 Walsh Bradley Note: We are crunching Supreme Court of Wisconsin decisions down to size. The rule for this is that no justice gets more than 10 paragraphs as written in the actual decision. The "upshot" and "background" sections do not count as part of the 10 paragraphs because of their summary and very necessary nature. We've also removed citations from the opinion for ease of reading, but have linked to important cases cited or information about them. Note 2: This is a case originating in Rock County Circuit Court, Judges John M. Wood and Richard T. Werner presiding. Majority: Justice Ann Walsh Bradley (17 pages) for a unanimous court The upshot Based on a review of the record before us, including (Alfonso C.) Loayza's admissions contained in the California documentation, together with the DOT driving record and the references to his probation contained in the California materials, we determine that it is more likely than not that Loayza had a 1990 California OWI conviction. We therefore conclude that the State has met its burden of proof, demonstrating by a preponderance of the evidence the existence of Loayza's 1990 California OWI conviction. Accordingly, we reverse the decision of the court of appeals. Background On May 26, 2012, Loayza was stopped by a police officer for speeding. During the course of the stop, Loayza admitted to recently drinking, and a preliminary breath test indicated a 0.14% blood alcohol concentration. A subsequent blood test confirmed that Loayza's blood alcohol concentration was well above the legal limit for driving. Upon running a check of Loayza's driving record, the officer noted that Loayza had eight prior alcohol-related convictions. The State charged Loayza with one count of OWI as a ninth offense and one count of operating with a prohibited alcohol concentration (PAC), also as a ninth offense. Detailed in the complaint were Loayza's alleged prior convictions – three convictions from California in 1989, 1990, and 1991, and five subsequent convictions in Wisconsin between 1992 and 2009.... Loayza...argued that the please in those (Califonia) cases, were entered without a valid waiver of counsel. In an affidavit accompanying the motion, Loayza acknowledged convictions in 1989, 1990, and 1991, but averred that he had no recollection as to whether he was represented at sentencing for any of those convictions or whether the judge advised him regarding his right to counsel. The circuit court denied this motion in its entirety. Loayza ultimately pleaded guilty to one count of OWI as a ninth offense. However, he made his plea contingent on the State proving his number of prior convictions. At sentencing, the State submitted three exhibits as proof of Loayza's prior convictions.... Loayza conceded that the State offered sufficient proof of his 1991 conviction. However, he asserted that it failed to establish the existence of the 1989 and 1990 convictions. The circuit court rejected Loayza's arguments and determined that both the 1989 and 1990 convictions were established through the exhibits submitted by the State. With regard to the 1990 conviction, the circuit court referenced the San Mateo County documents, stating, "[i]t's clear to me by reading this documentation that he was convicted of that, and I think this is competent proof of that particular conviction." Accordingly, the circuit court determined that Loayza's current conviction constituted a ninth offense and sentenced him to a bifurcated sentence consisting of five years of initial confinement followed by five years of extended supervision. Loayza subsequently filed the first of two postconviction motions challenging the proof submitted for the 1989 and 1990 California convictions. In this initial motion, he sought resentencing, arguing that the State did not offer sufficient proof of the 1989 conviction. The circuit court agreed, amending the judgment of conviction to reflect an eighth offense rather than a ninth. However, it sentenced Loayza to the same term of confinement and supervision that it had initially imposed. Loayza then brought the postconviction motion at issue in the present case. He contended that his sentence should be modified to reflect its status as a seventh offense rather than an eighth offense. Specifically, he argued that the California documents provided by the State do not support the determination that a conviction occurred in 1990.... "The circuit court agreed, amending the judgment of conviction to reflect an eighth offense rather than a ninth. However, it sentenced Loayza to the same term of confinement and supervision that it had initially imposed." – Justice Ann Walsh Bradley Finally, Loayza argued that even if the materials prove a conviction occurred, they do not prove that the conviction was for OWI. The plea form in the record states that Loayza pleaded guilty to a violation of the California "Vehicle Code, § 14601.2(a)," which corresponds to the statute number used in the 1990 complaint for operating while suspended or revoked, not OWI.
The circuit court rejected Loayza's arguments... Loayza appealed, and the court of appeals reversed. It determined that the proffered evidence did not sufficiently demonstrate that Loayza was convicted of OWI in 1990.... It observed that there is no judgment of conviction in the record, and the docket printout does not expressly show that a conviction occurred. In the court of appeals' view, the plea form, which uses the statute number corresponding to operating after suspension and revocation, "supports an inference that, if there was a conviction in May 1990 as reported by the DOT record, it was not for OWI, but only for operating after suspension and revocation...." The guts As relevant here, the types of prior convictions that are "countable" for purposes of enhanced penalties are set by Wis. Stat. § 343.307 and include: Convictions under the law of another jurisdiction that prohibits a person from refusing chemical testing or using a motor vehicle while intoxicated or under the influence of a controlled substance or controlled substance analog, or a combination thereof; with an excess or specified range of alcohol concentration; while under the influence of any drug to a degree that renders the person incapable of safely driving; or while having a detectable amount of a restricted controlled substance in his or her blood, as those or substantially similar terms are used in that jurisdiction's laws.... At issue in the present case is whether the documentary evidence in the record is sufficient to establish, by a preponderance of the evidence, Loayza's 1990 California OWI conviction. The State has not offered a certified copy of a judgment of conviction reflecting Loayza's 1990 California conviction. ¶ However, this deficiency is not necessarily fatal to the State's case, as this court has previously stated that "the convictions may be proven by certified copies of conviction or other competent proof offered by the state before sentencing...." We agree with the State that the court of appeals erred. Specifically, upon review of the entire record and in light of the DOT driving record and the applicable burden of proof (preponderance of the evidence), the court of appeals did not give proper weight to Loayza's previous admissions to the 1990 California conviction or to the materials in the record relating to Loayza's 1991 California OWI conviction from Santa Clara County. To explain, the record contains several actions on Loayza's part that can reasonably be construed as admissions to the 1990 conviction. First, when early in this case Loayza collaterally attacked all three of his California convictions, his affidavit referred to his "three Prior California DUI/OWI Convictions from 1989, 1990 and 1991." At that time, he did not challenge the existence of any of these convictions, but instead asserted that he did not recall if he was represented by counsel and had not validly waived counsel. Thus, Loayza's own affidavit, at a bare minimum, acknowledges the existence of the 1990 conviction. Second, the 1991 Santa Clara County materials provide an additional instance of an admission to the 1990 San Mateo County conviction. The complaint filed in the 1991 Santa Clara County case alleges as a prior conviction the 1990 conviction in San Mateo County, and the "felony minutes" of Loayza's plea hearing in the 1991 case indicate that Loayza admitted to three prior convictions. Based on the complaint and the entire record in this case, including the DOT driving record, it is a reasonable inference that one of the three admitted prior convictions was the 1990 San Mateo County conviction.... Further, the record of the 1990 San Mateo County case contains a reference to Loayza's probation being revoked and Loayza being sentenced on "count 1." In the complaint, count 1 corresponds to the OWI charge. From this notation, it is a reasonable inference that Loayza was convicted and placed on probation for the 1990 OWI conviction. Indeed, his probation could not have been revoked on count 1 had he not been placed on probation on count 1, and he could not have been placed on probation had he not been convicted.... With an eye toward the fact that the applicable burden of proof here is a preponderance of the evidence, Loayza's admissions, coupled with the DOT driving record and the references to his probation, are sufficient to meet such a burden. The State must demonstrate only that it is more likely than not that Loayza was convicted of OWI in 1990.... In sum, based on a review of the record before us, including Loayza's admissions contained in the California documentation, together with the DOT driving record and the references to his probation contained in the California materials, we determine that it is more likely than not that Loayza was convicted in California of OWI in 1990. We therefore conclude that the State has met its burden of proof, demonstrating by a preponderance of the evidence the existence of Loayza's 1990 California OWI conviction.
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