State v. Williams

2013 WI App 74, 833 N.W.2d 846, 350 Wis. 2d 311, 2013 WL 1458739, 2013 Wisc. App. LEXIS 325

• Court: Court of Appeals of Wisconsin
• Decided: April 11, 2013
• Docket: No. 2011AP2868-CR
• Status: Published

Opinions

SHERMAN, J.

¶ 1. Clayton W Williams appeals from a judgment of conviction for operating a motor vehicle while under the influence of an intoxicant (OWI), seventh offense, contrary to Wis. Stat. § 346.65(2)(g)2. (2011-12).¹ Williams argues that the circuit court erred in sentencing him to imprisonment because the court was operating under the mistaken belief that § 346.65(2)(am)6. mandates that a defendant be sentenced to a minimum of three years' initial confinement. We reverse.

BACKGROUND

¶ 2. Williams was charged with, and pled guilty to, seventh offense OWI. Pursuant to the plea agreement, remaining charges against Williams were either dismissed, or dismissed and read-in, at sentencing. The State agreed that it would recommend that Williams be sentenced to six years' imprisonment, including three years of initial confinement, and Williams was free to argue for a lesser sentence.

¶ 3. Prior to sentencing, Williams argued to the court that Wis. Stat. § 346.65(2)(am)6., the current sentencing statute for OWI offenses, does not on its face require a mandatory prison sentence for seventh offense OWIs. Williams reasserted this argument at sentencing. The circuit court rejected Williams' argument, determining that it was required to impose at minimum a six-year sentence, including three years of initial confinement. The court then sentenced Williams to a prison term of six years' imprisonment, including three years' initial confinement and three years' extended supervision. Williams appeals.

DISCUSSION

¶ 4. Williams contends that the circuit court erred in sentencing him because the court mistakenly believed that Wis. Stat. § 346.65(2)(am)6. imposes a mandatory minimum sentence of three years' initial confinement for a seventh offense OWI.

¶ 5. The interpretation and application of a statute are questions of law that we review de novo. Affeldt v. Green Lake Cnty., 2011 WI 56, ¶ 32, 335 Wis. 2d 104, 803 N.W.2d 56. "[T]he purpose of statutory interpretation is to determine what the statute means so that it may be given its full, proper, and intended effect." State ex rel. Kalal v. Circuit Court of Dane Cnty., 2004 WI 58, ¶ 44, 271 Wis. 2d 633, 681 N.W.2d 110.

¶ 6. Statutory construction begins with the language of the statute. Id., ¶ 45. If the meaning of the statutory language is plain, our inquiry ends. Id. We must presume that the legislature " 'says in a statute what it means and means in a statute what it says,'" and we give the language its common, ordinary, and accepted meaning, except that technical or specially defined words are given their technical or special meaning. Id., ¶¶ 39, 45 (quoted source omitted). " 'If this process of analysis yields a plain, clear statutory meaning, then there is no ambiguity, and the statute is applied according to this ascertainment of its meaning.' "Id., ¶ 46 (quoted source omitted). If, however, the analysis does not yield one plain meaning, but instead reveals that the statutory language reasonably gives rise to two or more reasonable interpretations, the language is ambiguous. Id., ¶ 47. In that event, we may look to extrinsic sources of legislative intent, such as legislative histories, to ascertain the meaning of the statute. Id., ¶ 48.

¶ 7. Wisconsin Stat. § 346.65(2)(am)6. provides:

Except as provided in par. (f), 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 ... equals 7, 8, or 9 .... The confinement portion of a bifurcated sentence imposed on the person under s. 973.01 shall be not less than 3 years. (Emphasis added.)

The emphasized language was added to § 346.65(2)(am)6. by 2009 Wis. Act 100, § 43.

¶ 8. Both Williams and the State agree that Wis. Stat. § 346.65(2)(am)6. is unambiguous; however, they disagree as to how the statute should be interpreted.² The State argues that the plain language of § 346.65(2)(am)6. "clearly assumes that a bifurcated sentence will be imposed" and that the addition of the language "[t]he confinement portion of a bifurcated sentence imposed on the person under s. 973.01 shall be not less than 3 years" "implies" that the imposition of a bifurcated sentence is mandatory for a seventh offense OWI. We conclude that the State's reliance on assumption and implication has no basis in the plain language used by the legislature in the statute.

¶ 9. Wisconsin Stat. § 346.65(2)(am)6. provides that "[t]he confinement portion of a bifurcated sentence imposed on [a defendant] under [Wis. Stat. §] 973.01 shall be not less than 3 years." Although the subdivision references the imposition of a bifurcated sentence, and specifies the minimum term of incarceration in the event that a bifurcated sentence is imposed, nothing in the plain language of the subdivision mandates or requires that a bifurcated sentence be imposed.

¶ 10. Statutory language must be interpreted in the context in which it is used, as part of a whole in relation to the language of surrounding or closely related statutes. Kalal, 271 Wis. 2d 633, ¶ 46. When we look at closely related statutes, in particular Wis. Stat. § 973.01, which explains the bifurcated sentence structure, and Wis. Stat. § 939.50, which classifies felonies and establishes the maximum penalties, we see that those statutes do not contain language establishing a mandatory minimum sentence for a seventh offense OWI, a class G felony. See Wis. Stat. § 346.65(2)(am)6. (providing that a seventh through ninth offense OWI is a class G felony). Section 939.50(3)(g) establishes a maximum penalty for class G felonies and § 973.01(2)(b)7. establishes a maximum period of confinement for class G felonies under the bifurcated sentencing structure. See § 939.50(3)(g) (providing that Class G felonies are punishable by up to ten years' imprisonment and a $25,000 fine); § 973.01(2)(b)7. (providing that for a class G felony, the term of confinement may not exceed five years).

¶ 11. When we look at the surrounding statutes in Wis. Stat. § 346.65(2)(am), Kalal, 271 Wis. 2d 633, ¶ 46, we see that those statutes contain the mandatory language that is missing in § 346.65(2)(am)6. Section 346.65(2)(am) sets forth the various penalties for violating Wis. Stat. § 346.63(1). In subdivisions 2. through 5., which set forth the penalties for second offense OWIs through sixth offense OWIs, the legislature included language establishing mandatory minimum sentencing requirements. Subdivision 2. provides that a defendant guilty of a second offense OWI "shall be fined not less than $350." Section 346.65(2)(am)2. Subdivision 3. provides that a defendant guilty of a third offense OWI "shall be fined not less than $600 . . . and imprisoned for not less than 45 days." Section 346.65(2)(am)3. Subdivision 4. and subdivision 4m. provide that a defendant guilty of a fourth offense OWI "shall be fined not less than $600 . .. and imprisoned for not less than 60 days" or "shall be fined not less than $600 and imprisoned for not less than 6 months," depending on when the prior convictions occurred. Sections 346.65(2)(am)4. and 4m. And subdivision 5. provides that a defendant guilty of a fifth or sixth offense OWI "shall be fined not less than $600 and imprisoned for not less than 6 months." Section 346.65(2)(am)5. No such similar mandatory language is included in subdivision 6. for seventh and subsequent offenses. See Responsible Use of Rural & Agric. Land v. PSC, 2000 WI 129, ¶ 39, 239 Wis. 2d 660, 619 N.W.2d 888 (When the legislature uses words in one subsection but not in another, " 'we must conclude that the legislature specifically intended a different meaning.'") (quoted source omitted).

¶ 12. "If we conclude the statutory language is plain, then we apply its plain meaning." JP Morgan Chase Bank, NA v. Green, 2008 WI App 78, ¶ 24, 311 Wis. 2d 715, 753 N.W.2d 536. Giving the language of Wis. Stat. § 346.65(2)(am)6. its plain and ordinary meaning, we conclude that in the event that a bifurcated sentence is imposed on a defendant who is found guilty of a seventh offense OWI, the circuit court must impose a minimum period of incarceration of three years. However, nothing in the plain language mandates that such a bifurcated sentence be imposed as a minimum sentence.

¶ 13. Not every assertion of an alternative interpretation is evidence of ambiguity. Kalal, 271 Wis. 2d 633, ¶ 47 ("It is not enough that there is a disagreement about the statutory meaning...."). For ambiguity to exist, both alternative interpretations must be reasonable. Id. ("the test for ambiguity examines the language of the statute 'to determine whether well-informed persons should have become confused'") (quoted source omitted).

¶ 14. We do not conclude the State's assertion that a mandatory minimum sentence is implied in Wis. Stat. § 346.65(2)(am)6., and thus that we should approve sentencing a defendant to a minimum period of imprisonment only on what is implied in a statute rather than what is written, to be a reasonable alternative interpretation. While such an implication may seem reasonable as a matter of policy, as suggested by the dissent ¶ 25, it contravenes the plain meaning of the language that the legislature used in the statute. We therefore conclude that there is no ambiguity.

¶ 15. We also do not conclude that the language of the statutory scheme so rigidly establishes a step-by-step increase in penalties, as suggested by the dissent, that the mandatory minimum is a reasonable alternative. In Wis. Stat. § 346.65(2)(bm), (cm) and (dm), the legislature allows for alternative sentences to those in the supposed step-by-step scheme. The sentencing scheme is complex and not straightforward. On this point, the dissent begins to look like a search for ambiguity. See Kalal, 271 Wis. 2d 633, ¶ 47 ("Statutory interpretation involves the ascertainment of meaning, not a search for ambiguity.").

¶ 16. In so concluding, we are cognizant that this interpretation may appear unusual in light of the fact that lesser OWI offenses are subject to mandatory minimum sentences. Contrary to the suggestion in the dissent ¶ 27, it is the legislature's plain language, not our approach to interpreting it, that creates this apparent unusual sentencing scheme. In interpreting statutes, we avoid interpretations that lead to absurd results. However, it is not absurd to consider that the legislature had public policy reasons for differentiating between seventh and subsequent offenses, and third, fourth, fifth, and sixth offenses.³ It is the legislature that settles and declares the public policy of this State and we do not place ourselves above the Legislature in making such judgments, nor do we "sit in judgment of its wisdom." See Marlowe v. IDS Prop. Cas. Ins. Co., 2013 WI 29, ¶ 37 n.17, 346 Wis. 2d 450, 828 N.W.2d . Instead, we encourage the Legislature to consider this outcome and determine if legislation is necessary as a result. Because the circuit court in this case sentenced Williams under the mistaken belief that he was subject to a mandatory minimum sentence, we reverse the judgment of conviction and remand for resentencing.

CONCLUSION

¶ 17. For the reasons discussed above, we reverse.

By the Court. — Judgment reversed and cause remanded with directions.

1 All references to the Wisconsin Statutes are to the 2011-12 version unless otherwise noted.

2 The State alternately asserts that if this court determines that Wis. Stat. § 346.65(2)(am)6. is ambiguous, the legislative history of the amendment to subdivision 6. establishes that the Legislature intended the imposition of a minimum sentence of three years' imprisonment to be mandatory as part of a bifurcated sentence. We do not reach legislative history because, as set forth in this opinion, we conclude that the statute is unambiguous in that the meaning of its plain language is clear.

3 Among those possible public policy considerations might be a desire to reduce the fiscal effect of the overall bill; a concern that a severe, inflexible penalty could lead to reluctance to enforce the provision, or to a serious increase in litigation and collateral attack; or, a desire to encourage alternative sentences similar to the programs referred to in Wis. Stat. § 346.65(2)(bm), (cm), (dm), and (cr).