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State v. Cooper

Court of Appeals of Wisconsin, District II

July 27, 2016

State of Wisconsin, Plaintiff-Respondent,
v.
Jason R. Cooper, Defendant-Appellant.

         APPEAL from a judgment and an order of the circuit court for Kenosha County, No. 2013CF870 MARY KAY WAGNER, Judge.

          Before Reilly, P.J., Gundrum and Hagedorn, JJ.

          GUNDRUM, J.

         ¶1 Jason Cooper appeals a judgment of conviction and the circuit court’s denial of his postconviction motion. He claims the circuit court erred when it applied WIS. STAT. § 939.62 (2013-14), [1] a statutory criminal penalty enhancer, to his sentence and that his trial counsel performed ineffectively in failing to raise this issue before the circuit court. We conclude the court did not err in applying the enhancer and counsel was not ineffective for failing to object to its application. We affirm.

         Background

         ¶2 Cooper was charged with OWI sixth offense, as a repeater, for having operated a motor vehicle while under the influence of an intoxicant on August 4, 2013. The complaint identified that Cooper was being charged as a repeater pursuant to Wis.Stat. § 939.62(1)(b) because he had been "convicted of Possession of THC (2nd Offense), a felony, on October 12, 2004, in Racine County, " and that because of this repeater status, the maximum term of imprisonment for the OWI sixth charge could be increased by up to four years. Cooper ultimately pled to the OWI sixth charge as a repeater based upon this 2004 conviction and was sentenced to the maximum term of imprisonment available for the OWI sixth conviction plus the additional four years available as a repeater. Cooper filed a motion seeking postconviction relief, which the circuit court denied. Cooper appeals.

         Discussion

         ¶3 Wisconsin Stat. § 939.62 provides in relevant part:

Increased penalty for habitual criminality. (1) If the actor is a repeater, as that term is defined in sub. (2), and the present conviction is for any crime for which imprisonment may be imposed … the maximum term of imprisonment prescribed by law for that crime may be increased ….
(2) The actor is a repeater if the actor was convicted of a felony during the 5-year period immediately preceding the commission of the crime for which the actor presently is being sentenced, or if the actor was convicted of a misdemeanor on 3 separate occasions during that same period …. In computing the preceding 5-year period, time which the actor spent in actual confinement serving a criminal sentence shall be excluded.
(3) In this section "felony" and "misdemeanor" have the following meanings:
(a) In case of crimes committed in this state, the terms do not include motor vehicle offenses under [Wis. Stat.] chs. 341 to 349 .…

         ¶4 In this case, the circuit court "comput[ed]" the "5-year period immediately preceding" Cooper's 2013 OWI sixth offense and determined that Cooper's 2004 felony THC conviction was during that period, making Cooper a repeat offender subject to penalty enhancement. In computing that five-year period, the court, as directed by Wis.Stat. § 939.62(2), excluded the "time" between the 2004 conviction and 2013 offense "which [Cooper] spent in actual confinement serving a criminal sentence." That excluded time included 365 days that he had been confined on his OWI fifth conviction.

         ¶5 Cooper contends the circuit court erred by excluding these 365 days. Both parties agree that if these 365 days are not excluded, the 2004 conviction would fall outside of "the 5-year period immediately preceding" his 2013 offense, Cooper would not be considered a repeater under Wis.Stat. § 939.62, and his sentence would not be properly enhanced. The parties also agree that if those days are excluded, his sentence is appropriately enhanced under the repeater statute.

         ¶6 Determining whether the circuit court properly excluded these 365 days requires us to interpret and apply Wis.Stat. § 939.62. Interpreting a statute and applying it to undisputed facts is a matter of law we review de novo. State ...


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