State v. James J. Socha ( 2023 )

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
April 25, 2023
A party may file with the Supreme Court a
Sheila T. Reiff petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.
Appeal Nos.
2021AP1083-CR Cir. Ct. Nos. 2004CF7137
2008CF6377
2021AP2116-CR
STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT I
STATE OF WISCONSIN,
PLAINTIFF-RESPONDENT,
V.
JAMES J. SOCHA,
DEFENDANT-APPELLANT.
APPEALS from orders of the circuit court for Milwaukee County:
MILTON L. CHILDS, SR. and GLENN H. YAMAHIRO, Judges. Reversed and
remanded with directions.
Before Brash, C.J., Dugan and White, JJ.
Nos. 2021AP2116-CR
2021AP1083-CR
¶1 WHITE J. James Socha, pro se, appeals from the trial and circuit
courts’ orders denying his postconviction motions seeking sentence modification.1
In Socha’s first case on appeal, he was convicted, upon a guilty plea, for operating
a motor vehicle while under the influence of an intoxicant (OWI) as a tenth or
subsequent offense, which was committed in December 2004. In his second case
on appeal, Socha was convicted, upon a jury’s verdict, for operating a motor
vehicle while under the influence of an intoxicant (OWI) as a tenth or subsequent
offense, which was committed in December 2008. Socha asserts in each case that
the trial and circuit courts erred when it failed to modify his sentence after he
presented evidence that multiple prior OWI convictions relied upon to impose his
sentence had been vacated after he was sentenced.2 Although we reject Socha’s
contention that his sentences should be automatically modified by commuting his
sentence pursuant to WIS. STAT. § 973.13,3 we conclude that Socha’s allegations
that some of his prior OWI conviction were lawfully vacated after he was
sentenced in these cases sufficiently alleged a new factor such that if he meets his
burden to prove that some of his prior convictions were lawfully vacated, it may
warrant sentence modification. We reverse the trial and circuit courts’ orders and
remand with directions to reopen Socha’s motions for sentence modification and
1
Upon our own motion, we consolidate Socha’s separate appeals because of the
substantially similar legal and factual issues he raises. See WIS. STAT. RULE 809.10(3) (2021-
22). All references to the Wisconsin Statutes are to the 2021-22 version unless otherwise noted.
2
Pursuant to WIS. STAT. § 346.65, the maximum penalties for OWI violations increase
based on the number of convictions for OWI violations, suspensions, or revocations a person has
at the time of sentencing.
3
WISCONSIN STAT. § 973.13 provides that “[i]n any case where the court imposes a
maximum penalty in excess of that authorized by law, such excess shall be void and the sentence
shall be valid only to the extent of the maximum term authorized by statute and shall stand
commuted without further proceedings.”
2
Nos. 2021AP2116-CR
2021AP1083-CR
determine which, if any, of Socha’s prior OWI convictions were lawfully vacated
and to exercise their discretion in imposing sentences within the range of the
applicable subsections of WIS. STAT. § 346.65(2) based on the number of Socha’s
prior OWI convictions after determining how many, if any, of his prior
convictions have been lawfully vacated.
BACKGROUND
Milwaukee County Circuit Court case No. 2021AP1083-CR
(the Whitefish Bay case)
¶2 Socha’s first case on appeal begins with his arrest for OWI in
December 2004 in Whitefish Bay, after a police officer observed him swerving
and running a stop sign. The officer further noted that Socha smelled of alcohol,
that his speech was slurred, and that he swayed when he walked; he also failed
field sobriety tests. The officer reviewed Wisconsin Department of Transportation
(DOT) records that showed that he had nine prior OWI convictions. Socha was
charged with OWI as a fifth or subsequent offense, contrary to WIS. STAT.
§§ 346.63(1)(a), 346.65(2)(e) (2003-04).4 Later testing showed that his blood
alcohol concentration (BAC) was 0.289.
4
In 2004, the maximum penalty for being convicted of five or more OWI offenses was
the same—a Class H Felony with a maximum sentence of six years, divided as three years of
initial confinement and three years of extended supervision and a $600 fine. Thus, the fact that
Socha had more than five prior OWI convictions was of no consequence. See WIS. STAT.
§ 346.65(2)(e), 973.01(2)(b)8, (d)5. (2003-04).
3
Nos. 2021AP2116-CR
2021AP1083-CR
¶3 Socha pled guilty to the charge in February 2005. The trial court 5
ordered a presentence investigation report (PSI)—the report listed nine prior OWI
offenses.6 During the sentencing hearing in July 2005, Socha’s counsel informed
the court that Socha had recent convictions for OWI, bail jumping, and operating
after revocation in Ozaukee County, which occurred after he committed the OWI
in the Whitefish Bay case. Counsel also advised the trial court that Socha was
sentenced in total to six years of initial confinement and five years of extended
supervision in that case prior to his sentencing in the Whitefish Bay case. Thus, it
appears that at the time of his sentencing in the Whitefish Bay case, Socha had ten
prior OWI convictions. Counsel also referenced that Socha had nine prior OWI
convictions in discussing Socha’s alcoholism with regard to counsel’s request for
concurrent sentencing.
¶4 In discussing the reasoning behind its sentencing, the trial court
referenced that Socha was on his tenth OWI offense, that he had a 0.289 BAC for
the current offense, and that he had a long struggle with alcoholism. The trial
court also stated that Socha committed the Ozaukee County OWI offense while on
bail for the Whitefish Bay case, which the court was sentencing in Milwaukee
County Circuit Court. The court imposed a six year term of imprisonment divided
as two years of initial confinement and four years of extended supervision to be
5
The Honorable Mary M. Kuhnmuench accepted Socha’s guilty plea and imposed
sentencing. The Honorable Milton L. Childs, Sr. denied Socha’s postconviction motion.
A number of other judges were involved in this matter over the years; we refer generally to the
judges on this case as the trial court.
6
During the sentencing hearing, the trial court did not review the details of the nine prior
OWI convictions. Later court proceedings, as well as our examination of the record, showed that
the nine prior convictions consisted of five OWI convictions in Ohio from 1989 through 1992; an
OWI conviction in Whitefish Bay in 1993; an OWI conviction in River Hills in 1993; and two
OWI convictions in Illinois in 2000, for OWI violations in 1998 and 1999.
4
Nos. 2021AP2116-CR
2021AP1083-CR
served consecutively to any other sentence he had. The court also granted Socha
eligibility for the earned release program upon his successful completion of an
AODA program.
¶5 Socha completed the earned release program and had the balance of
his initial confinement term converted to extended supervision in February 2008.
In December 2008, Socha was arrested for the OWI at issue in the second appeal
in this case, Milwaukee County Circuit Court case No. 2021AP2116-CR (the
Glendale case). His supervision in the Whitefish Bay case was subsequently
revoked, and he was ordered reconfined for the amount of time remaining on his
sentence—approximately five years and eleven months. In December 2014, the
Wisconsin Department of Corrections (DOC) notified the trial court that Socha’s
sentence did not comply with the statutory requirements for his conviction of a
class H felony pursuant to WIS. STAT. §§ 973.01(2)(b)8. and 973.01(2)(d)5. (2003-
04), which limited the term of extended supervision to three years. Accordingly,
the trial court ordered the term of extended supervision—which had been
converted to confinement time for his supervision violation—to be commuted to
three years.
Milwaukee County Circuit Court case No. 2021AP2116-CR
(the Glendale case)
¶6 Socha’s second case on appeal begins with his arrest for OWI on
December 21, 2008, when a Glendale Police Department officer observed that
Socha’s vehicle appeared to be stuck in a snow bank on the side of the road.
When the officer made contact with Socha, she noticed that Socha had a strong
odor of intoxicants and glassy and bloodshot eyes. The officer subsequently
checked Socha’s driving record, which showed he had eleven prior OWI
5
Nos. 2021AP2116-CR
2021AP1083-CR
convictions and a revoked driver’s license. Socha was then arrested for driving
with a revoked licensed and conveyed to Glendale Police Department where he
performed poorly on standard field sobriety tests. Socha refused a chemical test of
his blood and he was transported to a hospital for a forced blood draw. The blood
test result showed a 0.32 BAC.
¶7 Socha was charged with an OWI as a tenth or subsequent offense,7
on the basis that the criminal complaint alleged eleven prior convictions, contrary
to WIS. STAT. § 346.63(1)(a), 346.65(2)(am)7. (2007-08).8 As the case proceeded
against Socha, he brought multiple pretrial motions. Socha’s attorney questioned
the validity of certain prior OWI convictions and then unsuccessfully attempted to
preclude the State from using his prior OWI convictions at sentencing, motions
which were denied by the circuit court.9 Additionally, the circuit court denied
Socha’s pretrial motion to collaterally attack his prior out-of-state OWI
convictions.
7
In 2008, the maximum penalty for anyone convicted of ten or more OWI offenses was
the same—a Class F Felony with a maximum sentence of twelve years and six months, divided as
seven years and six months of initial confinement and five years of extended supervision. See
WIS. STAT. § 346.65(2)(am)(7), § 973.01(2)(b)6m and (2)(d)4. (2007-08).
8
Based on later proceedings and our examination of the record, at the time of charging
in 2008, the eleven prior convictions consisted of five OWI convictions in Ohio from 1989
through 1992; an OWI conviction in Whitefish Bay in 1993; an OWI conviction in River Hills in
1993; and OWI convictions in Illinois in 2000; the 2004 case—an OWI violation in Whitefish
Bay with a conviction in Milwaukee County Circuit Court in 2005; and the Ozaukee County
case—an OWI conviction in 2005.
9
The Honorable Thomas P. Donegan conducted Socha’s trial and sentencing. The
Honorable Glenn H. Yamahiro denied Socha’s motions for postconviction relief and
reconsideration. A number of other judges were involved in this matter over the years; we refer
generally to the judges on this case as the circuit court.
6
Nos. 2021AP2116-CR
2021AP1083-CR
¶8 After a four day jury trial in March 2011, the jury returned a guilty
verdict for operating a motor vehicle while under the influence of an intoxicant.
Prior to sentencing, Socha brought several motions for reconsideration of the
circuit court’s pretrial orders, which the circuit court denied, and a motion asking
that the court require the State to provide “competent[,] reliable and applicable
proof of all alleged prior OWI convictions it intends to rely on for use at
sentencing.” However, during the sentencing hearing on May 18, 2011, the circuit
court denied any reconsideration of its prior orders from pretrial or presentencing
motions. Although the State referenced it submitted documentation to the court,
the circuit court concluded that Socha’s presentencing motion was a continuation
of his collateral attacks on his prior convictions and declined to consider the
motion. Ultimately, the circuit court imposed a term of imprisonment of twelve
years, divided as seven years of initial confinement and five years of extended
supervision. The sentence was imposed consecutively to any other sentence.
¶9 In October 2012, Socha moved for postconviction relief, arguing that
the circuit court erroneously relied upon defective prior convictions at his
sentencing. This court remanded the matter for further fact-finding by the circuit
court regarding the proper number of prior OWI convictions, which the circuit
court determined to be “at least eleven.” In January 2013, the circuit court denied
the motion. In January 2015, this court affirmed Socha’s judgment of conviction
and the order denying him postconviction relief. See State v. Socha,
No. 2013AP281-CR, unpublished slip op. (WI App Jan. 13, 2015) (Socha I).
¶10 Relevant to the current appeal, in Socha I, this court addressed
Socha’s contention that his prior OWI convictions had not been properly counted.
First this court noted that Socha affirmed by affidavit that he was convicted and
sentenced for five OWIs in Ohio from 1989 through 1992, and convicted for two
7
Nos. 2021AP2116-CR
2021AP1083-CR
OWIs in Illinois, violations which occurred in 1998 and 1999, and for which he
was sentenced for both in May 2000. Id., ¶19. Therefore, this court concluded
that “that the challenged Ohio and Illinois convictions were properly counted.”
Id., ¶22. While we noted that Socha claimed that “two of his Wisconsin
convictions had been vacated,” we ultimately concluded that “Socha admitted to at
least nine prior convictions making the trial court’s imposition of sentence for a
tenth or subsequent offense appropriate.” Id., ¶¶25-26.
Socha’s current appeals
¶11 In 2020, Socha began filing the motions that led to these appeals; as
the arguments and filings are similar, we discuss them together. In both cases,
Socha requested that the courts definitively establish which OWIs were the
underlying prior offenses that supported the sentences that the courts imposed.
Further, in both cases, Socha argued that several of his OWI convictions had been
vacated postsentencing, which he asserted required the courts to modify or
commute his sentences.
¶12 In Socha’s Whitefish Bay case, Socha also specifically argued that
the PSI report had “fundamental discrepancies” in the “purported dates” of the
prior OWI convictions listed. In August 2020, the trial court denied his motion,
noting that there was no plea hearing transcript or court reporter notes in the
record; therefore, the record of the prior OWIs was limited to the PSI.
¶13 In Socha’s Glendale Case, in August 2020, the circuit court denied
Socha’s motion for a definitive record of his prior OWI convictions, explaining
that at the sentencing hearing, the State filed documentation stating that Socha had
fourteen prior OWIs and that this court had concluded in Socha I that he had at
least nine prior OWI convictions. In October 2020 and January 2021, Socha
8
Nos. 2021AP2116-CR
2021AP1083-CR
requested that his judgment of conviction be amended to state he was convicted of
an OWI-tenth or more and not an OWI-twelfth or more. In January 2021,
although the circuit court had found that the State had proven at least eleven
convictions countable for OWI penalties, it granted Socha’s request to amend his
judgment of conviction to state he was convicted of an OWI-tenth or more and not
an OWI-twelfth or more. The court concluded that the amendment was consistent
with the charge as described in the criminal complaint, the sentencing hearing
transcript, and this court’s 2015 decision in Socha I.10
¶14 Socha then filed the motions for sentence modification underlying
these appeals. In the Whitefish Bay case, Socha submitted documentation
showing that six of his prior OWI convictions had been vacated: one in Whitefish
Bay from a 1993 incident that was vacated in May 2010, one in River Hills from a
1993 incident that was vacated in April 2010, and four from Mason City, Ohio for
incidents in 1989, 1991, and two in 1992, that were vacated in August 2020. In
the Glendale case, Socha only submitted the records from his four vacated
convictions from Ohio with his appeal. In both cases, he asserted that because
several of his prior OWI convictions had been vacated, each court should
commute his excessive sentence, or, in the alternative, modify his sentence due to
a new factor—the vacated prior convictions.
¶15 Specifically addressing the Whitefish Bay case, Socha argued that
the PSI was inaccurate because it listed the violation dates instead of the
conviction dates, which he asserted meant that the PSI could not be relied upon for
10
As noted above WIS. STAT. § 346.65(2)(am)7 (2007-08) provides “Any person
violating s. 346.63(1) … is guilty of a Class F Felony if the number of convictions … equals 10
or more….”
9
Nos. 2021AP2116-CR
2021AP1083-CR
calculating the proper number of his prior OWI convictions to support the
sentence that the court imposed on him, under State v. Farr, 119 Wis. 2d 651,
658, 350 N.W.2d 640 (1984). In March 2021, the trial court denied Socha’s
motion for sentencing modification. The court rejected Socha’s arguments,
concluding that the PSI was not unreliable and that Socha’s counsel’s statements
at sentencing relating to the nine prior OWI convictions “amounted to an
admission for purposes of imposing the enhanced penalties.” The court rejected
that a new factor applied, stating:
The court will not sanction the defendant’s effort to
collaterally attack his sentence for a tenth OWI offense
under the guise of a new factor. At the time of sentencing,
he stood convicted of nine prior OWIs. Those convictions
were valid at that time, and therefore, the court sentenced
the defendant on a correct set of facts. The defendant’s
postconviction attempt to change the facts is improper, and
frankly, manipulative.
(Emphasis in original)
¶16 Specifically addressing the Glendale case, the circuit court denied
Socha’s motion for sentencing modification in October 2021. Applying reasoning
similar to that of the trial court, the circuit court rejected that Socha had presented
a new factor, stating:
The court will not sanction the defendant’s effort to
collaterally attack his sentence for a tenth or subsequent
OWI under the guise of a new factor. At the time of
sentencing, he stood convicted of at least nine prior OWIs.
Those convictions were valid at the time, and therefore, the
court sentenced the defendant on a correct set of facts. His
attempt to change the facts at this juncture is improper, and
frankly, manipulative.
(Emphasis in original). The court also rejected resentencing Socha because he
“does not want to be resentenced, and the remedy is not warranted.”
10
Nos. 2021AP2116-CR
2021AP1083-CR
¶17 Socha now appeals both cases.
DISCUSSION
¶18 To understand Socha’s arguments in these appeals, we begin with
his basic theories of the law and facts. First, he asserts that he has presented
evidence that four of his OWI convictions from Ohio from 1989 through 1992
were vacated in 2020 and two of his OWI convictions from Wisconsin from 1993
were vacated in 2010. Therefore, in his Whitefish Bay case, he argues that if six
of his OWI convictions are no longer valid in calculating his prior convictions,
then his sentence would be excessive for applying nine prior OWI convictions
when it should only be three prior OWI convictions.11 In his Glendale case, Socha
argues that if four of his Ohio OWI convictions are no longer valid in calculating
his prior convictions, then his sentence is excessive for applying nine prior OWI
convictions when it should be five prior OWI convictions.12
¶19 Next, for the Whitefish Bay case, Socha asserts that an OWI-fourth
(meaning he had three prior convictions) had a maximum penalty of one year. See
11
Although the record reflects that the State alleged eleven or more prior OWI
convictions during his Whitefish Bay case, the trial court relied upon the PSI, which enumerated
nine prior convictions, listing the violation dates: five from Ohio from 1989-1992, two from
Wisconsin in 1993, and two from Illinois in 1998 and 1999. We will proceed under the same
logic as the trial court to begin with Socha having nine prior OWI convictions before he was
sentenced in the 2004 case.
12
For the Glendale case, Socha’s nine prior convictions were described by this court in
State v. Socha, No. 2013AP281-CR, unpublished slip op. (WI App Jan. 13, 2015) (Socha I) to
include five OWI convictions in Ohio, two in Illinois, and two in Wisconsin—the Whitefish Bay
case and the 2005 Ozaukee County case, which was affirmed in State v. Socha, No. 2021AP957-
CR, unpublished op. and order (WI App Oct. 12, 2022) (Socha II). We infer that Socha
effectively had the circuit court recognize that both 1993 Wisconsin OWI convictions were
removed from his prior conviction count in its order amending the judgment of conviction to
reflect nine prior convictions.
11
Nos. 2021AP2116-CR
2021AP1083-CR
WIS. STAT. § 346.65(2)(c) (2003-04). Socha then states that he was sentenced for
an OWI-tenth, which fell into the category of an OWI-fifth or more, having a
maximum term of imprisonment of six years. See WIS. STAT. §§ 346.65(2)(e),
939.50(3)(h) (2003-04). Socha was sentenced to six years; that sentence was
reduced by a year after communication from DOC led to commutation pursuant to
WIS. STAT. § 973.13.13 However, Socha argues that even a five year sentence was
still four years longer than allowed. For the Glendale case, Socha asserts that an
OWI-sixth had a maximum penalty of six years. See § 346.65(2)(am)5. (2007-08).
However, he was sentenced to twelve years for an OWI-tenth or more, which had
a maximum penalty of twelve years and six months, as a Class F felony. See
§§ 346.65(2)(am)7., 939.50(3)(f). He contends this means the sentence imposed
was six years longer than allowed.
¶20 Ultimately, Socha contends that an excessive sentence was imposed
and it must be commuted in accordance with WIS. STAT. § 973.13. Further, he
argues that he has the right to request reopening his sentence in accordance with
State v. Hahn, 2000 WI 118, 238 Wis. 2d 889, 618 N.W.2d 528, opinion clarified
on denial of reconsideration, 2001 WI 6, 241 Wis. 2d 85, 621 N.W.2d 902.
Although we agree that Socha has the right to be sentenced under the appropriate
standard of law, we reject his argument that his sentence is commuted pursuant to
§ 973.13. Instead, we agree with his argument that he has a right to bring a motion
to reopen his sentence under Hahn and that his allegations that some of his prior
13
Socha’s sentence was commuted by one year from five years to four in 2014 in
accordance with WIS. STAT. § 973.13 after Socha’s extended supervision was converted to
confinement (after revocation) when DOC informed the trial court that the term of four years of
extended supervision exceeded the maximum under the law. See WIS. STAT. §§ 346.65(2)(e),
939.50(3)(h), 973.01(2)(b)8., and (2)(d)5. (2003-04).
12
Nos. 2021AP2116-CR
2021AP1083-CR
OWI convictions were lawfully vacated after he was sentenced in these cases
sufficiently allege a new factor that he must prove by clear and convincing
evidence.
WISCONSIN STAT. § 973.13 is not applicable
¶21 We begin with Socha’s argument that due to these vacated
convictions, his sentence should be commuted pursuant to WIS. STAT. § 973.13.
Section 973.13 provides that in cases where the trial court “imposes a maximum
penalty in excess of that authorized by law, such excess shall be void and the
sentence shall be valid only to the extent of the maximum term authorized by
statute and shall stand commuted without further proceedings.” Our supreme
court has explained that when a defendant is “given a sentence greater than that
authorized by law … the remedy [] is a commuted sentence[.]” State v. Cross,
2010 WI 70, ¶34, 326 Wis. 2d 492, 786 N.W.2d 64. Further, repeater penalties are
affected by § 973.13 and if a “defendant is sentenced as a repeater without either
an admission or proof of a prior” conviction in compliance with the relevant
statutes, “the repeater portion of the sentence may not be imposed.” State v.
Flowers, 221 Wis. 2d 20, 22, 586 N.W.2d 175 (Ct. App. 1998).
¶22 We reject Socha’s arguments that his sentences must be commuted
pursuant to WIS. STAT. § 973.13. First, we consider sentence modification or
commutation pursuant to § 973.13 by reviewing State v. Hanson, 2001 WI 70,
244 Wis. 2d 405, 628 N.W.2d 759. Second, we consider whether the sentences
imposed in Socha’s cases were excessive or in accordance with statutory mandates
at the time of sentencing. Third, we consider whether there was sufficient
evidence at the time of sentencing to support the sentences. Fourth, we consider
whether the dates in the PSI in the Whitefish Bay case negate its reliability. Fifth,
13
Nos. 2021AP2116-CR
2021AP1083-CR
we consider whether reopening a sentence under Hahn is the same as commuting
a sentence pursuant to § 973.13.
¶23 First, we begin with Hanson. There, after the defendant was
charged with his fifth operating a motor vehicle while revoked or suspended, he
successfully moved DOT to rescind his Habitual Traffic Offender (HTO) status—
a status which would impose statutory penalty enhancers. Id., 244 Wis. 2d 405,
¶6. However, when he entered his no contest plea, the rescission of his HTO
status was not mentioned. Id., ¶7. Our supreme court reversed and remanded to
determine if the HTO status was, in fact, the basis of his sentence.14 Id., ¶2.
While Socha argues this case is on point, the key difference is that Hanson
successfully petitioned DOT to rescind his HTO status prior to sentencing;
therefore, the sentence imposed by the circuit court would have been imposed in
error if the sentence was based on that rescinded status. In contrast, here, the
circuit court acted on information that was true at the time of sentencing and it did
not impose a sentence in excess of the statutory maximums.
¶24 Second, Socha’s sentences did not exceed the maximum statutory
penalty based upon the number of prior convictions recognized at the time of
sentencing. WISCONSIN STAT. § 973.13 does not provide a remedy when the
sentence initially imposed did not exceed the maximum statutory penalty. See
State v. Finley, 2016 WI 63, ¶74, 370 Wis. 2d 402, 882 N.W.2d 761. In the
Whitefish Bay case, Socha’s sentence was previously commuted pursuant to
§ 973.13 when DOC determined that the term of extended supervision exceeded
14
We note that although our supreme court did state that a sentence based on Hanson’s
HTO status would be invalid, ultimately, it remanded the case to have the circuit court determine
those facts. See State v. Hanson, 2001 WI 70, ¶47, 244 Wis. 2d 405, 628 N.W.2d 759.
14
Nos. 2021AP2116-CR
2021AP1083-CR
the maximum. The sentence imposed in the Whitefish Bay case, which was
commuted to five years, was less than the statutory maximum penalty of six years.
In the Glendale case, the circuit court imposed a twelve year sentence, which did
not exceed the twelve year and six month statutory maximum at the time of
sentencing.
¶25 Third, at the time of sentencing, the trial and circuit courts imposed
sentences in compliance with the statutes for the prior convictions that appeared in
the record. For purposes of considering prior OWI convictions during sentencing,
“a defendant’s admission, whether given personally or imputed through counsel, is
competent proof of prior ... convictions.” State v. Loayza, 2021 WI 11, ¶38, 395
Wis. 2d 521, 954 N.W.2d 358 (citation omitted; ellipses in Loayza). In the
Whitefish Bay case, the record reflects Socha’s counsel admitted that Socha had
nine prior convictions. In the Glendale case, this court extensively considered the
record and determined that nine prior convictions existed based on Socha’s
affidavit testimony. See Socha I, No. 2013AP281-CR, ¶19.15 In both cases,
neither Socha, nor any counsel representing him objected to the courts’
determinations of nine prior convictions. Therefore, the sentences were not
imposed based on erroneous information.
¶26 Fourth, Socha argues that in the Whitefish Bay case the trial court
erred at the time of sentencing because the court relied upon the PSI, which listed
15
The State argues that during postconviction proceedings in the Glendale case under the
law-of-the-case doctrine, the circuit court was bound by this court’s determination of the number
of prior OWI convictions. See State v. Brady, 130 Wis. 2d 443, 446, 388 N.W.2d 151 (1986)
(“[T]he law of the case doctrine generally restrains a circuit court from reconsidering an order
that an appellate court has affirmed.”). However, here, Socha is not presenting an error in our
determination in Socha I, but instead, presenting a new factor, arising from new information
developed after that opinion was issued.
15
Nos. 2021AP2116-CR
2021AP1083-CR
OWI violation dates and not OWI conviction dates. Socha relied upon Farr, 119
Wis. 2d at 657-58, where our supreme court concluded that conviction dates were
“critical” information to determine whether a repeater enhancer applied.
However, the holding in Farr is inapposite to Socha’s case because of the manner
in which the sentence is affected by prior convictions. Because Farr had been
convicted of a felony within the five years preceding the commission of the
charged felony, he faced enhanced penalties under WIS. STAT. § 939.62. Farr,
119 Wis. 2d at 656. The statutory procedure for applying § 939.62 penalties are
provided in WIS. STAT. § 973.12. The Farr court concluded the dates were critical
because Farr had to be convicted within the five year time period required in
§ 939.62 before the enhancer could apply.
¶27 By contrast, here, the missing conviction dates in the PSI in Socha’s
Whitefish Bay case are not critical for two reasons. First, the repeater penalties
under WIS. STAT. § 939.62 expressly do not apply to “motor vehicle offenses
under chs. 341 to 349[.]” Sec. 939.62(3)(a). Second, there is no legal analogy in
determining whether a repeat offender enhancer under § 939.62 applies to
determining what section of § 346.65(2) applies when sentencing a person for an
OWI conviction. Unlike in Farr, in determining how many OWI related
convictions are counted in determining which sections of WIS. STAT.
§§ 346.65(2)(b)-(e) (2003-04) and 346.65(2)(am)2.-7. (2007-08) apply in these
cases, all of Socha’s convictions in his lifetime are considered—not only those
convictions that occurred during a limited time frame. With one exception that is
not applicable here, all of Socha’s OWI related convictions during his lifetime are
16
Nos. 2021AP2116-CR
2021AP1083-CR
considered under §§ 346.65(2)(b)-(e) (2003-04) and 346.65(2)(am)2.-7. (2007-
08).16
¶28 Fifth, although we conclude that Hahn is applicable to Socha’s case,
the holding in Hahn does not rely on WIS. STAT. § 973.13 to automatically modify
or commute a sentence, but gives a defendant an opportunity to reopen sentencing.
We discuss Hahn in detail below.
¶29 Ultimately, we conclude that Socha has not shown that his
postsentencing vacation of certain OWI convictions requires the modification of
his sentences pursuant to WIS. STAT. § 973.13. Accordingly, we reject this
argument.
New factor and reopening or modifying a sentence
¶30 Before we address the standard of review for a new factor, we
review the application of Hahn to Socha’s cases on appeal. Throughout these
proceedings, Socha has argued that his situation falls within our supreme court’s
holding in Hahn. In Hahn, the court stated that:
The issue then becomes whether this court should, as a
matter of judicial administration … allow an offender to
challenge a prior state conviction in an enhanced sentence
proceeding on grounds other than an alleged violation of
the constitutional right to a lawyer, or whether this court
should require an offender to use other available procedure
other than the enhanced sentence proceeding to challenge a
prior conviction.
16
We note that as to second offense OWI convictions §§ 346.65(2)(b) (2003-04) and
346.65(2)(am)2. (2007-08) provide that “… [penalty described] if the number of convictions
under ss. 940.09 (1) and 940.25 in the person’s lifetime, plus the total number of suspension,
revocations and other convictions counted under s. 343.307(1) within a 10-year period,
equals….”
17
Nos. 2021AP2116-CR
2021AP1083-CR
Id., 238 Wis. 2d 889, ¶22. The court went on to say:
[W]e conclude that considerations of judicial
administration favor a bright-line rule that applies in all
cases. We therefore hold that a circuit court may not
determine the validity of a prior conviction during an
enhanced sentence proceeding predicated on the prior
conviction unless the offender alleges that a violation of the
constitutional right to a lawyer occurred in the prior
conviction.
Id., ¶28. However, the court went on to explain that “[i]nstead, the offender may
use whatever means available under state law to challenge the validity of a prior
conviction on other grounds in a forum other than the enhanced sentence
proceeding. If successful, the offender may seek to reopen the enhanced
sentence.” Id. The court then stated and clarified on reconsideration that:
If the offender has no means available under state law to
challenge the prior conviction on the merits, because, for
example, the courts never reached the merits of this
challenge under State v. Escalona-Naranjo, 185 Wis. 2d
168, 517 N.W.2d 157 (1994), or the offender is no longer
in custody on the prior conviction, the offender may
nevertheless seek to reopen the enhanced sentence.
Hahn, 238 Wis. 2d 889, ¶28, as clarified in State v. Hahn, 2001 WI 6, ¶2, 241
Wis. 2d 85, 621 N.W.2d 902 (Hahn II).
¶31 We rejected that Hahn was applicable to Socha’s case in Socha I
because he failed to establish what “attacks on his seven prior offenses from
Illinois and Ohio were made.” See Socha I, No. 2013AP281-CR, ¶13. However,
here, Socha challenged his prior OWI convictions in a forum other than the
18
Nos. 2021AP2116-CR
2021AP1083-CR
sentencing court.17 He returns in postconviction proceedings to request that the
trial and circuit courts reopen sentencing in these two cases, pursuant to Hahn.
We conclude that Socha has sufficiently alleged a new factor—that some of his
prior OWI convictions have been vacated by other courts after his sentencing in
the cases now before this court.
¶32 A new factor is “a fact or set of facts highly relevant to the
imposition of sentence, but not known to the trial judge at the time of original
sentencing, either because it was not then in existence or because ... it was
unknowingly overlooked by all of the parties.” State v. Harbor, 2011 WI 28, ¶40,
333 Wis. 2d 53, 797 N.W.2d 828 (citation omitted). To prevail, a defendant must
satisfy a two-prong test that requires the defendant to: (1) demonstrate by clear
and convincing evidence that a new factor exists; and (2) show that the alleged
new factor justifies sentence modification. See id., ¶¶36-38. Whether a fact or set
of facts constitutes a new factor is a question of law that this court considers
independently, but we review the trial court’s determination of whether a new
17
We note that both the trial court and the circuit court concluded that Hahn does not
apply to OWI cases because Hahn analyzed repeater penalty enhancers pursuant to
WIS. STAT. § 939.62, and not to the OWI penalty structure under WIS. STAT. § 346.65. See
State v. Hahn, 2000 WI 118, 238 Wis. 2d 889, 618 N.W.2d 528, opinion clarified on denial of
reconsideration, 2001 WI 6, 241 Wis. 2d 85, 621 N.W.2d 902. We reject this reasoning because
this court and our supreme court have applied Hahn to the analysis of OWI cases on multiple
occasions without distinguishing that Hahn is dependent on the source of the enhancement. See
e.g., State v. Hammill, 2006 WI App 128, ¶6, 293 Wis. 2d 654, 718 N.W.2d 747; State v. Ernst,
2005 WI 107, ¶¶5, 25-26, 283 Wis. 2d 300, 699 N.W.2d 92; State v. Stockland, 2003 WI App
177, ¶¶1, 12, 266 Wis. 2d 549, 668 N.W.2d 810. We note that we referenced Hammill in
Socha I; our decision that Hahn was not applicable was based on Socha’s failure to show that he
had no options other than a collateral attack, not on the type of repeater penalty that was used to
enhance his sentence. The Dissent notes that Hahn provided no direction on how a trial or circuit
court should analyze such a motion to reopen a sentence. Dissent, ¶51 n.3. The lack of specific
direction does not negate Hahn’s holdings.
19
Nos. 2021AP2116-CR
2021AP1083-CR
factor warrants sentence modification for an erroneous exercise of discretion. Id.,
¶33.
¶33 The Dissent asserts that we fail to apply the two-prong test set forth
in Harbor. He states that he believes that “the lower courts properly applied
Harbor, focusing on the second prong of the test which allowed them to exercise
their discretion in denying Socha’s motions for sentencing modification.” Dissent,
¶40. However, we note that the Dissent goes further and concludes that Socha
“successfully challenged his prior [OWI] convictions….” Thus, he must conclude
that the number of Socha’s prior convictions has been lawfully reduced. By
reaching such a conclusion, the Dissent, in fact, has concluded that Socha met the
first prong of the Harbor test—that a new factor exists.18 However, the Dissent
does not address how the trial and circuit courts could determine that the reduction
in the number of convictions did not justify sentence modification, if the original
sentences imposed now exceed the statutory maximum sentence based on the
newly determined number of prior OWI convictions.
¶34 On remand, after the circuit court and trial court determine what the
new total number of prior convictions remain, then each court would look to the
applicable subsection within WIS. STAT. § 346.65 to see what maximum sentence
applies to the new facts. If the original imposed sentence exceeds the maximum
sentence for the newly determined count of prior convictions, then each court
would exercise its discretion to modify the sentence such that it fits within the
18
We note that we disagree with the Dissent’s conclusion that Socha “successfully
challenged his prior convictions.” Rather, we conclude that the courts below did not determine
which prior convictions were lawfully vacated and, thus, we remand for those courts to make
those determinations.
20
Nos. 2021AP2116-CR
2021AP1083-CR
maximum statutory range.19 Thus, in our decision, the Majority is applying both
prongs of the Harbor test.
¶35 Socha has submitted documentation to this court, the trial court, and
the circuit court, that he has had six of his prior OWI convictions vacated in the
Whitefish Bay case and four of his prior OWI convictions vacated in the Glendale
case. Socha argues that the vacated OWI convictions are a new factor in each case
because a reduction in the number count of prior OWIs could affect the possible
range of his sentences.
¶36 A new factor can consist of “something that happens after
sentencing” that then may warrant sentencing modification. State v. Ramuta,
2003 WI App 80, ¶10, 261 Wis. 2d 784, 661 N.W.2d 483. To sentence a person
convicted of an OWI offense, the circuit court must exercise its sentencing
discretion within the statutory maximum. See WIS. STAT. § 346.65.20
¶37 We conclude that Socha has sufficiently alleged a new factor
because his vacated convictions could not have been known at sentencing because
they were not vacated until after sentencing, in accordance with Hahn, but the
correct number of prior convictions was highly relevant to the sentence. When a
19
For example, in the Glendale case, Socha argues that if four of his nine prior
convictions have been vacated, then his sentence of twelve years was excessive because the
maximum sentence for an OWI sixth offense was only six years. As noted above, if, on remand,
Socha proves his allegations by clear and convincing evidence then the circuit court would
exercise its discretion to modify the sentence such that it fits within the statutory maximum.
20
We do not disagree with the Dissent’s position that the sentencing court has an
obligation to apply discretion in making the determination of whether sentence modification is
warranted when a new factor is presented. See Dissent, ¶47. However, the Dissent offers no
legal authority that supports a proposition that the circuit or trial court’s discretion is not limited
by statutory maximum sentences.
21
Nos. 2021AP2116-CR
2021AP1083-CR
new factor is found, sentence modification may be warranted. “[T]he purpose
underlying sentence modification … is to allow a circuit court discretion to modify
sentences in an appropriate case.” Harbor, 333 Wis. 2d 53, ¶51. Sentencing
discretion is a process of reasoning under which the court considers the facts in the
record, the proper legal standards, and reaches a conclusion based on a logical
rationale. State v. Gallion, 2004 WI 42, ¶9, 270 Wis. 2d 535, 678 N.W.2d 197.
The courts’ discretion to modify Socha’s sentences must be exercised within the
proper standard of law—in other words, the statutory provision correlating to the
correct number of prior convictions. While the trial and circuit courts maintain
discretion to determine whether sentence modification is warranted, if a reduced
number of prior convictions are recognized under the law, Socha’s maximum
sentence cannot exceed the maximum sentence for the number of prior convictions
based on the penalties provided in WIS. STAT. § 346.65(2).21
¶38 Here, the trial and circuit courts did not address the question of
whether the documents that Socha submitted to support his argument show by
clear and convincing evidence that each conviction was lawfully vacated and
therefore, could not be counted as predicate offenses in the Whitefish Bay and
Glendale cases.22 Further, the courts did not analyze what the lawful maximum
21
The Dissent asserts that the trial and circuit courts acted within their discretion to
determine that sentence modification was not warranted because the convictions were vacated for
technical defects and the sentences were imposed based upon facts that were correct at the time of
sentencing. See Dissent, ¶44. However, the Dissent offers no legal authority for the proposition
that the trial and circuit courts could ignore the holding in Hahn that a person may return to the
sentencing court to reopen sentencing after that person has had prior convictions vacated in
another forum. Id., 238 Wis. 2d 889, ¶28. At that point, the trial and circuit courts’ discretion to
consider any reopened sentence must occur in accord with the statutory maximums.
22
The State does not appear to dispute the validity or legality of the vacated convictions.
On remand we do not preclude the trial court or the circuit court from requiring appropriate
proofs, while acknowledging that under the full faith and credit clause of the U.S. Constitution,
we are bound to accept a valid out-of-state court order.
22
Nos. 2021AP2116-CR
2021AP1083-CR
sentence under WIS. STAT. § 346.65 would be if any of Socha’s prior OWI
convictions were vacated. Therefore, we reverse the court orders denying
sentence modification. We remand with directions to the trial and circuit courts to
reopen Socha’s motions for sentence modification and determine which, if any, of
Socha’s prior OWI convictions were lawfully vacated and to exercise their
discretion in imposing sentences within the range of the applicable subsections of
§ 346.65(2) based on Socha’s correct number of prior OWI convictions.23
23
We note that in both cases the State argues that Socha is not seeking resentencing. It
argues that Socha is not asking the courts to modify his sentences for OWI as a tenth or
subsequent offense. The State asserts that Socha is asking the courts to impose a sentence under
an entirely different “penalty statute.” Further, the State argues that the courts could not simply
modify his sentences from one penalty subsection of WIS. STAT. § 346.65 to another subsection
of the same statute. We note that the State cites no authority for that argument. The State then
contends that if Socha could show that his sentence was improper, the court would be required to
completely re-do the invalid sentence, in essence that the remedy would require resentencing, not
sentence modification. The State then asserts that because Socha is not seeking resentencing this
court cannot convert a motion for sentence modification to a motion for resentencing unless
Socha stipulated to resentencing. See State v. Wood, 2007 WI App 190, ¶17, 305 Wis. 2d 133,
738 N.W.2d 81.
However, we conclude that the State is conflating the crime that Socha was convicted
of—OWI—and the penalties for that crime. In both cases Socha was convicted of operating a
motor vehicle under the influence of an intoxicant. WIS. STAT. § 346.63(1)(a). That statute
provides no penalty and does not reference first or any subsequent offenses. After his convictions
in each case, each court then determines the statutory penalty pursuant to WIS. STAT. § 346.65(2).
Those penalties range from civil forfeitures, misdemeanors, to felony prison sentences. Those
escalating penalties are all contained within the same statute—§ 346.65. Here, Socha is seeking
modification of the sentences imposed pursuant to that statute based on a new factor. When a
new factor is found, sentence modification may be warranted. “[T]he purpose underlying
sentence modification … is to allow a circuit court discretion to modify sentences in an
appropriate case.” State v. Harbor, 2011 WI 28, ¶51, 333 Wis. 2d 53, 797 N.W.2d 828. Thus,
we conclude that if the trial court and/or the circuit court find that Socha proves by clear and
convincing evidence that any of his prior OWI convictions were lawfully vacated, then the courts
should exercise their discretion in modifying Socha sentences in accordance with the statutory
provisions for Socha’s correct number of prior convictions.
23
Nos. 2021AP2116-CR
2021AP1083-CR
CONCLUSION
¶39 For the reasons stated above, this court reverses the circuit and trial
courts’ orders denying sentence modification and remand these matters to those
courts with directions to reopen Socha’s motions for sentence modification and
determine which, if any, of Socha’s prior OWI convictions were lawfully vacated
and to exercise their discretion in imposing sentences within the range of the
applicable subsections of WIS. STAT. § 346.65(2), based on Socha’s correct
number of prior OWI convictions.
By the Court.—Orders reversed and causes remanded with
directions.
Not recommended for publication in the official reports.
24
Nos. 2021AP1083-CR(D)
2021AP2116-CR(D)
¶40 BRASH, C.J. (dissenting). The Majority’s decision in this matter,
which reverses the lower courts’ orders denying Socha’s motions for sentence
modification and remands the matter for further analysis regarding his vacated
prior convictions, fails to employ the two-prong test set forth in Harbor for
deciding motions for sentence modification. See id., 333 Wis. 2d 53, ¶¶36-38. In
contrast, I believe that the lower courts properly applied Harbor, focusing on the
second prong of the test which allowed them to exercise their discretion in
denying Socha’s motions for sentence modification. See id. As a result, I would
affirm their orders. I therefore respectfully dissent.1
¶41 As the Majority recognizes, Harbor established a two-prong test that
a defendant must satisfy in order to prevail on a motion for sentence
modification: (1) demonstrate by clear and convincing evidence that a new factor
exists; and (2) show that the alleged new factor justifies sentence modification.
See id., ¶38. Furthermore, a trial court may consider either prong first, and if the
defendant fails to satisfy one prong of the new factor test, the court need not
address the other. See id.
¶42 The Majority’s conclusion, however, reflects that the Harbor test
was not applied in its decision. The Majority concludes that Socha alleged
sufficient facts to support the existence of a new factor, and that if he “meets his
1
As I agree with the Majority’s rejection of Socha’s argument that his sentence should
be commuted pursuant to WIS. STAT. § 973.13, I do not discuss that argument further in this
dissent.
Nos. 2021AP1083-CR(D)
2021AP2116-CR(D)
burden of proof it would warrant sentence modification.” Majority, ¶1. The
Majority thus remands this issue to the lower courts to “address the question of
whether the documents that Socha submitted to support his argument show by
clear and convincing evidence that each conviction was lawfully vacated[.]”
Majority, ¶38. However, under Harbor, whether a set of facts constitutes a new
factor is a question of law, which we review “independently of the determinations
rendered by the circuit court[.]” Id., 333 Wis. 2d 53, ¶33. Under that standard, I
do not believe that the issue of whether Socha’s submissions constitute a new
factor—a question of law—requires remanding.
¶43 Moreover, pursuant to Harbor, an analysis of that issue is not
necessary. Under Harbor’s two-prong test, either the new factor prong or the
justification prong may be analyzed first, and further, if the trial court “determines
that in the exercise of its discretion, the alleged new factor would not justify
sentence modification, the court need not determine whether the facts asserted by
the defendant constitute a new factor as a matter of law.” Id., ¶38.
¶44 That is precisely how the lower courts analyzed Socha’s motions.
Their focus in their decisions was on the second prong; that is, the discretionary
determination of whether sentence modification was warranted. See id. The lower
courts both noted that Socha’s prior convictions were vacated not on constitutional
grounds but for “technical defects” in the judgments of conviction. Additionally,
both courts recognized that Socha’s original sentences were based on facts that
were correct at the time of sentencing,2 and that sentence modification “would
2
As the Majority recognizes, for purposes of considering prior OWI convictions during
sentencing, “a defendant’s admission, whether given personally or imputed through counsel, is
competent proof of prior ... convictions.” State v. Loayza, 2021 WI 11, ¶38, 395 Wis. 2d 521,
954 N.W.2d 358 (citation omitted; ellipses in Loayza).
2
Nos. 2021AP1083-CR(D)
2021AP2116-CR(D)
contravene the purpose and intent of the graduated penalties” for OWI convictions
as set forth in the statutes.
¶45 We review a trial court’s determination of the second prong of
Harbor for an erroneous exercise of discretion. Id., ¶33. In other words, unless
the trial court made an error of law, or failed to explain its reasoning for
concluding that “the facts … presented did not justify modification” of the
defendant’s sentence, this court will not disturb its decision. See id., ¶63. The
lower courts’ reasoning here demonstrates a proper exercise of their discretion
pursuant to the second prong of the Harbor test. See id., ¶37.
¶46 Furthermore, that reasoning is supported by the legislative purpose
behind enhanced sentences for OWI convictions. “Wisconsin’s progressive OWI
penalties are mandatory directives from the legislature ‘to encourage the vigorous
prosecution of offenses concerning the operation of motor vehicles by persons
under the influence ....’” See City of Cedarburg v. Hansen, 2020 WI 11, ¶17, 390
Wis. 2d 109, 938 N.W.2d 463 (citing WIS. STAT. § 967.055(1)(a); ellipses in
Hansen). Additionally, our supreme court, using similar reasoning, determined
that the successful challenge by a defendant of several prior OWI convictions
materially breached a plea agreement in his new case because that agreement had
been negotiated based on the original number of convictions. See State v. Deilke,
2004 WI 104, ¶24, 274 Wis. 2d 595, 682 N.W.2d 945. The Deilke court
specifically referenced the State’s argument that without the “penalty-enhancing
feature” of the OWI statutes, “convictions are virtually useless in trying to keep
impaired drivers off the road.” Id., ¶18. In fact, the Deilke court noted the
prosecutor’s argument relating to that issue: “[I]t doesn’t do me much good to get
a conviction in this [b]ranch if I can’t then use it for penalty enhancement
3
Nos. 2021AP1083-CR(D)
2021AP2116-CR(D)
purposes in the future. I mean[,] what good is a conviction on his record if it
doesn’t mean anything?” Id., ¶18 n.16 (alterations in Deilke).
¶47 To be sure, the trial court’s ability—and obligation—to apply
discretion in making the determination of whether sentence modification is
warranted is well-established. See Harbor, 333 Wis. 2d 53, ¶37; State v.
Hegwood, 113 Wis. 2d 544, 546, 335 N.W.2d 399 (1983); State v. Franklin, 148
Wis. 2d 1, 8, 434 N.W.2d 609 (1989); State v. Verstoppen, 185 Wis. 2d 728, 741,
519 N.W.2d 653 (Ct. App. 1994). However, for Socha’s cases, the Majority
asserts that the lower courts “must exercise [their] sentencing discretion within the
statutory mandates” of WIS. STAT. § 346.65(2), the OWI sentencing statute. See
Majority, ¶36. In fact, the Majority’s decision is based on the premise that the
lower courts make an error of law if they do not consider the “correct” number of
prior convictions for Socha when reviewing his motions for sentence modification.
See Majority, ¶37. Staying within the confines of the OWI sentencing statute is
certainly required when a trial court is sentencing a defendant; however, here the
issue before us is whether Socha should have been granted sentence modification,
which is subject to the two-prong test of Harbor. In effect, the Majority’s
approach of not applying the Harbor test treats these cases as if Socha had not
already submitted motions for sentence modification that have been reviewed and
decided by the lower courts.
¶48 Indeed, by not applying Harbor, the Majority’s outcome is more
akin to a decision on a motion for resentencing. A defendant may seek
resentencing if his or her original sentence is deemed to be invalid. See State v.
Wood, 2007 WI App 190, ¶9, 305 Wis. 2d 133, 738 N.W.2d 81. That seems to be
what the Majority is contending here—that Socha’s original sentences would no
4
Nos. 2021AP1083-CR(D)
2021AP2116-CR(D)
longer be valid if, upon remand, the lower courts find that he successfully vacated
several of his prior convictions. See Majority, ¶37.
¶49 However, Socha is affirmatively seeking sentence modification, not
resentencing; in fact, he adamantly rejects the option of resentencing. “[I]n the
absence of a clear, unequivocal and knowing stipulation by the defendant”—in
particular, a pro se defendant—a motion for sentence modification cannot be
converted to a motion for resentencing. Wood, 305 Wis. 2d 133, ¶17.
¶50 In short, of the two methods by which a defendant can seek
sentencing relief—sentence modification and resentencing—resentencing is
foreclosed based on Socha’s request for modification only. We therefore must
analyze Socha’s motions under the rubric of sentence modification which, as
stated above, includes both prongs of the Harbor test—whether a new factor
exists, and whether modification is warranted. See id., 333 Wis. 2d 53, ¶¶36-38.
Furthermore, as discussed above, either prong of the test may be considered first,
and if the defendant does not satisfy one of them, the court need not address the
other. See id., ¶38.
¶51 That was the case here—the lower courts primarily considered the
second prong of the Harbor test and, in their discretion, determined that sentence
5
Nos. 2021AP1083-CR(D)
2021AP2116-CR(D)
modification was not warranted.3 Therefore, I would affirm the courts’ orders
denying Socha’s motions for sentence modification.
3
The Majority also disagrees with the lower courts’ rejection of the Hahn case as being
inapplicable in OWI cases. See Majority, ¶31 n.17. Hahn allows for a defendant to “challenge
the validity of a prior conviction on other grounds in a forum other than the enhanced sentence
proceeding,” and, if successful, that defendant “may seek to reopen” a sentence that was
enhanced by the persistent repeater designation. Id., 238 Wis. 2d 889, ¶29. However, I would
note that Hahn provides no further directives as to how a trial court is to analyze a defendant’s
motion to “reopen” his or her sentence upon a successful challenge of prior convictions, which is
the issue before us in these matters. I am not suggesting that the holding in Hahn be “ignore[d],”
as the Majority contends. See Majority, ¶37 n.21. Rather, I believe that, procedurally, this case is
beyond the point in which the directives of Hahn are applicable, in that Socha already
successfully challenged his prior convictions and then sought to reopen his sentence, as permitted
by Hahn, via motions for sentence modification. See id., 238 Wis. 2d 889, ¶29. Those motions
were then properly denied pursuant to the two-prong test of State v. Harbor, 2011 WI 28, ¶¶36-
38, 333 Wis. 2d 53, 797 N.W.2d 828.
6