2007 WI APP 273

State of Wisconsin,

�� Plaintiff-Appellant,

�� v.

Gary J. Knapp,

�� Defendant-Respondent.

Opinion Filed:	November 29, 2007
Submitted on Memoranda: ��	September 28, 2007

JUDGES:	Dykman, Vergeront and Bridge, JJ.
�� Concurred:
�� Dissented:

Appellant
ATTORNEYS:	On behalf of the plaintiff-appellant, the cause was submitted on the memorandum of Paul W. Humphrey, assistant district attorney, and Gregory M. Weber, assistant attorney general.�

Respondent
ATTORNEYS:	On behalf of the defendant-respondent, the cause was submitted by Cory C. Chirafisi of Chirafisi Law Office, Inc., Madison.�

COURT OF APPEALS

DECISION

DATED AND FILED

November 29, 2007

David R. Schanker

Clerk of Court of Appeals

NOTICE

This opinion is subject to further editing.� If published, the official version will appear in the bound volume of the Official Reports.�

A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals.� See Wis. Stat. � 808.10 and Rule 809.62.�

Appeal No.�	2007AP1582-CR	Cir. Ct. No.� 2006CT2724
STATE OF WISCONSIN��			IN COURT OF APPEALS



State of Wisconsin, �� Plaintiff-Appellant, �� v. Gary J. Knapp, �� Defendant-Respondent.

�� APPEAL from an order of the circuit court for Dane County:� james l. martin, Judge.� Dismissed.�

�� Before Dykman, Vergeront and Bridge, JJ.�

�1�� PER CURIAM. The State of Wisconsin has filed a notice of appeal seeking review of an order granting Gary Knapp�s motion to collaterally attack a prior operating while intoxicated (OWI) conviction.� The effect of the order is to reduce the charge Knapp is currently facing from OWI-3rd to OWI-2nd.� We asked the parties to brief whether the State has an appeal as of right in this situation pursuant to Wis. Stat. � 974.05(1) (2005-06).[1]� After reviewing the parties� memoranda, we conclude that the State cannot appeal as of right and therefore dismiss the appeal for lack of jurisdiction.

�2�� A defendant may collaterally attack a prior conviction to prevent its use as a penalty enhancer when the prior conviction was obtained in violation of the defendant�s right to counsel.� State v. Hahn, 2000 WI 118, ��28-29, 238 Wis. 2d 889, 618 N.W.2d 528.� An order granting such a collateral attack motion is interlocutory in nature so long as the underlying criminal proceeding is ongoing.� See generally Pasch v. DOR, 58 Wis. 2d 346, 354, 206 N.W.2d 157 (1973) (�An order has been defined as interlocutory when the substantial rights of the parties involved in the action remain undetermined and when the cause is retained for further action.�).�

�3�� Ordinarily, appeals as of right may be taken only from final judgments and orders, while appeals from interlocutory orders require permission from this court.� See Wis. Stat. � 808.03(1) and (2); Wis. Stat. Rule 809.50.� However, Wis. Stat. � 974.05(1)(d) authorizes the State to appeal certain types of interlocutory decisions in criminal cases as a matter of right.� Specifically, that section allows the State to appeal from any order which has the effect of:

1. Quashing an arrest warrant;

2. Suppressing evidence; or

3. Suppressing a confession or admission.

Id.� The Wisconsin Supreme Court has interpreted � 974.05(1)(d) to encompass �any pretrial order that bars the admission of evidence which might �normally� determine the successful outcome of the prosecution.�� State v. Eichman, 155 Wis. 2d 552, 563, 456 N.W.2d 143 (1990).

�4�� The State argues that the order barring it from using a prior OWI conviction to establish that the charge in this case is a third offense prevents the successful prosecution of the current charge within the meaning of Eichman.� We disagree.

�5�� First, unlike a collateral challenge that would reduce an OWI charge from a fourth or greater offense to a third or lesser offense, the reduced number of prior convictions at issue here will not change the applicable prohibited alcohol level.� See Wis. Stat. � 340.01(46m) (defining a �prohibited alcohol concentration� as 0.08 for a person with two or less prior convictions and as 0.02 for a person with three or more prior convictions).� Therefore, this is not a situation in which the circuit court�s ruling would require the State to present any different evidence at trial regarding the defendant�s actual level of intoxication.� Second, the State does not argue that the prior convictions themselves would be admissible. �See State v. Alexander, 214 Wis. 2d 628, 634, 571 N.W.2d 662 (1997) (probative value of stipulated status offenses was outweighed by danger of unfair prejudice).�

�6�� In short, the circuit court�s order would not bar the admission of any evidence at trial.� The information about prior convictions would come in at sentencing only to enhance the potential penalty under Wis. Stat. � 346.65(2)(am).� Contrary to the State�s contention, we are not persuaded that the application of a penalty enhancer affects the �successful outcome of the prosecution� any more than would the imposition of a particular sentence.� Rather, we understand that phrase to refer merely to attaining a conviction.

�7�� Because the collateral attack on Knapp�s prior OWI conviction would not affect the State�s ability to attain a conviction here, where the applicable prohibited alcohol concentration would remain the same under either a second or third offense, we conclude that the State has no appeal as of right under Wis. Stat. � 974.05(1)(d).� We further conclude that we lack jurisdiction over the appeal under Wis. Stat. � 808.03(1) and Wis. Stat. Rule 809.10(4) because the order appealed from is not final.� The proper mechanism to seek immediate review in these circumstances is by leave to appeal under Wis. Stat. Rule 809.50.[2]� Accordingly, we hereby dismiss the appeal for lack of jurisdiction.

�� By the Court.�Appeal dismissed.

[1] All references to the Wisconsin Statutes are to the 2005-06 version unless otherwise noted.

[2] In its jurisdictional memoranda, the State asks us to construe its notice of appeal as a petition for leave to appeal in the event that we decline jurisdiction over the appeal.� For logistical reasons, we conclude that it makes more sense to construe the State�s memoranda as its petition for leave, and we do so by separate order.

Case No.:	2007AP1582-CR
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