On Point blog, page 17 of 19
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State v. Jeremy J. Hanson, 2001 WI 70, 244 Wis. 2d 405, 628 N.W.2d 759, reversing unpublished decision of court of appeals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.
Enhancer – Construction – Prior Conviction Presumptively Elemental
State v. Jeffrey A. Warbelton, 2009 WI 6, affirming 2008 WI App 42
For Warbelton: Paul G. LaZotte, SPD, Madison Appellate
Issue/Holding:
¶21 …. The legislature has the authority to designate a prior conviction as a penalty enhancer rather than an element of the offense. Almendarez-Torres, 523 U.S. at 246. Although the legislature is permitted to designate a prior conviction as a penalty enhancer,
Enhanced Penalties — Proof: Prior Need Not Be Part of Appellate Record
State v. Thomas W. Koeppen, 2000 WI App 121, 237 Wis.2d 418, 614 N.W.2d 530
For Koeppen: Richard L. Zaffiro
Issue: Whether the repeater-qualifying convictions were inadequately proved merely because they weren’t made part of the appellate record.
Holding: “Even if the trial court did not include these documents in the appellate record, the documents’ existence at the time of sentencing is not negated because,
Enhancer — § 939.62(2m)(d), Persistent Offender — Life Without Parole — Cruel and Unusual Punishment
State v. David M. Hahn, 2000 WI 118, 238 Wis. 2d 889, 618 N.W.2d 528, on certification; clarified on reconsideration, on a different point, 2001 WI 6
For Hahn: Steven G. Bauer
Issue: “(W)hether the persistent repeater penalty enhancer as applied to the defendant violates the Eighth Amendment to the U.S. Constitution prohibiting cruel and unusual punishment.” ¶5.
Holding: Imposing a life sentence without possibility of parole,