State v. Alfonso C. Loayza

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
November 7, 2019
A party may file with the Supreme Court a
Sheila T. Reiff petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.

Appeal No. 2018AP2066-CR Cir. Ct. No. 2012CF1219

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT IV

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

ALFONSO C. LOAYZA,

DEFENDANT-APPELLANT.

APPEAL from a judgment and an order of the circuit court for Rock
County: RICHARD T. WERNER and JOHN M. WOOD, Judges. Reversed and
cause remanded with directions.

Before Fitzpatrick, P.J., Blanchard and Kloppenburg, JJ.

Per curiam opinions may not be cited in any court of this state as precedent

or authority, except for the limited purposes specified in WIS. STAT. RULE 809.23(3).
No. 2018AP2066-CR

¶1 PER CURIAM. Alfonso Loayza appeals a judgment of conviction
for operating while intoxicated and an order denying his postconviction motion.
We conclude that the State did not prove one of Loayza’s prior convictions, and
therefore we reverse and remand for sentencing as a seventh offense.1

¶2 As relevant to this appeal, Loayza pled guilty to operating while
intoxicated (OWI). The circuit court determined that this was his eighth offense,
and imposed a sentence of five years of initial confinement and five years of
extended supervision. Loayza filed a postconviction motion arguing that the State
failed to prove the existence of a prior OWI offense in California in 1990. The
circuit court denied the motion, and Loayza appeals.

¶3 As proof of the California conviction, the State provided a copy of
Loayza’s driving record, as obtained from the Wisconsin Department of
Transportation (DOT). The State also provided copies of documents obtained
from the court clerk in San Mateo County in California.

¶4 Loayza argues that, regardless of what the DOT record shows about
a 1990 California conviction, the California documents themselves fail to show
that an OWI conviction occurred as shown in the DOT report. In response, the
State appears to argue that, because case law describes a DOT record as
“competent proof” of a prior conviction, the DOT record alone is sufficient to
prove the California conviction, even if the California documents themselves fail
to do that.

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The Honorable Richard T. Werner presided over trial and sentencing and entered the
judgment of conviction. The Honorable John M. Wood entered the order denying Loayza’s
postconviction motion.

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No. 2018AP2066-CR

¶5 The State is required to prove prior convictions with competent
proof that “must reliably demonstrate, with particularity, the existence of each”
prior conviction. State v. Spaeth, 206 Wis. 2d 135, 150, 556 N.W.2d 728 (1996).
The State must do so by a preponderance of the evidence. See State v.
Braunschweig, 2018 WI 113, ¶39, 384 Wis. 2d 742, 921 N.W.2d 199. The parties
agree that our standard of review is de novo.

¶6 We first clarify that, although case law describes DOT driving
records as competent proof of a prior conviction, case law does not say that DOT
records provide conclusive or irrebuttable proof. We see no indication in the case
law cited by the State that a defendant is not permitted to cast doubt on the
reliability of a DOT record. “[T]he accused must have an opportunity to challenge
the existence of the prior offense.” State v. Wideman, 206 Wis. 2d 91, 105, 556
N.W.2d 737 (1996). “Defense counsel should be prepared at sentencing to put the
State to its proof when the state’s allegations of prior offenses are incorrect or
defense counsel cannot verify the existence of the prior offenses.” Id. at 108. In
the context of general repeater enhancements, “a defendant is always permitted to
contest the authenticity or, more likely, the accuracy of even a certified copy of a
judgment of conviction.… Put simply, judicial personnel are not infallible.
Accordingly, even a certified copy of a document establishing a prior conviction
may be rebutted ….” State v. Saunders, 2002 WI 107, ¶30, 255 Wis. 2d 589, 649
N.W.2d 263 (alteration in original).

¶7 Therefore, we reject any suggestion that our analysis of the available
information stops after seeing the entry in the DOT record. A DOT record may be
sufficiently reliable when that is the only information available, but additional
information may cast doubt on the reliability of a DOT entry to a degree that
makes the entry insufficiently reliable to meet the State’s burden.

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No. 2018AP2066-CR

¶8 As to the additional information available in this case, on appeal the
State does not attempt to rebut Loayza’s argument that the California documents
fail to support the existence of an OWI conviction for the 1990 offense. The
State’s failure to discuss the effect of the California documents, when combined
with our conclusion that the DOT record is rebuttable, would by itself be a ground
for us to reverse on the basis that the State has conceded Loayza’s argument that
the California documents make the DOT entry unreliable. Nonetheless, we will
next discuss the content of the California documents and explain how they create
doubt about the reliability of the DOT entry.

¶9 The DOT entry shows an offense date of March 5, 1990, and a
conviction date of May 11, 1990, for the offense “OWI-OPERATING WHILE
INTOXICATED.” The California material includes a criminal complaint, a plea
waiver form, and a computer printout of the “criminal case docket.” It seems clear
that this material is related to the same case reported in the DOT record. The
complaint alleges the same offense date as the DOT report; the complaint charges
OWI (among other offenses); and the plea questionnaire is dated with the same
day that the DOT shows as the conviction date. However, other aspects of the
California material cast doubt on whether any conviction occurred in that case
and, if it did, that it was for OWI.

¶10 As to whether any conviction occurred, we note that the material
does not include a judgment of conviction. Nor does the docket printout expressly
show that a conviction occurred. For example, on page one of the printout there is
a section titled “charges, pleas and dispositions.” It lists four charges that
correspond to the complaint, but the fields for “disposition” and “conv/disp date”
are empty for all counts. And, although the materials include a plea waiver form,
the sections of the docket printout titled “case synopsis” and “record of case

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No. 2018AP2066-CR

events” do not show that any events occurred in court on or near the date the plea
form was signed. Those docket sections also do not include any entry showing
that a conviction occurred on any other date.

¶11 Even if a conviction did occur in that case, the materials raise doubt
about whether it was for OWI. The complaint alleged one count of operating
while intoxicated, one count of operating with a prohibited blood alcohol content,
and two counts of operating after suspension and revocation. The May 1990 plea
form does not identify by name the charge to which the defendant would be
pleading nolo contendere, but the statute number it uses is the number given in the
complaint for the first count of operating after suspension and revocation. That is
the only charge referred to in the plea form. Thus, the plea form supports an
inference that, if there was a conviction in May 1990 as reported by the DOT
record, it was not for OWI, but only for operating after suspension and revocation.

¶12 We acknowledge that there is also some support in the California
materials for the proposition that Loayza was convicted of OWI. The docket
printout states that, at a later time, Loayza was being revoked from probation as to
“count 1,” which in the complaint was the OWI charge. However, that inference
is diminished by the fact that the docket does not contain any earlier entry showing
that Loayza was ever placed on probation in that case, whether for OWI or
something else.

¶13 In summary, the California materials are clearly for the case that
corresponds to the DOT entry of a conviction in May 1990, but they do not show
that a conviction occurred then, or at any other specific time. Nor do they show
any court activity at all in May 1990, other than that Loayza signed a plea

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No. 2018AP2066-CR

questionnaire form to plead no contest to operating after suspension and
revocation.

¶14 When a particular class of records, such as court records, normally
records certain types of events if they have occurred, the absence of such an event
from the record supports the inference that the event did not occur. The more
likely such an event is to be recorded if it occurred, the stronger is the inference
that can be drawn from its absence. In our experience, convictions are very likely
to be recorded in court records if they have occurred.

¶15 For these reasons, we conclude that the DOT driving record entry for
an OWI conviction in May 1990 is rendered unreliable by the California materials.
The Wisconsin DOT and California materials submitted by the State, when viewed
as a whole, are not sufficiently reliable to show by a preponderance of the
evidence that there was an OWI conviction in 1990.

¶16 On remand, the circuit court shall sentence Loayza for OWI as a
seventh offense.

By the Court.—Judgment and order reversed and cause remanded
with directions.

This opinion will not be published. See WIS. STAT. RULE
809.23(1)(b)5. (2017-18).

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