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State v. Corvino

Court of Appeals of Wisconsin, District III

June 14, 2016

State of Wisconsin, Plaintiff-Respondent,
v.
Brian R. Corvino, Defendant-Appellant.

         APPEAL from an order of the circuit court for Oneida County No. 2014CF50: MICHAEL H. BLOOM, Judge.

          Before STARK, P.J., HRUZ AND SEIDL, JJ.

          STARK, P.J.

         ¶1 A criminal complaint charged Brian Corvino with fourth-offense operating while intoxicated (OWI) as a felony. The State subsequently filed an Information charging Corvino with fourth-offense OWI as a misdemeanor. The parties later reached a plea agreement, under which Corvino agreed to plead guilty or no contest to the misdemeanor charge. However, the circuit court rejected the plea agreement, concluding that, under Wis.Stat. § 967.055(2)(a), [1] the State was required to apply to the court before amending the OWI-fourth charge from a felony to a misdemeanor. The court further concluded such amendment would be inconsistent with the public's interest in deterring intoxicated driving and was therefore impermissible under § 967.055(2)(a). The court ordered the State to file an Information charging Corvino with fourth-offense OWI as a felony. Corvino appeals from that order.

         ¶2 We agree with the circuit court that Wis.Stat. § 967.055(2)(a) prohibited the State from amending the OWI charge against Corvino from a felony to a misdemeanor without prior court approval. We further agree that the circuit court properly exercised its discretion by refusing to allow the State to amend the charge and by rejecting the proffered plea agreement. Finally, we conclude the circuit court had inherent authority to order the State to file an Information charging Corvino with fourth-offense OWI as a felony. We therefore affirm.

         BACKGROUND

         ¶3 On March 24, 2014, the State filed a criminal complaint charging Corvino with one count of fourth-offense OWI. Under WIS. STAT. § 346.65(2)(am)4., fourth-offense OWI is a misdemeanor, "[e]xcept as provided in subd. 4m." Subdivision 4m. provides that, when the defendant committed an offense resulting in a countable conviction within the five years preceding the current offense, fourth-offense OWI is a Class H felony. See § 346.65(2)(am)4m.

         ¶4 Here, the complaint alleged Corvino had been convicted of operating while intoxicated on three prior occasions, and it listed the dates of arrest and conviction for each of those offenses. According to the complaint, Corvino's most recent OWI conviction was for an offense that occurred on November 27, 2010- less than five years before the charged offense, which occurred on March 23, 2014. Pursuant to Wis.Stat. § 346.65(2)(am)4m., the complaint therefore charged Corvino with fourth-offense OWI as a Class H felony.

         ¶5 On June 24, 2014, Corvino waived his preliminary hearing.[2] The circuit court found probable cause to believe Corvino had committed a felony, and it bound him over for trial. At the arraignment on July 21, 2014, the prosecutor filed an Information charging Corvino with fourth-offense OWI as a misdemeanor, pursuant to Wis.Stat. § 346.65(2)(am)4. The Information did not list the dates of any prior OWI offenses. Corvino acknowledged receiving the Information, waived reading of the Information, and entered a plea of not guilty.

         ¶6 A pretrial hearing was held on January 13, 2015. The CCAP entry for that hearing reflects that the circuit court "addresse[d] the change in charge which was amended down to OWI 4th-Misdemeanor." The amendment of OWI charges is governed by Wis.Stat. § 967.055. Subsection (1) of the statute, entitled "Intent, " states that "[t]he legislature intends to encourage the vigorous prosecution of offenses concerning the operation of motor vehicles by persons under the influence of an intoxicant." Sec. 967.055(1)(a). Subsection (2), entitled "Dismissing or amending charge, " provides in relevant part:

Notwithstanding s. 971.29, if the prosecutor seeks to dismiss or amend a charge under s. 346.63(1)[3] … the prosecutor shall apply to the court. The application shall state the reasons for the proposed amendment or dismissal. The court may approve the application only if the court finds that the proposed amendment or dismissal is consistent with the public's interest in deterring the operation of motor vehicles by persons who are under the influence of an intoxicant.

Sec. 967.055(2)(a). It is undisputed that the circuit court did not make any finding during the January 13 pretrial hearing as to whether the amendment of the charge against Corvino was consistent with the public's interest in deterring intoxicated driving.

         ¶7 A plea hearing was subsequently held on March 10, 2015. At the beginning of the hearing, the prosecutor explained the parties had reached an agreement for Corvino to plead guilty or no contest to fourth-offense OWI as a misdemeanor. However, the circuit court questioned whether it could accept Corvino's plea to the misdemeanor charge. The court noted that, by filing an Information charging Corvino with fourth-offense OWI as a misdemeanor, the prosecutor had amended the original felony charge. The court then questioned whether there was any basis on which it could find that the amendment was justified under Wis.Stat. § 967.055.

         ¶8 In response, both the prosecutor and Corvino's attorney argued amending the charge served the public's interest in deterring intoxicated driving because: (1) the parties had reached a plea agreement, which removed all potential for an acquittal; (2) Corvino had paid $4, 000 to enter a comprehensive alcohol treatment program, of which he had already completed four weeks; (3)Corvino had a good job, which he would likely lose if convicted of a felony; (4)if Corvino lost his job, he would no longer have the money to pay for alcohol treatment, and he would also lose his health insurance coverage; and (5) in reliance on the plea agreement, Corvino had waived his right to a preliminary hearing and his right to file any suppression motions.

         ¶9 The circuit court acknowledged that the "logic" and "equities" of the parties' arguments to amend the charge were "sound." Nonetheless, the court stated its ability to approve the amendment was restricted by Wis.Stat. § 967.055. The court observed the State could prove up Corvino's prior convictions "relatively summarily" based upon the facts in the complaint. The court further stated there did not appear to be any basis for a motion to suppress evidence. The court then explained:

And while the implications of any citizen, including this defendant, being convicted of a felony offense are grave, I don't-I can't in good conscience find that that is the interest that the legislature was seeking to protect in [Wis. Stat. §] 967.055; and there is nothing about the merits of Mr. Corvino's situation personally that in and of themselves would cause me to disregard the statements of both the State and counsel, but that's-that's not the standard that I'm judging this by.
Under the circumstances that exist in this case, I simply don't believe that this is what the legislature had in mind under [Wis. Stat. §] 967.055. On those cases in the past where I've approved an amendment under [§] 967.055, it has almost always-and, generally speaking, the standard that has historically been applied, at least in Oneida County, is when the State's ability to prosecute the original charged violation is ...

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