2020 WI 45



# S UPREME 

# C OURT OF 

# W ISCONSIN

C ASE N O .: 2018AP1129

C OMPLETE T ITLE : 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

O PINION F ILED : May 20, 2020

S UBMITTED ON B RIEFS :

O RAL A RGUMENT :

S OURCE OF A PPEAL :

C OURT :

C OUNTY :

J UDGE :

J USTICES :

PER CURIAM

N OT P ARTICIPATING :

A TTORNEYS :

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,

v.

Ries B. Hansen,

Defendant

- Respondent. 

## FILED

MAY 20, 2020

Sheila T. Reiff

C lerk of Supreme Court

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 con victions 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 ¶ 2 We grant the City's motion for recon sideration 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 t he

statutory elements of a second offense OWI

. S ee 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 con victions 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 es tablished 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.

— T he motion for reconsideration to modify

¶ 30 is granted.No. 2018AP1129

1