Background
On November 3, 2021, at approximately 4:00 a.m., Deputy Johnson responded to a report of a disabled vehicle on County Highway N in Jefferson County. He found Cindy L. Cooper in the driver’s seat. Cooper stated her car had run out of gas while traveling from Jefferson to Fort Atkinson. The deputy observed multiple signs of impairment: slurred speech, bloodshot and glassy eyes, the odor of intoxicants on her breath, and difficulty maintaining balance. Cooper admitted to drinking beer the previous evening, stating she had stopped approximately six hours earlier.
During the encounter, Deputy Johnson discovered a wine glass filled with red liquid in Cooper’s vehicle’s center console. Cooper admitted the beverage was alcoholic but denied it belonged to her or that she had consumed it. Cooper performed field sobriety tests at the sheriff’s department, exhibiting clues of impairment on the horizontal gaze nystagmus and walk-and-turn tests, and was unable to complete the one-leg stand test. A blood test showed a blood alcohol concentration of 0.253 g/100mL. Cooper was charged with operating while intoxicated as a seventh offense (OWI 7th) under Wisconsin Statutes § 346.63(1)(a). A jury found her guilty following trial.
The Court’s Holding
The Wisconsin Court of Appeals affirmed Cooper’s conviction and her sentence of four years of initial confinement and three years of extended supervision. Cooper had argued that the court erroneously exercised its discretion by imposing a sentence above the three-year statutory minimum and that she was entitled to resentencing based on ineffective assistance of counsel.
The court held that the circuit court was not required to presume the statutory minimum sentence applies unless an upward deviation is justified. Rather, the sentencing court properly exercised discretion by considering both mitigating and aggravating factors within the broader context of protecting public safety and addressing rehabilitation needs. The court recognized Cooper’s mitigating circumstances—including eleven years of sobriety prior to her relapse, successful mental health treatment and medication compliance, no evidence of reckless driving, and strong performance on bond—but determined these did not override the serious nature of a seventh OWI offense and the inherent danger to the public from repeated drunk driving.
The court rejected Cooper’s ineffective assistance claim, finding the record conclusively demonstrated she was not entitled to relief. Cooper’s trial counsel had vigorously argued for the statutory minimum confinement period, presenting all relevant mitigating factors to the sentencing court. Cooper herself had requested immediate sentencing after trial without a presentence investigation, and no sentencing memorandum was legally required. The court noted that counsel is not deficient for failing to provide documents not required by law, particularly when the defendant directs counsel to proceed without delay.
Key Takeaways
- Wisconsin sentencing courts have discretion to impose sentences above the statutory minimum in OWI cases when justified by sentencing factors, and are not required to presume the minimum applies absent justification for deviation.
- Mitigating factors such as lengthy prior sobriety, successful treatment, and good behavior do not necessarily require a sentence at the statutory minimum when weighed against the repeated nature of the offense and public safety concerns.
- Trial counsel is not ineffective for failing to submit a presentence investigation report or defense sentencing memorandum when neither is legally required and the defendant requests immediate sentencing.
- Courts properly consider sentencing guidelines as one factor among many and may depart downward from guideline ranges while still imposing sentences above the statutory minimum.
Why It Matters
This decision reinforces that Wisconsin courts possess substantial sentencing discretion in OWI cases, even where mitigating factors are present. The holding clarifies that the statutory minimum sentence serves as a floor, not a presumption. While sentencing courts must consider rehabilitation and treatment efforts, they are equally obligated to weigh the gravity of repeated offenses and protection of the public—particularly when the offense involves operating a motor vehicle while intoxicated, which poses inherent danger to others. The decision provides guidance that seventh-offense OWI convictions with high blood alcohol concentrations merit serious sentences even when the defendant has achieved sobriety and stability through treatment.
For appellate practitioners, the decision confirms that ineffective assistance claims based on sentencing require showing counsel failed to present relevant mitigating evidence or violated law, not merely that counsel’s performance was less thorough than hoped. The case reinforces that procedural shortcuts taken at the defendant’s direction (such as requesting immediate sentencing) do not constitute deficient performance absent actual prejudice.