text:
    In the Interest of Jeremy P., a Person Under the Age of 17: State of Wisconsin, Petitioner-Respondent, v. Jeremy P., Respondent-Appellant.
    Court of Appeals

      No. 04-0360.

      Oral argument November 3, 2004.

    Decided December 7, 2004.

    2005 WI App 13
    (Also reported in 692 N.W.2d 311.)

      On behalf of the respondent-appellant, the cause was submitted on the briefs of Adam B. Stephens of Alex Flynn & Assoc., S.C., and Marjorie R. Maguire, of counsel, of Marjorie R. Maguire Law Office of Milwaukee. There was oral argument by Marjorie R. Maguire.

    On behalf of the petitioner-respondent, the cause was submitted on the brief of E. Michael McCann, district attorney by Lori S. Kornblum, assistant district attorney of Milwaukee. There was oral argument by Lori S. Kornblum.

    Before Wedemeyer, PJ., Curley and Kessler, JJ.
   KESSLER, J.

¶ 1. Jeremy P appeals from a dispo-sitional order adjudicating him to be a delinquent child based on his commission of third-degree sexual assault contrary to Wis. Stat. § 940.225(3) (2001-02). Jeremy challenges that portion of the order requiring him to register as a sex offender, on grounds that the applicable mandatory registration statutes, Wis. Stat. §§ 938.34(15m)(bm) and 301.45(lm), are unconstitutional when applied to juveniles. Specifically, he argues that the mandatory registration requirement is unconstitutional because it violates juveniles' rights to: (1) trial by jury and procedural due process; (2) substantive due process; and (3) equal protection. We reject Jeremy's constitutional challenges because those issues have already been resolved against his position by the Wisconsin Supreme Court or other controlling Wisconsin precedent. However, we reverse that portion of the dispositional order requiring him to register as a sex offender and remand so that the trial court can exercise its discretion and decide whether to stay the sex offender registration portion of the dispositional order effective as of the date the order was originally entered. See State v. Cesar G., 2004 WI 61, ¶ 2, 272 Wis. 2d 22, 682 N.W.2d 1 ("A circuit court has discretion under Wis. Stat. § 938.34(16) to stay that part of a dispositional order requiring a delinquent child to register as a sex offender."). All other conditions of the order, unchallenged on appeal, are affirmed.

BACKGROUND

¶ 2. In 2002, the State alleged that Jeremy, then age 13, had engaged in fellatio with a five-year-old child on two occasions. Pursuant to a negotiated plea, Jeremy admitted he committed one act of third-degree sexual assault. However, he reserved the right to challenge the statutory requirement that he register as a sex offender. See Wis. Stat. § 938.34(15m)(bm).

¶ 3. Jeremy was placed on supervision for one year with a variety of conditions. The court commissioner who accepted Jeremy's plea specifically imposed and stayed the sex offender reporting requirement pending the trial court's decision on Jeremy's challenge to the mandatory registration statute. The trial court issued a written opinion lifting the stay and requiring Jeremy to register as a sex offender consistent with Wis. Stat. § 938.34(15m)(bm). The trial court noted its concerns with the current mandatory registration system, but concluded that it had no discretion to refuse to impose the registration requirement and no discretion to stay that portion of the dispositional order. This appeal followed.

DISCUSSION

¶ 4. Jeremy challenges the constitutionality of Wis. Stat. § 938.34(15m)(bm), which mandates that juveniles adjudicated delinquent for committing specific offenses enumerated in that statute must register as sex offenders pursuant to the procedure outlined in Wis. Stat. § 301.45. He also challenges § 301.45(lm), which provides a limited exception to the registration requirement. Although Jeremy indicates that he is challenging the constitutionality of § 301.45(lm), we interpret his argument as objecting to the fact that § 301.45(lm) provides an exception to registration of juveniles only in limited cases. Jeremy asks this court to find mandatory registration of juveniles in all cases unconstitutional.

¶ 5. The constitutionality of a statute is a question of law that we review de novo. State v. McManus, 152 Wis. 2d 113, 129, 447 N.W.2d 654 (1989). All statutes reach us with the presumption that they are constitutional, and the party challenging the statute has the burden of showing beyond a reasonable doubt that it is unconstitutional. Id. There are two major categories of constitutional challenges: "facial" challenges and "as-applied" challenges. Joseph E.G., 2001 WI App 29, ¶ 5, 240 Wis. 2d 481, 623 N.W.2d 137. Jeremy makes a facial challenge to the constitutionality of requiring certain juveniles adjudicated under the Juvenile Justice Code to register as sex offenders. In doing so, he must prove beyond a reasonable doubt that the challenged statutes are, on their face, unconstitutional. See McManus, 152 Wis. 2d at 129.

¶ 6. We begin our analysis by examining Wis. Stat. § 938.34(15m)(bm). It provides in relevant part:

938.34 Disposition of juvenile adjudged delinquent.
(15m) Sex Offender Reporting Requirements.
(bm) If the juvenile is adjudicated delinquent on the basis of a violation, or the solicitation, conspiracy, or attempt to commit a violation, of s. 940.22 (2), 940.225 (1), (2), or (3), 944.06, 948.02 (1) or (2), 948.025, 948.05, 948.055, 948.06, 948.07, 948,075, 948.08, 948.095, 948.11 (2) (a) or (am), 948.12, 948.13, or 948.30, or of s. 940.30 or 940.31 if the victim was a minor and the juvenile was not the victim's parent, the court shall require the juvenile to comply with the reporting requirements under s. 301.45 unless the court determines, after a hearing on a motion made by the juvenile, that the juvenile is not required to comply under s. 301.45 (lm).

Consistent with this statute, the court is required to order Jeremy, who was found to have committed a violation of Wis. Stat. § 940.225(3), to comply with the registration and reporting requirements of Wis. Stat. § 301.45, the sex offender registration statute. Although § 301.45(lm) provides an exception to the registration requirement, Jeremy acknowledges that he does not qualify for that exception.

¶ 7. Jeremy argues that because the trial court is obligated to order juveniles adjudicated delinquent for certain statutory violations to register as sex offenders, and has no discretion to refuse to so order, the challenged statutes violate certain fundamental constitutional rights. He explains:

It violates his right to have a trial by jury and procedural due process before adult consequences are imposed upon him for his actions. It violates his substantive due process right to liberty because it does not allow the court to consider his best interest. Finally, it violates his constitutional right to equal protection because it places a disparate burden on him as a child.

We examine each of these arguments in turn.

I. Right to a jury trial and procedural due process

¶ 8. Jeremy contends that Wis. Stat. §§ 938.34(15m)(bm) and 301.45(lm) violate his constitutional right to have a jury trial in any criminal prosecution and his constitutional right to procedural due process. See U.S. Const, amends. V, VI, XTV; and Wis. Const, article I, sections 7 and 8. He acknowledges that the Wisconsin Supreme Court recognized in State v. Hezzie R., 219 Wis. 2d 848, 580 N.W.2d 660 (1998), that proceedings under the Juvenile Justice Code are not criminal prosecutions and, therefore, do not require the constitutional protection of trial by jury for the juvenile. See id. at 889-90. Nonetheless, he maintains that Hezzie provides support for his constitutional argument:

In [Hezzie], the supreme court found that portions of the Juvenile Justice Code provided adult criminal punishment by allowing certain juveniles to be transferred to adult prison at the age of 17. The supreme court reasoned that this meant the juveniles were receiving a "de facto criminal sentence" without a jury trial. Therefore, the supreme court found those portions of the Juvenile Justice Code unconstitutional and severed them from the Code. Similarly .. . the requirement that certain juveniles register as sex offenders subjects those juveniles to adult "collateral consequences" of criminal prosecution but without the adult's right to a jury trial.
Even though the sex offender registration requirement for adults in [Wis. Stat. § 301.45] has been found not to be criminal punishment, [citing State v. Bollig, 2000 WI 6, 232 Wis. 2d 561, 605 N.W.2d 199], an adult is only made subject to this regulation after going through the adult criminal system with its constitutional protection of a jury trial. The sex registration requirement for an adult in [§ 301.45] is a "collateral consequence" of conviction in the adult criminal system.

(Citations omitted.) He further argues that the registration requirement for juveniles is unconstitutional because if the juvenile stops reporting to the sex offender registry after the dispositional order expires, the juvenile, then an adult, may be imprisoned pursuant to § 301.45(6)(a). He contends: "The juvenile turned adult may be imprisoned even though he did not have the opportunity to have a jury find him guilty of the original offense which required the registration."

¶ 9. In response, the State notes that the Wisconsin Supreme Court and the United States Supreme Court have rejected the argument that mandatory sex offender registration is a criminal penalty for adult sex offenders. See Smith v. Doe, 538 U.S. 84, 96 (2003); Bollig, 232 Wis. 2d 561, ¶ 27. The State argues: "Because mandatory sex offender registration is not punishment for adults, and because juveniles only have the right to a jury trial if they face adult punishment, sex offender registration does not give juveniles the right to a jury trial."

¶ 10. We conclude that Jeremy's constitutional challenge must fail, consistent with controlling precedent established in Hezzie and Bollig. In Hezzie, the supreme court specifically addressed several juveniles' challenges to seven provisions of Wis. Stat. ch. 938 (1995-96 and 1997-98), including the juveniles' argument that the sex offender registration provision of the Juvenile Justice Code violated the juveniles' constitutional rights to a jury trial. In Hezzie, the court summarized the juveniles' argument:

[T]he juveniles in this case premise their constitutional challenges on the assertion that the [Juvenile Justice Code] is not a juvenile code but is, for all intents and purposes, a "criminal code." Because the juvenile proceedings are therefore akin to a criminal prosecution that may impose criminal punishment, they argue, their right to a jury trial is guaranteed under Wis. Const, art. I, § 7 and the Sixth and Fourteenth Amendments. To support their argument, the juveniles assert that under certain specific provisions in the [Juvenile Justice Code], a juvenile is potentially subject to: (1) a possible lifetime commitment as a sexually violent individual under Wis. Stat. ch. 980; (2) a possible need to register as a sex offender; (3) a possible lifetime ban on the possession of a firearm; (4) an adjudication of delinquency being considered in any future adult sentencing; (5) an adjudication of delinquency being considered for future impeachment proceedings and in future bail hearings; (6) the possibility of several years of placement in a juvenile secured correctional facility; and (7) a possible transfer from a juvenile secured correctional facility to an adult prison.

Id., 219 Wis. 2d at 877. The court rejected six of the seven challenges, but concluded that the provisions that allowed for transfer of juveniles to adult prison were unconstitutional and should be severed from the Juvenile Justice Code. Id. at 887-88. In rejecting the juveniles' argument on the sex offender registration provision, the court stated:

The juveniles also argue that an adjudication of delinquency for a sexually motivated offense may result in having to comply with the reporting requirements for sex offender registration under Wis. Stat. § 301.45. The juveniles fail to recognize that those reporting requirements may be waived. Under Wis. Stat. § 938.34(15m)(bm) (1997-98), a juvenile need not comply with the reporting requirements of § 301.45 if "the court determines, after a hearing on a motion made by the juvenile, that the juvenile is not required to comply under s. 301.45(lm)." Factors that a juvenile court may consider in determining whether to waive the reporting requirements include:
1. The ages, at the time of the violation, of the juvenile and the victim of the violation.
2. The relationship between the juvenile and the victim of the violation.
3. Whether the violation resulted in bodily harm, as defined in s. 939.22(4), to the victim.
4. Whether the victim suffered from a mental illness or mental deficiency that rendered him or her temporarily or permanently incapable of understanding or evaluating the consequences of his or her actions.
5. The probability that the juvenile will commit other violations in the future.
6. Any other factor that the court determines may be relevant to particular case.
Wis. Stat. § 938.34(15m)(c). The requirements of § 301.45, therefore, are only imposed on a juvenile who is adjudicated delinquent where the particular facts of the case and concerns for public safety dictate it. This is not criminal punishment and does not equate the [Juvenile Justice Code] to a criminal code.

Id. at 880-81 (footnote omitted).

¶ 11. Jeremy argues that Hezziés discussion of the sex offender registration provision was based on an erroneous reading of the statute. For juveniles like Jeremy who violate Wis. Stat. § 940.225(3), an offense specifically identified in Wis. Stat. § 938.34(15m)(bm), the statute directs that the trial court "shall require the juvenile to comply with the reporting requirements under s. 301.45 unless the court determines, after a hearing on a motion made by the juvenile, that the juvenile is not required to comply under s. 301.45 (1m).’’ (Emphasis added.) In Hezzie, the court identified six factors that the trial court could consider before deciding whether to require a juvenile to register as a sex offender, implying that those factors are used to determine whether to waive the reporting requirement under Wis. Stat. § 301.45(1m). Hezzie, 219 Wis. 2d at 880-81. However, the factors listed, found in Wis. Stat. § 938.34(15m)(c), apply only in cases where a juvenile has committed offenses specified in Wis. Stat. § 938.34(15m)(am), where a trial court has discretion to decide whether to require the juvenile to register as a sex offender.

¶ 12. Jeremy argues that Hezziés misinterpretation of the statute undermines its ultimate conclusion, that was:

The requirements of § 301.45, therefore, are only imposed on a juvenile who is adjudicated delinquent where the particular facts of the case and concerns for public safety dictate it. This is not criminal punishment and does not equate the [Juvenile Justice Code] to a criminal code.

Hezzie, 219 Wis. 2d at 881.

¶ 13. Even if the supreme court erroneously concluded that trial courts have discretion to waive the reporting requirement for those juveniles adjudicated delinquent for offenses specified in Wis. Stat. § 938.34(15m)(bm), the supreme court's decision in Bollig left no doubt that under Wisconsin law, requiring anyone to register as a sex offender is not criminal punishment — the same conclusion reached in Hezzie.

¶ 14. In Bollig, the supreme court considered whether a defendant was entitled to withdraw his no contest plea because the trial court had not advised the defendant of the sex offender registration requirement. 232 Wis. 2d 561, ¶ 1. Bollig recognized that courts are constitutionally required to notify defendants of the "direct consequences" of their pleas, and that a direct consequence is one "that has a definite, immediate, and largely automatic effect on the range of defendant's punishment." Id., ¶ 16. The court concluded that Wisconsin's sex offender registration requirements do not constitute punishment. Id., ¶ 27. The court continued:

Because the duty to register is not punishment, it does not represent a direct consequence of Bollig's no contest plea. Rather, it is a collateral consequence, and Bollig does not have a due process right to be informed of collateral consequences prior to entering his plea.

Id.

¶ 15. Bollig's conclusion that the duty to register is not punishment, although decided in the context.of a plea, is relevant in this case because Hezzie concluded that if a provision is not criminal punishment, there is no right to a jury trial guaranteed by the Sixth and Fourteenth Amendments of the United States Constitution and article I, section 7 of the Wisconsin Constitution. See Hezzie, 219 Wis. 2d at 889-90. In light of our supreme court's conclusions in both Bollig and Hezzie, we cannot conclude that Jeremy has proven that Wis. Stat. §§ 938.34(15m)(bm) and 301.45(lm) are unconstitutional under the Fifth, Sixth and Fourteenth Amendments of the United States Constitution and article I, sections 7 and 8 of the Wisconsin Constitution.

¶ 16. Moreover, if one considered mandatory sex registration by juveniles to be punishment, the supreme court's decision in Cesar effectively attaches a "best interest of the child" consideration to that punishment by permitting the trial court to exercise its discretion to stay that part of the dispositional order. See 272 Wis. 2d 22, ¶ 2. With that additional safeguard, which is unavailable to adults in the mandatory registration class, the traditional concerns with, and consideration of, the best interests of the child remain an important aspect of this part of the juvenile code.

II. Right to substantive due process

¶ 17. Jeremy contends that "the mandatory sex offender registration requirement for juveniles in Wis. Stat. §§ 938.34(15m)(bm) and 301.45(lm) are facially unconstitutional violations of a juvenile's substantive due process right to liberty guaranteed by the Fourteenth Amendment of the United States Constitution and by [ajrticle I, [section] 1 of the Wisconsin Constitution." "[Substantive due process] protects against governmental actions that are arbitrary and wrong 'regardless of the fairness of the procedures used to implement them.'" Monroe County Dep't of Human Services v. Kelli B., 2004 WI 48, ¶ 19, 271 Wis. 2d 51, 678 N.W.2d 831 (citation omitted).

¶ 18. Jeremy candidly asks this court to recognize a new constitutional liberty interest contained in the "penumbra" of the Bill of Rights: "that children have a fundamental liberty interest in having their best interest considered in any decision the government makes about their lives." If children do have such a fundamental liberty interest, we would be required to review the question of mandatory sex offender registration while employing a standard of strict scrutiny. See id., ¶ 17. This standard requires the State to show that the statute is narrowly tailored to advance a compelling interest that justifies interference with the juveniles' fundamental liberty interest. See id. If a fundamental liberty interest is not implicated, then we need only review the statute under the standard of rational basis. See id. This is satisfied if the legislative enactment bears a rational relation to some legitimate end. State ex rel. Schatz v. McCaughtry, 2003 WI 80, ¶ 41, 263 Wis. 2d 83, 664 N.W.2d 596.

¶ 19. We decline Jeremy's invitation to recognize a new constitutional liberty interest. The due process clause of the Wisconsin Constitution is the substantial equivalent of the respective clause in the federal constitution. Joseph E.G., 240 Wis. 2d 481, ¶ 5 n.4. As Jeremy acknowledges, neither the United States Supreme Court nor the Wisconsin Supreme Court has recognized that children have a fundamental liberty interest in having their best interest considered in any decision the government makes in their lives. Indeed, in Reno v. Flores, 507 U.S. 292 (1993), the United States Supreme Court observed the following:

"The best interests of the child," a venerable phrase familiar from divorce proceedings, is a proper and feasible criterion for making the decision as to which of two parents will be accorded custody. But it is not traditionally the sole criterion — much less the sole constitutional criterion — for other, less narrowly channeled judgments involving children, where their interests conflict in varying degrees with the interests of others.

Id. at 303-04.

¶ 20. The United States Supreme Court has cautioned against expanding substantive due process rights. " 'Substantive due process' analysis must begin with a careful description of the asserted right, for' [t]he doctrine of judicial self-restraint requires us to exercise the utmost care whenever we are asked to break new ground in this field.'" Id. at 302 (citation omitted). In order to recognize a new fundamental liberty interest, we must be convinced that the interest is "so rooted in the traditions and conscience of our people as to be ranked as fundamental." Id. at 303 (citation omitted).

¶ 21. Jeremy argues that the rights of children to have their best interest considered in any action by the State is "implicit in the concept of ordered liberty," citing Palko v. Connecticut, 302 U.S. 319, 325 (1937), overruled on other grounds by Benton v. Maryland, 395 U.S. 784, 793-94 (1969). We are unconvinced that this interest is so rooted in the traditions and conscience of our people as to be ranked as fundamental. See Flores, 507 U.S. at 303. Accordingly, we reject Jeremy's argument that we must review the question of mandatory sex offender registration while employing a standard of strict scrutiny. See Kelli B., 271 Wis. 2d 51, ¶ 17.

¶ 22. In the alternative, Jeremy argues that even if this court employs the rational basis test, "mandatory registration statutes that allow no judicial discretion should not be able to pass muster." Jeremy devotes only a single paragraph to this alternative argument. Because this issue is not fully briefed, we need not address it. See State v. Pettit, 171 Wis. 2d 627, 646-47, 492 N.W.2d 633 (Ct. App. 1992). However, we note that the discretion confirmed in Cesar, and discussed supra, effectively permits the trial court to hold the mandatory registration in abeyance, potentially through the end of any time period covered by a juvenile registration order. The practical effect of Cesar is to provide the court with the very discretion Jeremy seeks in this appeal.

III. Right to equal protection

¶ 23. Similar to his substantive due process argument, Jeremy asks this court to strictly scrutinize the mandatory sex offender registration provisions to determine whether the statutes violate juveniles' rights to equal protection under the Fourteenth Amendment of the United States Constitution and by article I, section 1 of the Wisconsin Constitution. "Equal protection requires strict scrutiny of a legislative classification only when the classification impermissibly interferes with the exercise of a fundamental right or operates to the peculiar disadvantage of a suspect class." State v. Annala, 168 Wis. 2d 453, 468, 484 N.W.2d 138 (1992). If a suspect class is not involved, "the appropriate analysis is whether the legislative classification rationally furthers a purpose identified by the legislature." Id. Under this test, equal protection is violated "only if the classification rests on grounds wholly irrelevant to the achievement of the State's objective." State v. Martin, 191 Wis. 2d 646, 657, 530 N.W.2d 420 (Ct. App. 1995) (citation omitted).

¶ 24. Jeremy argues that in order to apply strict scrutiny analysis, this court should recognize "that a child has a fundamental constitutional right to have his or her best interest considered in any decision about him or her made by the State," and that children are a "suspect class" that likewise requires strict scrutiny.

¶ 25. The Wisconsin Supreme Court has concluded that the equal protection clauses of the Wisconsin and United States Constitutions are equivalent for purposes of interpretation. Hezzie, 219 Wis. 2d at 893. As with his substantive due process argument, Jeremy acknowledges that neither the Wisconsin Supreme Court nor the United States Supreme Court has recognized that minors have a fundamental constitutional right to have their best interest considered in any decision made about them by the State, and that neither court has recognized children as a suspect class. We reject Jeremy's argument with respect to recognizing a new fundamental liberty interest for the same reasons articulated with respect to substantive due process.

¶ 26. Next, we consider Jeremy's invitation to recognize children as a suspect class. "When the courts speak of a 'suspect' class, they look to 'traditional indicia of suspectness.'" State v. Martin, 191 Wis. 2d 646, 652, 530 N.W.2d 420 (Ct. App. 1995) (citation omitted). Martin explained:

Traditional indicia are found when there is a history of such purposeful unequal treatment, political powerlessness or imposition of special disabilities such that the courts command extraordinary protection from the majoritarian political process. Persons generally are placed in these suspect classes by accident of birth. Examples of suspect classes are race, alienage and national origin. Another example is where a statute classifies by sex.

Id. (citations omitted).

¶ 27. Jeremy argues that children:

are a suspect class because, like the traditional suspect classes, they are a minority without political power. They have been the object of discrimination throughout history. Various laws have had to be passed to protect children, such as child labor laws. It is time for the courts to recognize children as a suspect class who need the equal protection rights of the Constitution to prevent government from applying laws to them that have a disparate impact on them as children.

¶ 28. We disagree with Jeremy that children are a suspect class. As the State points out, recognizing children as a suspect class would create a giant class of persons, as all children under the age of eighteen would be members of the class. Such a class would also be transient, as children would emerge from the class upon reaching the age of majority. We conclude that recognizing all children as members of a suspect class would be inconsistent with other classes where those in the class retain that classification for life, and have been singled out for purposeful, unequal treatment. See id. We also note that the consequences of recognizing children generally as a suspect class could have far-reaching implications in many other areas of the law, including by way of example, education, school law, medical care, guardianship, family law and contract law. We decline to leap into that cauldron of potentially conflicting rights.

¶ 29. Because we decline to recognize that children are members of a suspect class with a fundamental liberty right to have their best interest considered before the State makes decisions about them, we decline to apply the strict scrutiny test to Jeremy's equal protection analysis. Jeremy does not argue that the statutes fail under the rational basis test, so we decline to further address his equal protection argument.

W. Discretion to stay the order

¶ 30. Although we have rejected Jeremy's constitutional challenge to the statutes mandating sex offender registration, we reverse and remand the dispo-sitional order so that the trial court can consider whether to stay the registration component of the dispositional order. In its written order, the trial court specifically concluded that it lacked the discretion to stay the sex offender registration requirement. Subsequent to the trial court's decision, the Wisconsin Supreme Court decided Cesar, which concluded that "[a] circuit court has discretion under Wis. Stat. § 938.34(16) to stay that part of a dispositional order requiring a delinquent child to register as a sex offender." Cesar, 272 Wis. 2d 22, ¶ 2.

¶ 31. We conclude that it is appropriate to give the trial court an opportunity to exercise discretion, as of the date of its original decision, with respect to staying the sex offender registration component of Jeremy's disposi-tional order. Although Jeremy did not explicitly seek this remedy, the heart of his appeal is his desire to avoid having to register as a sex offender. Given this desire, as well as the trial court's opinion implying that if it had the authority to do so, it would consider staying the disposi-tional order, we conclude that the trial court should have an opportunity to exercise its discretion in this case.

CONCLUSION

¶ 32. We reject Jeremy's constitutional challenges to Wis. Stat. §§ 938.34(15m)(bm) and 301.45(lm). However, we reverse that portion of the dispositional order requiring him to register as a sex offender and remand so that the trial court can decide whether to stay the sex offender registration portion of the dispositional order as of the date of that order. All other conditions of the order, unchallenged on appeal, are affirmed.

By the Court. — Order affirmed in part; reversed in part and cause remanded with directions.

       All references to the Wisconsin Statutes are to the 2001-02 version unless otherwise noted.

       Jeremy also reserved the right to petition the court for an expungement of the adjudication on or after August 17, 2005. That reservation is not at issue in this appeal.

       Pursuant to Wis. Stat. § 301.45(lm), a juvenile is not required to comply with the reporting requirements only if four conditions are met:
      (lm) Exception to registration requirement, (a) A person is not required to comply -with the reporting requirements under this section if all of the following apply:
      1. The person meets the criteria under sub. (lg) (a) to (dd) based on any violation, or on the solicitation, conspiracy or attempt to commit any violation, of s. 948.02 (1) or (2) or 948.025.
      lg. The violation, or the solicitation, conspiracy or attempt to commit the violation, of s. 948.02 (1) or (2) or 948.025 did not involve sexual intercourse, as defined in s. 948.01 (6), either by the use or threat of force or violence or with a victim under the age of 12 years.
      2. At the time of the violation, or of the solicitation, conspiracy or attempt to commit the violation, of s. 948.02 (1) or (2) or 948.025, the person had not attained the age of 19 years and was not more than 4 years older or not more than 4 years younger than the child.
      3. It is not necessary, in the interest of public protection, to require the person to comply with the reporting requirements under this section.

        See § 301.45(lm)(a). Section 301.45(lm)(a)lg was added to the statute after the court's decision in State v. Hezzie R., 219 Wis. 2d 848, 580 N.W.2d 660 (1998), but that fact does not affect our analysis.

       Jeremy's procedural due process argument is based entirely on his assertion that he is entitled to a jury trial before being required to register as a sex offender. He does not argue there are other procedures that are constitutionally mandated before he can be required to register as a sex offender.

       In Hezzie, 219 Wis. 2d at 858, the court examined the 1995-96 and 1997-98 versions of the statutes. There have been no subsequent changes to the statutes that affect our analysis.

        See Wis. Stat. § 938.34(15m)(c) ("In determining under par. (am) whether it would be in the interest of public protection to have the juvenile report under s. 301.45, the court may consider any of the following...").


source: Caselaw Access Project

author: ANDERSON, EJ.

license: Public Domain

text:
    State of Wisconsin ex rel. Catharine M. Lawton, Plaintiff-Appellant, v. Town of Barton, Town Board of Barton, Richard Bertram, Michael Dricken, Randy Stark, Russell Prust, and Russell Abel, Defendants-Respondents.
    Court of Appeals

      No. 04-0659.

      Submitted on briefs October 21, 2004.

    Decided December 8, 2004.

    2005 WI App 16
    (Also reported in 692 N.W.2d 304.)

      On behalf of the plaintiff-appellant, the cause was submitted on the briefs of Joseph S. Goode, Mark M. Leitner, and Amy Weber Shambarger of Whyte Hirsch-boeck Dudek S.C., Madison.

      On behalf of the defendants-respondents, the cause was submitted on the brief of Timothy J. Andringa of Cramer, Multhauf & Hammes, LLP, Waukesha.
    Before Anderson, EJ., Brown and Nettesheim, JJ.
   ANDERSON, EJ.

¶ 1. Catharine M. Lawton appeals from a circuit court order dismissing as moot count four of her amended complaint, which seeks relief under the open meetings law, and an order denying her motion for reconsideration. We hold that a judgment by this court concerning the alleged open meetings law violation would still have a practical legal effect upon an existing controversy and, therefore, count four is not moot. Accordingly, we reverse the orders of the circuit court and remand for proceedings consistent with this opinion.

FACTS

¶ 2. This is an appeal of a motion to dismiss for failure to state a claim, and therefore we accept as true, for purposes of this review, the following relevant facts from Lawton's complaints. See generally Tietsworth v. Harley-Davidson, Inc., 2004 WI 32, ¶ 5, 270 Wis. 2d 146, 677 N.W.2d 233. In 1994, Russell Abel, the chairman of the Town Board of Barton, appointed Lawton to the Town of Barton Flan Commission. Abel reappointed Lawton to several additional terms; her most recent appointment was set to expire in April 2004.

¶ 3. According to the amended complaint, the town supervisors, Richard Bertram, Michael Dricken, Randy Stark and Russell Frust, unhappy with Lawton's positions on land use matters, met on or around April .21, 2003, to privately arrange a special meeting of the Town Board to consider the removal of Lawton from the Plan Commission. At those meetings, the town supervisors intended to establish an agreement to remove Lawton at the April 29 special meeting. On April 27, Abel learned for the first time that the Town Board intended to convene on the evening of April 29 to discuss removal of "commissioner(s)" of the Plan Commission. Lawton did not learn of the meeting until April 28. At the April 29 meeting, of which the public had twenty-four hours notice, the town supervisors approved a motion to remove Lawton by a vote of four to one, with Abel casting the lone opposing vote. According to the amended complaint, the local newspaper and radio stations were never informed of the special meeting.

¶ 4. On May 29, 2003, Lawton filed a two-count complaint challenging her dismissal from the Plan Commission by the Town Board. Count one sought certiorari review of the Town Board's decision to remove Lawton and count two sought a declaratory judgment invalidating a section of the Town of Barton's zoning ordinance to the extent that it granted the Town Board any power to appoint or remove members of the Plan Commission. Contemporaneous with the filing of her complaint, Lawton served a verified complaint pursuant to Wis. Stat. § 19.97(1) (2001-02) on the Washington County District Attorney's Office and the State Attorney General's Office, alleging several violations of the open meetings law. On June 2, the Washington County District Attorney's Office notified Law-ton that it would not pursue the alleged violations of the open meetings law. On August 13, after an extensive review of the record, the State Attorney General's Office notified Lawton that it would not pursue the matter either, concluding that Lawton was well situated to prosecute the violations on the State's behalf and that limited prosecutorial resources required it to forego initiating a separate investigation. The State Attorney General's Office concluded, however, that the Town Board had violated the open meetings law when it failed to notify the news media of the April 29 removal meeting.

¶ 5. Thereafter, on September 5, Lawton filed two additional claims for relief, both alleging violations under the open meetings law. The third count alleged a violation of Wis. Stat. § 19.84(l)(b), based on the Town Board's failure to provide notice to the news media of the April 29 removal meeting. The fourth count alleged that the town supervisors participated in one or more quorums or "walking" quorums before the April 29 removal meeting with the intent of secretly orchestrating the removal of Lawton from the Town Board and that these quorums or "walking" quorums constituted "meetings" within the meaning of Wis. Stat. § 19.82(2). Lawton submitted that because an actual quorum or "walking" quorum of the Town Board met for the purposes of exercising official responsibilities and no notice was provided, the conduct violated the open meetings law. She sought both a declaration that the town supervisors had violated the open meetings law and civil forfeitures from the town supervisors individually as a penalty for the alleged violation. Lawton alleged that pursuant to Wis. Stat. § 19.97(4) she was entitled to bring a claim based on these violations as a private attorney general.

¶ 6. Also on September 5, Lawton filed a motion for judgment on the pleadings with respect to counts one and two of the amended complaint and a motion for preliminary injunction asking the court to enter an injunction requiring the Town to immediately reinstate Lawton as a member of the Plan Commission. On September 16, the parties filed a stipulation and order temporarily reinstating Lawton to the Plan Commission pending a decision on the motion for judgment on the pleadings.

¶ 7. After hearing the parties' arguments, the circuit court granted Lawton's certiorari claim in count one and voided the Town Board's April 29 decision to remove Lawton. The circuit court concluded that the Town Board did not have the authority to remove Lawton pursuant to section 8.0102 of the Town's zoning ordinances and the removal provisions in Wis. Stat. § 17.13(1). The court explained that section 8.0102 vested the appointing authority for the Plan Commission in the Town Chairman, in this case Abel, and § 17.13(1) granted Abel, as the appointing officer, the sole authority to remove Lawton. The court then determined that the claims contained within count two of Lawton's amended complaint were moot and granted the Town summary judgment on that count. The court accepted Lawton's representation that the Town conceded a violation of Wis. Stat. § 19.84(l)(b) as alleged in count three and granted judgment on the claim and awarded attorney fees to Lawton. Finally, the court expressed concern over the necessity of addressing count four of the amended complaint, musing that its ruling on count one, which voided the Town Board's action, mooted the issue raised in count four. The court invited the parties to brief the issue.

¶ 8. Following briefing, the court issued a written decision in which it held that count four had been rendered moot by its earlier rulings, despite the Town's concession that the issue was not moot. The court explained that it had already voided the actions taken at the April 29 removal meeting and "declaring a meeting void for a second reason would add nothing to the analysis." The court rejected Lawton's argument that this case was governed by State ex rel. Badke v. Village Board of the Village of Greendale, 173 Wis. 2d 553, 568-69, 494 N.W.2d 408 (1993), where our supreme court held that a claim of an open meetings law violation was not mooted by a subsequent procedurally proper revote by the governing authority. Accordingly, the circuit court dismissed count four of Lawton's amended complaint. Lawton then submitted a motion for reconsideration of the dismissal. The circuit court denied the motion. Lawton now appeals solely from the court's dismissal of count four of her amended complaint.

STANDARD OF REVIEW

¶ 9. We review de novo the circuit court's granting of a motion to dismiss. Turkow v. DNR, 216 Wis. 2d 273, 280, 576 N.W.2d 288 (Ct. App. 1998). In determining whether a party has stated a claim, we are concerned with the legal sufficiency of the complaint. Town of Eagle v. Christensen, 191 Wis. 2d 301, 311, 529 N.W.2d 245 (Ct. App. 1995). We accept all alleged facts and reasonable inferences as true, but draw all legal conclusions independently. Id. at 311-12.

DISCUSSION

¶ 10. Lawton's sole claim on appeal is that the circuit court erred in determining that count four of her amended complaint was mooted by its decision to void the Town Board's actions at the April 29 meeting. An issue is moot when a determination is sought which can have no practical legal effect on an existing controversy. State ex rel. Jones v. Gerhardstein, 135 Wis. 2d 161, 169, 400 N.W.2d 1 (Ct. App. 1986). Lawton maintains that the controversy concerning the alleged April 21 meetings persists despite the circuit court's ruling, and a judgment by the court would have a practical legal effect on that controversy. She also argues, as she did before the circuit court, that this case is governed by Badke.

Existing Controversy

¶ 11. We agree with Lawton that the controversy in count four of her amended complaint continues despite the resolution of count one in Lawton's favor. The controversy presented in her first claim is whether the Town Board had the statutory authority to remove her from the Plan Commission. The claim is against the Town Board as a whole and required the court to review the substance of the Town Board's conduct at the April 29 meeting. The controversy presented in count four, on the other hand, is whether the town supervisors in their individual capacity violated the open meetings law by participating in secret meetings on or around April 21 without proper notice to the public or to Abel, the town chairperson. See State ex rel. Newspapers, Inc. v. Showers, 135 Wis. 2d 77, 92, 102, 398 N.W.2d 154 (1987) (holding that when government officials gather either formally or informally to engage in governmental business and the group has the potential to determine the outcome of the matter under discussion, the gathering is governed by the open meetings law). This controversy then is against the town supervisors as individuals, and not the Town Board, and concerns the legal status of the informal secret meetings the town supervisors participated in on or around April 21, and not the formal action of the Town Board on April 29. Put simply, counts one and four involve different defendants and different alleged conduct that occurred on different dates and are premised on different legal theories.

¶ 12. The Town also seems to suggest that the circuit court's determination that the Town Board violated the open meetings law when it failed to properly notice the news media of the April 29 meeting moots Lawton's claim in count four of her amended complaint. However, this ruling clearly does not extinguish the controversy in count four. The claim in count three deals with the lack of requisite notice for the April 29 meeting whereas the claim in count four alleges a "walking" quorum violation on or around April 21. These are two distinct legal concepts that deal with different violations that occurred at different times.

Practical Legal Effect

¶ 13. Contrary to the Town's assertion that because the circuit court declared the meeting void and Lawton has been reinstated, Lawton has achieved "for all practical purposes everything possible" for relief, a judgment by the court would have a practical legal effect on the existing controversy. While Lawton may have obtained the relief she was entitled to personally when the court voided the Town Board's decision to remove her from the Plan Commission, in arguing that she is entitled to no further relief, the Town misunderstands Lawton's role as a private attorney general in her open meetings law claim.

¶ 14. Wisconsin Stat. § 19.97(4) provides that if, as here, the district attorney does not commence an enforcement action for an open meetings law violation, an individual may bring an action for enforcement "on his or her relation in the name, and on behalf, of the state." This is precisely what Lawton has chosen to do.

¶ 15. As a so-called "private attorney general," Lawton stands in the shoes of the state enforcing not only her own, but also, the rights of the denizens of this state to open government. See State ex rel. Hodge v. Town of Turtle Lake, 180 Wis. 2d 62, 78, 508 N.W.2d 603 (1993). On behalf of the state, she is entitled to prosecute the alleged open meetings law violations to the fullest extent of the law and to seek certain remedies. Those remedies include the relief she seeks in this case: a declaration concerning the legal status of the town supervisors' actions on or around April 21 and civil forfeitures assessed individually against the town supervisors for participating in meetings in violation of the open meetings law. See Wis. Stat. § 19.96 (providing that "[a]ny member of a governmental body who knowingly attends a meeting of such body held in violation of this subchapter, or who, in his or her official capacity, otherwise violates this subchapter by some act or omission shall forfeit without reimbursement not less than $25 nor more than $300 for each such violation"); Wis. Stat. § 19.97(l)-(4) (providing that a person acting as a private attorney general may bring an action on behalf of the state to obtain a declaratory judgment and/or civil forfeitures). Thus, a judgment by a court would have a meaningful effect on the controversy separate and apart from the relief Lawton personally sought in count one of her amended complaint. A judgment would declare, for the citizens of the state, the legal status of the acts of the town supervisors on April 21 and potentially impose forfeitures on the town supervisors for their knowing failure to comply with the open meetings law.

¶ 16. Furthermore, we also reject the Town's intimations that the relief granted in count three of the amended complaint, the declaration that the Town Board violated the open meetings law by failing to notice the news media of the April 29 meeting and the award of attorneys fees, somehow means that a judgment on count four could not have a practical legal effect on the controversy. The court's ruling on count three does not speak to the relief sought in count four — the declaration that the town supervisors violated the open meetings law on or around April 21 and the award of civil forfeitures for that violation — and, therefore, does not impact our holding that a judgment by this court would have a meaningful impact on an existing controversy.

Badke

¶ 17. We observe that the parties devote much of their briefs debating the applicability of our supreme court's holding in Badke. In Badke, our supreme court held that a claim alleging an open meetings law violation by a village board was not mooted by the subsequent procedurally proper revote that was taken on the substantive issue involved in the initial improperly noticed governmental meeting. Badke, 173 Wis. 2d at 566-69. Our supreme court explained that if it dismissed the case as moot, it would be permitting a government entity to make an end run around the open meetings law. Id. at 566, 569. Rather than hold open meetings, the entity could hold meetings behind closed doors, and upon the filing of a complaint, open the meeting to the public. Id. at 569. The complaint would then be dismissed as moot and the public would never know of the information and discussion that took place at the first secret meeting which may have formed the basis for the entity's decision at the second meeting. Id.

¶ 18. We agree with the circuit court and the Town that Badke is distinguishable on its facts. The Badke court's concern that the governmental entity would be able to manipulate the process by adhering to the open meetings law the second time and still get the same result it desired is not present in this case — the Town Board does not have the statutory authority to remove Lawton, its actions at the April 29 meeting are void and Lawton has been reinstated. However, simply because our supreme court's discussion of the open meetings law was geared toward the specific facts in that case does not mean that its general discussion concerning the purpose and spirit of the law is irrelevant to our consideration of this case. As we will point out, it is meaningful.

¶ 19. First, as we have already explained, the controversy concerning the alleged April 21 open meetings law violations was not resolved by the circuit court's grant of judgment in Lawton's favor either in her certiorari action or in her other open meetings law claim, and a judgment by this court would have a practical legal effect on that controversy. Second, although the supreme court's discussion of how the governmental entity in Badke tried to run around the open meetings law is not helpful to our analysis under the facts here, the Badke court spent a great deal of time discussing the general principles of public policy underpinning the open meetings law. That discussion guides us in our determination in this case, even though the facts might be different. As the court explained, the purpose of the open meetings law is to protect the public's right to the fullest and most complete information regarding the affairs of government as is compatible with the conduct of government business. Badke, 173 Wis. 2d at 570; see also State v. Swanson, 92 Wis. 2d 310, 321-22, 284 N.W.2d 655 (1979). The legislature has issued a clear mandate that we are to vigorously and liberally enforce the policy behind the open meetings law. See Badke, 173 Wis. 2d at 570 ("The open meeting law demands that it be liberally construed in favor of open government."). If we adopted the circuit court's conclusion, and the Town's argument on appeal, that the claim concerning the town supervisors conduct on or around April 21 was mooted by the court's nullification of the Town Board's actions at the April 29 meeting, we potentially would be sanctioning an attempt by members of a government authority to circumvent the policy of openness the statute strives to protect. As Badke and other cases instruct, this is a result we cannot countenance. See, e.g., id. at 569-70; Showers, 135 Wis. 2d at 95-96. Thus, we conclude that count four of Lawton's amended complaint is not moot.

¶ 20. Finally, Lawton also asks us to consider the merits of her claim — whether the town supervisors alleged participation in quorums or "walking" quorums actually constituted a violation of the open meetings law. However, because the circuit court concluded that the issue was moot, it did not have the opportunity to pass upon the factual and legal questions presented by such claim. Generally, we will not consider issues that the circuit court has not yet had the opportunity to pass upon. State v. Holland Plastics Co., 111 Wis. 2d 497, 504, 331 N.W.2d 320 (1983). We therefore reverse and remand this case to the circuit court for further proceedings regarding that issue.

By the Court. — Orders reversed and cause remanded with directions.

       All references to the Wisconsin Statutes are to the 2001-02 version unless otherwise noted.


author: DEININGER, EJ.

text:
    State of Wisconsin, Plaintiff-Respondent, v. Brandon J. Matke, Defendant-Appellant.

    Court of Appeals

      No. 03-2278-CR.

      Submitted on briefs May 6, 2004.

    Decided December 9, 2004.

    2005 WI App 4
    (Also reported in 692 N.W.2d 265.)

      On behalf of the defendant-appellant, the cause was submitted on the briefs of James B. Connell of Crooks, Low & Connell, S.C., Wausau.
    On behalf of the plaintiff-respondent, the cause was submitted on the brief oí Michael C. Sanders, assistant attorney general, and Peggy A. Lautenschlager, attorney general.
    Before Deininger, EJ., Vergeront and Higgin-botham, JJ.

       Petition to review denied 3-8-2005.

   DEININGER, EJ.

¶ 1. Brandon Matke appeals a judgment that convicted him of operating a motor vehicle while under the influence of an intoxicant (OMVWI) and imposed a sentence for sixth-offense OMVWI. He claims the trial court erred in sentencing him for a sixth offense because, at the time he committed the instant offense, he had only three prior OMVWI convictions. We conclude that, because Matke had five prior OMVWI convictions at the time of sentencing, the trial court properly sentenced him as a six-time offender. We also reject Matke's claim that the trial court erroneously exercised its discretion in ordering his sentence for the present offense to be consecutive to any sentences he was then serving. Accordingly, we affirm the appealed judgment.

BACKGROUND

¶ 2. Matke committed his present OMVWI offense on June 19, 2001. At that time, Wis. Stat. § 346.65(2)(d) (2001-02) provided that a fourth-offense OMVWI was punishable by imprisonment "for not less than 60 days nor more than one year in the county jail." A fifth or subsequent OMVWI conviction, however, was punishable as a felony, with a specified range of imprisonment of "not less than 6 months nor more than 5 years." Section 346.65(2)(e). The present action began as a misdemeanor prosecution for fourth-offense OMVWI but ended with Matke's conviction and sentencing for a sixth offense. The court imposed a four-year prison sentence, consisting of two years confinement followed by two years extended supervision, the same to be served consecutive to any sentences Matke was then serving.

¶ 3. Matke challenges only the sentence imposed for sixth-offense OMVWI. His principal claim of error is grounded on the order in which he committed and was convicted of six OMVWI offenses between 1998 and 2003. He makes no claim that the guilty verdict for his present OMVWI offense should be set aside. Accordingly, we provide no details of Matke's present offense or of the jury trial at which he was found guilty. Instead, we present the relevant chronology of his six OMVWI offenses:

February 2, 1998: First OMVWI committed.
February 10, 1998: Second OMVWI committed.
February 28, 1998: Third OMVWI committed.
May 20, 1998: Convicted of 2-10-98 and 2-28-98 offenses.
June 3, 1999: Convicted of 2-2-98 offense.
June 19, 2001: Commits present OMVWI, originally charged as fourth offense and prosecuted as misdemeanor.
July 14, 2001: Commits new OMVWI offense.
December 6, 2001: Convicted of 7-14 — 01 offense, sentenced as fourth offender.
December 13, 2001: State dismisses misdemeanor action, files felony complaint charging present (6-19-01) offense as fifth offense.
August 10, 2002: Commits new OMVWI offense.
October 15, 2002: Convicted of 8-10-02 offense, sentenced as fifth offender.
January 3, 2003: Amended information filed, charging present (6-19-01) as sixth offense.
January 23, 2003: Convicted of 6-19-01 offense, sentenced as sixth offender.

ANALYSIS

¶ 4. Matke first argues that the trial court erred in sentencing him as a six-time OMVWI offender because "conduct which was a misdemeanor when committed cannot be transformed into a felony by subsequent conduct." His claim principally raises a question of statutory interpretation, to wit, should the number of prior OMVWI convictions for purposes of penalty enhancement under Wis. Stat. § 346.65(2) be determined as of the date that an offense is committed or as of the date of sentencing for the offense? We must therefore decide a question of law, which we do independently of the trial court's analysis and conclusions. State v. Ludeking, 195 Wis. 2d 132, 138, 536 N.W.2d 392 (Ct. App. 1995), partially overruled on other grounds by State v. Alexander, 214 Wis. 2d 628, 571 N.W.2d 662. Matke also suggests that the trial court's interpretation results in a violation of his constitutional right of due process, a question we also decide de novo. State v. Navarro, 2001 WI App 225, ¶ 6, 248 Wis. 2d 396, 636 N.W.2d 481.

¶ 5. How and when to count prior OMVWI convictions for purposes of penalty enhancement under Wis. Stat. § 346.65(2) has been settled law since at least 1981, when the supreme court decided State v. Banks, 105 Wis. 2d 32, 313 N.W.2d 67 (1981). The court distinguished the enhancement scheme under the OM-VWI statute from that of "general repeater statutes" such as Wis. Stat. § 939.62. Id. at 44-45. Then, as now, § 346.65(2) did not specify that convictions for prior offenses must precede the commission of the present offense, as does § 939.62, the "general repeater" statute. Id. at 45-47. The statutory language examined in Banks provided, much as it does now, that enhanced penalties apply "if the total of... convictions for [OM-VWI] equals" a certain number within a specified period. Id. at 45. The court concluded that the language evinced the legislature's intent that enhanced penalties apply when the requisite number of convictions have accumulated within the period specified "regardless of the order in which the offenses were committed and the convictions were entered." Id. at 48. The court also rejected the defendant's claim of a due process violation in so construing the statute, concluding that the statute gives "ample notice" to a driver who wishes to avoid enhanced penalties that additional OMVWI offenses will result in enhanced penalties upon successive convictions. Id. at 50-51.

¶ 6. A year later, the supreme court concluded in State v. McAllister, 107 Wis. 2d 532, 319 N.W.2d 865 (1982), that the number of a defendant's prior OMVWI convictions to be counted for penalty enhancement purposes is not an element of the offense of OMVWI. Thus, in order to obtain a conviction for the crime of second-offense OMVWI, the State need only prove beyond a reasonable doubt that the defendant (1) operated a motor vehicle (2) while under the influence of an intoxicant. Id. at 535. The number of prior convictions for penalty enhancement purposes need only "be proven by certified copies of conviction or other competent proof offered by the state before sentencing." Id. at 539.

¶ 7. After the OMVWI convictions reviewed in Banks and McAllister, the legislature created the offense of operating a motor vehicle with a "prohibited alcohol concentration" (PAC). See Wis. Stat. § 346.63(l)(b) (1981-82). The prohibited concentration was initially established as being "0.1% or more by weight of alcohol in the person's blood or 0.1 grams or more of alcohol in 210 liters of the person's breath." Id. The legislature subsequently amended the definition of PAC to provide that the 0.1 level applied to persons having one or no prior OMVWI/PAC convictions, but that after two or more convictions, the prohibited level dropped to 0.08. See Wis. Stat. § 340.01(46m) (1991-92). We concluded in Ludeking that the bifurcated PAC definition did not create simply a "repeater statute or penalty enhancer," rather, the statutory definition served to define an element of the offense for a defendant with two or more prior convictions. Ludeking, 195 Wis. 2d at 140. Accordingly, we held that, in order to convict someone of a third or subsequent PAC offense at the reduced level of 0.08, the State needed to prove that, "at the time the defendant... operated a motor vehicle, he had two or more convictions .. . ." Id. at 136 n.6.

¶ 8. The supreme court agreed with our conclusion in State v. Alexander, 214 Wis. 2d 628, 640, 571 N.W.2d 662 (1997). The court concluded, however, that a defendant could avoid having the jury learn of his or her prior convictions by stipulating to that element. Id. at 651. To the extent that Matke relies on Ludeking and Alexander to support his claim that only convictions occurring prior to his commission of the present OM-VWI offense may be used to enhance the penalties for committing it, he is mistaken. His present conviction was for OMVWI, not PAC, and the statute under review is Wis. Stat. § 346.65(2), a penalty enhancement statute, not Wis. Stat. § 340.01(46m), which defines an element of certain PAC offenses.

¶ 9. Thus, the holdings in Banks and McAllister, not those in Ludeking and Alexander, govern the present facts, requiring that we affirm Matke's sentence as a six-time OMVWI offender. There can be little question that, under Banks and McAllister, the proper time to determine the number of a defendant's prior convictions for sentence enhancement purposes is at sentencing, regardless of whether some convictions may have occurred after a defendant committed the present offense. Not only must we apply the supreme court's interpretation of Wis. Stat. § 346.65(2), we are also bound by its conclusion that no due process violation occurs simply because the severity of a defendant's punishment may depend on events that occur after he or she committed the present offense. See Banks, 105 Wis. 2d at 50-51.

¶ 10. But for this court's decision in State v. Skibinski, 2001 WI App 109, 244 Wis. 2d 229, 629 N.W.2d 12, our analysis of Matke's first claim of error would be at an end. Matke points to Skibinski, however, which he claims, "like the decisions in Ludeking and Alexander, stands for the proposition that prior convictions are an element of the offense" of OMVWI. Therefore, according to Matke, in order to be counted for enhancement purposes, prior convictions "must be in existence at the time the [OMVWI] offense was committed." As we have explained, however, Ludeking and Alexander dealt with PAC offenses, not OMVWI, and the two cases focused on the statute defining the PAC offense, not the penalty enhancement statute at issue here. If Skibinski truly stands for the proposition that Matke claims it does (i.e., that the number of prior convictions is an element of repeat OMVWI and only convictions that precede the commission of an offense can be used to enhance the penalty for it), then Skib-inski stands in direct contradiction to the supreme court's holdings in Banks and McAllister.

¶ 11. We thus turn to Skibinski to ascertain what was decided in that case. We stated the question to be addressed in Skibinski as follows: "In the instant case, the question posed is whether the trial court can accept guilty pleas to a second and third offense OWI, and then apply the increased penalties of third offense OWI to both charges at sentencing." Id, ¶ 10. The defendant had one prior OMVWI conviction and then committed two more OMVWI offenses a month apart, one in August and another in September. Id, ¶ 2. The defendant entered guilty pleas to both of the new charges and the court sentenced him on both at the same time. Id., ¶¶ 2, 4. The trial court concluded that it could sentence the defendant as a third-time offender on both of the new OMVWI offenses. See id., ¶¶ 3, 7. We reversed, concluding, unsurprisingly, that the court should have sentenced the defendant as a second offender for the August offense, and as a third-time offender on only the September offense. Id., ¶¶ 10, 14.

¶ 12. In reaching our conclusion, we discussed Banks at some length. Id., ¶ 9. We expressly relied on the supreme court's analysis in Banks to conclude that a past OMVWI offense cannot be used to enhance the penalty for a later conviction unless there has been a conviction for the prior offense. Id., ¶ 10. We then explained that a conviction does not occur until a sentence is imposed, and thus, when the defendant was sentenced for the August offense, he had only one prior conviction, making him a second offender. Id. As for the September offense, the trial court properly treated the defendant as a third-time offender because he then, and only then, had two prior convictions — the much earlier one and the August offense for which sentence had just been imposed. See id., ¶ 14 ("[T]he September 19th conviction must be sentenced as a third offense.").

¶ 13. Although the foregoing rationale, based on Banks, would have been sufficient to support our disposition, we also said the following earlier in our discussion of the issue:

[W]hen a defendant has two or more prior convictions, the convictions must be proven as an element of the offense, and are predicate to conviction of the graduated offenses. State v. Alexander, 214 Wis. 2d 628, 652, 571 N.W.2d 662 (1997).... The August 10th OWI cannot be treated as a third offense because the State did not and could not prove that Skibinski had two or more prior convictions at the time of the August 10th OWI. At the time he" pled guilty to the August 10th OWI, Skibinski had only one prior OWI conviction. Thus, the trial court erred when it counted the September 19th OWI together with the prior conviction to make the August 10th OWI a third offense.

Id., ¶ 8.

¶ 14. The first two sentences in the foregoing excerpt, and our reliance on Alexander, were incorrect. We, regrettably, misstated the law governing the application of Wis. Stat. § 346.65(2) to sentences for repeat OMVWI offenders. This part of our analysis is plainly contrary to controlling supreme court precedent (.McAl-lister and Banks) holding that (1) the number of prior OMVWI convictions is not an element of the crime of repeat OMVWI, and (2) that the number of prior OMVWI convictions at the time of sentencing, not at the time of the offense, determines which level of penalties applies. Moreover, the disposition we ordered in Skibinski at paragraph 14 contradicts our statements in paragraph 8 of the opinion. We concluded that the trial court could properly sentence Skibinski as a third offender for his September offense, notwithstanding the fact that, at the time he committed that offense, he had only one prior OMVWI conviction. In short, our conclusion that the September offense was a third offense for sentencing purposes was correct; our discussion in paragraph 8 was not.

¶ 15. Thus, we acknowledge that there is language in paragraph 8 of our opinion in Skibinski that is helpful to Matke, but we conclude that the language in that paragraph is not binding on us here. The cited language was plainly not necessary to our disposition in Skibinski and, indeed, was contrary to the result we reached. Moreover, because the language Matke relies on is inconsistent with controlling supreme court precedent, we are not obligated to apply it here, and we must, instead, "reiterate the law under previous supreme court. . . precedent." State v. Noll, 2002 WI App 273, 258 Wis. 2d 573, ¶ 16 n.4, 653 N.W.2d 895. Accordingly, we conclude that, notwithstanding our comments in Skibinski, the trial court did not err in sentencing Matke for a sixth OMVWI offense.

¶ 16. Matke also contends that the trial court's interpretation of Wis. Stat. § 346.65(2), which is now ours as well, violates due process because it permits the court to sentence him for a sixth OMVWI without requiring the State to convince a jury beyond a reasonable doubt that he had five prior OMVWI convictions. Matke claims that the U.S. Supreme Court so held in Apprendi v. New Jersey, 530 U.S. 466 (2000). Matke is again mistaken. The Court specifically excluded sentence enhancements for prior convictions from its holding in Apprendi-. "Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." Id. at 490 (italic emphasis added).

¶ 17. Finally, Matke argues that the trial court erroneously exercised its discretion when it ordered, without explanation, that Matke's present sentence be consecutive to any other sentences he was then serving. Matke acknowledges in his brief that, in its seven transcript pages of sentencing remarks, the court "mentions the danger created by drunk drivers, the defendant's high blood alcohol concentration and the defendant's history of convictions." We take this as a concession by Matke that the court adequately explained why it imposed an overall sentence of two years confinement in prison plus two years extended supervision for Matke's sixth OMVWI offense.

¶ 18. The sole infirmity that Matke cites is the court's failure to specifically relate any of the sentencing factors it discussed to its decision to order the present sentence consecutive to, instead of concurrent with, any pre-existing sentences. In support of his erroneous sentencing claim, Matke points to our decision in State v Hall, 2002 WI App 108, 255 Wis. 2d 662, 648 N.W.2d 41, where we reversed a set of multiple sentences totaling 304 years because the trial court had not explained why each of the multiple sentences was to he served consecutively. Id., ¶¶ 8,12-18. The sentences in Hall, however, were all imposed at the same time, and they were for "a string of armed robberies" committed during a three-month period, plus a felony-murder committed in conjunction with an attempted robbery. Id., ¶¶ 2-3. The American Bar Association Standards for Criminal Justice Sentencing that we cited in Hall, which Matke relies on for the proposition that a court should "ordinarily" order multiple sentences to be served concurrently or explain why it did not do so, apply to multiple sentences imposed at a single sentencing. See id., ¶ 14. Neither our conclusions in Hall nor the cited ABA Standards have any bearing on a sentence subsequently imposed for a new offense that is unrelated to past offenses for which a defendant may still be serving time.

¶ 19. We conclude that the present facts are governed instead by the principle that, so long as a sentencing court has considered the proper factors, explained its rationale for the overall sentence it imposes, and the sentence is not unreasonable, the court does not erroneously exercise its discretion simply by failing to separately explain its rationale for each and every facet of the sentence imposed. See State v. Johnson, 178 Wis. 2d 42, 54-56, 56 n.5, 503 N.W.2d 575 (Ct. App. 1993). Moreover, we agree with the State that imposing concurrent sentences for successive OMVWI convictions would contravene the legislature's clearly expressed intent that multiple OMVWI offenders receive harsher punishment upon each successive conviction. See Banks, 105 Wis. 2d at 49-50.

¶ 20. We thus reject Matke's contention that the court erroneously exercised its discretion in ordering his present sentence to be consecutive to any sentences Matke was then serving.

CONCLUSION

¶ 21. For the reasons discussed above, we affirm the appealed judgment.

By the Court. — Judgment affirmed.

       All references to the Wisconsin Statutes are to the 2001-02 version unless otherwise noted.

       Wisconsin Stat. § 346.65(2) provides that, in addition to OMVWI convictions, certain other events, such as revocations of operating privileges for refusing a chemical test under the implied consent law, are also counted for penalty enhancement purposes. For convenience, and because this case involves only prior OMVWI convictions, we refer in this opinion to the enhancement of penalties only for prior OMVWI convictions.

       The relevant language of Wis. Stat. § 346.65(2)(e) presently provides that the enhanced penalties of that paragraph apply "if... the total number of. . . convictions ... equals'5 or more." The operative language is thus substantially the same as the language interpreted in Banks-, "if the total of... convictions ... equals." State v. Banks, 105 Wis. 2d 32, 45, 313 N.W.2d 67 (1981).

       1981 Wis. Laws, chs. 20 and 184.

       1991 Wis. Act 277.

       In the "Background" section of our opinion, we refer to the offenses as occurring on August 10th and September 15th. State v. Skibinski, 2001 WI App 109, ¶¶ 2, 4, 244 Wis. 2d 229, 629 N.W2d 12. In the "Discussion" that follows, however, we refer to the September offense as having occurred on September 19th. Id., ¶¶ 7-8, 14. In any event, neither of the offenses became convictions until at least December 16th. See id., ¶ 2.

       The Court explained later in its opinion that, not only does "recidivism'... not relate to the commission of the offense' itself," but in addition, "there is a vast difference between accepting the validity of a prior judgment of conviction entered in a proceeding in which the defendant had the right to a jury trial and the right to require the prosecutor to prove guilt beyond a reasonable doubt, and allowing the judge to find the required fact under a lesser standard of proof." Apprendi v. New Jersey, 530 U.S. 466, 496 (2000).