On Point blog, page 16 of 19
Enhancer — § 939.62(2m)(a), Persistent Repeater — Validity – Due Process
State v. Alan R. Radke, 2003 WI 7, affirming 2002 WI App 146
For Radke: William E. Schmaal, SPD, Madison Appellate
Issue/Holding:
¶5. The precise question raised, therefore, is whether the “two strikes” law violates the Due Process Clause of either the United States or Wisconsin Constitution because it requires a greater penalty to be imposed on an offender convicted of a second Class B non-fatal child sexual assault than the statutes require to be imposed on an offender convicted of a second Class A felony homicide offense.
Enhancers — Persistent Offender — §§ 939.62(2m)(a)1m, (b)2 and (c) — Comparable Prior, Since-Repealed Statute: Child Sexual Assault, § 940.225(1)(d) (1977-78)
State v. Donald R. Wield, 2003 WI App 179, PFR filed 8/28/03
For Wield: Donald T. Lang, SPD, Madison Appellate
Issue/Holding: In determining whether a prior conviction under a since-repealed statute is a serious child sex offense comparable to § 948.02(1) so as to invoke the persistent repeater law, the “elements only” test of Blockburger v. United States, 284 U.S. 299 (1932) doesn’t apply: “Thus,
Enhancers — Multiple Enhancers — §§ 939.62(1)(b), 961.48(2)
State v. Paul R. Maxey, 2003 WI App 94
For Maxey: Douglas I. Henderson
Issue/Holding: A sentence may be enhanced by both the general repeater provision of § 939.62(1)(b) (1999-2000) and § the specific repeat drug offender provision of § 961.48(2) (1999-2000), given the rationale of State v. Richard W. Delaney, 2003 WI 9:
¶14. In summary, the law of Wis.
Plea Bargains — Breach: By Defendant – Challenging Prior Enhancer-Conviction
State v. Robert C. Deilke, 2004 WI 104, reversing 2003 WI App 151, 266 Wis. 2d 274, 667 N.W.2d 867
For Deilke: Kelly J. McKnight
Issue: Whether a defendant’s successful challenge to a prior plea-bargain based conviction that is being used as an enhancer in a current proceeding amounts to a breach of that prior plea bargain so as to allow reinstatement of charges dismissed under it.
Enhanced Penalties — Proof — Uncertified Judgment of Prior Conviction
State v. Patrick A. Saunders, 2002 WI 107, reconsideration denied, 2002 WI 119, reversing unpublished opinion
For Saunders: Beth Ermatinger Hanan
Issue: Whether an uncertified copy of the prior judgment of conviction may serve as part of the proof requirement of a repeater allegation that is not personally admitted by the defendant.
Holding: In the absence of the defendant’s personal admission to the prior conviction(s),
Enhanced Penalties — Waiver of Objection to Sufficiency of Repeater Proof
State v. James O. Edwards, 2002 WI App 66, PFR filed 2/18/02
For Edwards: Glenn C. Cushing, SPD, Madison Appellate
Issue: Whether failure to object to exhibits (uncertified copy of judgment of conviction; DOC fax indicating prior periods of confinement) waived an argument that the state failed to prove Edwards’ repeater status.
Holding: Failure to object to documentation that facially establishes repeater status waives the issue of sufficiency of proof;
Enhancer — Judgment on Prior Entered After Commission of Enhanced Offense
State v. Razzie Watson, Sr., 2002 WI App 247
For Watson: Dennis Schertz
Issue/Holding: A guilty plea suffices to establish a qualifying repeater-enhancement, even though the judgment of conviction on that plea isn’t entered until after commission of the offense being enhanced. ¶¶9-14.
Enhanced Penalties — Proof — Admission: More Required
State v. Razzie Watson, Sr., 2002 WI App 247
For Watson: Dennis Schertz
Issue/Holding:
¶5 An admission from a defendant stating, “I am a repeater,” without more, is insufficient to constitute an admission of a prior conviction under WIS. STAT. §973.12(1). As the circuit court indicated in its colloquy, “repeater” and “habitual offender” are legal, not factual terms, and a defendant may not be aware of what he or she is admitting.
Enhancer — § 973.01(2)(c), Bifurcated Sentence — Application to Extended Supervision — Remedy
State v. Joseph F. Volk, 2002 WI App 274
For Volk: Charles B. Vetzner, SPD, Madison App
Issue: Whether the extended supervision portion of truth-in-sentencing, § 973.01, supports repeater enhancement, § 939.62(1)(b).
Holding: Because specifies that “confinement” may be enhanced, applying the principle that specification works an exclusion of non-enumerated items, the extended supervision portion of a sentence is not subject to repeater enhancement.
Enhancer – § 939.62(2m)(d), Persistent Offender — Comparable Crime, Foreign Conviction – Determination
State v. Leonard T. Collins, 2002 WI App 177
For Collins: Paul G. LaZotte, SPD, Madison Appellate
Issue/Holding:
¶2. We agree with Collins that Wis. Stat. § 939.62(2m)(d) requires circuit courts to determine independently whether an out-of-state crime is comparable to a Wisconsin “serious felony,” even if the defendant admits that he or she is a persistent repeater. However, because we can conclude as a matter of law that “second degree murder”