City of Cedarburg v. Ries B. Hansen ( 2020 )

2020 WI 45
SUPREME COURT OF WISCONSIN
CASE NO.: 2018AP1129
COMPLETE TITLE: City of Cedarburg,
Plaintiff-Appellant,
v.
Ries B. Hansen,
Defendant-Respondent.
ON MOTION FOR RECONSIDERATION
Reported at 390 Wis. 2d 109,938 N.W.2d 463
PDC No:2020 WI 11 - Published
OPINION FILED: May 20, 2020
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:
SOURCE OF APPEAL:
COURT:
COUNTY:
JUDGE:
JUSTICES:
PER CURIAM
NOT PARTICIPATING:
ATTORNEYS:
For the plaintiff-appellant, there was a motion for
reconsideration filed by Johnathan G. Woodward and Houseman &
Feind, LLP, Grafton, WI.
2020 WI 45
NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2018AP1129
(L.C. No. 2017CV411)
STATE OF WISCONSIN : IN SUPREME COURT
City of Cedarburg,
Plaintiff-Appellant, FILED
v. MAY 20, 2020
Ries B. Hansen, Sheila T. Reiff
Clerk of Supreme Court
Defendant-Respondent.
MOTION for reconsideration. Reconsideration granted.
¶1 PER CURIAM. The City of Cedarburg moves the court to
reconsider ¶30 of its decision in the above-captioned case, issued
February 11, 2020. See Wis. Stat. § 809.64 (2019-20). The City
contends the court overlooked State v. Braunschweig, 2018 WI 113,
384 Wis. 2d 742, 921 N.W.2d 199, wherein the court unanimously
decided that the proper burden of proof the State must satisfy to
establish a defendant's prior OWI convictions is a preponderance
of the evidence. The City requests only that the court modify ¶30
of our decision in City of Cedarburg v. Hansen to reflect the
burden of proof announced in Braunschweig.
No. 2018AP1129
¶2 We grant the City's motion for reconsideration to modify
¶30. Braunschweig established the proper burden of proof to be a
preponderance of the evidence. It noted that "in some PAC cases"
under Wis. Stat. § 346.63, in which the text of the statute
specifically makes "the predicate prior [] an element of the
offense," the State must satisfy the higher, beyond a reasonable
doubt burden. Braunschweig, 384 Wis. 2d 742, ¶36 & n.18. However,
the court held that "the State's burden of proving the prior OWI
conviction in second offense OWI-related offenses" is a
preponderance of the evidence. Id., ¶¶3, 32-40. That burden of
proof applies because a prior OWI offense is not among the
statutory elements of a second offense OWI. See Wis.
Stat. § 346.63(1)(a).
¶3 Accordingly, we order that ¶30 in City of Cedarburg v.
Hansen, 2020 WI 11, 390 Wis. 2d 109, 938 N.W.2d 463, be modified
to read as follows, with bold indicating the amended language and
strikethrough indicating the language removed:
A defendant's prior convictions determine his status as
a repeat offender, not his guilt. State v. Saunders,
2002 WI 107, ¶3, 255 Wis. 2d 589, 649 N.W.2d 263.
However, the State must prove a defendant's status as a
prior offender at sentencing, where prior convictions
must be established by a preponderance of the evidence.
See State v. Braunschweig, 2018 WI 113, ¶¶3, 32-40, 384
Wis. 2d 742, 921 N.W.2d 199. beyond a reasonable doubt.13
Id. Importantly, the city attorney is not required to
allege or prove that the defendant had no prior offenses.
¶4 By the Court.—The motion for reconsideration to modify
¶30 is granted.
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No. 2018AP1129
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