                                                                 2020 WI 45

                  SUPREME COURT          OF    WISCONSIN
CASE NO.:               2018AP1129


COMPLETE TITLE:         City of Cedarburg,
                                  Plaintiff-Appellant,
                             v.
                        Ries B. Hansen,
                                  Defendant-Respondent.

                                 ON MOTION FOR RECONSIDERATION
                           Reported at 390 Wis. 2d 109,938 N.W.2d 463
                                 PDC No:2020 WI 11 - Published

OPINION FILED:          May 20, 2020
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:

SOURCE OF APPEAL:
   COURT:
   COUNTY:
   JUDGE:

JUSTICES:
PER CURIAM
NOT PARTICIPATING:



ATTORNEYS:



      For    the       plaintiff-appellant,   there   was   a   motion   for
reconsideration filed by Johnathan G. Wooward and Houseman & Feind,
LLP, Gafton, WI.
                                                                     2020 WI 45


                                                             NOTICE
                                               This opinion is subject to further
                                               editing and modification.   The final
                                               version will appear in the bound
                                               volume of the official reports.
No.    2018AP1129
(L.C. No.   2017CV411)

STATE OF WISCONSIN                         :              IN SUPREME COURT

City of Cedarburg,

            Plaintiff-Appellant,                                   FILED
      v.                                                      MAY 20, 2020
Ries B. Hansen,                                                   Sheila T. Reiff
                                                              Clerk of Supreme Court
            Defendant-Respondent.




      MOTION for reconsideration.     Reconsideration granted.



      ¶1    PER CURIAM.     The City of Cedarburg moves the court to

reconsider ¶30 of its decision in the above-captioned case, issued

February 11, 2020.       See Wis. Stat. § 809.64 (2019-20).             The City
contends the court overlooked State v. Braunschweig, 2018 WI 113,

384 Wis. 2d 742, 921 N.W.2d 199, wherein the court unanimously

decided that the proper burden of proof the State must satisfy to

establish a defendant's prior OWI convictions is a preponderance

of the evidence.    The City requests only that the court modify ¶30

of our decision in City of Cedarburg v. Hansen to reflect the

burden of proof announced in Braunschweig.
                                                                      No.    2018AP1129



       ¶2   We grant the City's motion for reconsideration to modify

¶30.    Braunschweig established the proper burden of proof to be a

preponderance of the evidence.             It noted that "in some PAC cases"

under Wis. Stat. § 346.63, in which the text of the statute

specifically makes "the predicate prior [] an element of the

offense," the State must satisfy the higher, beyond a reasonable

doubt burden. Braunschweig, 384 Wis. 2d 742, ¶36 & n.18. However,

the court held that "the State's burden of proving the prior OWI

conviction    in    second        offense       OWI-related     offenses"         is    a

preponderance of the evidence.              Id., ¶¶3, 32-40.        That burden of

proof   applies    because    a    prior       OWI   offense   is   not     among      the

statutory    elements    of       a   second         offense   OWI.         See     Wis.

Stat. § 346.63(1)(a).

       ¶3   Accordingly, we order that ¶30 in City of Cedarburg v.

Hansen, 2020 WI 11, 390 Wis. 2d 109, 938 N.W.2d 463, be modified

to read as follows, with bold indicating the amended language and

strikethrough indicating the language removed:

       A defendant's prior convictions determine his status as
       a repeat offender, not his guilt. State v. Saunders,
       2002 WI 107, ¶3, 255 Wis. 2d 589, 649 N.W.2d 263.
       However, the State must prove a defendant's status as a
       prior offender at sentencing, where prior convictions
       must be established by a preponderance of the evidence.
       See State v. Braunschweig, 2018 WI 113, ¶¶3, 32-40, 384
       Wis. 2d 742, 921 N.W.2d 199. beyond a reasonable doubt.13
       Id. Importantly, the city attorney is not required to
       allege or prove that the defendant had no prior offenses.
       ¶4   By the Court.—The motion for reconsideration to modify

¶30 is granted.




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