State v. Verhagen, 827 N.W.2d 891

Verhagen charged third-offense OWI with an alcohol concentration enhancer; prior OWI convictions disclosed.
Nickles charged fifth-offense OWI; prior OWI convictions listed; Apprendi challenge raised.
Van Asten charged fifth-offense OWI; collaterally attacked 1999 second-offense conviction alleging lack of counsel; evidentiary hearing held; Waived right to counsel proceedings.
Van Asten also pursued Apprendi challenge to Wis. Stat. § 343.307(1); he pled no contest.
Bell charged fifth-offense OWI and related offenses; moved Apprendi challenge; denied; pled no contest.
Court explains OWI penalty structure: first offense is forfeiture, later offenses are crimes with penalties increasing by prior offenses; prior convictions counted for penalty enhancement under § 343.307(1); recidivism is treated as sentencing factor not element; collateral attack limited to denial of right to counsel; decisions affirm convictions.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Must the state prove underlying first-offense OWI elements to a jury beyond reasonable doubt for penalties on a subsequent OWI	Apprendi/recidivism require jury proof of prior elements	Prior convictions used for penalty enhancement are not elements; not required to prove at trial beyond doubt	Not required; prior convictions treated as penalty enhancers per McAllister/Matke; jury not needed for prior status
Whether Van Asten's collateral attack on a prior conviction can succeed based on lack of counsel	Van Asten argues denial of counsel violated Sixth Amendment in 1999 case	Record shows awareness of rights and attempt to obtain counsel; no prima facie violation shown	Waiver was knowing, intelligent, and voluntary; collateral challenge rejected

State v. McAllister, 107 Wis. 2d 532 (Wis. 1982) (recidivism allowed as sentencing factor; prior OWI convictions used for penalty enhancement)
State v. Matke, 278 Wis. 2d 403 (Wis. Ct. App. 2005) (prior OWI offenses are not elements; determined at sentencing for enhanced penalties)
State v. Saunders, 255 Wis. 2d 589 (Wis. 2002) (reiterated that prior repeater status not an element; sentencing procedure pre-verdict)
State v. Novak, 107 Wis. 2d 31 (Wis. 1982) (uncounseled first-offense civil conviction valid to enhance later penalties)
State v. Alexander, 214 Wis. 2d 628 (Wis. 1997) (admission to prior status element can dispense with proof; status element considerations)
State v. Hahn, 2000 WI 118 (Wis. 2000) (collateral attack procedure; need to allege denial of right to counsel)
Apprendi v. New Jersey, 530 U.S. 466 (U.S. 2000) (fundamental rule: any fact increasing penalty beyond maximum must be jury-found beyond reasonable doubt, with exceptional recidivism exception)
Almendarez-Torres v. United States, 523 U.S. 224 (U.S. 1998) (recidivism is treated as sentencing factor; not require jury proof)