author: SNYDER, J.

text:
    State of Wisconsin, Plaintiff-Respondent, v. Michael J. Kryzaniak, Defendant-Appellant.[Case No. 00-1149-CR] State of Wisconsin, Plaintiff-Respondent, v. Sherry L. Kryzaniak, Defendant-Appellant.[Case No. 00-1150-CR]
    Court of Appeals

      Nos. 00-1149-CR, 00-1150-CR.

      Submitted on briefs November 9, 2000.

    Decided January 17, 2001.

    2001 WI App 44
    (Also reported in 624 N.W.2d 389.)

      On behalf of the defendants-appellants, the cause was submitted on the briefs of Raymond G. Meyer of Koenen & Meyer of Port Washington and F. M. Van Hecke of Van Hecke Law Offices Chartered of Milwaukee.
    On behalf of the plaintiff-respondent, the cause was submitted on the brief of David H. Perlman, assistant attorney general, and James E. Doyle, attorney general.

      Before Nettesheim, Anderson and Snyder, JJ.

       Michael and Sherry Kryzaniak were charged separately (Nos. 98-CF-282 and 98-CF — 281, respectively). Upon appeal, the Kryzaniaks moved to consolidate the two related appeals (Nos. 00-1149-CR and 00-1150-CR) because of the uniformity of issues. On May 16, 2000, we granted this motion to consolidate the appeals and therefore address the two appeals as one.

   SNYDER, J.

¶1. Michael and Sherry Kryzaniak (the Kryzaniaks) appeal from each of their judgments of conviction for possession of tetrahydro-cannabinols (THC), second offense. Michael also appeals from his conviction for carrying a concealed weapon. Specifically, the Kryzaniaks appeal from the trial court order denying their suppression motion. The Kryzaniaks argue that their Fourth Amendment rights were violated when an Ozaukee county deputy sheriff entered their home with neither their consent nor a warrant because no exigent circumstances existed. We agree and reverse the order denying their suppression motion and their judgments of conviction.

FACTS

¶ 2. On December 10, 1998, Joshua Anderson, the subject of a civil capias, was seen in the visitation area of the Ozaukee county jail. A deputy sheriff asked Anderson to wait within a partially secure area of the jail. However, when another person was released from that area, Anderson followed him out and left the jail. The Ozaukee County Sheriffs Department commenced a search for Anderson, first looking for him in and around the jail, and then later in various places around Saukville, Wisconsin.

¶ 3. After hearing of Anderson's flight over a transmitter radio while at home for lunch, Deputy William Steck joined the search for Anderson. Steck did not observe the commission of any crime by Anderson nor was he involved in the earlier attempted capias detention. Steck did not know Anderson either by sight or by name and overheard only a limited description of Anderson, specifically,, a younger white male with a black hooded sweatshirt and a dark-colored baseball cap. A Saukville police officer knew of some people Anderson regularly associated with and provided Ozaukee county deputies with two addresses Anderson had been known to frequent, including the address of Brad Walberg, a friend of Anderson's.

¶ 4. At approximately 9:00 p.m. that same day, three officers went to Walberg's home; the home, a multi-level residence occupied by two separate families, was also the residence of the Kryzaniaks. Walberg and his mother exclusively occupied the upper level and the Kryzaniaks exclusively occupied the lower level, with a common entrance on the middle level. The officers decided that two officers would approach the front door of the residence, and that Steck (a plainclothes officer) would wait and watch at the back of the home. While Steck was in position, a young man generally fitting the description of Anderson exited the rear door of the home. Steck did not observe Anderson carrying anything nor did he believe Anderson to be either armed or dangerous.

¶ 5. Steck identified himself and said "don't move" to the young man. The young man ignored the order and reentered the door, locking it behind him.* Steck called to the young man, indicating that if the door was not opened, he would force it open; Steck then kicked open the door and entered the residence. At the time of the entry, Steck was not certain that this young man was, in fact, Anderson and had no idea who resided in or owned this home. Steck had no warrant to arrest Anderson, no warrant to enter the home and no consent from any person to be on the premises.

¶ 6. Lighting was poor in the room of Steck's initial entry, the Kryzaniak living room. Light from the stairway to the next level came into the Kryzaniak living room, and Steck observed that he was in a living room and that ahead of him were two door openings. One door opening was to the basement stairway and the other was to a short stairway up to the front common entrance. Steck believed that the young man must have used one of these stairways, but was unsure which one. Steck called into the basement for the young man's surrender, with no response. When Steck crossed the living room and arrived at the basement door, he observed doors to the Kryzaniak bedroom and bathroom behind him. Even though he thought the young man had used the basement stairs, Steck entered the Kryzaniak bedroom, turned on the bedroom light, and looked for the young man, searching under the bed and in a closet.

¶ 7. Instead of entering the basement, Steck waited in the Kryzaniak apartment for the arrival of a canine unit. He could hear discussion upstairs, along with the voice of a fellow officer, so he knew that an officer was inside the premises. Once the canine unit arrived, Anderson was captured within a few minutes, in a bedroom two levels above the Kryzaniak living room. Anderson was taken into custody at 9:14 p.m. ‘and removed from the premises almost immediately after his discovery. After Anderson was captured upstairs, Steck then searched the basement of the building.

¶ 8. Steck claimed that during the course of his search for Anderson, he observed drug paraphernalia and what he thought could be marijuana in the Kryzaniak apartment. While he did not at that time seize the property, these observations formed the basis for the search warrant that was ultimately issued for the premises.

¶ 9. Based upon information received from Wal-berg, the Kryzaniaks were found at a local night spot and returned home about 10:30 p.m. By that time there were five or six police officers present on the premises as well as the canine unit, and at least one officer was present in the house at all times. Michael Kryzaniak observed flashlights being shined about his bedroom as he came to the rear of his home. The Kryzaniaks entered the premises and refused the officers permission to search the premises.

¶ 10. The Kryzaniaks were then arrested and removed from the premises by 10:30 p.m. Steck obtained a search warrant for the premises based upon his observations of the alleged drugs and drug paraphernalia, and the search warrant was issued shortly after midnight. After obtaining the search warrant, Steck returned to the Kryzaniak home and seized the paraphernalia, drugs and other evidence. In addition, because Michael had a 1971 felony conviction, a rusty rifle and two trap shooting guns were also seized. All seizures were made after 12:22 a.m. on December 11, 1998.

¶ 11. The Kryzaniaks were both charged with possession of THC, second offense, and possession of drug paraphernalia, as a party to a crime; Michael was additionally charged with being a felon in possession of a firearm. After a motion to suppress the evidence on the grounds of an unlawful search was denied, the Kryzaniaks each entered a plea of no contest to the possession charges, and Michael pled no contest to an amended concealed weapon charge. The paraphernalia charges were dropped. This appeal followed.

DISCUSSION

¶ 12. The question before us, whether Steck's warrantless entry into the Kryzaniak apartment was justified by exigent circumstances, is a mixed question of constitutional fact that we review under two different standards. State v. Richter, 2000 WI 58, ¶ 26, 235 Wis. 2d 524, 612 N.W.2d 29. The trial court's findings of evidentiary or historical fact will not be overturned unless they are clearly erroneous. Id. However, we independently determine whether the historical or evi-dentiary facts establish exigent circumstances sufficient to satisfy the warrantless entry. Id.

¶ 13. The Kryzaniaks argue that their Fourth Amendment rights were violated when Steck forcibly entered their home without their consent or a warrant because no exigent circumstances existed justifying the entry. We agree.

¶ 14. The Fourth Amendment to the United States Constitution provides that

[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

U.S. CONST, amend. IV. The Wisconsin Constitution is essentially the same. WlS. CONST, art. I, § 11. Warrant-less searches "are per se unreasonable under the fourth amendment, subject to a few carefully delineated exceptions" that are "jealously and carefully drawn." State v. Boggess, 115 Wis. 2d 443, 449, 340 N.W.2d 516 (1983) (citations omitted).

¶ 15. "It is axiomatic that the 'physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed.'" Welsh v. Wisconsin, 466 U.S. 740, 748 (1984) (citation omitted). A fundamental safeguard against unnecessary invasions into private homes is the Fourth Amendment's warrant requirement, imposed on all governmental agents who seek to enter the home for purposes of search or arrest. Id. It is not surprising, then, that the United States Supreme Court has recognized that all warrant-less searches and seizures inside a home are presumptively unreasonable. Id. at 748-49.

¶ 16. The police bear a heavy burden when trying to establish an urgent need justifying warrantless searches. Id. at 749-50. Before the government may invade the sanctity of the home, the government must demonstrate exigent circumstances that overcome the presumption of unreasonableness that attaches to all warrantless home entries. Id. at 750. Four factors have been identified that, when measured against the time needed to obtain a warrant, constitute the exigent circumstances required for a warrantless entry: (1) an arrest made in "hot pursuit"; (2) a threat to the safety of a suspect or others; (3) a risk that evidence would be destroyed; and (4) a likelihood that the suspect would flee. State v. Smith, 131 Wis. 2d 220, 229, 388 N.W.2d 601 (1986). Here, the State argues that exigent circumstances, specifically the "hot pursuit" of Anderson, justified Steck's entry into the Kryzaniak home. We disagree.

¶ 17. The United States Supreme Court has defined "hot pursuit" as that circumstance where there is an "immediate or continuous pursuit of [a suspect] from the scene of a crime." Id. at 231-32 (citation omitted). It is the continuity of the pursuit that prevails. Id. at 232.

¶ 18. Turning to the facts at hand, there was no immediate or continuous pursuit of a suspect from the scene of a crime; thus, there was no hot pursuit and no exigent circumstances. There is no evidence in the record that any police officer pursued Anderson from the jail when he left. Steck first learned about Anderson when he overheard conversations between the police dispatcher and various squad cars on his portable radio while he was at home for lunch. He did not see any crime committed nor was he involved in the earlier capias detention. He did not know the exact circumstances of Anderson's departure; in fact, he did not even know Anderson's name and could not identify Anderson. Initially officers, including Steck, were looking for Anderson in the northern part of Port Washington. A Saukville police officer overheard some of the radio talk, thought he had seen Anderson earlier in the day, and knew some places where Anderson was known to hang out; police were checking out all of those possible addresses. There was no pursuit here, only a day-long investigation of Anderson's whereabouts. The police were at the Kryzaniak residence as the result of an investigation, not a police chase.

¶ 19. Once at the residence, Steck did not know who resided at the home. Steck admitted that because of the darkness and the poor light, he could not see the young man at the back door very well and did not know if the young man was, in fact, Anderson. The young man's retreat into the house, when it was unknown whether the young man was, in fact, Anderson, did not create exigent circumstances. The police themselves cannot create the exigency by merely conducting an investigation. Id. at 234. If they could, then any time an investigation is conducted the police would "obviate the need for a warrant. Such a broad construction of this exigency does not recognize the urgent-need rationale underlying this exception to the warrant requirement." Id.

¶ 20. The illegality of the search is further evidenced by police behavior after Anderson's apprehension. Anderson was taken into custody between 9:00 and 9:30 p.m., and the search warrant was not obtained until after midnight; however, when the Kryzaniaks arrived at their home between 10:00 and 10:30 p.m., police flashlights were visible in and officers were searching their bedroom. In addition, Steck admitted that he searched the Kryzaniak basement after Anderson had already been taken into custody but before the search warrant had been issued. The officers had no right to conduct a search of the bedroom or the basement after Anderson's detention because no exigent circumstances existed and the warrant had not been issued.

¶ 21. Our reluctance to find exigent circumstances is especially appropriate when the underlying offense for which there is probable cause to arrest is relatively minor. Welsh, 466 U.S. at 750. When the government's interest is only to arrest for a minor offense, that presumption of unreasonableness is difficult to rebut. Id. The United States Supreme Court has recognized that warrantless home invasions can only occur with the most serious of crimes. Id. at 750 n.12. Citing Justice Jackson's concurrence in McDonald v. United States, 335 U.S. 451, 459-60 (1948), the Welsh Court observed why a finding of exigent circumstances justifying a warrantless home entry should be severely restricted when only a minor offense has been committed:

Whether there is reasonable necessity for a search without waiting to obtain- a warrant certainly depends somewhat upon the gravity of the offense thought to be in progress as well as the hazards of the method of attempting to reach it.... It is to me a shocking proposition that private homes, even quarters in a tenement, may be indiscriminately invaded at the discretion of any suspicious police officer engaged in following up offenses that involve no violence or threats of it. While I should be human enough to apply the letter of the law with some indulgence to officers acting to deal with threats or crimes of violence which endanger life or security, it is notable that few of the searches found by this Court to be unlawful dealt with that category of crime. ... I do not think . . . suppression is more important to society than the security of the people against unreasonable searches and seizures. When an officer undertakes to act as his own magistrate, he ought to be in a position to justify it by pointing to some real immediate and serious consequences if he postponed action to get a warrant.

Welsh, 466 U.S. at 750-51.

¶ 22. Consequently, the nature of the underlying offense is an important factor to be considered in the • exigent circumstances calculus. Id. at 751. Most courts addressing this issue have disallowed warrantless home arrests for nonfelonious crimes. Id. at 752. The United States Supreme Court itself commented that "it is difficult to conceive of a warrantless home arrest that would not be unreasonable under the Fourth Amendment when the underlying offense is extremely minor." Id. at 753. The application of the exigent circumstances exception in the context of a home entry should "rarely be sanctioned when there is probable cause to believe that only a minor offense . . . has been committed." Id.

¶ 23. At the time of Steck's entry into the Kryzaniak home, there was no arrest warrant for Anderson nor were there any outstanding criminal charges, only a civil capias. A civil capias does not rise to a level sufficient to implicate exigent circumstances.

¶ 24. Even if there had been a warrant for Anderson's arrest, Steck needed a search warrant to enter the Kryzaniak apartment to look for Anderson and execute the arrest warrant; an arrest warrant is insufficient legal authority to enter the home of a third party to conduct a search. State v. Kiper, 193 Wis. 2d 69, 89, 532 N.W.2d 698 (1995) (citing Steagald v. United States, 451 U.S. 204, 213 (1981)). Steck could not use the arrest warrant as legal authority to enter the Kryzaniak home based on the simple belief that Anderson might be there because that belief was never subjected to the neutral and detached scrutiny of a judicial officer. Id. If exigent circumstances had developed during an attempt to identify and arrest Anderson, Steck could have lawfully entered the Kryzaniak apartment without a search warrant. Id. However, the facts here do not indicate that any exigency developed at any time during Steck's encounter with Anderson at the Kryzaniak home. Anderson's retreat to the house, when it was unknown to Steck if that individual was, in fact, Anderson, coupled with the lack of evidence that the young man was armed or dangerous, does not constitute exigent circumstances.

¶ 25. We recognize that a fundamental concern for police "is that persons, as opposed to objects, are inherently mobile, and thus officers seeking to effect an arrest may be forced to return to the magistrate several times as the subject of the arrest warrant moves from place to place." Id. at 91 (citation omitted). However, with Steck at the back door and two other officers at the front door, the chances of Anderson's flight were minimal. Anderson's mobility did not create an exigency or an impediment to law enforcement as much as it created an inconvenience for police who, once aware of his presence at the Kryzaniak apartment, were required to secure a search warrant to gain entry. Id. at 91-92.

CONCLUSION

¶ 26. The Kryzaniaks' Fourth Amendment rights were violated when Steck entered and searched their home without consent or a warrant because no exigent circumstances existed. The order denying the Kryzaniaks' motion to suppress all of the evidence obtained during this search and the judgments of conviction are therefore reversed.

By the Court. — Judgments and order reversed and cause remanded.


source: Caselaw Access Project

author: PETERSON, J.

license: Public Domain

text:
    State of Wisconsin, Plaintiff-Appellant, v. James B. Smits, Defendant-Respondent.

    Court of Appeals

      No. 00-1158-CR.

      Submitted on briefs December 19, 2000.

    Decided January 17, 2001.

    2001 WI App 45
    (Also reported in 626 N.W.2d 42.)

      On behalf of the plaintiff-appellant, the cause was submitted on the briefs of James E. Doyle, attorney general, and Kathleen M. Ptacek, assistant attorney general.
    On behalf of the defendant-respondent, the cause was submitted on the brief of Michael J. Ganzer of Hodan, Dosier & Ganzer, S.C., Milwaukee.
    Before Cane, C.J., Hoover, P.J., and Peterson, J.

      Petition to review dismissed.

   PETERSON, J.

¶ 1. The State appeals an order dismissing two felony charges against James Smits: operating a motor vehicle while under the influence of an intoxicant (OWI), sixth offense, contrary to WlS. Stat. § 346.63(l)(a) and operating a motor vehicle with a prohibited alcohol concentration (PAC), sixth offense, contrary to WlS. Stat. § 346.63(l)(b). Smits was also charged with two misdemeanors: causing injury to another person while operating a vehicle while under the influence of an intoxicant, contrary to WlS. STAT. § 346.63(2)(a)l and causing injury to another person while operating a vehicle while having a prohibited alcohol concentration of .10%, contrary to WlS. STAT. § 346.63(2)(a)2.

¶ 2. The circuit court dismissed the first two charges because it determined that OWI and PAC are lesser-included offenses of misdemeanor injury-related OWI and PAC. The State argues that OWI and PAC are not lesser-included offenses because: (1) each statute requires proof of a fact that the other does not; (2) PAC has an additional element that is not present in an injury-related PAC; and (3) a felony cannot be a lesser-included offense of a misdemeanor. We agree and reverse.

BACKGROUND

¶ 3. Smits and a passenger were injured when Smits lost control of his motorcycle on July 31, 1999. Smits entered pleas of no contest to the injury-related OWI and injury-related PAC charges. The circuit court accepted his pleas and found him guilty.

¶ 4. Smits then moved to dismiss the remaining OWI and PAC charges on the grounds that continued prosecution violated his right to be free from double jeopardy. See U.S. CONST, amend. V; WlS. CONST, art. I, § 8. The trial court granted the motion. This appeal followed.

STANDARD OF REVIEW

¶ 5. Multiple convictions for the same offense violate the double jeopardy protections of the state and federal constitutions. State v. Sauceda, 168 Wis. 2d 486, 492, 485 N.W.2d 1 (1992). Determining whether multiple charges violate constitutional protections presents a question of law we review independently. State v. Kanarowski, 170 Wis. 2d 504, 509, 489 N.W.2d 660 (Ct. App. 1992).

DISCUSSION

¶ 6. Wisconsin uses a two-prong test to analyze problems of multiplicity. Sauceda, 168 Wis. 2d at 493. First, we must consider whether the offense is identical in law and fact. State v. Lechner, 217 Wis. 2d 392, 403, 576 N.W.2d 912 (1998). We apply the Blockburger v. United States, 284 U.S. 299 (1932), elements only test. Sauceda, 168 Wis. 2d at 493. This test has been codified inWlS.STAT. §939.66(1).

¶ 7. Under the Blockburger elements only test, the "lesser offense must be statutorily included in the greater offense and contain no element in addition to the elements constituting the greater offense." State v. Carrington, 134 Wis. 2d 260, 265, 397 N.W.2d 484 (1986). It must be "utterly impossible" to commit the greater crime without committing the lesser. Randolph v. State, 83 Wis. 2d 630, 645, 266 N.W.2d 334 (1978). The inquiry is a purely legal analysis of the statutes involved with no deference given to the facts of the specific case. See Carrington, 134 Wis. 2d at 265.

¶ 8. Second, if the statutes satisfy the first prong, a presumption arises that the legislature intended to permit cumulative convictions, unless other factors clearly indicate otherwise. See State v. Kuntz, 160 Wis. 2d 722, 755, 467 N.W.2d 531 (1991). We then review the legislative intent under the second prong of the test to determine whether contrary factors exist. Sauceda, 168 Wis. 2d at 495. "The overall test is one of fundamental fairness or prejudice to the defendant." State v. Hirsch, 140 Wis. 2d 468, 471-72, 410 N.W.2d 638 (Ct. App. 1987).

I. First Prong

A. Different Elements: motor vehicle vs. vehicle

¶ 9. Under the first prong, we apply the Block-burger elements only test. The State argues that there is no multiplicity between OWI and injury-related OWI, and between PAC and injury-related PAC, because the statutes each require proof of a fact that the other does not. See Sauceda, 168 Wis. 2d at 495. We agree.

¶ 10. Wisconsin Stat. § 346.63(1), OWI and PAC, provides:

(1) No person may drive or operate a motor vehicle while:
(a) Under the influence of an intoxicant, a controlled substance, a controlled substance analog or any combination of an intoxicant, a controlled substance and a controlled substance analog, under the influence of any other drug to a degree which renders him or her incapable of safely driving, or under the combined influence of an intoxicant and any other drug to a degree which renders him or her incapable of safely driving; or
(b) The person has a prohibited alcohol concentration. (Emphasis added.)

¶ 11. In contrast, Wis. Stat. § 346.63(2)(a), injury-related OWI and PAC, provides:

(2)(a) It is unlawful for any person to cause injury to another person by the operation of a vehicle while:
1. Under the influence of an intoxicant, a controlled substance, a controlled substance analog or any combination of an intoxicant, a controlled substance and a controlled substance analog, under the influence of any other drug to a degree which renders him or her incapable of safely driving, or under the combined influence of an intoxicant and any other drug to a degree which renders him or her incapable of safely driving; or
2. The person has a prohibited alcohol concentration. (Emphasis added.)

¶ 12. Both OWI and PAC contain elements requiring operation of a "motor vehicle." Injury-related OWI and PAC, on the other hand, contain elements requiring operation of a "vehicle." An analysis of the statutes reveals that motor vehicle is a more restrictive term than vehicle. Wisconsin Stat. § 340.01(35) defines a motor vehicle as "a vehicle . . . which is self-propelled ...." Wisconsin Stat. § 340.01(74) defines a vehicle as "every device in, upon or by which any person or property is or may be transported or drawn upon a highway, except railroad trains."

¶ 13. While the terms are similar, they have different meanings. Where the legislature uses similar but different terms in a statute, particularly within the same section, we must presume the legislature intended those terms to have different meanings. See Calaway v. Brown County, 202 Wis. 2d 736, 757-58, 553 N.W.2d 809 (Ct. App. 1996).

¶ 14. Smits argues that the terms have the same meaning and that "the only reason this case is in its current position is because the Wisconsin Legislature was not particularly thoughtful... He observes that Wis JI — Criminal 2661, injury-related PAC, is entitled, "operating a motor vehicle with a prohibited alcohol concentration and causing injury — 0.10%/0.10 grams or more — § 346.63(2)(a)." Similarly, WlS JI — CRIMINAL 2665, operating a motor vehicle while under the influence of an intoxicant causing injury contains a similar reference to motor vehicle in its title. We are not persuaded.

¶ 15. Wisconsin Stat. § 346.63(2)(a)l does not contain the term motor vehicle, nor did it incorporate that term at its inception. See WlS. STAT. § 346.63(2) (1957). When the statute was first enacted, the legislature distinguished between motor vehicle and vehicle. "It is reasonable to presume that the legislature chose its terms carefully and precisely to express its meaning." State v. McKenzie, 139 Wis. 2d 171, 177, 407 N.W.2d 274 (Ct. App. 1987).

¶ 16. Moreover, the comment contained in both WlS JI — Criminal 2661 and 2665 affirmatively explains that the statute uses the term vehicle and not motor vehicle. The Jury Instruction Committee assumed that this difference was intentional on the part of the legislature. The difference is justified by the fact that offenses involving injury are considered more serious than simple operating offenses, thus leading to a broader category of conduct for the operating of devices which do not fall within the definition of motor vehicle. See WlS JI — CRIMINAL 2661 n.1 and 2665 n.l. We conclude that this difference was intentional on the part of the legislature. See id.

B. Additional Element: prior convictions

¶ 17. The State also argues that the PAC charge has an additional element that injury-related PAC does not. We agree.

¶ 18. Under WlS. STAT. § 340.01(46m)(b), a prohibited alcohol concentration means "[i]f the person has 2 prior convictions, suspensions or revocations, as counted under s. 343.307(1), an alcohol concentration of 0.08 or more." Here, Smits was charged with operating a motor vehicle with a PAC of .08% or more and was charged with an injury-related PAC of .10% or more.

¶ 19. Operating a motor vehicle with a PAC of .08% or more under WlS. Stat. § 346.63(l)(b) requires that the defendant have two or more prior convictions, suspensions or revocations under WlS. Stat. § 343.307(1). See WlS JI — CRIMINAL 2660B. Injury-related PAC under WlS. STAT. § 346.63(2)(a) does not require proof of prior convictions. See WlS JI — CRIMINAL 2661.

¶ 20. Smits argues that the number of prior convictions is not an element of the offense, but rather it is determinative of the status of defendant as a repeat offender. We disagree.

¶ 21. In State v. LucLeking, 195 Wis. 2d 132, 141, 536 N.W.2d 392 (Ct. App. 1995), we concluded that "two or more prior convictions are an element of the offense of driving with a prohibited alcohol concentration in violation of" WlS. STAT. §§ 346.63(l)(b) and 340.01(46m)(b).

¶ 22. In State v. Alexander, 214 Wis. 2d 628, 651-52, 571 N.W.2d 662 (1997), our supreme court agreed that prior convictions are an element of PAC when Wis. Stat. § 340.01(46m)(b) applies. However, the supreme court determined that admitting evidence of prior convictions in that situation was improper because of the danger of unfair prejudice to the defendant. See id. at 652.

¶ 23. Thus, PAC contains an additional statutory element of prior convictions. "[A]n offense is not a lesser-included one if it contains an additional statutory element." Kuntz, 160 Wis. 2d at 755 (quoting State v. Hagenkord, 100 Wis. 2d 452, 481, 302 N.W.2d 421 (1981)).

C. Felony-Misdemeanor

¶ 24. The State also argues that OWI and PAC felonies cannot be lesser-included offenses of injury-related OWI and PAC misdemeanors. The State contends that because the felonies are not lesser-included offenses, there is no violation of double jeopardy. Therefore, Smits can be convicted of all charges. We agree.

¶ 25. "Under the elements only test, the lesser offense must be statutorily included in the greater offense and contain no element in addition to the elements constituting the greater offense." Carrington, 134 Wis. 2d at 265.

¶ 26. The United States Supreme Court, in construing federal law, noted that a lesser offense means "lesser in terms of magnitude of punishment." Carter v. United States, 120 S. Ct. 2159, 2164 n.2 (2000). When the elements of the lesser offense are a subset of the charged offense, the lesser offense attains the status of a lesser-included offense. Id. A lesser-included offense must be both lesser and included. In addition, the District of Columbia Court of Appeals, when applying the Blockburger test, observed that an offense with a heavier penalty cannot be regarded as a lesser offense than one with a lighter penalty. See Hicks v. United States, 658 A.2d 200, 203-04 (D.C. 1995).

¶ 27. Similarly, in Harris v. State, 68 Wis. 2d 436, 228 N.W.2d 645 (1975), our supreme court determined which of two degrees of homicide was the lesser and which was the greater. The court did not look at the elements of the two offenses. Rather, it focused on the potential penalty for each offense. See id. at 441-42.

¶ 28. Applying the penalty analysis to the present case, OWI and PAC, sixth offense, are felonies that carry greater penalties than injury-related OWI and PAC, which are misdemeanors. As a result, OWI and PAC, sixth offense, are not lesser crimes than injury-related OWI and PAC.

II. Second Prong

¶ 29. Under the second prong, we presume that the legislature intended to permit cumulative punishments. See Sauceda, 168 Wis. 2d at 495. This presumption may be rebutted only if other factors clearly indicate a contrary legislative intent. See Kuntz, 160 Wis. 2d at 755.

¶ 30. Nothing Smits argues indicates a legislative intent contrary to allowing convictions for both offenses charged. If OWI and PAC were multiplicitous with injury-related OWI and PAC, prosecutors bringing charges against a repeat drunk driver who caused injury and who had enough prior convictions to merit felony prosecution on the OWI and PAC charges would have to make a choice.

¶ 31. Prosecutors would be required to choose between charging the misdemeanor with injury or charging the felony OWI or PAC. The prosecutor, undoubtedly, would charge the crime with the greater penalty. We presume that the legislature did not intend injury-related OWI and PAC to go unpunished in order for a prosecutor to protect the public from OWI and PAC, sixth offense. This is contrary to the principle that the legislature permits prosecution under more than one statute for the same conduct. See WlS. Stat. § 939.65.

By the Court. — Order reversed.

      All references to the Wisconsin Statutes are to the 1999-2000 version unless otherwise noted.

       Wisconsin Stat. § 939.66 reads as follows:
      Conviction of included crime permitted. Upon prosecution for a crime, the actor may be convicted of either the crime charged or an included crime, but not both. An included crime may be any of the following:
      (1) A crime which does not require proof of any fact in addition to those which must be proved for the crime charged.

       The State only argues that the PAC charge contains an additional statutory element of prior convictions that is not required by injury-related PAC. It does not raise another potential argument, that PAC of .08% is a different element than the injury-related PAC of .10%


author: HOOVER, P.J.

text:
    State of Wisconsin, Plaintiff-Appellant, v. William K. Nord, Defendant-Respondent.
    Court of Appeals

      No. 00-1529-CR.

      Submitted on briefs October 31, 2000.

    Decided January 17, 2001.

    2001 WI App 48
    (Also reported in 625 N.W.2d 302.)

      On behalf of the plaintiff-appellant, the cause was submitted on the briefs of Stephen C. Dorrance, Polk County assistant district attorney, of Balsam Lake. A supplemental brief was filed by James E. Doyle, attorney general, and Jennifer E. Nashold, assistant attorney general, of Madison.
    On behalf of the defendant-respondent, the cause was submitted on the briefs of Timothy J. O'Brien and Bakke Norman, S.C., of New Richmond.
    Before Cane, C.J., Hoover, P.J., and Peterson, J.
   HOOVER, P.J.

¶ 1. The State of Wisconsin appeals an order suppressing William K. Nord's blood alcohol test results. At trial, Nord claimed that the implied consent statute, WlS. Stat. § 343.305(4), violated his due process rights because the statute misleads accused persons regarding the consequences for taking or refusing the test. The circuit court agreed and suppressed the blood alcohol test results. The State now appeals that order. Nord makes the same argument that he did in the circuit court. However, he fails to persuade us that the statute violates his due process rights. We therefore reverse the circuit court.

BACKGROUND

¶ 2. The parties do not dispute the facts. A police officer stopped Nord for speeding. After further investigation, the officer arrested him for violating WlS. Stat. § 346.63(l)(a), operating a motor vehicle while under the influence of an intoxicant. The officer transported Nord to Osceola Medical Center where he read Nord the Wisconsin Department of Transportation Informing the Accused form as set forth in WlS. STAT. § 343.305(4). Nord consented to provide a blood sample, which was tested for alcohol content. The test showed that Nord's blood had a prohibited level of alcohol. The officer then charged Nord with operating a motor vehicle with a prohibited alcohol concentration. See WlS. STAT. § 346.63(l)(b). Because Nord had previously been convicted of operating under the influence and operating with a prohibited blood alcohol concentration, the officer issued the citations as second offenses.

¶ 3. Nord filed a motion with the circuit court asking it to suppress the chemical test result. The parties agree that the officer read the Informing the Accused form according to the statutory requirements. However, Nord contended that WlS. STAT. § 343.305(4) misleads an accused by overstating the consequences of refusing to take the test and understating what may occur if the test shows a prohibitively high blood alcohol level. Therefore, he argued, the test results were obtained in violation of his due process rights.

¶ 4. At the suppression motion hearing, the circuit court determined that the officer had probable cause to stop and arrest. However, it concluded that the WlS. STAT. § 343.305(4) language "does materially mislead the defendant in a manner designed to try to convince and persuade the defendant that he will be better off taking the test than not taking the test. And that is fundamentally unfair and in contravention of due process." The court granted the motion to suppress the blood test results and any evidence related to the test. The State now appeals the circuit court's order.

STANDARD OF REVIEW

¶ 5. Statutory construction presents a question of law this court reviews de novo. Wisconsin Fin. Corp. v. Garlock, 140 Wis. 2d 506, 515, 410 N.W.2d 649 (Ct. App. 1987). The purpose of statutory interpretation is to ascertain and give effect to the legislature's intent. County of Columbia v. Bylewski, 94 Wis. 2d 153, 164, 288 N.W.2d 129 (1980). In determining legislative intent, first resort must be to the statutory language itself. Garlock, 140 Wis. 2d at 515. If the meaning of the statute is clear on its face, this court will not look outside the statute in applying it. WEPCO v. PSC, 110 Wis. 2d 530, 534, 329 N.W.2d 178 (1983).

¶ 6. A statute is presumed to be constitutional. State v. Thiel, 188 Wis. 2d 695, 706, 524 N.W.2d 641 (1994). A party challenging a statute has a heavy burden to prove a statute is unconstitutional beyond a reasonable doubt. State v. Hezzie R., 219 Wis. 2d 848, 862-63, 580 N.W.2d 660 (1998). We will not conclude that a statute is unconstitutional "if it can possibly be construed consistent with the constitution." Norquist v. Zeuske, 211 Wis. 2d 241, 250, 564 N.W.2d 758 (1997). Any doubts about the constitutionality of a statute are resolved in favor of the statute. See Chappy v. LIRC, 136 Wis. 2d 172, 185, 401 N.W.2d 568 (1987). We apply the facts, undisputed in this case, to the constitutional standard independently of the circuit court. See State v. McMorris, 213 Wis. 2d 156, 165, 570 N.W.2d 384 (1997).

DISCUSSION

¶ 7. Nord's due process argument, i.e., the right not to be misinformed and the right to make an informed choice, is based entirely on the premise that WlS. Stat. § 343.305(4) actively misleads a defendant. Specifically, Nord contends that the statute overstates the consequences for refusing a test and understates the consequences for consenting to a test. We hold the statute does not mislead. Therefore, his due process argument fails.

1. Overstating the Consequences for Refusal

¶ 8. Nord claims that the statute overstates the consequences for refusing to submit to evidentiary testing with the following language: "If you refuse to take any test that this agency requests, your operating privilege will be revoked and you will be subject to other penalties." WlS. STAT. § 343.305(4). He contends that the only penalty is license revocation and that the statute improperly adds that an accused "will be subject to other penalties." Id.

¶ 9. However, the State correctly points out that WlS. STAT. § 343.305(10) and (10m) enumerate several other penalties for refusing to submit to chemical testing. If a court determines that an individual improperly refused testing, it is required, in addition to revoking the person's operating privileges, to order the person to submit to and comply with an assessment of the person's use of alcohol, controlled substances or controlled substance analogs, and the development of a driver safety plan. See WlS. Stat. § 343.305(10)(c). WlS CONSIN Stat. § 343.305(10)(d) and (f) authorizes the court or the Department of Transportation to enforce the driver's safety program, which may include outpatient or inpatient treatment for alcohol misuse, abuse or dependency. Further, if an individual improperly refuses a test and has two or more prior convictions, suspensions or revocations, the court may order a law enforcement officer to seize the vehicle or "equip the motor vehicle with an ignition interlock device or immobilize any motor vehicle owned by the person whose operating privilege is revoked." WlS. STAT. § 346.65(6)(a)l; see also WlS. STAT. § 343.305(10m) (noting that if the person "has 2 or more prior convictions, suspensions or revocations . . . the procedure under s. 346.65(6) shall be followed ...."). If the person improperly refuses a test and has three or more prior convictions, suspensions, or revocations, the court must order the vehicle seized. See WlS. STAT. § 343.305(10m) (referring to WlS. STAT. § 346.65(6)). We agree that the statute identifies several consequences beyond license revocation that may result if an accused refuses the test.

¶ 10. Nord cites State v. Killebrew, 115 Wis. 2d 243, 251, 340 N.W.2d 470 (1983), for the proposition that these statutory consequences beyond license revocation are not "penalties" because they are remedial in nature. He contends that "penalty" should be strictly defined as "punishment" and a " [governmental action is punishment ... if its principal purpose is punishment, retribution or deterrence." Id. We disagree that "penalty" as used in the implied consent statute should carry such a narrow, hypertechnical definition. The word merely refers to consequences. It is irrelevant whether the consequences are characterized as punishment or penalties, or are remedial in nature.

2. Understating the Consequences for Consenting

¶ 11. Nord next argues that Wis. Stat. § 343.305(4) understates the potential consequences for submitting to the chemical test for intoxication with the following language: "If any test shows more alcohol in your system than the law permits while driving, your operating privilege will be suspended.... The test results or the fact that you refused testing can be used against you in court." Id. He complains that the statute does not inform an accused that he or she may face imprisonment if the alcohol in an accused's system exceeds the legal limit.

¶ 12. Nord concedes that the purpose of the implied consent law is to "facilitate, not impede, the gathering of chemical test evidence in order to remove drunk drivers from the roads. ... It creates a separate offense that is triggered upon a driver's refusal to submit to a chemical test of his breath, blood or urine." State v. Zielke, 137 Wis. 2d 39, 41, 403 N.W.2d 427 (1987). Nord further concedes that, at least under a prior version of the informed consent statute, an accused does not need to be informed before testing of the specific penalties that might flow from a conviction for operating a motor vehicle while intoxicated. See City of Mequon v. Hess, 158 Wis. 2d 500, 504, 463 N.W.2d 687 (Ct. App. 1990).

¶ 13. Despite these concessions, Nord nevertheless argues that the admonition that test results or a refusal can be used against a suspect in court is inadequate to inform that jail is a potential sanction in addition to suspension. We disagree. Under the tenor of the City of Mequon case, we deem it reasonable to con-elude that the concept of evidence being used against one in court would be perceived by the average citizen as implicating the specter of incarceration, among other consequences. We are therefore satisfied that WlS. STAT. § 343.305(4) does not impermissibly understate the potential consequences for submitting to the chemical test for intoxication.

¶ 14. The informed consent statute alerts an accused to the penalties that could result from violating WlS. STAT. § 343.305(4). The statute further informs, without limiting their application to proceedings under ch. 343, that the test results could be used against an accused in court. We conclude that the statute adequately advises an accused of the consequences under ch. 343 for consenting or refusing to take the test. Therefore, the statute does not actively mislead an accused.

¶ 15. Nord has failed to overcome the statute's presumption of constitutionality. Therefore, the circuit court improperly excluded the blood alcohol test result and related evidence.

By the Court. — Order reversed.

       This case was considered by a three-judge panel pursuant to the chief judge's order of September 14, 2000. See WlS. Stat. Rule § 809.41. All references to the Wisconsin Statutes are to the 1997 — 98 version unless otherwise noted.

      Nord does not argue that the statutory language stating that "[t]he test results or the fact that you refused testing can be used against you in court" does not inform the average person of the possibility of prosecution and incarceration. Rather, he segues into the contention that the implied consent warning fails to notify an accused that the suspension of driving privileges is reviewed first by the Department of Transportation and not a court. As pointed out above, however, the implied consent warning is not designed to provide the arrestee with the myriad possibilities. City of Mequon v. Hess, 158 Wis. 2d 500, 504, 463 N.W.2d 687 (Ct. App. 1990). Moreover, we agree with the State's argument that
      [a]s a practical matter, rare indeed would be the individual who is not aware that he or she may be subject to criminal prosecution and its attendant penalties, should the test yield a result over the legal limit. It borders on the absurd to suggest that the information provided in [WlS. STAT. § 343.305(4) would lead an arrestee to believe that if he or she were over the legal limit, all that would occur is license suspension and the arrestee would be immune from prosecution.

      Nord also attempts to analogize implied consent warnings to Miranda warnings. See Miranda v. Arizona, 384 U.S. 436 (1966). Ultimately, however, his argument is fully premised upon his misconception that WlS. STAT. § 343.305(4) is misleading. Because the statute is not misleading, his argument is without merit.


author: ROGGENSACK, J.

text:
    State of Wisconsin, Plaintiff-Respondent, v. Mohammed A. Nonahal Defendant-Appellant.
    Court of Appeals

      No. 00-0603-CR.

      Submitted on briefs November 7, 2000.

    Decided January 18, 2001.

    2001 WI App 39
    (Also reported in 626 N.W.2d 1.)

      On behalf of the defendant-appellant, the cause was submitted on the briefs of David R. Karpe oí David R. Karpe Law Office, of Madison.
    On behalf of the plaintiff-respondent, the cause was submitted on the brief of James E. Doyle, attorney general, and Michael R. Klos, assistant attorney general.
    Before Vergeront, Roggensack and Deininger, JJ.
   ROGGENSACK, J.

¶1. Mohammed Ali Nonahal appeals his conviction for operating a motor vehicle without the owner's consent as party to the crime. He claims that the circuit court violated the anti-shuttling provision of the Interstate Agreement on Detainers (IAD) by returning him to federal prison despite the existence of pending charges in Wisconsin. As a result, he argues, the circuit court erred in refusing to dismiss the Wisconsin charges. Because Nonahal waived his rights under the anti-shuttling provision of the IAD when he asked to be sent back to the federal prison before trial, we affirm the judgment of the circuit court.

BACKGROUND

¶ 2. While Nonahal was serving a prison sentence at the Federal Correctional Institution in Sandstone, Minnesota (FCI Sandstone), he was brought, as the result of what he contends was a detainer, to stand trial in Dane County on a charge of operating a motor vehicle without the owner's consent as party to the crime. Unrepresented by counsel, he appeared at a March 9, 1998, motion hearing and asked the court to appoint counsel for him. He also informed the court that he was preparing a federal appeal for which he had already received three extensions and that he had left legal documents at FCI Sandstone that he needed to prepare the appeal. The court, Nonahal, and the prosecutor then discussed scheduling the Dane County trial:

THE DEFENDANT: Your Honor, I was wondering, can it be postponed further? I can go back [to FCI Sandstone] and attend to — like I said, I am not saying one [case] is more important than the other. I am trying to face my responsibility to both just as equally. If I can go and come back, I would really appreciate it more than anything.
THE COURT: What else have we got?
(Further discussion off the record.)
THE COURT: The best I can do for both of you is to set it for jury draw on May 4th with trial on May 5th and May 6th. That is Tuesday and Wednesday.
MS. ROHRER: That would be fine.
THE DEFENDANT: Thank you very much.
THE COURT: You want to do it that way?
THE DEFENDANT: Yes, please.
MS. ROHRER: Prior to him going back though I would like the counsel and I to maybe have a status conference.
THE COURT: I am not going to let you go back until an attorney has been appointed for you.
THE DEFENDANT: How soon?
THE COURT: Well, it should be some time this week.
THE DEFENDANT: Okay, that would be fine.
THE COURT: It should be sometime this week so you should let them know upstairs that he is not to be returned until I authorize his return, and I will authorize his return as soon as an attorney is appointed for him and gets an opportunity to talk to him. I will — my office will contact the public defenders office and explain this to them and that they should get someone . . . appointed to represent you so that you can go back sometime later this week and take care of your federal thing, but you will be back here again on the week of May 4th. Do you understand that?
THE DEFENDANT: Yes your Honor. (Emphasis added.)

¶ 3. An attorney was appointed for Nonahal, and he was returned to FCI Sandstone. Subsequently, he moved to dismiss the charge on the ground that the court had violated the anti-shuttling provision of the IAD (codified as Wis. Stat. § 976.05(4) (1999-2000)) by returning him to FCI Sandstone before his trial. The circuit court denied the motion, concluding that he had waived his rights under the IAD. Nonahal was convicted and sentenced to thirty months imprisonment, consecutive to his federal sentence. He appeals.

DISCUSSION

Standard of Review.

¶ 4. Whether the IAD was violated is a question of law that we review de novo. State v. Eesley, 225 Wis. 2d 248, 253-54, 591 N.W.2d 846, 849 (1999).

Interstate Agreement on Detainers.

¶ 5. A detainer is a "notification filed with the institution in which a prisoner is serving a sentence, advising that he is wanted to face pending criminal charges in another jurisdiction." Id. at 258, 591 N.W.2d at 851, citing United States v. Mauro, 436 U.S. 340, 359 (1978). Wisconsin has adopted the IAD as WlS. STAT. § 976.05, which provides in relevant part:

(4) Article IV. (a) The appropriate officer of the jurisdiction in which an untried indictment, information or complaint is pending shall be entitled to have a prisoner against whom the officer has lodged a detainer and who is serving a term of imprisonment in any party state made available ... upon presentation of a written request for temporary custody or availability to the appropriate authorities of the state in which the prisoner is incarcerated....

Subsection 976.05(4) also prohibits shuttling a prisoner between the requesting state and the original place of imprisonment:

(e) If trial is not had on any indictment, information or complaint contemplated hereby prior to the prisoner's being returned to the original place of imprisonment . . . such indictment, information or complaint shall not be of any further force or effect, and the court shall enter an order dismissing the same with prejudice.

¶ 6. Nonahal argues that the circuit court erred in concluding that he had waived the anti-shuttling provision of WlS. STAT. § 976.05(4) for two reasons: (1) he never affirmatively requested to be treated in a manner contrary to the anti-shuttling provision; and (2) violations of the anti-shuttling provision are violations of a fundamental right and therefore he could not have waived his rights under the IAD without the presence of counsel. We disagree on both points.

¶ 7. No Wisconsin case addresses whether the rights conferred under the anti-shuttling provision of Article IV of the IAD are fundamental rights. However, we have concluded that rights conferred under another section of Article IV, rather than fundamental, are statutory in nature. State v. Brown, 118 Wis. 2d 377, 386, 348 N.W.2d 593, 598 (Ct. App. 1984). Brown, who was incarcerated in California, was brought to Wisconsin to stand trial for murder under Article IV of the IAD, which required that he be brought to trial within 120 days. The 120-day limit was to expire on February 8, and Brown's attorney requested a February trial date. Mistakenly believing that Brown was present in Wisconsin under Article III of the IAD (which requires trial within 180 days), the circuit court set a trial date of February 17. Brown's attorney did not object, and Brown was tried and convicted. We concluded that Brown's rights under the time-limit provision of Article IV of the IAD were statutory, not fundamental, so he could waive them by requesting a procedure inconsistent with its provisions and failing to object to a trial date scheduled outside the time limit. Id.

¶ 8. The IAD is a "congressionally sanctioned interstate compact [and therefore] is a federal law subject to federal construction." New York v. Hill, 528 U.S. 110, 111 (2000); see also Cuyler v. Adams, 449 U.S. 433, 442 (1981). Every federal circuit that has considered the issue on which this appeal turns has concluded that a prisoner may waive the rights conferred by the anti-shuttling provision of the IAD as long as the waiver is voluntary. United States v. Oldaker, 823 F.2d 778, 780 (4th Cir. 1987); Webb v. Keohane, 804 F.2d 413, 414 (7th Cir. 1986); United States v. Eaddy, 595 F.2d 341, 344 (6th Cir. 1979); United States v. Black, 609 F.2d 1330, 1334 (9th Cir. 1979); Gray v. Benson, 608 F.2d 825, 826 (10th Cir. 1979); United States v. Ford, 550 F.2d 732, 742 (2d Cir. 1977), aff'd sub nom. United States v. Mauro, 436 U.S. 340 (1978). It is not necessary for the prisoner to knowingly and intentionally relinquish his rights under the anti-shuttling provision of the IAD; even if he is unaware of his rights, he may waive them by requesting contrary treatment. Eaddy, 595 F.2d at 344. A request for contrary treatment can include a request for transfer to the original place of imprisonment before final disposition of the charges. Webb, 804 F.2d at 414. The prisoner may waive his anti-shuttling rights because that provision exists "to benefit the prisoner by allowing continuous rehabilitation in one location, but the prisoner can decide he prefers the benefits of being transferred elsewhere.” Id. at 415. Therefore, we conclude that rights granted under the anti-shuttling provision of the IAD are statutory in nature and may be waived if the prisoner requests a procedure inconsistent with the statute's provisions.

¶ 9. Turning to the facts of this case, we conclude that Nonahal affirmatively requested to be treated in a manner contrary to WlS. STAT. § 976.05(4)(e), the anti-shuttling provision of the IAD, and that his request constituted a waiver of these rights. Nonahal told the court that he was preparing a federal appeal and that he had left his documents at FCI Sandstone. After a scheduling discussion, he asked the court to further postpone his Dane County trial to allow him to return to FCI Sandstone to work on his federal appeal, then return to Dane County for trial. In response, the court set a schedule to allow him time to get representation and to return to FCI Sandstone to complete his federal appeal. Nonahal told the court that he understood these arrangements, and he did not object to them. His affirmative request to return to FCI Sandstone was sufficient to waive his rights under para. § 976.05(4)(e), which exist to allow him continuous rehabilitation in a single location. He voluntarily chose to waive those rights, and he cannot now complain that they were violated.

CONCLUSION

¶ 10. Because Nonahal waived his rights under the anti-shuttling provision of the IAD when he asked to be returned to the federal prison before trial, we affirm the judgment of the circuit court.

By the Court. — Judgment affirmed.

       All further references to the Wisconsin Statutes are to the 1999-2000 version unless otherwise noted.

       The IAD identifies two time limits related to detainers. Under Article III, a prisoner against whom a detainer has been lodged may request final disposition of the charges upon which the detainer is based. WlS. STAT. § 976.05(3)(a). Trial must take place within 180 days of the request. Id. (emphasis added). Under Article IV, the jurisdiction that issued the detainer may request that the prisoner be made available for trial on the charges that form the basis for the detainer. Section 976.05(4)(a). It requires trial within 120 days of the prisoner's arrival in the requesting state. Section 976.05(4)(c) (emphasis added).

       Fundamental rights must be knowingly and intelligently relinquished. A fundamental right is one guaranteed to the defendant by the Constitution to preserve a fair and impartial trial. United States v. Black, 609 F.2d 1330, 1334 (9th Cir. 1979); State v. Hereford, 224 Wis. 2d 605, 614, 592 N.W.2d 247, 251 (Ct. App. 1999). Because "[t]he protections of the IAD are not founded on constitutional rights, or the preservation of a fair trial, but are designed to facilitate a defendant's rehabilitation . . . and to avoid disruptions," the rights it confers are not constitutional. Black, 609 F.2d at 1334.
      Nonahal cites United States v. Williams, 615 F.2d 585 (3d Cir. 1980), for the proposition that the anti-shuttling provision of the IAD is a fundamental right that therefore requires a knowing and intelligent waiver. Williams, however, concludes only that a claimed IAD violation is a "fundamental defect" sufficient to support a collateral attack on a criminal conviction under 28 U.S.C. § 2255 (1976). Williams, 615 F.2d at 591. This holding is not conclusive of the issue of whether a violation of the anti-shuttling provision of the IAD is a fundamental right.


text:
    State of Wisconsin ex rel. Earl Johnson, Petitioner-Appellant, v. Jon E. Litscher and Thomas G. Borgen, Respondents-Respondents.
    Court of Appeals

      No. 00-1485.

      Submitted on briefs December 7, 2000.

    Decided January 18, 2001.

    2001 WI App 47
    (Also reported in 625 N.W.2d 887.)

      On behalf of the petitioner-appellant, the cause was submitted on the briefs oí Earl Johnson, pro se.
    On behalf of the respondents-respondents, the cause was submitted on the brief of James E. Doyle, attorney general, and Richard A. Victor, assistant attorney general.
    Before Dykman, P.J., Vergeront and Roggensack, JJ.
   ROGGENSACK, J.

¶ 1. Earl Johnson, who is incarcerated at Fox Lake Correctional Institution (FL Cl), appeals an order dismissing his petition for certio-rari, which seeks review of a disciplinary committee decision that was affirmed by Thomas Borgen, the superintendent of the John C. Burke Correctional Center (JCBCC) and Jon Litscher, the Secretary of the Department of Corrections. The circuit court determined that because Johnson filed his petition for certiorari more than forty-five days after Litscher had issued his final decision on Johnson's appeal, his action must be dismissed and the writ, quashed. We disagree because we conclude that even though the petition was filed more than forty-five days after Litscher's decision, on the record before us, Johnson proved the number of days that elapsed between the decision and his receipt of it. We also conclude that the record discloses no circumstances that would make it a proper exercise of discretion not to extend the time for filing the petition under WlS. STAT. § 893.735(2) (1999-2000). Accordingly, we reverse the order of the circuit court and remand the petition for a decision on the merits.

BACKGROUND

¶ 2. While an inmate at JCBCC, Johnson received a conduct report for the use of intoxicants in violation of WlS. Admin. Code § DOC 303.59. After a hearing before the disciplinary committee, he was found guilty. He appealed to Borgen, who affirmed the committee. On August 20, 1999, when Litscher also affirmed, Johnson had exhausted all administrative remedies available to him.

¶ 3. Johnson filed a petition for a writ of certio-rari in the circuit court on November 18,1999, and the circuit court issued the writ. However, on May 17, 2000, after the timeliness of Johnson's petition was first raised in the brief of Litscher and Borgen, the circuit court, treating the brief as a motion to dismiss, concluded that Johnson was barred from commencing a certiorari action because he had filed it more than forty-five days after August 20, 1999. As a result, the circuit court dismissed the action and quashed the writ. Johnson claims on appeal, as he did in his petition for a writ of certiorari, that despite repeated inquiries into the status of his appeal of the disciplinary committee's decision, he did not receive notice of Litscher's decision until October 16, 1999. Accordingly, he appeals the order of the circuit court dismissing his petition.

DISCUSSION

Standard of Review.

¶ 4. A motion to dismiss for failure to meet a statute of limitations can be decided on the sufficiency of the facts alleged in the petition when combined with those facts asserted by the response when there is no conflict. See Pritzlaff v. Archdiocese of Milwaukee, 194 Wis. 2d 302, 312, 533 N.W.2d 780, 784 (1995). When a circuit court decides a motion to dismiss for failure to comply with a statute of limitations by considering matters outside the four square corners of the pleadings, it is actually deciding a motion for summary judgment. WISCONSIN STAT. § 802.06(2)(b); see Carlson v. Pepin County, 167 Wis. 2d 345, 351, 481 N.W.2d 498, 500 (Ct. App. 1992). The grant or denial of summary judgment is an issue of law that we review de novo, applying the same methodology as the circuit court. Capoun Revocable Trust v. Ansari, 2000 WI App 83, ¶ 5, 234 Wis. 2d 335, 340, 610 N.W.2d 129, 132.

Order of Dismissal.

¶ 5. Failure to timely file a petition for certiorari under WlS. STAT. § 893.735 may result in dismissal. State ex rel. Collins v. Cooke, 2000 WI App 101, ¶ 5, 235 Wis. 2d 63, 67, 611 N.W.2d 774, 776. Section 893.735 governs the time within which a prisoner may begin an action challenging a governmental decision or disposition. It provides in relevant part:

(2) An action seeking a remedy available by certiorari made on behalf of a prisoner is barred unless commenced within 45 days after the cause of action accrues. The 45-day period shall begin on the date of the decision or disposition, except that the court may extend the period by as many days as the prisoner proves have elapsed between the decision or disposition and the prisoner's actual notice of the decision or disposition (emphasis added).

¶ 6. Litscher and Borgen argue that the circuit court correctly dismissed Johnson's action as untimely because Johnson did not file it until November 18, 1999, ninety-one days after they claim he had received Litscher's decision of August 20, 1999, and forty-six days after the statutory deadline had expired. However, they filed no motion to dismiss or motion for summary judgment of dismissal, nor did they file an affidavit or other proof of service from the person whom they assert gave a copy of Litscher's decision to Johnson. Instead, they merely raised the issue in their trial brief and relied completely on the date of Lit-scher's decision and the date Johnson's petition was accepted for filing.

¶ 7. Johnson's petition, on the other hand, was a sworn, notarized statement. It asserted that he did not receive notice of Litscher's decision until long after August 20, 1999, by relating that:

14. On August 6, 1999, by certified mail the petitioner filed a [sic] appeal with the corrections complaint examiner.
15. On August 22 and August 30, 1999, the petitioner sent two letter [sic] to the correction complaint examiner requesting that they acknowledge receipt of his complaint, no responses.
16. On October 11, 1999 the petitioner filed a motion with the secretary and the corrections complaint examiner requesting that they grant him a written decision, this motion was support [sic] by a signed affidavit. A copy of this motion and affidavit was sent via mail to, Richard A. Thieme, Clerk, Dodge County Circuit Court on October 12,1999.
17. On October 16, 1999, the petitioner received a letter from a William D. Ridgely stating that the secretary made a final decision on my appeal August 30, 1999, [sic] and further stated that the Fox Lake Correctional Institutional Complaint Examiner, Tom Gozinski should have notified the petitioner with a copy of the secretary [sic] August 30,1999 written decision.
18. On October 18,1999, the petitioner sent a written notice to the secretary and William Ridgely, and Tom Gozinski stating that he have [sic] not received a written decision that he is entitle [sic] to according to the DOC-310.

¶ 8. Johnson also attached to his petition several documents supporting his statements that he did not receive notice of Litscher's decision until at least October 16, 1999, and that no written copy of the decision was provided until approximately October 19, 1999. These include: (1) Johnson's August 30, 1999, letter to Tom Gozinski, ICE at FLCI, requesting acknowledgement of his appeal of the disciplinary committee decision, complaint file # FLCI — 1999-50452; (2) an Inmate Interview/Information Request form completed by Johnson and dated October 6,1999, asking Gozinski to help him get a decision from Litscher and for advice about what to do if he does not get a decision in the time set forth in the DOC rules; (3) Johnson's affidavit, dated October 11, 1999, requesting a written decision on his appeal of the disciplinary committee decision; (4) a letter dated October 11, 1999, from Johnson to Lit-scher requesting a written decision; and (5) letters dated October 17, 1999, from Johnson to Litscher, Gozinski, DOC Assistant Administrator William Ridgely, and FLCI Lieutenant Maxwell, each stating that he had not received a copy of a decision by Litscher.

¶ 9. It is not clear to us on what evidentiary basis the circuit court relied for its determination that Johnson's petition was untimely. Apparently it did not consider his verified petition and attachments as proof under Wis. Stat. § 893.735(2) of the number of days that had elapsed between Litscher's decision and Johnson's actual notice of that decision. The statute does not establish how a prisoner may prove the facts relating to a claimed delay in receipt of the final decision of the secretary. However, it clearly envisions circumstances when there is a delay in the prisoner's receipt of the secretary's final decision for which the forty-five day time limit should be extended because the delay has been proved.

¶ 10. Proof of the number of days that have elapsed between the date of a decision and a prisoner's receipt of it is proof of a fact. Sworn statements made on personal knowledge are sufficient to meet the prisoner's initial burden in this regard. See Kronske v. Anaconda American Brass Co., 70 Wis. 2d 632, 640-41, 235 N.W.2d 283, 287 (1975) (holding that affidavits in support of summary judgment which are made on personal knowledge and assert evidentiary facts are sufficient to support a movant's initial burden). Here, Johnson's verified petition, a sworn statement, is sufficient to meet his initial burden under the statute to prove the number of days that elapsed between Lit-scher's decision and his receipt of it.

¶ 11. Litscher and Borgen have made no eviden-tiary submissions to counter Johnson's proof. Therefore, based on the record before us, if we were to construe the assertion of untimeliness contained in Lit-scher and Borgen's trial brief as a motion to dismiss, it should have been denied because Johnson's verified petition is sufficient to defeat it, just as it would be if we were to construe their brief as a motion for summary judgment. Accordingly, on the record before us, Johnson has proved that he did not have actual notice of the decision until October 16, 1999. His petition was filed November 18,1999, within forty-five days of his receipt of Litscher's decision.

¶ 12. The statute provides that the court "may extend the [forty-five day] period" when the prisoner has proved delay between the decision and actual notice of it. "May" ordinarily denotes that a court has discretion to act. Kotecki & Radtke, S.C. v. Johnson, 192 Wis. 2d 429, 447-48, 531 N.W.2d 606, 613 (Ct. App. 1995). However, "may" is sometimes construed as mandating that the circuit court take the particular action. Bouchard v. Bouchard, 107 Wis. 2d 632, 634, 321 N.W.2d 330, 331 (Ct. App. 1982). However, we need not decide the proper construction of "may" in the statute in this case, because even if properly construed as giving the circuit court the discretion to extend the forty-five days when the inmate has proved the delay, we conclude that, based on the record before us, there are no circumstances that would make it a proper exercise of discretion not to extend the time during which Johnson's petition will be deemed timely. Therefore, we reverse the order dismissing his petition, and we remand it to the circuit court for a decision on the merits.

CONCLUSION

¶ 13. Because we conclude that even though the petition was filed more than forty-five days after Lit-scher's decision, on the record before us, Johnson proved the number of days that elapsed between the decision and his receipt of it, and the record discloses no circumstances that would make it a proper exercise of discretion not to extend the time for filing the petition under WlS. STAT. § 893.735(2). Accordingly, we reverse the order of the circuit court and remand the petition for a decision on the merits.

By the Court. — Order reversed and cause remanded.

       Johnson had been incarcerated at JCBCC when he received the conduct report, prior to transfer to FLCI.

       All references to the Wisconsin Statutes are to the 1999-2000 version unless otherwise noted.

       The record reflects that Johnson's petition and all attachments were received by the clerk of courts on October 22,1999.

       Because WlS. Stat. § 893.735 provides for extension of the forty-five days when the prisoner proves he or she did not receive actual notice of the decision on the date of decision, it would facilitate the court's application of § 893.735 if DOC instituted some means of documenting the date of service on the inmate. We note that Johnson has the right to be provided with a written copy of that decision. Wis. Admin. Code §DOC 310.13(7).

       This document also contains what appears to be Gozin-ski's handwritten response wherein he advises:
      The code states that, shall the CCE or the Secretary not answer within the prescribed period, the previous decision is considered affirmed. C.f. DOC 310.13(7) & 310.14(3).
      Gozinski's response suggests that he knew nothing of a decision by Litscher when he responded to Johnson's request for advice.