The Supreme Court Press
Petition of the Month™
Verhagen Et Al. v. State of Wisconsin
Verhagen et al. v. State of Wisconsin
The Supreme Court Press “Petition of the Month”TM for December 2013 is Kimberly Verhagen, Christopher J. Nickels, Craig M. Van Asten & James Bell v. State of Wisconsin. Supreme Court Dkt. No. 13-545, an appeal coming out of the Wisconsin Supreme Court. The petition was filed by John Miller Carroll of the John Miller Carroll Law Office of Appleton, Wisconsin.
- Is Wisconsin’s unique operating while intoxicated statute unconstitutional in that it directs courts to count civil judgments as “convictions” for OWI penalty enhancement purposes, without properly submitting the civil judgments to first be proven beyond a reasonable doubt to a jury as required by Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348 (2000)?
- The Supreme Court set off a major change in criminal sentencing with its 2000 ruling in Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348 (2000), which required that any fact that increased the penalty for a crime beyond the prescribed statutory maximum is, in effect, an element of the crime, which must be submitted to a jury and proven beyond a reasonable doubt. But the decision was sharply debated, and subsequent splintered decisions in Harris v. United States, 536 U.S. 545, 122 S.Ct. 2406 (2002) (holding that so long as the maximum sentence is not exceeded, Apprendi need not apply) and Alleyne v. United States, (No. 11–9935, June 17, 2013) (any fact that then leads to the imposition of a mandatory minimum must meet the Apprendi standard).Now out of Wisconsin comes a fascinating case. Wisconsin is the only state in the country to treat a first time OWI/DUI as a civil judgment. At a first-timer hearing, a defendant is not permitted the right to counsel, the right to confront witnesses, the right against self-incrimination, and the right to have a unanimous jury verdict. The standard of proof is also lower – clear, satisfactory, and convincing. The teeth rear themselves on a second offense, where Wisconsin judges apply a major penalty enhancement, essentially treating the second OWI/DUI as a second criminal conviction. The Verhagen case posits whether it is constitutional to enhance a sentence on an alleged second-offense when the first offense was not submitted to a jury and lacked basic constitutional protections.
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