County of Green Lake v. Lori Melchert

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.
February 24, 2021
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 No. 2020AP473 Cir. Ct. No. 1996TR120

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT II

COUNTY OF GREEN LAKE,

PLAINTIFF-RESPONDENT,

V.

LORI MELCHERT F/K/A LORI A. ZUPKE,

DEFENDANT-APPELLANT.

APPEAL from an order of the circuit court for Green Lake County:
MARK T. SLATE, Judge. Affirmed.

¶1 NEUBAUER, C.J.1 Lori Melchert appeals from an order denying her
motion for reconsideration of a denial of her motion to reopen and dismiss the
second of her two operating a motor vehicle while intoxicated (OWI) first-offense

1
This appeal is decided by one judge pursuant to WIS. STAT. § 752.31(2)(c) (2017-18).
All references to the Wisconsin Statutes are to the 2017-18 version unless otherwise noted.
No. 2020AP473

convictions, based on lack of court competency to enter the judgment of conviction
and denial of her right to remain silent. Her motion was made while she faced a
third-offense OWI in another county. We agree with Green Lake County (the
County) that Melchert forfeited any right to challenge the court’s competency. We
also agree that her Fifth Amendment right to remain silent was not invoked here,
and, as such, was not violated. We affirm.

BACKGROUND

¶2 The facts in this case are undisputed. In November 1995, Melchert
was cited for a first-offense OWI in Marquette County, Wisconsin. The Marquette
County Circuit Court convicted Melchert of this charge on March 1, 1996.

¶3 Melchert was cited for another OWI in January 1996, this time in
Green Lake County, Wisconsin. The deputy sheriff issued Melchert a citation for a
first-offense OWI (civil forfeiture), presumably because on that date her record
remained clear of any other OWI conviction, given that she was not convicted in
Marquette County until March of that year. Melchert pled no contest and was
convicted of the civil forfeiture OWI offense in the Green Lake County Circuit
Court on March 11, 1996.

¶4 In January 2020, with another OWI charge pending in a different
Wisconsin county, Melchert filed a motion to reopen and dismiss the 1996 Green
Lake County conviction. Her motion challenged the competence of the circuit court

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to enter a civil forfeiture judgment for the second first-offense conviction against
her, because it should have been charged as a criminal second-offense OWI.2

¶5 Following a hearing on the matter, the circuit court denied Melchert’s
motion. The court relied upon our supreme court’s decision in City of Eau Claire
v. Booth, 2016 WI 65, 370 Wis. 2d 595, 882 N.W.2d 738 and held that Melchert
had forfeited her right to challenge the court’s competence based on the passage of
twenty-four years since she pled to the charge.

¶6 Melchert filed a motion for reconsideration with the circuit court.
Melchert asked the court to address her previously raised argument that her 1996
Green Lake County conviction should be vacated because she had a Fifth
Amendment right to remain silent as to her Marquette County conviction when she
appeared on the second first-offense OWI. As such, she argued, her silence as to
that conviction could not support the court’s holding that she forfeited her right to
challenge competence. The court denied her motion, again relying on Booth and a
more recently decided supreme court case, City of Cedarburg v. Hansen, 2020 WI
11, 390 Wis. 2d 109, 938 N.W.2d 463. Melchert appeals.

DISCUSSION

Standard of Review

¶7 “We independently review questions of subject matter jurisdiction
and competency.” Booth, 370 Wis. 2d 595, ¶6 (citing Village of Trempealeau v.

2
In Wisconsin, a first-offense OWI is a civil forfeiture, and second and subsequent
offenses are generally crimes, with each countable offense subject to the statutory escalating
penalty requirements. WIS. STAT. § 346.65(2)(am). With her motion to reopen and dismiss the
second first-offense OWI, Melchert sought to reduce the third OWI to second.

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Mikrut, 2004 WI 79, ¶7, 273 Wis. 2d 76, 681 N.W.2d 190). “We also independently
review whether a party forfeits the right to challenge circuit court competency.” Id.

Circuit Court Competency and Forfeiture of the Right to Challenge Competency

¶8 Melchert argues that she did not forfeit her ability to challenge the
circuit court’s competency in her 1996 Green Lake County OWI case because her
present challenge is distinguishable from Booth.3 As one of the distinguishable
factors, she cites her own argument that her right to remain silent would have been
violated had anyone asked her when she pled to the charge if she had any previous
OWI convictions. We turn first to Booth, Hansen, and their applicability here
before addressing Melchert’s integrated hypothetical argument asserting her rights
to remain silent and against self-incrimination.

¶9 In Booth, our supreme court held that a defendant’s significant delay
in raising a competency challenge to a mischarged OWI conviction may result in
forfeiture of that argument. Booth, 370 Wis. 2d 595, ¶25. In that case, the defendant
moved to vacate a first-offense OWI because she should have been charged with a
second-offense OWI. Id., ¶2. She filed the motion to vacate twenty-two years after
her conviction, with seventh-, eighth-, and ninth-offense OWI charges pending
against her. Id., ¶3. Our supreme court held that Booth forfeited her right to
challenge the mischarged OWI conviction by failing to timely raise that argument.
Id., ¶1. The court first determined that a mischarged first-offense OWI, given the

3
We note that in her principal brief, Melchert makes no attempt to distinguish her situation
from that addressed by our supreme court in City of Cedarburg v. Hansen, 2020 WI 11, 390
Wis. 2d 109, 938 N.W.2d 463. Only after the County points this fact out in its response brief does
she make any attempt to distinguish Hansen, and she does so merely by lumping it in with the
discussion in her reply brief of City of Eau Claire v. Booth, 2016 WI 65, 370 Wis. 2d 595, 882
N.W.2d 738. Although there are differences between Booth and Hansen, the distinctions do not
matter to our resolution of this appeal and, consequently, we overlook Melchert’s apparent
concession that Hansen is indistinguishable for all practical purposes.

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escalating penalty scheme, affected the circuit court’s competency, but not its
subject matter jurisdiction. Id., ¶22. The court then observed that challenges to a
court’s competency are forfeited if not timely raised, id., ¶11 (citing Mikrut, 273
Wis. 2d 76, ¶38), and concluded that Booth’s challenge was untimely, id., ¶25. It
found that her “considerable delay in raising the issue suggests an attempt to play
fast and loose with the court system, which is something this court frowns upon.”
Id., ¶25.

¶10 Hansen followed the logic of Booth and reached the same result—a
rejection of the defendant’s collateral attack on one of his earlier OWIs. In Hansen,
the defendant was convicted in a Wisconsin municipal court of an OWI in 2005.
Hansen, 390 Wis. 2d 109, ¶2. When he was charged with OWI again in 2016, he
attempted to collaterally attack his 2005 OWI conviction by proving that he had a
2003 OWI conviction in Florida. Id. Hansen argued that in light of the Florida
conviction, his 2005 OWI was technically a second offense, which thereby resulted
in the municipal court lacking subject matter jurisdiction. Id. Our supreme court
disagreed, concluding that “only the municipal court’s competence was affected by
the pleading.” Id., ¶51. As in Booth, however, our supreme court held that
Hansen’s objection to the court’s competence was forfeited “by his 11 years of
silence.” Id., ¶55. Consequently, both Hansen’s “2005 and 2003 convictions were
countable offenses in 2016 for purposes of Wisconsin’s statutory progressive
penalty requirements.” Id.

¶11 Applying Booth and Hansen, we conclude that Melchert forfeited her
ability to challenge the circuit court’s competency in entering a second first-offense
OWI conviction against her. As a threshold matter, we agree with Melchert that the
court lacked competency to convict her twice of a first-offense OWI. The holdings
of Booth and Hansen are unequivocal in that regard, and the County does not

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dispute as much. However, we agree with the circuit court that the similarities
between this case and Booth and Hansen warrant the same outcome.

¶12 Like Booth and Hansen, Melchert was charged incorrectly4 with a
second first-offense OWI. Further, Melchert similarly waited until a new OWI
charge was pending against her before electing to challenge the court’s competency
for the prior OWI. Finally, Melchert’s twenty-four-year delay in objecting to the
court’s competency is a similarly “considerable delay in raising the issue” as
Booth’s twenty-two-year delay and Hansen’s eleven-year delay. See Booth, 370
Wis. 2d 595, ¶25; see also Hansen, 390 Wis. 2d 109, ¶55. On these facts, Melchert
forfeited her objection to the court’s lack of competency to enter a second first-
offense OWI conviction because she filed her objection too late. Therefore, we
conclude the circuit court properly denied Melchert’s motion to vacate.

Melchert’s Attempts to Distinguish Controlling Case Law and Innocent-Victim
Argument

¶13 Melchert attempts to convince us that unlike the defendant in Booth,
who “play[ed] fast and loose with the court system” by hiding the ball for many
years, see Booth, 370 Wis. 2d 595, ¶25, Melchert is an innocent victim of the system
and “[s]he did exactly what she was supposed to do” in pleading in 1996 to a second
OWI as though it were a first offense. She argues that the County should have been
aware of her other conviction (just ten days before she pled to the Green Lake
County charge) because Melchert’s first offense was from a neighboring county,
whereas the first offense in Booth was from a neighboring state. According to
Melchert, the County should not be able to benefit from sitting on this information

4
We observe that, technically, Melchert was charged correctly in the 1996 Green Lake
County case, because she had not yet been convicted in the Marquette County case when she
committed the OWI offense in Green Lake County. The actual problem was in not amending the
charge after her Marquette County conviction.

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about her OWIs “for over two (2) decades.” Therefore, she argues that “the County
should be estopped from alleging that [Melchert] should have brought this issue to
the attention of the court before being charged” in the most recent case and, as such,
we should vacate her Green Lake County conviction.

¶14 We are unpersuaded by Melchert’s innocent-victim argument. There
is no record support for her assertion that the Green Lake County prosecutor was
aware of her prior OWI conviction when Melchert entered her plea to the challenged
conviction. Instead, although Melchert was surely aware of her other conviction
only ten days earlier, she took advantage of the lack of knowledge by Green Lake
County and avoided criminal charges at that time by pleading to a civil forfeiture.
Clearly, Melchert benefitted from her silence. Moreover, Melchert fails to provide
any legal support for this line of argument. Without fully developing her argument,
Melchert requests us to essentially ignore the factual similarities and holdings of
Booth and Hansen, which we decline to do.

¶15 We also reject Melchert’s attempt to distinguish Booth by arguing
that its reasoning is inapplicable because “Melchert was facing criminal penalties if
she informed the court of her prior OWI.” As we established above, the pertinent
facts in Booth, Hansen, and this case are nearly identical. Both Booth and Hansen
already had OWI first-offense convictions when they were charged with a second
first-offense OWI. As such, like Melchert, both Booth and Hansen would have
faced criminal penalties for a second OWI offense had they informed the court of
their prior first-offense OWIs in a timely manner. This fact did not deter from our

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supreme court’s finding of forfeiture when deciding those cases, and Melchert fails
to convince us that it should here.5

Melchert’s Fifth Amendment Argument

¶16 Melchert also fails to convince us that we should give serious
consideration to her hypothetical Fifth Amendment argument. To briefly explain,
Melchert offers an argument about her hypothetical invocation of her Fifth
Amendment rights to remain silent and to freedom from self-incrimination. See
U.S. Const. amend. V; see also WIS. Const. art. I, § 8. She argues that had she been
asked in the 1996 Green Lake County plea hearing if she had a prior conviction,
which she was not, then she may have invoked the Fifth Amendment and refused to
answer, but she did not. Thus, she argues, without citing any on-point legal
authority, this hypothetical invocation of the Fifth Amendment cannot now be used
to conclude that she forfeited her right to challenge the court’s competency to act in
the second first-offense OWI case. We are unpersuaded by Melchert’s hypothetical
argument and “we decline to base our ruling on a hypothetical series of events.” See
Marlowe v. IDS Prop. Cas. Ins. Co., 2013 WI 29, ¶40, 346 Wis. 2d 450, 828
N.W.2d 812; see also State v. Smith, 2012 WI 91, ¶62 n.19, 342 Wis. 2d 710, 817
N.W.2d 410 (observing that “the court resolves the facts before it, and does not issue
advisory opinions or address hypothetical facts”) (citation omitted); Saint Croix
Cty. v. Severson, No. 2017AP1111, unpublished slip op. ¶16 (WI App Nov. 13,
2018) (rejecting defendant’s collateral attack on an improperly charged OWI and

5
We also reject Melchert’s argument that the reasoning of Booth does not apply here
because the case on which the Booth court relied to support its holding, Village of Trempealeau v.
Mikrut, 2004 WI 79, ¶7, 273 Wis.2d 76, 681 N.W.2d 190, involved a challenge to a number of
ordinance violations which would not have subjected the defendant to criminal penalties. As we
explain above, Booth itself is factually on all fours with Melchert’s situation, thereby making it
irrelevant to our analysis that Mikrut may be factually distinguishable.

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explaining that defendant’s constitutional right to counsel, which was unavailable
for a first-offense OWI charge, is “determined by what was actually charged, not by
what should have been charged”).

CONCLUSION

¶17 For the foregoing reasons, we conclude that Melchert forfeited her
objections to the circuit court’s lack of competency to proceed to judgment on the
1996 Green Lake County conviction and the County’s lack of authority to prosecute
that action. We further reject her hypothetical Fifth Amendment argument. We
therefore conclude the circuit court properly denied Melchert’s motion to vacate the
Green Lake County conviction.

By the Court.—Order affirmed.

This opinion will not be published. See WIS. STAT.
RULE 809.23(1)(b)4.

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