On Point blog, page 17 of 19
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”
Enhancers — § 939.62(2m), Persistent Offender — Comparable Crime, Foreign Conviction
State v. Charles J. Burroughs, 2002 WI App 18
For Burroughs: William F. Mross
Issue/Holding: Burroughs’ prior conviction in Alabama for assault with intent to murder is sufficiently comparable to attempted first degree intentional homicide so as to support exposure to persistent offender sentencing, § 939.62(2m)(c). ¶¶23-27.
Enhancers — Applicability — Underlying Crime Required — Violation of Harassment Injunction (§ 813.125(4)) Subject to Enhancement
State v. Michael A. Sveum, 2002 WI App 105, PFR filed 5/10/02
For Sveum: Ian A.J. Pitz
Issue/Holding: A repeater enhancement applies only to a crime, which is an offense prohibited by state law and punishable by fine and/or imprisonment. Violation of harassment injunction fits this definition and therefore supports repeater enhancement. State v. Carpenter, 179 Wis. 2d 838, 508 N.W.2d 69 (Ct.
Enhancers — Collateral Attack on
State v. Charles J. Burroughs, 2002 WI App 18
For Burroughs: William F. Mross
Issue: Whether the record sufficiently supports Burroughs’ guilty plea on a prior offense supporting his persistent offender status.
Holding: Because Burroughs doesn’t contest the fact that he was represented by counsel when he entered the plea to the prior offense, his right to challenge the plea is barred under State v.
Enhancers — Multiple Enhancers — Computation of Maximum
State v. Paul Delao Quiroz, 2002 WI App 52
For Quiroz: Chad G. Kerkman
Issue: Whether the maximum penalty for first-degree reckless endangerment of safety, enhanced by while armed and gang-related provisions, was 13 or 14 years.
Holding:
¶13 … [State v. Pernell, 165 Wis. 2d 651, 656, 478 N.W.2d 297 (Ct. App. 1991)] establishes that when two penalty enhancers are applicable to the same crime,
Enhancers — Collateral Attack on, at Sentencing
State v. Lawrence P. Peters, 2001 WI 74, 244 Wis. 2d 470, 628 N.W.2d 797, reversing, 2000 WI App 154, 237 Wis. 2d 741, 615 N.W.2d 655
For Peters: Jane K. Smith
Issue: Whether Peters may, at his OAR-5th sentencing, collaterally attack his OAR-2d conviction, on the ground of denial of counsel.
Holding:
¶4 We view this case as falling within the right-to-counsel exception to the general rule against collateral attacks on prior convictions.
Guilty Plea Waiver Rule – Issues Waived — Unauthorized Repeater Sentence
State v. Jeremy J. Hanson, 2001 WI 70, 244 Wis. 2d 405, 628 N.W.2d 759, reversing unpublished decision of court of appeals
For Hanson: James B. Connell
Issue: Whether a guilty or no contest plea waives the right to challenge the defendant’s status as an habitual traffic offender, and the right to challenge the HTO sentencing penalty as unauthorized.
Holding:
¶21. Section 973.13 requires Wisconsin courts to declare a sentence void ‘[i]n any case where the court imposes a maximum penalty in excess of that authorized by law.’
Enhancer — Pleading — Untimely Allegation, But Pursuant to Plea Bargain
State v. Joel O. Peterson, 2001 WI App 220, PFR filed 9/21/01
For Peterson: William E. Schmaal
Issue: Whether the charge may be amended to include a repeater allegation, otherwise untimely under § 973.12(1), if accomplished as part of a plea bargain.
Holding:
¶24 … (A)llowing a defendant to agree to amend an information to add repeater allegations as part of an agreement to plead guilty or no contest is consistent with the goal of providing the defendant all the information about the potential punishment at the time he or she pleads guilty or no contest.