Can Apprendi fever really be quelled as easily as Matke’s summary treatment suggests? [Reader beware: This is a complex, fluid area. The following reaction is meant more to provoke further discussion than to assert some dogmatically “correct” analysis.] First, some review of basics. The seminal Apprendi says that you can’t enhance a sentence beyond the statutory maximum unless the matter supporting the enhancement is subject to resolution by a jury. And Matke now establishes that OWI priors do operate as enhancers (¶¶5-9), increasing the maximum, rather than elements that must be proved, for the current OWI on trial: voila, Apprendi (or so Matke argued) therefore should require jury-stage proof of the prior(s). Not so fast, says the court, for Apprendi itself acknowledges an exception to its holding, namely for prior-conviction enhancers; this is the exception accurately recited by the court of appeals in fn. 7. (See also generally Almendarez-Torres v. United States, 523 U. S. 224 (1998) (prior aggravated felony conviction didn’t have to be pleaded or proved to jury, for charge under federal statute increasing maximum sentence for such conviction).) As Apprendi puts it:

Both the certainty that procedural safeguards attached to any "fact" of prior conviction, and the reality that Almendarez-Torres did not challenge the accuracy of that "fact" in his case, mitigated the due process and Sixth Amendment concerns otherwise implicated in allowing a judge to determine a "fact" increasing punishment beyond the maximum of the statutory range. … Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt. With that exception, we endorse the statement of the rule set forth in the concurring opinions in that case: "[I]t is unconstitutional for a legislature to remove from the jury the assessment of facts that increase the prescribed range of penalties ….

The subsequent sentencing guideline cases, Blakely v. Washington (sentencing departure from presumptive range based on facts determined by judge rather than jury violates 6^th amendment); U.S. v. Booker (same, relative to federal guidelines), reassert this exception. As Blakely explains:

This case requires us to apply the rule we expressed in Apprendi v. New Jersey, 530 U. S. 466, 490 (2000): "Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." This rule reflects two longstanding tenets of common-law criminal jurisprudence: that the "truth of every accusation" against a defendant "should afterwards be confirmed by the unanimous suffrage of twelve of his equals and neighbours," 4 W. Blackstone, Commentaries on the Laws of England 343 (1769), and that "an accusation which lacks any particular fact which the law makes essential to the punishment is ... no accusation within the requirements of the common law, and it is no accusation in reason," 1 J. Bishop, Criminal Procedure §87, p. 55 (2d ed. 1872).⁵ These principles have been acknowledged by courts and treatises since the earliest days of graduated sentencing; we compiled the relevant authorities in Apprendi, see 530 U. S., at 476-483, 489-490, n. 15; id., at 501-518 ( Thomas, J., concurring), and need not repeat them here.⁶

Booker is to like effect on this point (“Accordingly, we reaffirm our holding in Apprendi: Any fact (other than a prior conviction) which is necessary to support a sentence exceeding the maximum authorized by the facts established by a plea of guilty or a jury verdict must be admitted by the defendant or proved to a jury beyond a reasonable doubt.”).

Very roughly then, the leading idea of these cases is that in order to preserve the 6^th amendment right to jury trial, all facts that enhance a sentence beyond the statutory maximum must, if the defendant so chooses, be submitted to the jury and proved beyond a reasonable doubt, excepting proof of recidivism. And that is where OWI comes in, for it is plainly a recidivism scheme. At first blush, then, the court of appeals’ terse dispatch of Matke’s argument seems correct. That’s fine as far as it goes, but the diligent practitioner will want to keep an eye on continuing challenges to the prior-conviction exception, such as this NACDL amicus brief filed in Shepard v. United States, No. 03-9168, and arguing:

The existence of prior convictions is not meaningfully distinguishable from any other factual finding necessary to increase a defendant’s sentence beyond the otherwise applicable maximum. Sentencing enhancements made on that basis must therefore be authorized by a jury verdict or a defendant’s admission. Almendarez-Torres v. United States, 523 U.S. 224 (1997), which reasons otherwise, was wrongly decided, has been undermined by subsequent decisions of this Court, and should now be expressly overruled.

As it turned out, Shepard didn't resolve the issue -- one way or the other, which means that the issue remains viable, despite constant lip-service obeisance to the "prior-conviction exception" to Apprendi. As sentencing expert Doug Berman puts it: “the scope and application of the (theoretically shaky) Almendarez-Torres ‘prior conviction’ exception to the Apprendi/ Blakely rule will need clarification before long.” Indeed, in making the claim that “(t)he next big Blakely issue [is] the prior conviction exception.” Berman goes so far as to say, “there are no longer five Justices who support this exception.” See also Colleen P. Murphy, "Prior Convictions, Jury Trial, and the Burden of Proof," 17 Fed. Sent. Rprtr. 17 (2005) (advocating that, consistent with this line of cases, the existence of prior conviction be found beyond reasonable doubt by jury in present case, and also that prior tribunal must have applied reasonable doubt standard but not necessarily afforded right to jury) (essentially a condensed version of an earlier, much more elaborate article by the same author, "The Use of Prior Convictions After Apprendi," 37 U.C. Davis L. Rev. 973 (2004)). Update: While there was reason at one time to think Almendarez ripe for overruling, that no longer seems to be true, in view of James v. U.S., 127 S.Ct. 1586 (2007); see U.S. v. Pineda-Arrellano, 5th Cir No. 06-41156, 7/17/07 for discussion.

But there is more to this than counting noses. Another argument (apparently neither raised nor reached in Matke) remains, quite apart from viability of the recidivism exception; or, rather, an argument that is in effect a permutation rather than outright rejection of that exception. Recall that the leading principle relates to protecting the right to jury trial; and that the recidivism exception is grounded in the “procedural safeguards attached to any ‘fact’ of prior conviction” – which is to say that in the prior proceeding the defendant indeed had the right to have the prosecution prove guilt beyond reasonable doubt, to a jury. And that is where the rub lies in the instance of OWI: unlike a prior criminal conviction, an OWI-1^st, as a civil offense, does not require proof beyond reasonable doubt. Nor is there a similar right to unanimous jury. The burden of proof argument is self-evident, jury trial less so. At the risk of simplification: a civil jury verdict may consist of 5 votes out of 6, §§ 756.06(2)(c) and 805.09, and this is not a unanimous verdict within the 6^th amendment, Burch v. Louisiana, 441 U.S. 130 (1979) (non-unanimous 6-person jury for “nonpetty” offense violates 6^th amendment right to jury trial). And, of course, the Wisconsin constitution provides still greater protection in this area, guaranteeing unanimous, 12-person juries in all criminal cases, State v. Ronald A. Hansford, 219 Wis.2d 226, 580 N.W.2d 171 (1998). The long and short of it, then, is that OWI-1^st is not attended by the same procedural protections that attach to criminal cases and, therefore, using such a judgment to enhance a sentence does short-circuit the right to jury trial. (Note, too, Dane County v. Kenneth R. McGrew, 2005 WI 130, which holds 1) that there is no state constitutional right to jury trial on a traffic ordinance violation in municipal court ; but 2) there is such a right following conviction, on appeal to circuit court; and 3) the right is to a 6-person jury. See ¶70 n. 1 (Bradley, J., conc.) In short, the resolution of this case leaves the way open for argument outline in this paragraph.)

In a nutshell, then: both the rule and its exception (which Apprendi itself carefully terms a “narrow” one) rest on the primacy of the right to jury trial (and the correlative right of proof beyond reasonable doubt); where the exception would water down that right, then it is not merely an exception but, instead, an abrogation of the rule. Note that the argument, if it is to be successful at all, would first have to establish as its premise that an OWI-1^st trial does not support a jury trial within the meaning of Apprendi, and that in turn means persuading the court that in this context “jury trial” means something more than 5 out of 6. Not necessarily the easiest argument to make, but not the hardest, either.

Any authority for this argument? Not directly, though Murphy does have this to say: "A defendant should not face enhanced punishment based on a prior conviction or judgment that was not itself subject to the rigors of the reasonable doubt standard. A rule requiring proof beyond a reasonable doubt in the prior proceeding would mean that a judgment rendered under a lesser standard of proof—such as a DUI judgment—could not be used to raise a sentence beyond the maximum punishment for a subsequent criminal offense." True, unsuccessful challenges have been raised, but on the basis that using a civil offense as an enhancer violates right to counsel: Schindler v. Clerk of Circuit Court, 715 F.2d 341 (7th Cir. 1983), cert. denied, 465 U.S. 1068 (1984); State v. Dumas, 587 N.W.2d 299 (Minn. Ct. App. 1998). And, of course, those cases pre-date Apprendi.

There is increasing litigation on the question of whether an adult enhancement may be predicated on a juvenile adjudication, given the absence of jury trial in delinquencies. The analogy (OWI-1^st to delinquency) isn’t altogether satisfactory. For one thing, there is a jury trial right in OWI-1^st, and none at all in delinquencies; for another, policy considerations are different. Worse, there seems to be a slight trend in favor enhancement-use of a juvenile adjudication (though a clear split has certainly developed, with ample support on both sides). Still, that is where the potentially relevant caselaw is most highly developed, and someone wanting to develop the issue in the OWI context will probably want to be familiar with it. Those cases allowing enhancement assert (as they must) the existence of “ample” procedural protections in delinquency proceedings. If the line is not to be drawn at a right to jury trial within the meaning of the 6^th amendment, then the question here will probably reduce to whether an OWI-1^st trial is attended by procedural protections sufficient to bring it within the prior-conviction rule. Here, without extended analysis, are some of the more important current authorities:

Favorable; juvenile adjudication in which there was no right to jury trial may not provide basis to enhance sentence

U.S.v. Tighe, 266 F.3d 1187 (9^th Cir 2001);
People v. Nguyen, Cal App No. H028798, on rehrg, 6/29/07 ("we respectfully disagree with our colleagues on this court and others, and join the small but growing number of courts across the country that have likewise concluded that Apprendi and its progeny compel us to recognize that the Sixth Amendment right to a jury trial is an integral part of the process that is due before a prior conviction may be used to increase the maximum sentence for a criminal offense");
State v. Brown, 879 So. 2d 1276 (LA 2004);
State v. Harris, 339 Or. 157, 172-75, 118 P.3d 236 (2005);
Pinkston v. State, Ind App No. 49A02-0412-CR-1003, 10/31/05.
See also State v. Perez, OR App No. A119741, 12/8/04, for implicit support ("the exception to the general rule in Apprendi hinges on the fact that a prior conviction already has been subjected to the rigors of jury determination and the 'reasonable doubt' standard of proof");
and, Note, 116 Harv. L. Rev. 705 (2002) ("The major implication of this conflict, viewed in light of the increasingly punitive nature of the modern juvenile justice system, is that the Supreme Court should critically reexamine its holding that juvenile court defendants are not constitutionally entitled to jury trials."); Brian P. Thill, Comment, 87 Marq. L. Rev. 573 (2004) ("The Supreme Court should simply hold that juvenile adjudications not previously proven to a jury beyond a reasonable doubt may not be used to increase an offender's sentence beyond the statutory maximum or minimum of the crime he or she is charged with.").

Unfavorable

U.S. v. Matthews, 1st Cir No. 05-1655, 8/7/07
U.S. v. Crowell, 6th Cir No. 06-5902, 6/26/07
State v. Weber, WA SCt No. 77395-5, 12/28/06 (narrow, 5-4, result: "We hold that prior juvenile adjudications fall under the "prior conviction" exception in Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000) and are not facts that a jury must find under Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004)");
U.S. v. Burge, 407 F.3d 1183 (11th Cir 2005) ("the majority of courts have followed the Tighe dissent");
State v. Deters, 2005-Ohio-4049, Ohio App No. C-010645, 8/5/05 (following courts which reject argument, but collecting cases on both sides and noting that "(t)his split will one day have to be reconciled," ¶23);
Boyd v. Newland, 9^th Cir No. 03-17098, 12/29/04 ( Tighe does not represent “clearly established” law for purposes of habeas review);
U.S. v. Jones, 332 F. 3d 688 (3^rd Cir. 2003);
U.S. v. Smalley, 294 F.3d 1030 (8^th Cir. 2002);
State v. Hitt, 42 P.3d 732 (Kan 2002);
Commonwealth v. Aponte, 855 A.2d 800 (PA 2004);
Ryle v. State, 842 N.E.2d 320 (Ind. 2005).

(Tighe criticized, not followed, in OWI context: People v. Palmer, Cal App 3rd Dist No. C049018, 8/31/06.)

The sheer number of cases on opposite sides of divide, along with the recurrent nature of the issue very strongly suggests that this is a cert-worthy problem.

Interestingly, the juvenile-adjudication issue has morphed somewhat. The idea of Apprendi is that you most certainly can enhance beyond the statutory maximum if there's an opportunity for jury determination of the enhancer. Full application of this principle to the present context would hold that a juvenile adjudication may serve as an enhancer if its existence is determined by the jury; the defect, in other words, is that the jury never determines if the defendant had suffered a prior juvenile adjudication. Indeed, Tighe seemingly takes that position, at least implicitly, 266 F. 3d at 1194 n. 5. Harris is a bit more explicit ("it is of no moment -- at least for Sixth Amendment purposes -- if the legislature chooses to designate, inter alia, a prior nonjury juvenile adjudication as an element that increases the seriousness of a crime or lengthens a criminal sentence, so long as the existence of that prior adjudication is proved to a jury, or such a requirement is knowingly waived"). So, too, Pinkston ("Therefore, in order to use a defendant’s juvenile adjudications to enhance his or her sentence beyond the presumptive sentence, the juvenile adjudications must be submitted to a jury and proven beyond a reasonable doubt."). Yet, the other favorable authorities use Apprendi to question the continuing viability of McKeiver v. Pennsylvania, 403 U.S. 528 (1971), the case which upheld abrogation of jury trials in delinquency proceedings. That is the sort of thicket best avoided in an OWI-2nd⁺ case. In other words, the argument is narrow (OWI-1st doesn't qualify as a prior conviction exception to the an Apprendi rule, and therefore its existence must be submitted to the jury, at the defendant's election); not broad (an OWI-1st is unreliable and therefore can't enhance subsequent OWIs). See also Ryle, which notes that other than barring recidivist use of juvenile adjudications altogether, there are two options: requiring the jury to decide beyond reasonable doubt whether the defendant was a juvenile delinquent or asking the jury to decide whether the earlier court found the juvenile guilty. People v. Nguyen, Cal App No. H028798, on rehrg, 6/29/07, holds that the bar on using juvenile adjudications for adult enhancement applies even to adjudications based on judicial admissions.

To repeat: no one says that the issue is simple, only that it remains percolating. Douglas Berman’s observation that the prior conviction exception “will need clarification before long” ought to be true in spades in relation to a “prior civil judgment” exception. (By the way, a posted brief from the SPD's own Paul Ksicinski argues the separate issue of whether it’s proper to use a juvenile adjudication as an element, in a felon-in-possession; a distinct issue, as noted, but you’ll see some overlap in the argument.)

UPDATE: Sometimes, the simplest arguments are both the most elegant and most easily overlooked. To fall within the "prior conviction" exception, the prior has to be a conviction of a crime. An OWI-1st simply is not a criminal conviction, therefore falls outside this exception. For support for this argument, see Pinkston v. State, Ind App No. 49A02-0412-CR-1003, 10/31/05 (juvenile adjudication not within prior-conviction exception, largely because under Indiana Code it isn't to "be considered a conviction of a crime").