from an order of the circuit court for Oneida County No.
2014CF50: MICHAEL H. BLOOM, Judge.
STARK, P.J., HRUZ AND SEIDL, JJ.
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),  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.
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
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.
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.
On June 24, 2014, Corvino waived his preliminary
hearing. 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.
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) … 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
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.
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.
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.
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 ...