                                                                2015 WI 53

                  SUPREME COURT             OF   WISCONSIN
CASE NO.:               2012AP2782-CR
COMPLETE TITLE:         State of Wisconsin,
                                  Plaintiff-Appellant-Cross-Respondent,
                             v.
                        Andre M. Chamblis,
                                  Defendant-Respondent-Cross-Appellant-
                        Petitioner.


                          REVIEW OF A DECISION OF THE COURT OF APPEALS
                         (Reported at 354 Wis. 2d 622, 848 N.W.2d 903)
                                  (Ct. App. 2014 – Unpublished)

OPINION FILED:          June 12, 2015
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:          March 3, 2015

SOURCE OF APPEAL:
   COURT:               Circuit
   COUNTY:              La Crosse
   JUDGE:               Elliott M. Levine

JUSTICES:
   CONCURRED:           ZIEGLER, J. concurs. (Opinion Filed.)
   DISSENTED:
   NOT PARTICIPATING:


ATTORNEYS:
       For        the   defendant-respondent-cross-appellant-petitioner,
there were briefs by Steven W. Zaleski and Zaleski Law Firm,
Madison, and oral argument by Steven W. Zaleski.




       For the plaintiff-appellant-cross-respondent, the cause was
argued by Michael C. Sanders, assistant attorney general, with
whom on the brief was Brad D. Schimel, attorney general.
                                                                                   2015 WI 53
                                                                          NOTICE
                                                           This opinion is subject to further
                                                           editing and modification.   The final
                                                           version will appear in the bound
                                                           volume of the official reports.
No.       2012AP2782-CR
(L.C. No.    2011CF644)

STATE OF WISCONSIN                                     :               IN SUPREME COURT

State of Wisconsin,

              Plaintiff-Appellant-Cross-Respondent,

      v.
                                                                               FILED
Andre M. Chamblis,                                                        JUN 12, 2015

          Defendant-Respondent-Cross-Appellant-                              Diane M. Fremgen
                                                                          Clerk of Supreme Court
Petitioner.




      REVIEW of a decision of the Court of Appeals.                          Reversed.


      ¶1      N.   PATRICK          CROOKS,    J.     Andre       Chamblis        (Chamblis)
pleaded      guilty       to    operating           with     a        prohibited      alcohol
concentration      (PAC)       as    a   sixth   offense         in    violation     of    Wis.
Stat. § 346.63(1)(b) (2011-12).1                    Prior to accepting the plea,
the circuit court2 informed Chamblis that the offense constituted


      1
       All references to the Wisconsin Statutes are to the 2011-
12 version unless otherwise indicated.
      2
       La Crosse          County,        the     Honorable        Elliott       M.    Levine,
presiding.
                                                                            No.   2012AP2782-CR



a Class H felony which carried a minimum penalty of 6 months
imprisonment and a $600 fine and a maximum penalty of 6 years
imprisonment (three years confinement and three years extended
supervision) and a $10,000 fine.                       Wis. Stat. §§ 346.65(2)(am)5.,
939.50(3)(h).,            973.01(2)(b)8.              The     circuit   court      ultimately
sentenced Chamblis to four years imprisonment comprised of two
years confinement and two years extended supervision.
        ¶2        The State appealed the judgment of conviction.                             It
argued       that       the   circuit     court       erred    by   excluding      additional
evidence          the    State    sought     to   submit       to   prove     that     Chamblis
possessed a sixth prior drunk-driving related conviction.                                   Had
the circuit court admitted the evidence and found it sufficient

to establish the alleged prior conviction, Chamblis would have
faced the decision to plead guilty to the charge of operating
with a PAC as a seventh offense.                            That offense constituted a
Class G felony and would have subjected Chamblis to an increased
range         of        punishment.               Wis.        Stat.     § 346.65(2)(am)6.
Specifically, the minimum penalty for a seventh offense was a
term of imprisonment that included three years confinement and a
period of extended supervision.                       Id.   The maximum penalty was 10
years        imprisonment         (five     years       confinement         and   five     years
extended           supervision)       and     a       $25,000       fine.         Wis.    Stat.
§§ 973.01(2)(b)7., 939.50(3)g.
        ¶3        The court of appeals agreed that the circuit court
erred        in     excluding      the      additional         evidence.          It     further
determined that the evidence was sufficient to prove the alleged
prior conviction.                As a result, the court of appeals reversed
                                                  2
                                                                                  No.    2012AP2782-CR



the judgment of conviction and remanded the case to the circuit
court        with    instructions             to      enter       an    amended         judgment       of
conviction for operating with a PAC as a seventh offense and
impose sentence for a seventh offense.3
        ¶4       This case presents two issues for our review.                                        The
first       is    whether     the     circuit             court    erred     in     excluding         the
additional          evidence        the       State       sought       to   submit       to    enhance
Chamblis's punishment on the basis that the State offered the
evidence         "too      late."         The      second        is    whether      the       court    of
appeals'         remedy     violates          Chamblis's          right     to    due     process      by
rendering           his     guilty        plea        unknowing,            unintelligent,            and
involuntary.

        ¶5       We assume, without deciding, that the circuit court
erred in excluding the additional evidence the State sought to
submit to enhance Chamblis's punishment.
        ¶6       Although we assume error, we hold that the court of
appeals' decision remanding the case to the circuit court with
instructions          to    enter     an       amended       judgment        of    conviction         for
operating with a PAC as a seventh offense and impose sentence
for a seventh offense violates Chamblis's right to due process.
Chamblis entered a knowing, intelligent, and voluntary guilty
plea    to       operating     with       a    PAC     as    a    sixth     offense,       not    as    a
seventh offense.              Because a seventh offense carries a greater
range of punishment than does a sixth offense, the court of


        3
       State v. Chamblis, No. 2012AP2782-CR, unpublished order
(Wis. Ct. App. May 29, 2014).

                                                      3
                                                                     No.    2012AP2782-CR



appeals'            remedy       renders       Chamblis's          plea      unknowing,
unintelligent,          and    involuntary.         We   further     conclude      that    a
remedy which requires Chamblis to withdraw his guilty plea is
fundamentally unfair and thus violative of due process under the
facts of this case.
        ¶7     Accordingly, we reverse the decision of the court of
appeals and uphold Chamblis's conviction.
                               I. FACTS AND PROCEDURAL HISTORY
        ¶8     On      November       22,   2011,      Chamblis     was    arrested       on
suspicion of operating a vehicle while under the influence of an
intoxicant (OWI) in La Crosse.                    The criminal complaint, dated
November 30, 2011, charged Chamblis with the following: (1) OWI

as a fifth or sixth offense and as a repeater contrary to Wis.
Stat. § 346.63(1)(a); (2) operating with a PAC as a fifth or
sixth        offense     and     as    a    repeater     contrary     to    Wis.    Stat.
§ 346.63(1)(b); and (3) obstructing an officer as a repeater
contrary       to    Wis.     Stat.    § 946.41(1).4       The    criminal    complaint
alleged that Chamblis possessed five prior drunk-driving related




        4
       On April 10, 2012, Chamblis was also charged with battery
by prisoner contrary to Wis. Stat. § 940.20(1). The State filed
that charge in a separate action in La Crosse County.

                                              4
                                                                    No.    2012AP2782-CR



convictions     from     Minnesota        for     the     purpose         of     penalty
enhancement under Wis. Stat. § 346.65(2)(am).5
      ¶9     In January 2012, the circuit court granted the State's
motion to amend the information6 to charge Chamblis with OWI as a
seventh,     eighth,    or   ninth      offense    and     as   a     repeater,         and
operating with a PAC as a seventh, eighth, or ninth offense and
as a repeater.         The State claimed that Chamblis had two prior
drunk-driving related convictions from Illinois in addition to
the   five   from    Minnesota    and     submitted      documentation           to    that
effect.
      ¶10    On August 6, 2012, Chamblis filed a motion challenging
the   purported      Illinois    convictions      on     two    grounds         that    are

relevant     here.       First,      he   argued        that    the       two    alleged
convictions should be counted as one conviction because they
stemmed from the same incident.               Second, he contended that the




      5
       Under Wis. Stat. § 346.65(2)(am), repeated violations of
drunk-driving related offenses are subject to increasingly
severe penalties.   "This graduated penalty structure is nothing
more than a penalty enhancer similar to a repeater statute which
does not in any way alter the nature of the substantive offense,
i.e., the prohibited conduct, but rather goes only to the
question of punishment." State v. McAllister, 107 Wis. 2d 532,
535, 319 N.W.2d 865 (1982).     The penalty range for operating
with a PAC as a fifth or sixth offense is less severe than the
penalty range for a seventh offense.            See Wis. Stat.
§ 346.65(2)(am)5.-6.
      6
       "The information is the accusatory pleading under our
criminal system to which the defendant must plead and stand
trial . . . ."     Pillsbury v. State, 31 Wis. 2d 87, 93, 142
N.W.2d 187 (1966).

                                          5
                                                                      No.     2012AP2782-CR



State       had        offered     insufficient      documentation      to     prove   the
purported convictions.
        ¶11    The circuit court held a hearing on Chamblis's motion
on September 12, 2012.                   The circuit court agreed that the two
alleged        Illinois           convictions       should     be   treated      as    one
conviction.             However, it determined that the State's proffered
evidence          of     the     purported   conviction——an         Illinois     driver's
abstract——was insufficient to establish that Chamblis had been
convicted of a drunk-driving related offense in Illinois.                               In
rendering its decision, the circuit court recognized that "we
are not at sentencing" and "there could be further proof that
comes up."             It informed the prosecutor that if "more evidence is

supplied . . . we will review it at that point in time . . . ."
        ¶12    At the final pretrial hearing on September 14, 2012,
the parties informed the circuit court that Chamblis wished to
enter a guilty plea.                Neither the parties nor the circuit court
raised the issue of the disputed Illinois conviction.                             Because
the     State          intended     to   request     a   presentence        investigation
report, the circuit court did not schedule a sentencing hearing
to go along with the plea date.
        ¶13    Chamblis's plea hearing took place on September 19,
2012.         The       parties    advised   the     circuit    court   that     Chamblis
planned to enter a guilty plea to operating with a PAC as a
fourth offense "or greater" without a repeater.7                            Chamblis was

        7
       As part of the plea agreement, the State agreed to dismiss
the charges of OWI as a repeater, obstructing an officer as a
repeater, and battery by prisoner (from the related case).

                                                6
                                                                             No.     2012AP2782-CR



willing to admit to the five prior convictions from Minnesota
but continued to dispute the alleged conviction from Illinois.
Accordingly, a question remained whether Chamblis would face the
penalty range for operating with a PAC as a sixth offense or as
a seventh offense upon conviction.
      ¶14    Recognizing              the         uncertainty        regarding        Chamblis's
potential punishment, defense counsel stated on the record the
minimum     and     maximum           penalties         for   both    offenses.            Defense
counsel then expressed his confusion with handling the plea in
such a manner.        This prompted the circuit court to inquire into
the status of the alleged Illinois conviction.                                The prosecutor
explained     that        he        had     obtained      additional        information        from

Illinois and that he planned to submit an offer of proof prior
to sentencing.            Defense counsel objected to the State offering
the new evidence at that point in the proceedings.
      ¶15    The     circuit              court     determined       that    the      State     was
attempting    to     offer           the    additional        evidence      "too    late."       It
reasoned that Chamblis could not enter a knowing, intelligent,
and   voluntary      guilty           plea        without     understanding         the    precise
minimum     and     maximum               penalties      associated         with     the      plea.
Determining that it was unfair to put off the plea date, the
circuit court declared that discovery was "done."                                  It noted that
the case had "been set for trial a long time"; that the issue
concerning        proof        of     the     purported       Illinois       conviction        "was




                                                    7
                                                                      No.     2012AP2782-CR



flagged a long time ago"8; and that the issue prevented the
parties from resolving the case "in a way that would have made
more sense months ago . . . ."                As a result of its decision, the
circuit court indicated that it would accept a plea only to the
lower charge of operating with a PAC as a sixth offense.
        ¶16      The State chose to go through with the plea agreement
anyway.          The circuit court then personally addressed Chamblis to
ensure       that    he    understood   the       nature   of   the   charge      and     the
implications of the plea.               It began by asking whether Chamblis
understood the plea agreement "at this point in time," to which
Chamblis responded "I do now, sir."                   The circuit court proceeded
to explain the minimum and maximum penalties commensurate with a

conviction for operating with a PAC as a sixth offense.                                 Upon
accepting the plea, the circuit court sentenced Chamblis to four
years imprisonment comprised of two years confinement and two
years extended supervision.
        ¶17      The State appealed the judgment of conviction.                           The
court       of    appeals    determined   that      the    circuit    court       erred    in
excluding         the     State's   additional       evidence     for       two   reasons.
First, this court's decisions in State v. McAllister, 107 Wis.
2d 532, 539, 319 N.W.2d 865 (1982), and State v. Wideman, 206
Wis. 2d 91, 104-05, 556 N.W.2d 737 (1996), provide a general
rule that prior drunk-driving related convictions must be proved

        8
       Although Chamblis did not file his motion challenging the
sufficiency of the evidence of the purported Illinois conviction
until August 6, 2012, the transcript from the plea hearing
indicates that defense counsel raised the issue with the State
months earlier.

                                              8
                                                                     No.      2012AP2782-CR



before        sentencing.         Second,      the    circuit    court        "explicitly
invited" the State to bring forth additional evidence of the
alleged Illinois conviction prior to sentencing.                            The court of
appeals        further       concluded       that     the     additional           evidence
sufficiently established that Chamblis had been convicted of a
drunk-driving related offense in Illinois.
        ¶18     Consequently,        the    court     of     appeals        reversed     the
judgment       of    conviction     and    remanded    the    case     to    the    circuit
court        with    instructions      to     enter    an     amended        judgment     of
conviction for operating with a PAC as a seventh offense and
impose       sentence    for    a    seventh      offense.      In     fashioning        its
remedy, the court of appeals rejected Chamblis's contention that

such        relief   would     violate      his   constitutional        right       to   due
process by rendering his guilty plea unknowing, unintelligent,
and involuntary.9            The court of appeals reasoned that Chamblis
was "aware both of the 'specific penalty' he faced if convicted
of operating with a PAC as a seventh offense, and that he faced
this possible punishment if the State succeeded in proving the
purported Illinois conviction."
        ¶19     We granted Chamblis's petition for review.
                                    II. STANDARD OF REVIEW
        ¶20     We are asked to decide whether the circuit court erred
in excluding the additional evidence the State sought to submit


        9
       The court of appeals also dismissed Chamblis's second
argument that the remedy violated his constitutional right to be
free from double jeopardy, reasoning that it was underdeveloped.
We did not accept Chamblis's petition for review on that issue.

                                              9
                                                                              No.    2012AP2782-CR



at Chamblis's plea hearing.                   We review that decision under the
erroneous exercise of discretion standard.                              Martindale v. Ripp,
2001 WI 113, ¶28, 246 Wis. 2d 67, 629 N.W.2d 698.                                     "In making
evidentiary rulings, the circuit court has broad discretion."
Id.      "As with other discretionary determinations, this court
will    uphold      a     decision    to     admit          or    exclude    evidence         if    the
circuit       court      examined     the    relevant             facts,    applied       a    proper
legal       standard,      and,     using    a     demonstrated             rational       process,
reached a reasonable conclusion."                       Id.
        ¶21    We are also asked to determine whether the court of
appeals' remedy in this case violates Chamblis's right to due
process by rendering his guilty plea unknowing, unintelligent,

and involuntary.             This presents a question of constitutional
fact.        State v. Bollig, 2000 WI 6, ¶13, 232 Wis. 2d 561, 605
N.W.2d 199.          "We will not upset the circuit court's findings of
historical          or    evidentiary        facts           unless        they     are       clearly
erroneous."         Id.     "We review constitutional issues independently
of    the     determinations        rendered           by    the    circuit       court       and   the
court of appeals."           Id.
                                        III. DISCUSSION
        ¶22    Both issues in this case require us to examine the
legal principles fundamental to guilty pleas.                                 Accordingly, we
begin by discussing the constitutional standard that a guilty
plea    be     affirmatively         shown    to        be       knowing,    intelligent,           and
voluntary.          We    then    proceed     to        consider       whether      the       circuit
court       erred    in    excluding        the    additional          evidence       the       State
sought to submit to enhance Chamblis's punishment.                                        We assume
                                                  10
                                                                         No.       2012AP2782-CR



without deciding that the decision was error.                            We next address
whether the court of appeals' remedy violates Chamblis's right
to    due    process     by    rendering           his     guilty    plea          unknowing,
unintelligent,        and     involuntary,          concluding           that       it      does.
Finally,     we    explain    why   a   remedy       which       requires       Chamblis        to
withdraw     his     guilty    plea     is    fundamentally          unfair          and     thus
violative of due process under the facts of this case.
                               A. Analytical Framework
      ¶23    Since     "[s]everal       federal          constitutional            rights      are
involved in a waiver that takes place when a plea of guilty is
entered in a state criminal trial," Boykin v. Alabama, 395 U.S.
238, 243 (1969), fundamental due process requires that a plea be

knowing, intelligent, and voluntary.                       State v. Cross, 2010 WI
70,   ¶16,     326    Wis.    2d    492,      786    N.W.2d        64.         A     defendant
contemplating a guilty plea must possess "sufficient awareness
of the relevant circumstances and likely consequences."                                    Brady
v.    United      States,     397     U.S.        742,     748    (1970).             Relevant
circumstances include the nature of both the charge to which the
defendant is pleading and the constitutional rights he or she is
waiving.     State v. Van Camp, 213 Wis. 2d 131, 139-40, 569 N.W.2d
577 (1997).        In this case, however, we are concerned with the
constitutional        requirement        that        defendants          understand            the
"'direct consequences' of their pleas."                          Bollig, 232 Wis. 2d
561, ¶16 (quoting Brady, 397 U.S. at 755).
      ¶24    "A    direct     consequence          represents       one        that      has     a
definite, immediate, and largely automatic effect on the range
of defendant's punishment."             Id.       "Matters concerning the nature
                                             11
                                                                           No.    2012AP2782-CR



of the sentence that could be imposed are most likely to be
viewed as direct consequences."                        5 Wayne R. LaFave, Criminal
Procedure          § 21.4(d),     817     (3d    ed.        2007).        Accordingly,         the
general      practice      is    to     advise    defendants         of   the     minimum      and
maximum penalties associated with a plea.                            Id.; see also State
v.    Erickson,       53   Wis.    2d    474,    479-80,       192     N.W.2d     872     (1972)
(discussing the importance of informing the defendant of the
maximum penalty possible upon entry of a plea); State v. Mohr,
201 Wis. 2d 693, 700, 549 N.W.2d 497 (Ct. App. 1996) (holding
that circuit courts must advise defendants of the presumptive
minimum sentence associated with a plea).
       ¶25     A     defendant's         failure       to     understand         the    precise

maximum punishment is not necessarily a due process violation.
Cross,       326    Wis.   2d    492,    ¶37     (holding       that      there    is   no     due
process       violation         where     the    sentence        communicated           to    the
defendant is higher, but not substantially higher, than that
authorized by law).               However, "when the defendant is told the
sentence is lower than the amount allowed by law, a defendant's
due process rights are at greater risk . . . ."                                     Id., ¶39.
Indeed, this court has previously recognized that "[c]oncepts of
fundamental         fairness      require       that    a    defendant      not    receive       a
greater sentence of imprisonment than that which he was told he
could receive on pleading guilty."                      Garski v. State, 75 Wis. 2d
62,    76,    248     N.W.2d     425    (1977);       accord    Hart      v.     Marion      Corr.
Inst.,       927    F.2d   256,    259    (6th       Cir.    1991)     (holding        that    the
defendant's due process rights were violated when he was given a


                                                12
                                                                         No.     2012AP2782-CR



sentence higher than that which he believed to be the maximum
when he pleaded guilty).
       ¶26    To ensure that a guilty plea is knowing, intelligent,
and voluntary, Wis. Stat. § 971.08, State v. Bangert, 131 Wis.
2d    246,    389     N.W.2d   12   (1986),           and    subsequent        cases   impose
certain procedural duties on circuit courts.                             State v. Brown,
2006 WI 100, ¶23, 293 Wis. 2d 594, 716 N.W.2d 906.                             In Brown, we
reiterated that one of those duties is to notify the defendant
of    the    direct    consequences        of    his        or   her   plea.      Id.,    ¶35.
Relatedly, we explained that circuit courts must "[e]stablish
the defendant’s understanding of the . . . range of punishments
to which he is subjecting himself by entering a plea . . . ."

Id.    (citing        Bangert,      132     Wis.        2d       at    262;     Wis.     Stat.
§ 971.08(1)(a)).            However, a circuit court's failure to comply
with the above duties is not a per se due process violation, as
it is possible that the defendant may learn of the implications
of his or her plea from another source.                           See Bangert, 131 Wis.
2d at 272-76.              That is why we consider the totality of the
circumstances         in    determining         the     knowing,       intelligent,        and
voluntary nature of a plea.               Id. at 258.
       ¶27    The bottom line is that a plea made in ignorance of
its    direct       consequences      is        not     knowing,       intelligent,       and
voluntary.       In such situations, the plea "has been obtained in
violation of due process and is therefore void."                                McCarthy v.
United States, 394 U.S. 459, 466 (1969).
                                            B. Error


                                            13
                                                                     No.        2012AP2782-CR



        ¶28    We    now    turn   to   consider        whether    the     circuit     court
erred in excluding the additional evidence the State sought to
submit to prove that Chamblis possessed a sixth prior drunk-
driving related conviction for the purpose of increasing his
punishment.          As noted, the circuit court determined that the
additional evidence was untimely.                     Its reasoning was two-fold:
(1)     Chamblis      could     not     enter     a     knowing,    intelligent,         and
voluntary guilty plea without understanding the precise minimum
and maximum penalties associated with the plea; and (2) it was
unfair to put off the plea date given the State's action in
delaying       the    proceedings       by   failing       to   obtain     the     evidence
sooner.

        ¶29    The    parties      focus     their      arguments    on     whether      the
circuit court mistakenly believed it needed to determine the
number of prior convictions that would count toward sentencing
before accepting Chamblis's guilty plea.
        ¶30    Chamblis argues that in the context of a guilty plea a
circuit court must determine the number of prior convictions
that will count toward sentencing before accepting the plea.
According       to    Chamblis,       this   is    to    ensure     that    a     defendant
understands the direct consequences of his or her plea.                                   To
support       his    position,     Chamblis       notes     that    under       Wis.   Stat.
§ 346.65(2)(am), the number of prior convictions influences the
severity of a defendant's punishment for operating with a PAC.

        ¶31    The State contends that it has until sentencing to
prove     the       prior    convictions,         citing     to    our     decisions      in
McAllister and Wideman for support.                        It also argues that the
                                             14
                                                                         No.        2012AP2782-CR



statutory scheme governing the penalties for operating with a
PAC requires that a circuit court determine the number of prior
convictions      at    the    time      of       sentencing,     once    a     defendant     has
pleaded guilty or no contest or been found guilty at trial.
Where a defendant wishes to enter a guilty plea and disputes the
number of prior convictions, the State maintains that a circuit
court could simply advise the defendant of the different ranges
of punishment that he or she might face depending on how the
issue is resolved.           For example, in this case, the circuit court
could    have    informed        Chamblis         of     the   range    of   penalties       for
operating       with   a     PAC   as     a      sixth    offense      and     as    a   seventh
offense.

        ¶32    The circuit court correctly recognized that there are
situations in which a determination of prior convictions for
sentence enhancement should be made before accepting a guilty
plea in order to ensure the knowing, intelligent, and voluntary
nature    of    the    plea.         In      a    case    like   this     one,       where   the
defendant disputes the number of prior convictions and the issue
affects the range of punishment he faces upon conviction, the
better practice is to determine the number of prior convictions
before    accepting        the     plea.           This    assures      that    a     defendant
understands the direct consequences of his or her plea.
        ¶33    Our decisions in McAllister and Wideman do not compel
a   different     conclusion.             In      McAllister,      we    held       that   prior
violations of Wis. Stat. § 346.63(1) are not "elements of the
crime of driving or operating a motor vehicle while under the
influence of an intoxicant or a controlled substance, thereby
                                                  15
                                                                  No.     2012AP2782-CR



requiring that the question of their existence be submitted to
the jury."     McAllister, 107 Wis. 2d at 532-33.                   In Wideman, we
concluded that the requirements for establishing prior offenses
set forth in Wis. Stat. § 973.12(1), the general repeat offender
statute, are not applicable to establishing prior offenses under
Wis. Stat. § 346.65(2), the OWI/PAC penalty enhancement statute.
Wideman, 206 Wis. 2d at 94-95.               In both cases, we made general
statements supporting the proposition that the State may prove
prior drunk-driving related convictions for sentence enhancement
"before sentencing" or "at sentencing."                     See McAllister, 107
Wis. 2d at 539; Wideman, 206 Wis. 2d at 108.                   However, in both
McAllister    and     Wideman,    the   defendant     was    convicted       after     a

trial in which the State did not need to prove the prior drunk-
driving     related       convictions   to     meet   the     elements        of     the
substantive charge.          McAllister, 107 Wis. 2d at 532-33.                    Thus,
McAllister and Wideman are inapposite, as neither case dealt
with the constitutional considerations that are at stake where a
defendant wishes to enter a guilty plea and disputes the number
of prior convictions that will count toward enhancing his or her
punishment.
     ¶34     The     statutory    scheme      governing     the     penalties       for
operating     with    a    PAC   does   not    undermine      our       determination
either.     The State argues that the plain language of Wis. Stat.
§§ 343.307(1)10 and 346.65(2)(am)611 provides that the time for

     10
       Wisconsin     Stat.           § 343.307(1),           entitled  "Prior
convictions, suspensions,           or revocations          to be counted as
offenses," provides:

                                        16
                                                No.   2012AP2782-CR




    (1) The court shall count the following to determine
    the length of a revocation under s. 343.30(1q)(b) and
    to determine the penalty under ss. 114.09(2) and
    346.65(2):

    (a) Convictions for violations under s. 346.63(1), or
    a local ordinance in conformity with that section.

    (b) Convictions for violations of a law of a federally
    recognized American Indian tribe or band in this state
    in conformity with s. 346.63(1).

    (c) Convictions for violations under s. 346.63(2) or
    940.25, or s. 940.09 where the offense involved the
    use of a vehicle.

    (d) Convictions under the law of another jurisdiction
    that prohibits a person from refusing chemical testing
    or using a motor vehicle while intoxicated or under
    the influence of a controlled substance or controlled
    substance analog, or a combination thereof; with an
    excess or specified range of alcohol concentration;
    while under the influence of any drug to a degree that
    renders the person incapable of safely driving; or
    while having a detectable amount of a restricted
    controlled substance in his or her blood, as those or
    substantially   similar  terms   are   used  in   that
    jurisdiction's laws.

    (e) Operating privilege suspensions or revocations
    under the law of another jurisdiction arising out of a
    refusal to submit to chemical testing.

    (f) Revocations under s. 343.305(10).

    (g) Convictions for violations under s. 114.09(1)(b)1.
    or 1m.
    11
       Wisconsin Stat. § 346.65(2)(am)6 provides that "any
person violating s. 346.63(1) . . . is guilty of a Class G
felony if the number of convictions under ss. 940.09(1) and
940.25 in the person's lifetime, plus the total number of
suspensions, revocations, and other convictions counted under s.
343.307(1), equals 7, 8, or 9 . . . ."




                               17
                                                                        No.        2012AP2782-CR



counting       the     number       of     prior       convictions         for          sentence
enhancement is at sentencing, once there has been a conviction
for the underlying offense.                   Under the State's interpretation,
there will be instances in which a defendant enters a guilty
plea    without       understanding           the    direct      consequences           of     that
decision.        Specifically,          the    State       reasons,   "[i]n        a    case     in
which    the    court      does     not    impose      sentence       immediately             after
accepting       the    plea,      the     court      cannot      definitely            tell    the
defendant      how    many     convictions          will    be   counted      because,          the
court cannot know how many convictions the defendant will have
at the time of sentencing."
        ¶35    We see nothing in the plain language of Wis. Stat.

§§ 343.307(1) and 346.65(2)(am)6 that prevents a circuit court
from determining the number of prior convictions that will count
toward sentencing prior to accepting a plea in order to ensure
the knowing, intelligent, and voluntary nature of the plea.                                      We
further        note     that        the        State's        interpretation              raises
constitutional concerns that we wish to avoid.                             See Am. Family
Mut. Ins. Co. v. Wisconsin Dep't of Revenue, 222 Wis. 2d 650,
667,    586    N.W.2d      872    (1998)       ("A    cardinal      rule      of       statutory
interpretation        is     that    the      legislature        intended      to       adopt     a




                                               18
                                                                  No.    2012AP2782-CR



constitutional statute and that a court should preserve a law
and hold it constitutional when possible.").12
        ¶36    We acknowledge the State's contention that in a case
like this one, a circuit court could ensure that a defendant
understands          the   direct   consequences     of   his    or     her   plea   by
informing the defendant of the different ranges of punishment
that are possible depending on how many prior convictions the
State        later     establishes.          While   that       approach      may    be
constitutionally permissible in a particular case, we note that
the   penalty        ranges   could   vary    dramatically      depending      on    the
number of prior convictions the defendant disputes.                           See Wis.
Stat. § 346.65(2)(am)1.-7.            For that reason, the better practice

in this type of situation is to determine the number of prior
convictions that will count toward sentencing prior to accepting
the plea.
        ¶37    Although we conclude that the circuit court correctly
recognized the need to determine the number of prior convictions
before accepting Chamblis's guilty plea, the question remains
whether       the     circuit   court   reasonably        excluded      the    State's
additional evidence of the purported Illinois conviction after
explicitly welcoming the evidence a week earlier.

        12
       In apparent recognition of the constitutional problems
created by its statutory construction, the State suggests that
"any problem that result[s] from counting convictions after
entry of a guilty plea could be easily remedied by a motion to
withdraw the plea." But as discussed in section C(ii) below, a
defendant may not wish to withdraw his or her guilty plea, and
requiring the defendant to do so raises its own constitutional
concerns.

                                         19
                                                                          No.     2012AP2782-CR



      ¶38    At    the    motion    hearing         on    September        12,     2012,     the
circuit court made several statements indicating that it would
consider additional evidence of the alleged Illinois conviction
if the State came up with anything.                            Two days later, at the
final pre-trial hearing, the parties informed the circuit court
that Chamblis wished to enter a guilty plea.                               Notwithstanding
the circuit court's inclination to determine the number of prior
convictions that would count toward sentencing before accepting
the plea, there was no discussion of the status of the purported
Illinois conviction.          Under these circumstances, we can see why
the   prosecutor      thought      he    had    time      to    submit     the    additional
evidence.

      ¶39    That said, our review of the plea hearing transcript
indicates that the circuit court was extremely frustrated with
the manner in which the State prosecuted this case.                                      As we
explained     at    the    outset       of   this    opinion,       the     issue       of   the
alleged Illinois conviction appeared to delay the resolution of
this matter.        Given the situation presented, we understand the
circuit     court's      desire    to    move      the    case     forward        and   accept
Chamblis's guilty plea at the September 19 hearing.                                 Thus, we
assume,     without       deciding,      that       the    circuit        court     erred     in
excluding     the     State's      additional         evidence       of     the     purported
Illinois conviction.
                                             C. Remedy

                           i. The court of appeals' remedy
      ¶40    Assuming      error,       we   proceed      to     consider        whether     the
court of appeals' remedy in this case——a remand to the circuit
                                              20
                                                                           No.        2012AP2782-CR



court       with      instructions        to     enter       an     amended       judgment      of
conviction for operating with a PAC as a seventh offense and
impose sentence for a seventh offense——violates Chamblis's right
to    due      process        by     rendering       his      guilty       plea       unknowing,
unintelligent, and involuntary.
        ¶41    Chamblis       argues      that      the     court    of    appeals'        remedy
invalidates his guilty plea.                     He maintains that he entered a
guilty plea to the charge of operating with a PAC as a sixth
offense with an understanding that, as a direct consequence of
his decision, he faced a maximum penalty of 6 years imprisonment
and     a     $10,000      fine.         He    notes      that      the    maximum        penalty
commensurate with a conviction for operating with a PAC as a

seventh offense is more punitive: 10 years imprisonment and a
$25,000       fine.          Thus,      according      to    Chamblis,        the       court   of
appeals'            remedy      renders        his          guilty        plea        unknowing,
unintelligent, and involuntary, thereby violating his right to
due     process       by     subjecting        him     to     a     greater       sentence      of
imprisonment than that which he was told he could receive upon
pleading        guilty.            He   further      contends        that        it    would    be
fundamentally unfair to resentence him because he has already
served        the     confinement        portion       of     his     originally          imposed
sentence.
        ¶42    The State argues that the court of appeals' remedy
does not invalidate Chamblis's guilty plea.                               According to the

State, the court of appeals correctly determined that Chamblis
understood that he could be sentenced for a seventh offense upon
pleading guilty.             The State further submits that it would not be
                                               21
                                                                         No.      2012AP2782-CR



fundamentally unfair to resentence Chamblis consistent with a
seventh offense because he knew the State would be appealing the
circuit court's evidentiary ruling.                        Thus, the State maintains
that Chamblis cannot reasonably claim an expectation of finality
in his sentence.
      ¶43     We    agree     with      Chamblis       that   the    court     of       appeals'
remedy   in      this       case   violates       his      right    to   due      process       by
rendering       his      guilty         plea     unknowing,         unintelligent,             and
involuntary.
      ¶44     The record clearly establishes that Chamblis entered a
knowing, intelligent, and voluntary guilty plea to the charge of
operating       with    a    PAC   as    a     sixth    offense,      not    as     a    seventh

offense.        Initially, there was confusion regarding the direct
consequences of Chamblis's plea: it was unclear whether Chamblis
was   pleading         guilty      to    a     sixth    offense——a       Class      H    felony
carrying    a      maximum      punishment       of    6   years    imprisonment          and    a
$10,000 fine——or a seventh offense——a Class G felony carrying a
maximum punishment of 10 years imprisonment and a $25,000 fine.
However,    the        circuit     court       dispelled      all    confusion          once    it
engaged Chamblis in the plea colloquy mandated by Wis. Stat.
§ 971.08.
      ¶45     At the outset of the plea colloquy, the circuit court
clarified that it was proceeding with a plea to the charge of
operating with a PAC as a sixth offense.                       It then asked Chamblis

whether he understood the plea agreement.                          Chamblis responded "I
do now, sir."          The circuit court informed Chamblis that the plea
carried a minimum penalty of 6 months imprisonment and a $600
                                                22
                                                                  No.   2012AP2782-CR



fine and a maximum penalty of 6 years imprisonment and a $10,000
fine.     Chamblis stated that he understood the penalty range and
pleaded guilty.
        ¶46   Later in the plea colloquy, the circuit court ensured
that Chamblis's plea was knowing, intelligent, and voluntary to
the charge of operating with a PAC as a sixth offense:

        THE COURT: Is there anything about your case that you
        don't understand at this point?

        THE DEFENDANT:       I   didn't   [understand]       at    first,    but
        now, no, sir.

        THE COURT: Okay. You feel like you fully understand
        everything?

        THE DEFENDANT: Yes.

        THE COURT: And it's been sort of a complicated matter.
        Do you feel you have a clear understanding of what
        these issues are?

        THE DEFENDANT: Yes.

        THE COURT: Okay. Do you understand the Court's not
        bound by any sentencing recommendation or any other
        plea agreement or any arguments made by any of the
        attorneys at the time of sentencing? Do you understand
        that?

        THE DEFENDANT: Yes, sir.

        THE COURT: And in fact, upon your plea of guilty, the
        court may impose a maximum penalty in spite of any
        agreement?

        THE DEFENDANT: Yes, sir.
Of   course,        the   maximum   penalty    to    which   the    circuit     court
referred      and    Chamblis    understood    was    that   associated       with    a
sixth offense: 6 years imprisonment and a $10,000 fine.                            The
plea    colloquy      therefore     demonstrates     that    Chamblis       entered   a

                                          23
                                                                                No.    2012AP2782-CR



knowing,       intelligent,            and    voluntary          guilty      plea     to    operating
with a PAC as a sixth offense, not as a seventh offense.
        ¶47    However, as noted, we are not confined to the plea
colloquy        in        evaluating          Chamblis's          due     process          challenge.
Rather,       we     consider          the     totality          of    the     circumstances        in
determining the knowing, intelligent, and voluntary nature of
his plea.          Bangert, 131 Wis. 2d at 258.                        That means we consider
other portions of the record to determine if Chamblis understood
that, as a direct consequence of his plea, he could be sentenced
for a seventh offense.
        ¶48    The court of appeals found significance in the fact
that defense counsel had stated on the record the minimum and

maximum       penalties         associated          with     a   conviction         for     operating
with a PAC as a seventh offense.                           But these statements occurred
prior    to     the       circuit       court's          explicit      determination         that    it
would         accept       a    plea    only        to    the    lower       charge    of    a    sixth
offense.        In fact, as we indicated above, the record clearly
establishes          that        Chamblis       did        not        understand       the       direct
consequences of his plea at the time in which these statements
were made.           That is precisely why we require the circuit court
to personally engage the defendant in ascertaining the knowing,
intelligent, and voluntary nature of a plea.                                     See Brown, 293
Wis.    2d     594,       ¶¶50-52.           Given        that   the     circuit      court       later
informed       Chamblis         that     the    minimum          and    maximum       penalties      he
faced were those commensurate with a sixth offense, it cannot
reasonably           be        argued        that        defense        counsel's          statements


                                                     24
                                                                    No.    2012AP2782-CR



demonstrate that Chamblis's plea was knowing, intelligent, and
voluntary to a seventh offense.
       ¶49   The court of appeals also found it important that the
"Plea Questionnaire/Waiver of Rights" form indicated a maximum
punishment        consistent      with    a     seventh      offense:       10    years
imprisonment and a $25,000 fine.                  However, similar to defense
counsel's statements, the "Plea Questionnaire/Waiver of Rights"
form    is   of    marginal    value     to    the   present      issue.      Chamblis
executed     the    form   a     day   before     his     plea    hearing    amid   the
uncertainty regarding the direct consequences of his plea.13                            We
further note that the form did not list the minimum penalty
corresponding to a seventh offense.                  This deficiency exemplifies

why a plea questionnaire is not a substitute for the circuit
court personally addressing the defendant to ensure that he or
she understands the implications the plea.                       See id., ¶52.      Put
simply, the "Plea Questionnaire/Waiver of Rights" form, executed
prior to the plea colloquy in this case, does not establish that
Chamblis's plea was knowing, intelligent, and voluntary to a
seventh offense.
       ¶50   Considering       the     totality      of   the     circumstances,        we
conclude that Chamblis entered into a plea agreement with an
understanding       that   the    minimum      penalty     he    could     face   was    6
months imprisonment and a $600 fine and the maximum penalty he
could face was 6 years imprisonment and a $10,000 fine.                             That

       13
       The "Plea Questionnaire/Waiver of Rights" form is dated
September 18, 2012.    Chamblis’s plea hearing took place on
September 19, 2012.

                                          25
                                                                          No.      2012AP2782-CR



means    Chamblis       entered       a    knowing,       intelligent,        and      voluntary
guilty plea to operating with a PAC as a sixth offense, not as a
seventh       offense.        Thus,       the     court    of    appeals'         remedy     which
subjects Chamblis to a greater sentence of imprisonment than
that which he was told he could receive upon pleading guilty
violates his right to due process.
                             ii. The State's proposed remedy
        ¶51    In its brief and at oral argument, the State argued
that even if the court of appeals' remedy violates Chamblis's
right to due process, the proper remedy is to allow Chamblis to
withdraw his guilty plea.                   Drawing on Bangert, 131 Wis. 2d at
283, the State maintains that plea withdrawal is the exclusive

remedy for a defendant's plea being unknowing, unintelligent,
and    involuntary.           While       that     may    be    true    where      a   defendant
appeals his or her conviction seeking plea withdrawal, that is
hardly the situation we have here.
        ¶52    In Bangert, we set forth a burden-shifting procedure
for    circuit       courts    to     follow       when    faced       with   a    defendant's
motion to withdraw his or her guilty or no contest plea on the
basis that it was not knowing, intelligent, and voluntary.                                    See
Bangert,       131    Wis.     2d     at        274-76.         That    procedure       is    not
implicated in the instant action because Chamblis neither filed
a     motion    to     withdraw           his     guilty       plea    nor      appealed      his
conviction.          Indeed, defense counsel made clear at oral argument
that Chamblis does not wish to withdraw his guilty plea.
        ¶53    The State suggests that Chamblis should be required to
withdraw his plea anyway.                   According to the State, Chamblis is
                                                  26
                                                                    No.      2012AP2782-CR



not    entitled    to   conviction    and       sentence      for   a    sixth      offense
because the evidence shows that he already possessed six prior
drunk-driving       related   convictions        when    he    entered        his    guilty
plea in this case.14           Colloquially speaking, the State argues
that    Chamblis     should   not    get    a    "free      pass"   on       the    circuit
court's purported mistake.
       ¶54    We find it fundamentally unfair and thus violative of
due process to require Chamblis to withdraw his guilty plea in
this    case.15      "[T]he    concern      of    due    process        is   fundamental
fairness."      State ex rel. Lyons v. De Valk, 47 Wis. 2d 200, 205,
177 N.W.2d 106 (1970).           "'[D]ue process is flexible and calls
for    such   procedural      protections        as   the     particular       situation

demands.'"        Gilbert v. Homar, 520 U.S. 924, 930 (1997) (quoting
Morrissey v. Brewer, 408 U.S. 471, 481 (1972)).
       ¶55    Here, we can think of at least a couple reasons that
requiring Chamblis to withdraw his guilty plea is fundamentally
unfair.       First and foremost, forced plea withdrawal deprives
Chamblis of the benefit of his bargain.                     "A criminal defendant
has a constitutional right to the enforcement of a negotiated
plea agreement."         State v. Smith, 207 Wis. 2d 258, 271, 558


       14
       Chamblis did not appeal the portion of the court of
appeals' decision that concluded the State had sufficiently
proved the prior Illinois conviction.
       15
       In response to a question at oral argument, defense
counsel maintained that Chamblis could not be required to
withdraw his guilty plea without violating his constitutional
right to be free from double jeopardy. We choose not to address
that argument because it was not briefed by the parties.

                                           27
                                                                        No.     2012AP2782-CR



N.W.2d 379 (1997).           "'Although a defendant has no right to call
upon the prosecution to perform while the agreement is wholly
executory, once the defendant has given up his bargaining chip
by pleading guilty, due process requires that the defendant's
expectations be fulfilled.'"               Id. (citation omitted).
      ¶56     A substantial number of plea bargains are "no doubt
motivated at least in part by the hope or assurance of a lesser
penalty than might be imposed if there were a guilty verdict
after a trial to judge or jury."                     Brady, 397 U.S. at 752.             This
case is no different.           Chamblis entered into the plea agreement
with the hope that he would face a less severe penalty than if
he went to trial.           As noted, the State agreed to dismiss charges

of OWI as a repeater, obstructing an officer as a repeater, and
battery      by   prisoner      in     exchange         for      Chamblis's      plea     and
voluntary waiver of constitutional rights.                         Thus, a forced plea
withdrawal in this case subjects Chamblis to greater punishment,
not just with respect to the charge of operating with a PAC, but
to   these    additional      charges      as     well.       That      is    fundamentally
unfair,      particularly     in     light      of    the   fact     that     Chamblis   has
already served the 2 year confinement portion of his originally
imposed sentence and therefore has an expectation of finality in
that sentence.
      ¶57     Second, we note that the State was not without options
to   avoid    this    dilemma.         For      example,      the    State      could    have
withdrawn      its   plea    offer    in     response       to    the    circuit    court's
determination that it would accept a plea only to the lower
charge.      In fact, the circuit court went out of its way to give
                                             28
                                                      No.    2012AP2782-CR



the prosecutor and defense counsel an opportunity to discuss
whether the State wished to proceed with the plea given the
evidentiary ruling.      The State then could have sought review of
the circuit court's decision by filing a petition for leave to
appeal a non-final order pursuant to Wis. Stat. § 808.03(2).16
However, the State chose to go through with the plea agreement
anyway, despite the constitutional implications, perhaps because
it too benefits from such a bargain.      Id. ("For the State there
are also advantages—the more promptly imposed punishment after
an admission of guilt may more effectively attain the objectives
of punishment; and with the avoidance of trial, scarce judicial
and prosecutorial resources are conserved for those cases in

which there is a substantial issue of the defendant's guilt or
in which there is substantial doubt that the State can sustain
its burden of proof.").

     16
          Wisconsin Stat. § 808.03(2) provides:

     Appeals by permission. A judgment or order not
     appealable as a matter of right under sub. (1) may be
     appealed to the court of appeals in advance of a final
     judgment or order upon leave granted by the court if
     it determines that an appeal will:

     (a)   Materially advance the  termination              of   the
     litigation or clarify further proceedings              in   the
     litigation;

     (b)   Protect  the   petitioner    from      substantial     or
     irreparable injury; or

     (c) Clarify an issue of       general   importance     in   the
     administration of justice.



                                  29
                                                                          No.   2012AP2782-CR



       ¶58    For these reasons, we reject the State's contention
that plea withdrawal is an appropriate remedy in this case.
                                           IV. CONCLUSION
       ¶59    We assume, without deciding, that the circuit court
erred in excluding the additional evidence the State sought to
submit to enhance Chamblis's punishment.
       ¶60    Although we assume error, we hold that the court of
appeals' decision remanding the case to the circuit court with
instructions        to    enter       an   amended      judgment    of     conviction     for
operating with a PAC as a seventh offense and impose sentence
for a seventh offense violates Chamblis's right to due process.
Chamblis entered a knowing, intelligent, and voluntary guilty

plea   to    operating         with    a   PAC    as    a   sixth   offense,     not    as    a
seventh offense.               Because a seventh offense carries a greater
range of punishment than does a sixth offense, the court of
appeals'           remedy        renders          Chamblis's          plea      unknowing,
unintelligent,           and    involuntary.           We   further      conclude   that      a
remedy which requires Chamblis to withdraw his guilty plea is
fundamentally unfair and thus violative of due process under the
facts of this case.
       ¶61    Accordingly, we reverse the decision of the court of
appeals and uphold Chamblis's conviction.
       By    the    Court.—The         decision        of   the   court    of   appeals      is
reversed.




                                                 30
                                                                No.    2012AP2782-CR.akz




     ¶62    ANNETTE       KINGSLAND             ZIEGLER,         J.         (concurring).
Although I join the majority opinion, I depart from the majority
analysis because I would not assume without deciding that the
circuit court erred by excluding the State's proffered evidence
of two Illinois convictions.             Instead, I would conclude that the
circuit    court    did   not     err     because    it    did        not     erroneously
exercise its discretion.1         A circuit court's decision to admit or
exclude evidence is "'entitled to great deference.'"                              State v.

Jackson,    2014    WI    4,    ¶45,     352     Wis. 2d 249,         841     N.W.2d 791
(quoting State v. Head, 2002 WI 99, ¶43, 255 Wis. 2d 194, 648
N.W.2d 413).       "'This court will not disturb a circuit court's
decision to admit or exclude evidence unless the circuit court
erroneously     exercised       its     discretion.'"           Id.,        ¶43   (quoting
Weborg     v.   Jenny,    2012    WI      67,    ¶41,     341    Wis. 2d 668,          816
N.W.2d 191).




     1
       It is unclear why the majority opinion does not explicitly
hold that the circuit court did not erroneously exercise its
discretion. The court of appeals in the present case held "that
the circuit court erroneously exercised its discretion when, at
the September 19 plea hearing, it excluded the additional
evidence of the purported Illinois conviction as 'too late.'"
State v. Chamblis, No. 2012AP2782-CR, unpublished order, ¶21
(Wis. Ct. App. May 29, 2014).     The court of appeals reasoned
that the circuit court erred because, under State v. Wideman,
206 Wis. 2d 91, 556 N.W.2d 737 (1996), and State v. McAllister,
107 Wis. 2d 532, 319 N.W.2d 865 (1982), the State was not
required to prove the number of Chamblis's prior convictions
until the sentencing hearing. Id. The majority opinion rejects
that view of Wideman and McAllister.      Majority op., ¶¶31-33.
Thus, the majority opinion seems to implicitly conclude that the
circuit court did not err.

                                           1
                                                                       No.   2012AP2782-CR.akz


        ¶63   At     the      plea    hearing,       the    circuit    court     denied       the
State's       request         to    submit     additional        evidence      of     Illinois
convictions at a later hearing, deeming this request "too late."
The State made that request seven days after the circuit court
held that the State's original evidence was insufficient, six
weeks    after      Chamblis         filed   a   motion       challenging       the    State's
evidence, and six months after the State learned that Chamblis
was going to challenge its evidence.                          Ultimately, the circuit
court reasoned that "this case has been set for trial a long

time," the State "had plenty of time" to prove the number of
Chamblis's         prior      convictions,       and    the    court    did    not     wish    to
delay the case any longer.                   Under the facts of this case, the
circuit court's decision to exclude the proffered evidence was
well    within      its       discretion.        A     contrary      conclusion       not   only
raises concern regarding fairness and the ability of a defendant
to knowingly, intelligently, and voluntarily plead but also, it
neuters the court's ability to control the docket and calendar.

In the case at issue the court correctly determined that the
time had come for the parties to know the scope of the charges
and the potential penalties.                   While a court is endowed with the
ability       to     allow         amendment     of        charges     under    appropriate
circumstances,            a    circuit       court      should       likewise       have      the
discretion to say enough is enough, as the court did here.
                                   I. PROCEDURAL HISTORY
        ¶64   A discussion of the procedural history of this case
demonstrates why the circuit court appropriately exercised its
discretion when it excluded the State's after-the-fact, "last

                                                 2
                                                                     No.    2012AP2782-CR.akz


second," proffer of evidence.                     On November 22, 2011, Chamblis
was arrested, he appeared at a bond hearing, and $5,000 cash
bail was set.              Unable to post bail, he remained in custody
throughout this case.                Eight days later, on November 30, the
State       filed      a    complaint       and     Chamblis        made     his     initial
appearance.         The complaint charged Chamblis with operating while
intoxicated ("OWI") (fifth or sixth offense) and operating with
a   prohibited         alcohol      concentration         ("PAC")        (fifth     or    sixth
offense).        The complaint alleged that he had five prior drunk

driving       convictions         from   Minnesota.         On    December     7,    2011,      a
preliminary examination was held and Chamblis was bound over for
trial.        At the end of the preliminary hearing, the State filed
an information and Chamblis pled not guilty.                               The information
contained the same charges as the complaint.                         Two days later, on
December 9, Chamblis filed a demand for a speedy trial.2

        ¶65    On    December        12,   2011,      the        court     scheduled       jury
selection for February 27, 2012.                         Sometime in mid- to late-

December, the court scheduled a jury trial for March 2, 2012.3
On December 27 the State sent an e-mail to the circuit court,
requesting       that       the    trial   date     be    moved     ahead     one        day   to
March 1.         The       State    made   this    request        because     its    analyst
witness was unavailable to testify on March 2.                              On January 4,

        2
            Chamblis withdrew this demand on May 25, 2012.
        3
       The record does not indicate precisely when the court
scheduled the trial for March 2, 2012. The only reference that
the record makes to a trial date of March 2 is an e-mail from
the State to the circuit court, dated December 27, 2011, in
which the State requested moving the trial date from March 2 to
March 1.

                                              3
                                                                No.   2012AP2782-CR.akz


2012, the court granted the State's request and rescheduled the
jury trial for March 1.
        ¶66    On   January    12,     2012,     the    State     filed    an   amended
information, which charged Chamblis with OWI (seventh, eighth,
or ninth offense) and operating with a PAC (seventh, eighth, or
ninth offense).           The amended information alleged the same five
prior       convictions    from      Minnesota     that    were    alleged      in   the
complaint and original information and an additional two prior
convictions from Illinois.

        ¶67    On January 23, 2012, the circuit court moved the trial
date to March 8, 2012, because the State's analyst witness was
unavailable on the date for which the trial had been scheduled.
        ¶68    On January 30, 2012, Chamblis's attorney withdrew from
representation.           On   February    9     the    State     Public    Defender's
Office assigned replacement counsel.                   On February 14 the circuit
court entered an order appointing the new counsel.
        ¶69    Sometime shortly after being appointed, Chamblis's new

attorney informed the State that Chamblis intended to challenge
the alleged Illinois convictions.4
        ¶70    On February 15, 2012, the circuit court held a hearing
that was scheduled to be a final pre-trial hearing.                         Chamblis's

        4
       As Chamblis's new attorney explained several months later
at the plea hearing on September 19, 2012, "I've been
complaining about [the sufficiency of the State's evidence of
Illinois convictions] for the last, over six months.        [The
District Attorney's Office and I] have had numerous e-mails
going back and forth."      The circuit court found Chamblis's
attorney credible, stating that "[t]he issue was flagged a long
time ago to the Court and I'm sure it was flagged, I trust
[Chamblis's counsel] is saying that he told the District
Attorney's office about this six months ago."

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                                                                     No.   2012AP2782-CR.akz


new   attorney     did    not    appear      because      he    was    unaware     of     this
hearing, as he was appointed counsel the previous day.                                    In a
letter    to    the     court    dated    February        15,    Chamblis's        attorney
stated that he has "not had a chance to review the file, let
alone decide whether to proceed to trial."                            He requested that
the court remove the case from the trial calendar and schedule
the case for a status conference.                       On February 17 the court
granted that request.
        ¶71    At a March 20 status conference, the circuit court

rescheduled jury selection for June 11, and the jury trial for
June 15, 2012.
        ¶72    On May 25, 2012, the circuit court held another final
pre-trial      hearing.         Chamblis's       attorney       informed     the     circuit
court that he had another trial scheduled for the same day as
the trial in this case.             Accordingly, the court rescheduled jury
selection for September 24 and a jury trial for September 26,
2012.

        ¶73    On August 6, 2012, Chamblis filed a motion challenging
the   Illinois     convictions        alleged      in    the    amended      information.
The   State's     deadline      for    filing     a     brief    in    response      to    the
motion was August 22.             However, the State did not file a brief
until September 5, two weeks late.
        ¶74    Two weeks before trial, on Wednesday, September 12,
2012,    the    circuit    court      held   a    hearing       on    Chamblis's     motion
challenging       the     alleged      Illinois         convictions.           The      court
determined that the State's evidence did not prove that Chamblis
was convicted in Illinois of a drunk driving-related offense.

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                                                                     No.   2012AP2782-CR.akz


The     court         stated         that         "if . . . more           evidence         is
supplied, . . . we will review it at that point in time . . . ."
       ¶75     Two days later, on September 14, the circuit court
held a final pre-trial hearing.                     This hearing was very brief,
and    no     one    mentioned       the    status     of      the    alleged     Illinois
convictions.          Chamblis's       attorney        informed         the   court        that
Chamblis would like to plead guilty.                          He further informed the
court that a sentencing hearing should be held on a later date
than the plea hearing because the State would be requesting a

presentence investigation.
       ¶76     On Wednesday, September 19, 2012, the circuit court
held a plea hearing.            Chamblis's attorney stated that, pursuant
to a plea agreement, Chamblis would plead guilty to operating
with a PAC as a fourth offense or greater.                           At that time, the
pending charges were still those alleged in the January 2012
amended       information,      namely       OWI    (seventh,        eighth,     or    ninth
offense) and operating with a PAC (seventh, eighth, or ninth

offense).       The State explained that it wished to make an offer
of    proof    regarding     the      alleged       Illinois      convictions         at   the
sentencing hearing, which would be held at a later date.                                    An
Illinois conviction would have made Chamblis's PAC offense in
the present case a seventh, rather than sixth, offense.
       ¶77     The   mandatory        minimum       and       maximum      penalties       for
Chamblis's offense varied greatly depending on whether it was a
sixth or seventh offense.              A person who is convicted of a fifth
or sixth OWI or PAC offense "shall be fined not less than $600
and    imprisoned      for     not    less     than       6    months."        Wis.    Stat.

                                              6
                                                                           No.    2012AP2782-CR.akz


§ 346.65(2)(am)5.                   The maximum penalty for that offense is "a
fine    not        to    exceed       $10,000      or    imprisonment       not     to    exceed    6
years,        or        both."         Wis.     Stat.       §     939.50(3)(h);          see     also
§ 346.65(2)(am)5.                   By contrast, a person who is convicted of a
seventh, eighth, or ninth OWI or PAC offense "shall [receive] a
bifurcated          sentence . . . and              the     confinement          portion    of    the
bifurcated sentence . . . shall be not less than 3 years."                                       Wis.
Stat. § 346.65(2)(am)6. (2013-14); see also State v. Williams,
2014 WI 64, ¶47, 355 Wis. 2d 581, 852 N.W.2d 467.                                    The maximum

penalty for that offense is "a fine not to exceed $25,000 or
imprisonment not to exceed 10 years, or both."                                   § 939.50(3)(g);
see    also        § 346.65(2)(am)6.                Thus,    if    the     State    proved       that

Chamblis       had        an     Illinois       conviction,        his     mandatory        minimum
penalty would increase from six months of imprisonment to three
years    of        confinement.           Similarly,         his    maximum       penalty      would
increase       from           six    years    of        imprisonment       to     ten    years     of
imprisonment.                 Chamblis did not plead to charges that carried

the higher penalties.
        ¶78    At the plea hearing, the court stated that it was "not
going to consider the new evidence" because that evidence was
being offered "way too late."                        As Chamblis' attorney explained,
"I've been complaining about [the sufficiency of the State's
evidence of Illinois convictions] for the last, over six months.
[The District Attorney's Office and I] have had numerous e-mails
going    back           and    forth."        The       circuit    court    found        Chamblis's
attorney credible, stating that "[t]he issue was flagged a long
time ago to the Court and I'm sure it was flagged, I trust

                                                    7
                                                                                No.    2012AP2782-CR.akz


[Chamblis's          counsel]        is       saying      that        he    told        the     District
Attorney's          office    about           this   six        months          ago."         The   court
explained how "frustrating" it was that the case had not been
resolved already.             The court noted that "this case has been set
for trial a long time."                       The court explained that the dispute
over the alleged Illinois convictions had prevented "this case
[from being] resolved in a way that would have made more sense
months ago."
        ¶79    The court explained that the State contributed to the

delay of this case.                  According to the court, the State "had
plenty        of    time"     to     prove       the      number           of    Chamblis's         prior
convictions and "did not take this [matter] seriously enough."
The court further noted that the State was two weeks late in
filing        its    response        to        Chamblis's            motion       challenging          the
Illinois convictions.
        ¶80    The court refused to consider the State's proffered
evidence in part because doing so would further delay resolution

of this case.          The court explained that "I don't think I can do
a     plea     without        [the        number         of     prior       convictions]            being
determined.           It is not a trial with a sentencing at a later
date.        This is a plea.               It's a different type of procedure."
The     court        stated        that         it       "want[ed]              the     determination
of . . . how          many     prior          convictions            [there]          are     before     we
actually enter into the plea, so Mr. Chamblis knows what he's
pleading guilty to."                 The court expressed concern with further
delaying       the     case    for        a     later         plea    hearing,          stating        that
"[d]iscovery requires discovery to be done in a timely fashion,

                                                     8
                                                            No.   2012AP2782-CR.akz


[and] to have this done last second like this . . . continues to
prolong     the    process . . . ."          The   court   also    stated    that,
because Chamblis "sat in jail, days, months, waiting for [the
State to determine his number of prior convictions]," it would
not be "fair to him" to further delay the case by admitting the
State's proffered evidence.            The court concluded that it "can't
justify extending things more" and that "discovery at some point
has to end. . . .       The discovery is done."
     ¶81     The court stated that "[i]f we need to put [this case]

back on the trial calendar, we can."               The court gave the parties
15 to 20 minutes to decide whether to proceed with a guilty plea
to operating with a PAC (fifth or sixth offense).                    The parties
then informed the court that they reached a new plea agreement.
Pursuant to that agreement, Chamblis pled guilty to operating
with a PAC as a sixth offense.                As a result, Chamblis faced a
mandatory    minimum     penalty   of    six    months'    imprisonment      and   a
maximum penalty of six years' imprisonment.

                  II. THE CIRCUIT COURT DID NOT ERRONEOUSLY
                           EXERCISE ITS DISCRETION
     ¶82     "'This     court   will    not     disturb    a   circuit      court's
decision to admit or exclude evidence unless the circuit court

erroneously        exercised    its      discretion.'"            Jackson,     352
Wis. 2d 249, ¶43 (quoting Weborg, 341 Wis. 2d 668, ¶41).                        "'A

circuit court erroneously exercises its discretion if it applies
an improper legal standard or makes a decision not reasonably
supported by the facts of record.'"                 Id. (quoting Weborg, 341
Wis. 2d 668, ¶41).         "'[T]he circuit court's decisions to admit


                                         9
                                                            No.   2012AP2782-CR.akz


or exclude evidence are entitled to great deference . . . .'"
Id., ¶45 (quoting Head, 255 Wis. 2d 194, ¶43).
     ¶83    In the present case, the circuit court's concerns with
fairness to the defendant and controlling the calendar by not
prolonging the case any further were reasonable.5                   Chamblis had
initially requested a speedy trial.                    A jury trial was first
scheduled    for   March   2,    which    was    approximately     three    months
after Chamblis was bound over for trial.                   The trial date was
delayed three months to June 15 and then delayed another three

months to September 26.           Similarly, a final pre-trial hearing
had been scheduled for February, was moved to May, and was then
moved to September.        The plea hearing was held approximately ten
months after the State filed its complaint against Chamblis, and
he remained in custody that entire time awaiting trial.                          The
State learned more than six months before the plea hearing that
Chamblis believed that its evidence failed to prove that he had
Illinois convictions for drunk driving.                 Nevertheless, the State

did not obtain additional evidence of Illinois convictions until
September    14,   which   was    five    days    before    the   plea    hearing.
Further, the State was not prepared to present that additional
evidence at the plea hearing, but instead wished to offer it at
the sentencing hearing at a later date.6
     ¶84    As noted earlier, Chamblis had initially requested a
speedy    trial.     At    the   time    of     that    request   there    was    no


     5
       The majority opinion implicitly recognizes that the
circuit court did not make a mistake of law. See supra note 1.
     6
         The sentencing hearing was held on November 5, 2012.

                                         10
                                                                     No.   2012AP2782-CR.akz


indication that the State wished to amend the charges.                               Had the
case been tried, it appears that the charges would have remained
the charges to which he ultimately pled.                           This is not to say
that the State's hands were tied, but under the facts of this
case the circuit court was not incorrect to conclude that the
State       was    barred    from    essentially         amending      the     charges    and
penalties post-plea.
        ¶85       Under    these     facts,        the    circuit      court      did     not
erroneously          exercise      its    discretion.          A     circuit    court     may

exclude       relevant           evidence     "if        its   probative         value     is
substantially             outweighed . . . by            considerations         of      undue
delay . . . ."            Wis.    Stat.     § 904.03.7         See    also     Wis.     Stat.
§ 802.10(3)(d), (5)(d) (stating that a circuit court may control
its calendar and speedily dispose of actions by setting a time
limit for discovery and ruling on the admissibility of evidence
pre-trial).               Further,       "[c]ircuit       courts      possess        inherent
discretionary authority to control their dockets with economy of

time and effort."            State ex rel. Collins v. Am. Family Mut. Ins.
Co., 153 Wis. 2d 477, 483, 451 N.W.2d 429 (1990) (citing Rupert
v. Home Mut. Ins. Co., 138 Wis. 2d 1, 7, 405 N.W.2d 661 (Ct.
App. 1987)).          See also Hefty v. Strickhouser, 2008 WI 96, ¶31,
312 Wis. 2d 530, 752 N.W.2d 820 ("Wisconsin circuit courts have
discretion to control their dockets.                      This power is inherent to
their function."); Schopper v. Gehring, 210 Wis. 2d 208, 215,
565 N.W.2d 187 (Ct. App. 1997) (citation omitted) ("The trial

        7
       The circuit court's explicit concerns with undue delay
"tacitly invoked" Wis. Stat. § 904.03. See State v. Smith, 2002
WI App 118, ¶16, 254 Wis. 2d 654, 648 N.W.2d 15.

                                              11
                                                                        No.    2012AP2782-CR.akz


court     has       the    inherent         power    to    control      its     calendar          and
scheduling.").            A circuit court's power to control its calendar
"is   essential           to   the    [circuit]          courts'    ability         to    function
because it provides the courts with the authority to control
their judicial business."                   Lentz v. Young, 195 Wis. 2d 457, 465-
66, 536 N.W.2d 451 (Ct. App. 1995) (citing Neylan v. Vorwald,
124 Wis. 2d 85, 94, 368 N.W.2d 648 (1985)).
        ¶86     Accordingly,          the    "courts       cannot     allow     litigants          to
control judicial calendars."                   Sherman v. Heiser, 85 Wis. 2d 246,

254, 270 N.W.2d 397 (1978).                    See also State v. Anthony, 2015 WI
20, ¶76, 361 Wis. 2d 116, 860 N.W.2d 10                             ("'The trial process
would be a shambles if either party had an absolute right to
control       the    time      and    content       of    his   witnesses'          testimony.'"
(quoting Taylor v. Illinois, 484 U.S. 400, 410–411 (1988))).                                      If
we were to conclude that under these facts the circuit court
erroneously denied the State's request to introduce evidence at
a   later      date,      we     would      impermissibly        allow        the    parties       to

control       the    circuit         court's    calendar        and    at      the       same   time
endorse the idea that a defendant need not know the charges to
which he pleads or their penalties.
        ¶87     Chamblis pled guilty to a charge that had different
penalties       than       the    charge       in    the    amended      information            that
included the unproven prior offenses.                              Knowing the potential
penalties is fundamental to entering a knowing, intelligent, and
voluntary plea.                See State v. Byrge, 2000 WI 101, ¶57, 237
Wis. 2d 197,          614        N.W.2d 477         (citation         omitted)           ("When     a
defendant is not aware of the potential punishment, the plea is

                                                12
                                                    No.    2012AP2782-CR.akz


not entered knowingly, voluntarily, and intelligently . . . .").
This case is not one where the circuit court denied the State's
attempt to amend charges to conform to the evidence or to timely
amend charges so that a defendant can be on notice.                  Rather,
this case is one where the State wished to essentially amend the
charges, after a guilty plea, and have the defendant be exposed
to greater penalties and mandatory minimums than those that were
associated with the charge to which he pled guilty.               The court
did   not   erroneously   exercise   its   discretion     by    denying   the

State's request.      The defendant did not plead to the charges
that relied upon the Illinois prior offenses and thus, carried
higher mandatory minimums and greater exposure.                Chamblis pled
guilty to the original charge because the court determined that
the State had not proven the Illinois prior convictions.                  The
court accepted Chamblis's plea for one offense with one set of
penalties.     It would invoke fundamental principles of fairness
to allow that plea to morph into an amended conviction for an

offense to which he did not plead.
      ¶88    In sum, although I join the majority opinion, I would
explicitly conclude that the circuit court did not erroneously
exercise its discretion when it excluded the evidence that the
State attempted to submit "too late."
      ¶89    For the foregoing reasons, I respectfully concur.




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    No.   2012AP2782-CR.akz




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