State v. Hanson

N. PATRICK CROOKS, J.

¶ 48. (dissenting). I cannot join the majority opinion because it abandons a long-standing rule of Wisconsin law — that a plea of no contest waives all non-jurisdictional challenges. The majority does not provide a valid legal reason for its *428failure to apply the waiver rule. The majority opinion also ignores clear information in the record when it reaches the conclusion that a remand is necessary.

¶ 49. It is a well-established principle that a plea of no contest or guilty waives all non-jurisdictional defenses and defects. 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 for a long time. 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. In this case, Hanson pled no contest to the charge of operating after revocation/suspension (OAR/OAS) (Plea Hr'g at 9), and, 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penalties for the OAR/OAS charge because the Wisconsin Department of Transportation, Division of Motor Vehicles, rescinded his status as a HTO.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.

¶ 51. The majority opinion avoids the waiver rule, by holding that Wis. Stat. § 973.13 demands that we address Hanson's challenge to the criminal penalties. Majority op. at ¶ 22. Wisconsin Stat. § 973.13 provides that "[i]n 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." According to the majority opinion, Hanson's criminal sentence could be void under *429§ 973.13, if the rescission of Hanson's status as a HTO prevented the application of the penalty enhancer.

¶ 52. The fatal flaw in the majority opinion is that there is no legal justification for departing from the well-established waiver rule. 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, in violation of Wis. Stat. §§ 943.50(lm) and 939.05, for stealing various items from a food store. Id. at 23. 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. Id. 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 not admit to a prior felony conviction within five years. Id. at 24-25. The circuit court denied Flowers' motion and Flowers appealed. Id. at 25.

¶ 54. The court of appeals concluded that Wis. Stat. § 973.13 permitted Flowers to challenge his 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. *430at 28. The court of appeals determined that the policy articulated in State v. Escalona-Naranjo, 185 Wis. 2d 168, 517 N.W.2d 157 (1994), did not prevent Flowers from challenging his criminal sentence. Id. at 28.

¶ 55. 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." Id. (emphasis added).

¶ 56. 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 OAB/OAS. The circuit court judge specifically asked Hanson if he admitted to four prior convictions, and that he had been adjudged a habitual traffic offender. (Plea Hr'g at 9-10). Hanson responded "yes" to these questions. (Plea Hr'g at 10). Flowers is, therefore, clearly 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. Majority op. at ¶ 20, n.5. Hanson contends that the circuit court lacked criminal subject matter jurisdiction over his criminal case "because his status as a habitual traffic offender was rescinded, and therefore, the offense with which he was charged was not a crime." (Br. of Def.-Appellant-Pet'r at 17). Therefore, Hanson argues that an exception to the waiver rule applies.

*431¶ 58. I reject this claim, as the court of appeals did, when it 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)("vari-ous facts 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. Attached to the criminal complaint is a teletype which shows that on April 12, 1996, Hanson was suspended for two months. 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 resulted in two convictions for operating after 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. However, here it is clear that at least one of Hanson's suspensions that formed the basis for the *432criminal charge of OAR/OAS 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 on October 31, 1998, was a 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). 181 Wis. 2d at 930. Muniz argued that the imposition of criminal penalties under Wis. Stat. § 343.44(2)(b)l was improper because the suspension that formed the basis for the OAR/OAS charge was for failure to pay a forfeiture. Id. The court of appeals agreed, stating that "[bjecause 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 though Muniz failed to reinstate his operating privileges after another suspension period had expired, Muniz should have been sentenced under § 343:44(2)(b)2." Id. (emphasis added).

¶ 63. 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 *433because their suspensions for operating a motor vehicle while intoxicated (OWI) had expired by the time each committed the OAR/OAS offense. 185 Wis. 2d at 638. The court of appeals rejected that claim, concluding that 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 court-ordered period of suspension or revocation for the specific offense. Id. at 641. With respect to four of the defendants' suspensions for OWI, the phrase "or thereafter" meant that the suspensions continued until they complied with an alcohol assessment order. Id. at 642. With respect to the fifth defendant, classified as an HTO, the phrase "or 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." Id. at 642-43.

¶ 64. 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 tiie 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 from Biljan that criminal penalties are appropriate for an OAR/OAS violation, if the suspen*434sion in effect at the time of the OAR/OAS violation was imposed " 'for other than, or in conjunction with, the defendant's failure to pay a fine or forfeiture.'" 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. The suspension that is the basis for Hanson's OAR/OAS violation was not imposed solely for the failure to pay a fine or forfeiture; rather, the suspension resulted from the VOR convictions. In addition, Hanson had not reinstated his driving privileges, nor had he applied for rescission of his HTO status on the date of the offense. Accordingly, criminal sanctions were appropriate for Hanson's OAR/OAS conviction.

¶ 67. While his revocation as an HTO provided yet another basis, when Circuit Judge John P. Hoff-mann convicted Hanson on the record of the offense of *435OAR/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 a criminal charge (Plea Hr'g at 11) and further ignores the information provided by the plea questionnaire completed by Hanson and his attorney.

¶ 70. From the face of that document, it is clear that Hanson's HTO status was not expected to play any role at sentencing. Under maximum penalty, there is an entry of "$2500 + 1 Yr Jail." (Record at 8-1). 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." Id.

¶ 71. Thorough review of the entire record makes it clear that the conviction of Hanson under Wis. Stat. *436§ 343.44(1) made him subject to the criminal penalties provided in Wis. Stat. § 343.44(2)(b)-(e). He received a sentence well within the maximum penalties provided by those provisions. Even if his conviction had been for a second, rather than a fifth, conviction within a five-year period, his sentence would have been a valid one within the máximums provided. See Wis. Stat. § 343.44(2)(b)1.

¶ 72. Clearly, Wis. Stat. § 973.13 has no applicability under such circumstances. The circuit court 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. The circuit court did not impose "a maximum penalty in excess of that authorized by law." Wis. Stat. § 973.13.

¶ 73. Contrary to the statement of the majority opinion (majority op. at ¶ 43), the State did argue, both in its brief and during oral argument, that criminal penalties for a violation of Wis. Stat. § 343.44 are appropriate, when the suspension or revocation in effect at the time of the OAR/OAS 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 not imposed solely for failure to pay a fine or forfeiture. Id. The State argued that, as a result, Hanson was subject to a criminal penalty, regardless of the HTO penalty enhancer. Id.

*437¶ 74. This case was correctly decided based on the record, the Wisconsin Constitution, the case law on subject-matter jurisdiction, and the waiver doctrine. I 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 October 31,1998, was a criminal offense, and, therefore, criminal sanctions could be, and were, 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.