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State v. McConochie9/13/2000
APPEAL from a judgment and an order of the circuit court for Waukesha County: DONALD J. HASSIN, Judge. Affirmed.
Randall McConochie appeals from a conviction for violating Wis. Stat. § 346.63(1)(a), operating a motor vehicle while under the influence of an intoxicant (OMVWI), second offense. McConochie argues that the default judgment entered in his first offense was constitutionally defective and, therefore, not valid for purposes of sentence enhancement under Wis. Stat. § 346.65(2)(b). He contends that his motion to collaterally attack the prior civil forfeiture determination was wrongly denied. We are not persuaded and affirm the conviction and the order.
. On June 28, 1998, McConochie was issued a citation for OMVWI in Dodge county with a court appearance date of August 4, 1998. A second citation, alleging a violation of Wis. Stat. § 346.63(1)(b) (BAC) from the same incident, was issued to McConochie on July 6, 1998. By mail, McConochie entered pleas of not guilty on July 31, 1998. Upon receipt of the not guilty pleas, a trial was scheduled for October 13, 1998, and notice was mailed to McConochie at the address indicated on the two citations401 Gascoigne Drive, Waukesha, Wisconsin 53188. McConochie failed to appear on the October 13 trial date and a default judgment of guilty of OMVWI was entered on October 16, 1998.
. On October 9, 1998, McConochie was issued a second citation for OMVWI in Waukesha county. A misdemeanor complaint was filed on December 14, 1998, charging McConochie with OMVWI and BAC violations, enhanced under Wis. Stat. §§ 346.65(2) and 343.30(1q)(b), based upon the existing Dodge county default judgment. McConochie moved the misdemeanor court to strike the use of the Dodge county default judgment for enhancement purposes because it was constitutionally invalid. McConochie apparently failed to receive notice of the first citations, the court trial date and the default judgment because the notices were apparently mailed to a previous address. The court denied the motion to strike.
. McConochie contends that the trial court's holding, that he could not collaterally attack the constitutional validity of a prior municipal ordinance conviction being used to enhance a subsequent Wis. Stat. § 346.65 penalty, was in error. He cites to State v. Baker, 169 Wis. 2d 49, 485 N.W.2d 237 (1992), and State v. Foust, 214 Wis. 2d 568, 570 N.W.2d 905 (Ct. App. 1997), to support his contention that he was denied constitutional due process in Dodge county, and, therefore, the prior default forfeiture judgment is void. Both cases can be distinguished from this case.
. In order for McConochie to collaterally attack the Dodge county default judgment based upon constitutional due process protections, he must first establish the existence of those protections. We review such constitutional questions independently because " he scope of constitutional protections, representing the basic value commitments of our society, cannot vary from trial court to trial court, or from jury to jury." State v. Fry, 131 Wis. 2d 153, 171, 388 N.W.2d 565 (1986) (citations omitted).
. "Due process requires that a person have notice of the offense and the opportunity to be heard at a meaningful time and in a meaningful manner." Town of East Troy v. Town & Country Waste Serv., Inc., 159 Wis. 2d 694, 704, 465 N.W.2d 510 (Ct. App. 1990). However, constitutional rights are implicated by use of the criminal procedure which "is restricted by due process and by art. I, sec. 7 of the Wisconsin Constitution and the sixth amendment to the United States Constitution which guarantee to an accused the right to be informed of `the nature and cause of the accusation.'"
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