On Point: E. Enhancers

State v. Calvin E. Gibson, 2000 WI App 207, 238 Wis.2d 547, 618 N.W.2d 248
For Gibson: Margaret A. Maroney, SPD, Madison Appellate

Issue/Holding:

¶1. The question presented is whether the habitual criminality enhancer may be applied to a conviction for a second offense felony of firearm possession. Calvin E. Gibson, who was convicted of being a felon in possession of a firearm, second offense,

State v. John W. Page, 2000 WI App 267, 240 Wis.2d 276, 622 N.W.2d 285
For Page: William E. Schmaal, SPD, Madison Appellate

Issue: Whether possession of dangerous weapon enhancer, § 939.63, requires actual use or threat to use the weapon while committing the enhanced offense.

Holding:

Under the correct reading of [State v.] Peete [,185 Wis.

State v. David M. Hahn, 2000 WI 118, 238 Wis. 2d 889, 618 N.W.2d 528, clarified on reconsideration, 2001 WI 6, on certification
For Hahn: Steven G. Bauer

Issue: “(W)hether the U.S. Constitution requires that an offender be permitted during an enhanced sentence proceeding predicated on a prior conviction to challenge the prior conviction as unconstitutional because the conviction was allegedly based on a guilty plea that was not knowing,

State v. Todd E. Crider, 2000 WI App 84, 234 Wis. 2d 195, 610 N.W.2d 198
For Crider: Suzanne L. Hagopian, SPD, Madison Appellate

Issue: Whether jail time spent as a condition of probation qualifies as “actual confinement serving a criminal sentence,” so as to extend the § 939.62(2) 5-year period within which a prior conviction must fall to support a repeater enhancement.

Holding: Though time served as a condition of probation is generally not a “sentence,”

State v. David C. Liebnitz, 231 Wis.2d 272, 603 N.W.2d 208 (1999), on certification
For Liebnitz: Rex R. Anderegg.

Issue: Whether the defendant sufficiently admitted to an alleged repeater allegation so as to justify enhanced sentencing where, although he never disputed the allegation and in fact received the bargained-for sentence, he never distinctly admitted the repeater allegation.

Holding: Because the complaint and information both set forth the details of the repeater allegation along with the enhanced penalty;

State v. Tyrone Price, 231 Wis.2d 229, 604 N.W.2d 898 (Ct. App. 1999)
For Price: James L. Fullin, Jr., SPD, Madison Appellate.

Issue: Whether confinement time spent on parole holds qualifies as “actual confinement serving a criminal sentence” thereby extending the five-year period for a prior, qualifying sentence-enhancement conviction under § 939.62(2).

Holding: Time spent under parole hold qualifies as time spent under a criminal sentence within the meaning of the repeater act:

¶13 Since the expansion of the five-year period is at issue in this case,

State v. John J. Thoms, 228 Wis. 2d 868, 599 N.W.2d 84 (Ct. App. 1999)
For Thoms: Steven L. Miller

Issue/Holding: The court reverses a persistent repeater sentence, § 939.62(2m). Thoms was originally charged in the complaint with the standard 10-year sentence enhancement, § 939.62(1)(c)&(2), based on a prior felony theft conviction. However, the information changed the enhancement allegation to persistent offender, § 939.62(2m) – life without parole.

State v. Dawn C. Moline, 229 Wis. 2d 38, 598 N.W.2d 929 (Ct. App. 1999)
For Moline: Patrick M. Donnelly, SPD, Madison Appellate.

Issue/Holding:

By this decision, we hold that a prior conviction for possessing drug paraphernalia pursuant to § 961.573, STATS., qualifies as a prior offense under the repeat drug offender statute, § 961.48(3), STATS. … The statute is meant to include all prior convictions,

State v. Frank Miles, 221 Wis. 2d 56, 584 N.W.2d 703 (Ct. App. 1998)
For Miles: Craig W. Albee

Issue/Holding: Prior drug conviction is not element of crime of second or subsequent drug offense, § 161.48(2) (1993-94), which elevates what would otherwise be misdemeanor to felony possession:

Miles fails to recognize the distinction between the two types of penalty enhancers. The first type of penalty enhancer concerns facts or circumstances related to the underlying crime which alter the substantive nature of the charged offense.

Debra L. Van Riper, 222 Wis. 2d 197, 586 N.W.2d 198 (Ct. App. 1998)
For Van Riper: Megan L. DeVore

Issue/Holding:

Because day care centers provide recreational and social services activities for children, they are a subset of “youth centers” and come within the definition of places listed in § 961.49(2), Stats. The protection of children, who congregate at day care centers, and are very vulnerable to the dangers associated with drug trafficking,