On Point blog, page 3 of 3
Fines Come Within Apprendi, Jury Determination Required for Determination of Facts Supporting Fine Beyond Statutory Maximum
Southern Union Company v. United States, USSC No. 11-94, 6/21/12, reversing 630 F.3d 17 (1st Cir 2010)
Criminal fines, no less than length of imprisonment, come within the “Apprendi” doctrine, such that a fine beyond the maximum statutory amount must be based on facts decided by the jury. Southern Union was tried for violating environmental laws carrying a fine of up to $50,000 per day in violation.
Enhancer – Proof: Trial (on Guilt) – “Must be withheld from jury’s knowledge”
State v. Jeffrey A. Warbelton, 2009 WI 6, affirming 2008 WI App 42
For Warbelton: Paul G. LaZotte, SPD, Madison Appellate
Issue/Holding: Evidence related to a penalty enhancer (such as a prior conviction in support of habitual criminality) is relevant only to sentence and “must be withheld from the jury’s knowledge,” ¶19, quoting Mulkovich v. State, 73 Wis. 2d 464,
Enhancer – Proof: Timing (“Post-Trial”)
State v. Shane P. Kashney, 2008 WI App 164
For Kashney: Paul G. LaZotte, SPD, Madison Appellate
Issue/Holding: While State v. Patrick A. Saunders, 2002 WI 107 limits proof of a repeater enhancement to the “post-trial” setting, that limitation is satisfied if the State submits the proof after verdict (and before the court has pronounced judgment).
¶1 In State v.
Enhancer – Waiver of Objection to Sufficiency of Repeater Proof
State v. Jamale A. Bonds, 2006 WI 83, reversing unpublished decision
For Bonds: Jeremy C. Perri, Diana M. Felsmann, SPD, Milwaukee Appellate
Issue/Holding: Failure to object to the manner of proving a repeater allegation (via CCAP) did not constitute waiver of an objection that the proof was insufficient:
¶51 The State contends that we concluded in Saunders that an objection to the sufficiency of the evidence of habitual criminality must be made in the circuit court or it is waived.
Enhancer – Proof – CCAP Entries
State v. Jamale A. Bonds, 2006 WI 83, reversing unpublished decision
For Bonds: Jeremy C. Perri, Diana M. Felsmann, SPD, Milwaukee Appellate
Issue: Whether CCAP entries can satisfy the State’s burden of proving a repeater allegation.
Holding: Although the rules of evidence do not apply to proof of a repeater and a prior conviction need not be proved by certification,
(¶46) a CCAP report,
OWI – Penalty Provision – Enhancement – Proof (and Apprendi)
State v. Brandon J. Matke, 2005 WI App 4, PFR filed 1/6/05
For Matke: James B. Connell
Issue/Holding:
¶16. Matke also contends that the trial court’s interpretation of Wis. Stat. § 346.65(2), which is now ours as well, violates due process because it permits the court to sentence him for a sixth OMVWI without requiring the State to convince a jury beyond a reasonable doubt that he had five prior OMVWI convictions.
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 — 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.
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,
Enhanced Penalties – Proof: Admission — Sufficiency Under § 973.12(1).
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;