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State v. Delaney3/4/2003
Oral Argument: October 15, 2002
ABRAHAMSON, C.J., dissents (opinion filed). BRADLEY, J., joins dissent.
Not Participating:
REVIEW of a decision of the Court of Appeals. Affirmed.
. Petitioner Richard W. Delaney (Delaney) seeks review of an unpublished court of appeals decision, affirming his judgment of conviction and sentence for operating while intoxicated (OWI), third offense. Specifically, Delaney asks this court to determine whether Wis. Stat. § 939.62 (1999-2000) was properly applied to his already enhanced OWI offense under Wis. Stat. § 346.65(2)(c), based on the existence of a past non-OWI offense, so as to enhance Delaney's penalty twice for count one of his judgment of conviction. We answer in the affirmative, and conclude that a defendant convicted of the crime of second-or subsequent-offense OWI, as Delaney has been, is subject to the penalty enhancements provided for in both §§ 346.65(2) and 939.62, so long as the application of each enhancer is based on a separate and distinct prior conviction or convictions.
I. BACKGROUND
. The facts are undisputed. On November 19, 1999, Officer Kenneth Clelland was attempting to locate a brown station wagon with a certain license plate that had been involved in a hit-and-run accident. Dispatch identified the suspected driver as either Richard Delaney or Randy Delaney. Officer Clelland located the vehicle in front of Martin Delaney's residence. Martin Delaney is the brother of Richard and Randy Delaney. After finding Richard Delaney hiding in the house, Officer Clelland placed both Randy and Richard Delaney in custody. During the investigation, Richard Delaney confessed that he had been the driver of the offending vehicle. Officer Clelland then formally placed Richard Delaney (Delaney) under arrest and transported him to the police department.
. Count One of the eight-count criminal complaint charged Richard with OWI pursuant to Wis. Stat. § 346.63(1)(a). The complaint also alleged that Richard had been previously convicted of OWI in July, 1992, and that his driving privileges had been previously revoked for failing to submit to a chemical test in July, 1990, making him a third-time offender pursuant to § 346.65(2)(c). In addition, the complaint alleged that Richard had been previously convicted of attempted possession of THC with intent to deliver, a felony, in July, 1996, making him a repeat offender pursuant to § 939.62.
. Delaney moved to suppress the pre-Miranda oral statements he made to Officer Clelland. He also moved to dismiss the applicability of the habitual criminal penalty enhancer under Wis. Stats. § 939.62 from Count One of the complaint. Delaney's motions were denied after an evidentiary hearing on January 14, 2000.
. On April 3, 2000, Delaney entered a no contest plea to OWI, third offense, as a repeater pursuant to Wis. Stat. §§ 346.63(1)(a), 346.65(2)(c), and 939.62. He also pled no contest to two counts of causing injury while operating while intoxicated in violation of § 346.63(2)(a) 1.
. The circuit court for Kenosha County, the Honorable S. Michael Wilk, presiding, imposed the following sentence:
Count One [OWI, third offense]: sentence withheld and six years probation to run concurrent with Count Three (R. 30:56).
Count Three [Causing injury by motor vehicle while under the influence of intoxicant as a repeater]: 14 months prison stayed and six years probation to run concurrent with Count One and consecutive to Count Five (R. 30:56).
Count Five [Causing injury by motor vehicle while under the influence of intoxicant as a repeater]: three years prison (R. 30:
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