on the other.
Skibinski appealed, the State conceded error, and the court of appeals reversed in a decision by Judge Ted E. Wedemeyer Jr. that said Crawfords reasoning was incorrect, unconstitutional, and frustrated the intent of the legislature.
First, the Court of Appeals noted that, under sec. 346.65(1), prior convictions are an element of the offense, and a predicate to conviction of the graduated offense. When Skibinski pleaded guilty to the Aug. 10 OMVWI, he was admitting that he had one prior conviction, not two.
Second, the supreme court held in State v. Banks, 105 Wis.2d 32, 313 N.W.2d 67 (1981), that there must be a conviction before the graduated penalties can be used, and in order to be a valid judgment of conviction, a sentence must have been imposed.
Third, the court held that the sentence violated constitutional due process notice requirements, because it would permit a sentencing court to modify the possible penalties for a crime based on the subsequent conduct of the offender.
And finally, the court concluded that the trial courts interpretation would frustrate the legislatures intent to provide increasing penalties for those who continue to drink and drive.
Analysis:
Other than Crawford, no...