COURT OF APPEALS DECISION DATED AND RELEASED SEPTEMBER 24, 1996 |
NOTICE |
A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals. See § 808.10 and
Rule 809.62(1), Stats. |
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports. |
No. 96-0417-CR
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT III
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
BENJAY E. KOHANSKI,
Defendant-Appellant.
APPEAL from a judgment
and an order of the circuit court for Outagamie County: MICHAEL W. GAGE, Judge. Reversed.
Before Cane, P.J.,
LaRocque and Myse, JJ.
LaROCQUE, J. Benjay Kohanski appeals the application of
the penalty enhancer for habitual criminality (§ 939.62, Stats., the repeater statute) to his
sentence on convictions on multiple charges and the subsequent denial of his
postconviction motions. Kohanski argues
that he did not admit, and that the State did not prove, that his prior felony
conviction was less than five years from the date of his present offenses and
therefore the application of the repeater statute to his sentence was
improper. He further challenges the
trial court's failure to make a specific finding that he was a repeater. We agree that the record contains
insufficient evidence to invoke the repeater statute. We therefore reverse the repeater component of Kohanski's
sentence and commute the sentence to the maximum provided on the underlying
charges.
The relevant facts in
this case are not in dispute. Pursuant
to a plea agreement, Kohanski in November 1994 pled no contest to multiple
charges, including one count of battery to a law enforcement officer.[1] Kohanski's information included a repeater
provision that alleged that Kohanski was previously convicted of a felony in
April 1989. The repeater provision,
however, was silent as to the amount of time Kohanski spent in actual
incarceration since his 1989 conviction.[2] At the plea hearing, the court questioned
Kohanski at length regarding his plea and the factual basis therefore. The plea colloquy included the following
exchange regarding the repeater allegation:
THE COURT: And in this case, there are proposed pleas to the several charges
and there is a plea agreement and the State's saying that they're not going to
recommend anything more than 15 years of incarceration, but the fact is the
potential penalties are greater than that; do you understand that?
[KOHANSKI:] Yes, Your Honor.
THE COURT: I believe that Counts 1, 3, 4, and 5 are something that we call
class D felonies and therefore, each of them has a potential penalty of five
years.
[KOHANSKI:] Yes, Your Honor.
THE COURT: And in this case, the information also alleges that you have a
prior felony conviction. And that
because of that felony conviction, you're subject to some additional
penalties; do you understand that?
[KOHANSKI:] Yes, Your Honor, I do.
THE COURT: Now, they would have to, if you contested this matter, they would
have to establish, of course, to the Court's satisfaction that you were really
convicted for and that if it's outside of five years, the only reason it's
outside of five years is that you were in prison for a period of time and the
time that you were free is less than five years?
[KOHANSKI:] Yes, Your Honor.
THE COURT: Okay. And in fact, the
amount of enhancement is up to six years on each of these counts?
[KOHANSKI:] Yes, Your Honor.
THE COURT: So, the potential penalty really for each of these is up to 11
years and I can impose a penalty up to the maximum if I think it's the right
thing to do.
[KOHANSKI:] Yes, Your Honor.
THE COURT: So, the potential penalty if you add them all together could be
up to 44 years in prison.
[KOHANSKI:] Yes, Your Honor.
At sentencing, the court
announced a sentence that included a seven-year prison term on the battery to
law enforcement officer charge. This
sentence included the statutory maximum of five years for the underlying
offense plus two years under the repeater statute. After sentencing, Kohanski filed a motion for postconviction
relief seeking that part of his sentence attributable to the repeater provision be commuted. The trial court denied the motion and Kohanski appeals.
It is undisputed that
Kohanski's prior conviction occurred more than five years prior to his crimes
in this case. Kohanski argues that he
did not admit, and the State did not prove, that he was actually incarcerated
during a portion of that period. See
§ 939.62(2), Stats. The State argues that Kohanski admitted his
repeater status during the above plea colloquy. It does not contend that it proved his repeater status. The application of the repeater statute to
an undisputed set of facts presents a question of law that we review de
novo. State v. Zimmerman,
185 Wis.2d 549, 554, 518 N.W.2d 303, 304 (Ct. App. 1994). We agree that Kohanski did not admit
sufficient facts to establish his repeater status.
Our supreme court in State
v. Farr, 119 Wis.2d 651, 659, 350 N.W.2d 640, 645 (1984), stated that
an "admission [of repeater status] may not by statute be inferred ... but
rather, must be a direct and specific admission by the defendant." However, in State v. Rachwal,
159 Wis.2d 494, 508, 465 N.W.2d 490, 496 (1991), the court stated that "Farr's
prescription for determining an admission is not necessarily
exclusive." The court went on to
find an admission in that case where the defendant pled no contest to a
criminal complaint containing a repeater provision. The court held that Rachwal's plea constituted an admission of
every fact contained in the complaint, and since the complaint included allegations
of prior convictions within the statutory period, admission of those
convictions constituted admissions of his repeater status.[3] Id. at 512, 465 N.W.2d at
497. In this respect Rachwal
is inapposite to the facts of the instant case.
We conclude that the
instant case is governed by Zimmerman. In that case, the defendant pled guilty to charges contained in
an information, including allegations contained in a repeater provision. However, as in this case, that provision
alleged a prior conviction outside the statutory period and was silent as to
any periods of incarceration. The court
noted as follows:
It
is true that Zimmerman did admit to being convicted of aggravated battery in
Texas in 1983 and did admit to the facts as stated in the criminal
information. However, at no time did
Zimmerman admit that the prior conviction was less than five years from the
date of the present conviction.
Further, he was never asked about his confinement, and there was no
admission by Zimmerman to a period of incarceration that would bring his 1983
conviction within the five-year statutory period. Therefore, we cannot conclude that Zimmerman gave a direct and
specific admission to facts necessary to establish the repeater penalty
enhancer.
Id. at
557, 518 N.W.2d at 306. As in Zimmerman,
Kohanski in this case admitted the facts contained in the criminal information,
including the facts alleged in the repeater provision. However, those facts alone do not implicate
the repeater statute, because the prior conviction fell outside of the five-year
statutory period and there is no allegation of an intervening period of actual
incarceration.
We also agree that the
above plea colloquy does not establish Kohanski's repeater status. The exchange between the court and Kohanski
reveals that the court's questions established Kohanski's understanding of the
significance of the repeater provision.
It did not elicit Kohanski's admission that the repeater allegations
were properly applicable to his case.
The court's explanation that the State "would have to
establish" the five-year period and Kohanski's affirmative response
amounted to an acknowledgement of his understanding of the proof
necessary. It was not a "direct
and specific" admission of repeater status. Farr, 119 Wis.2d at 659, 350
N.W.2d at 645. We refer to the
following language from Zimmerman:
The
State must make a specific allegation of the preceding conviction and
incarceration dates so as to permit the court and the defendant to determine
whether the dates are correct and the five-year statutory time period is
met. In the alternative, the trial
court may obtain a direct and specific admission from the defendant. In addition to asking the question "whether
the defendant was convicted on a particular date of a specific crime" the
trial court could simply ask the follow-up question "what period of time
was the defendant incarcerated as a result of the conviction."
Id. at
558-59, 518 N.W.2d at 306 (citation omitted).
Where a court imposes a
penalty in excess of that permitted by law, the excess portion of the sentence
is void. See § 973.13, Stats.
We therefore reverse the repeater component of Kohanski's sentence and
commute the sentence to the maximum on the underlying charge. See Zimmerman, 185
Wis.2d at 559, 518 N.W.2d at 306 (citing State v. Wilks, 165
Wis.2d 102, 112, 477 N.W.2d 632, 637 (Ct. App. 1991)). We also reverse the trial court's order
denying Kohanski's postconviction motion.
Because of our disposition above, we do not address Kohanski's argument
that the trial court must make a specific finding that he is a repeater before
imposing a sentence in excess of the statutory maximum.
By the Court.—Judgment
and order reversed.
Not recommended for
publication in the official reports.
[2] According to § 939.62(2), Stats., a defendant "is a repeater if the actor was convicted of a felony during the 5-year period immediately preceding the commission of the crime for which the actor is presently being sentenced ...." In addition, time that the defendant spent in actual confinement serving a criminal sentence is excluded from the five-year computation period. Id.