from a judgment and an order of the circuit court for Kenosha
County, No. 2013CF870 MARY KAY WAGNER, Judge.
Reilly, P.J., Gundrum and Hagedorn, JJ.
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),  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.
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
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 .…
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.
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
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 ...