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  • February 24, 2023

    Law Does Not Allow Probation for 5th OWI Conviction, Court of Appeals Rules

    A circuit court erred by staying a prison sentence for a person convicted of her fifth operating while intoxicated offense, the Wisconsin Court of Appeals has ruled.
    In A Poorly Lit Room A Man In A Suit Points Across A Table At Someone With Their Hand Extended Imploringly, With A Pair of Handcuffs On The Table Between Them,

    Feb. 24, 2023 – A circuit court erred by staying a prison sentence for a person convicted of her fifth operating while intoxicated offense (OWI), the Wisconsin Court of Appeals has ruled.

    In State v. Shirikian, 2021AP859 (Feb. 1, 2023), the Court of Appeals District II held that the factors that allow a court to sentence a person convicted of fifth- or sixth-offense OWI to less than 18 months in prison do not constitute legal cause sufficient to allow a court to sentence the person to probation.

    OWI Arrest, Then a Plea

    In May 2020, the Waukesha County District Attorney charged Lynne Shirikian with OWI fifth or sixth offense, a class G felony with a maximum ten years’ imprisonment.

    Jeff M. Brown Jeff M. Brown , Willamette Univ. School of Law 1997, is a legal writer for the State Bar of Wisconsin, Madison. He can be reached by email or by phone at (608) 250-6126.

    Under Wis. Stat. section 346.65(2)(am)5, OWI fifth or six offense carries a presumptive mandatory minimum sentence of 18 months initial confinement.

    The state released Shirikian on $750 cash bail with multiple conditions, including that she remain sober. Shirikian violated that condition in July 2020, so the state charged her with felony bail jumping in a separate case.

    Shirikian entered into a plea bargain in February 2021. Shirikian agreed to plead guilty to OWI fifth offense and refusal to consent to a blood test, and the state agreed to dismiss and read in the felony bail-jumping charge.

    Additionally, the state would request substantial prison time and Shirikian would request probation.

    Judge Orders Probation

    After accepting Shirikian’s plea on Feb. 12, 2021, the circuit court held a sentencing hearing.

    The circuit court imposed but stayed a sentence of three years of initial confinement, followed by two years of extended supervision. In doing so, the court noted the following mitigating factors:

    • the support of Shirikian’s family;

    • the fact Shirikian had recently completed treatment;

    • Shirikian’s volunteer work; and

    • the fact Shirikian had signed up for an on online class to help with her career.

    The circuit court placed Shirikian on probation for three years and ordered her to serve nine months of condition time with Huber release privileges and maintain her sobriety.

    Motion for Re-sentencing

    The circuit court entered its judgment on Feb. 18, 2021.

    On March 2, 2021, the state filed a motion for re-sentencing, arguing that the circuit court had imposed an unlawful sentence. On March 5, the Department of Corrections sent a letter to the circuit court, arguing that the probation sentence was unlawful.

    The circuit court denied the state’s motion on April 1, 2021. The state appealed.

    Bifurcated Sentence Required

    Writing for a three-judge panel, Judge Shelley Grogan explained that section 346.62(2)(am)5 requires a court to impose a bifurcated sentence under section 973.01, with that sentence to include a period of confinement of at least 18 months, unless the following conditions are met:

    • the best interest of the community would be served;

    • the public will not be harmed; and

    • the court places its reason on the record.

    • If those conditions are met, section 346.62(2)(am)5 allows a circuit court to impose a term of confinement less than 18 months.

    Grogan pointed out that section 973.01(2) specifies that a bifurcated sentence includes a term of confinement in prison followed by a term of extended supervision.

    Welter of Related Statutes

    The state argued that section 346.62(2)(am)5 was unambiguous in requiring the circuit court to impose at least some confinement, given that section’s link to section 973.01(2).

    Shirikian argued that: 1) section 973.15(8)(a)1 authorizes a circuit court to stay an imposed sentence for “legal cause;” and 2) meeting the exceptions contained in section 346.62(2)(am)5 constituted “legal cause.”

    Statute is Unambiguous

    Judge Grogan concluded that section 346.62(2)(am)5 is unambiguous.

    “The statutory language is clear that if the court determines that the exception applies, the court must still comply with the statute’s first mandate – that the court impose a bifurcated sentence,” Grogan wrote. “This is so because when we interpret statutes, we must interpret the words the legislature chooses in the context of the statute itself.”

    Judge Grogan concluded that the term “confinement,” when used in the second sentence of section 346.62(2)(am)5, refers back to the confinement portion of the bifurcated sentenced mandated by the section’s first sentence.

    That conclusion, Grogan reasoned, was supported by the graduated-penalty system the legislature had enacted for OWI offenses.

    “This progressive penalty structure confirms that it would be unreasonable to conclude that the circuit court’s interpretation of section 346.65(2)(am)5’s exception allowed it to impose the sentence that it did,” Judge Grogan wrote.

    “It would likewise be unreasonable to interpret this statute, as the circuit court suggested, to mean that a court could sentence a fifth- or sixth-OWI defendant to as little as one day in jail, which is less than the required sentence for a second OWI offense.”

    No ‘Legal Cause’

    Regarding Shirikian’s argument that section 973.15(8)(a)1 authorized the circuit court to sentence her to probation for “legal cause,” Judge Grogan cited precedent in concluding that “legal cause,” as used in that section, applied to judicial functions such as a stay pending appeal or a stay to consolidate sentencing matters.

    “The stay this circuit court imposed here was not a stay pending appeal or for ‘legal cause’ authorized by section 971.15(8)(a)1,” Grogan wrote.

    “Rather, the stay the circuit court imposed here was to put Shirikian on probation – a sentence our law does not authorize for fifth- or sixth-OWI offender.”​

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    WisBar Court Review, published by the State Bar of Wisconsin, includes summaries and analysis of decisions from the Wisconsin Supreme Court, the Wisconsin Court of Appeals, and the U.S. Court of Appeals for the Seventh Circuit, as well as other court developments. To contribute to this blog, contact Joe Forward.

    Disclaimer: Views presented in blog posts are those of the blog post authors, not necessarily those of the Section or the State Bar of Wisconsin. Due to the rapidly changing nature of law and our reliance on information provided by outside sources, the State Bar of Wisconsin makes no warranty or guarantee concerning the accuracy or completeness of this content.

    © 2024 State Bar of Wisconsin, P.O. Box 7158, Madison, WI 53707-7158.

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