|
COURT OF
APPEALS DECISION DATED AND
RELEASED January
23, 1997 |
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, Stats. |
This opinion is subject to further editing. If published, the official version will appear in the bound
volume of the Official Reports. |
No. 96-1636-CR
STATE OF WISCONSIN IN
COURT OF APPEALS
DISTRICT IV
STATE
OF WISCONSIN,
Plaintiff-Respondent,
v.
DONYIL
ANDERSON,
Defendant-Appellant.
APPEAL
from a judgment and an order of the circuit court for Rock
County: J. RICHARD LONG, Judge.
Affirmed.
DEININGER,
J.[1] Donyil
Anderson appeals from a judgment convicting him of operating a motor vehicle
after revocation (OAR), sixth offense, in violation of § 343.44(1) and
(2g)(e), Stats., and from an
order denying his motion for post-conviction relief. He claims his sentence should be commuted to a first offense
penalty because he did not admit and the State did not prove the prior OAR
convictions. Because we conclude that
Anderson and his counsel admitted the prior convictions at the time of
Anderson's no contest plea and sentencing, we affirm.
BACKGROUND
The
criminal complaint charged Anderson with OAR and advised him that "for a sixth
offense [defendant] is subject to a penalty of a fine of not less than $200
[sic] nor more than $2500 and may be imprisoned for not less than 6 months nor
more than one year, and driving privileges revoked for 6 months." (Emphasis in original). The complaint also contains the following
allegations:
Your affiant has reviewed a teletype
communication from the Division of Motor Vehicles, Wisconsin Department of
Transportation, which reflects the driving record of the defendant as contained
in the Division's records ....
...The Motor
Vehicle Division revealed that .... [t]he defendant has been convicted 5
time(s) in the past five years for operating after revocation/suspension.
At
his initial appearance on the complaint, the prosecutor informed Anderson and
the court that "[t]his is for an O-A-R sixth with a habitual traffic
offender allegation." His counsel
waived a reading of the complaint, and the court entered a not guilty plea on
Anderson's behalf. Following denial of
a suppression motion,[2]
the State dismissed the habitual traffic offender allegation and Anderson
pleaded no contest to OAR. The
following excerpts are from the plea and sentencing hearing:
[DEFENSE
COUNSEL]: Your Honor, today Mr. Anderson will request that the Court
grant him leave to withdraw his previous plea of not guilty and instead enter a
plea of no contest to the first allegation in the Complaint of operating a
motor vehicle after revocation or suspension, sixth offense.
....
THE
COURT: Mr. Anderson, in a Criminal Complaint that is dated the 7th
day of March, 1995, you are charged as follows. The charge is that on the 12th day of February, 1995, at the City
of Beloit in Rock County, the defendant ... did, with cause to believe that the
defendant's privilege to operate a motor vehicle was revoked or suspended,
unlawfully operate a motor vehicle upon a highway while the defendant's
operating privilege was revoked or suspended, contrary to Section 343.44 of the
Wisconsin Statutes, and upon conviction for a sixth offense is subject to a
penalty of a fine of not less than $200 [sic] nor more than $2,500 and may be
imprisoned for not less than six months nor more than one year and driving
privileges revoked for six months. Do
you understand that charge being made against you?
MR.
ANDERSON: Yes.
THE
COURT: Do you understand the penalty you will face in the event you
are convicted of that charge?
MR.
ANDERSON: Yes.
....
THE
COURT: To that charge today, what is your plea?
MR.
ANDERSON: No contest.
....
THE
COURT: Did [defense counsel] also explain to you the offense to
which you are entering this plea?
MR.
ANDERSON: Yes.
THE
COURT: Did he explain to you the elements of this offense that would
have to be proved beyond a reasonable doubt before you could be convicted of
the offense?
MR.
ANDERSON: Yes.
THE
COURT: Were you able to understand that explanation?
MR.
ANDERSON: Yes.
THE
COURT: Is there any question you wish to ask the Court in regard to
that matter?
MR.
ANDERSON: No.
....
THE
COURT: [Defense counsel], are you satisfied that the defendant's
plea of no contest is both knowingly and voluntarily made?
[DEFENSE
COUNSEL]: Yes, Judge.
....
THE
COURT: [Prosecutor], had this matter gone to trial, what would the
State have been prepared to prove?
....
[PROSECUTOR]: ...
The State would have also provided to the Court a certified copy of Donyil
Anderson's driving record, and that would have indicated that on August 31,
1991, Donyil Anderson's driving privileges were suspended.... [A]nd that his
driving privileges have not yet been reinstated since that date. In addition, they'd indicate that he has
been convicted of either operating after the suspension or revocation of his
driver's license on five prior occasions.
....
[DEFENSE COUNSEL] [Regarding the appropriate fine and
costs]: Your Honor, when we had reached this agreement, [the
prosecutor] and I simply went to what we thought was the correct chart and
found the numbers that appear to be appropriate.... [T]he agreement ultimately
was to plead to the charges which he has pled to and then both sides to
recommend the appropriate chart penalty.
In
addition to the extensive plea colloquy, Anderson and his counsel signed and
filed a "Plea(s) of No Contest to Misdemeanor Charge(s) - Waiver of
Rights" form. The trial court
accepted the plea, entered conviction for sixth offense OAR, and imposed a six-month
jail sentence, a fine of $2,000 plus costs, and a six-month revocation of
Anderson's driving privileges.
ANALYSIS
Anderson's principal
argument is that the enhanced penalties for repeat violations of § 343.44,
Stats., cannot be imposed unless
"the prior convictions are admitted by the defendant or proved by the
state" as required by § 973.12(1), Stats., for penalty enhancements under the general criminal
repeater statute, § 939.62, Stats. He claims that since the State did not
submit extrinsic proof of the prior convictions and Anderson did not explicitly
admit the fact or the dates of his five prior convictions, the "enhanced
portions of [Anderson's] sentence as a repeat offender under Sections
343.44(2), Stats., are void for
lack of adequate proof that [Anderson] was a repeat criminal traffic
offender."[3]
The
supreme court has rejected Anderson's argument in State v. Spaeth,
No. 95-1827-CR, slip op. at 7-11 (Wis. Dec. 20, 1996).[4] The issue on this appeal thus becomes
whether Anderson's enhanced sentence as a repeat OAR offender was properly
imposed under the standards enunciated in Spaeth for establishing
prior OAR convictions:
We hold that hereafter, the State establishes the
existence of a defendant's prior OAR convictions by competent proof when, at a
minimum, it introduces into the record at any time prior to the imposition of
sentence, either: (1) an admission; (2)
copies of prior judgments of conviction for OAR; or (3) a teletype of the
defendant's Department of Transportation (DOT) driving record.
Id. at 16-17. The court further
held that "an admission" can be made by either the defendant or his
or her counsel. Id. at
18.
Here,
the State relies on Anderson's "admission" by pleading no contest to
the charge of sixth offense OAR as charged in the criminal complaint. It is undisputed that no other proof of his
prior convictions was offered into the record.
In
both Spaeth and State v. Wideman, No. 95-0852-CR
(Wis. Dec. 20, 1996), a companion case to Spaeth involving the
sentencing of a repeat operating a motor vehicle while intoxicated (OMVWI)
offender, the defendants had been found guilty of the base offenses after jury
trials. In each case the trial court
proceeded immediately to impose sentence for the conviction, enhanced because
of prior convictions for the same offense.
In
Spaeth, even though the sworn complaint contained the specific
dates of the prior offenses and convictions and the defendant acknowledged his
understanding that he was being charged with a fifth OAR offense within five
years at his initial appearance, the supreme court held that Spaeth's silence
at sentencing was not a waiver of the State's burden to place "competent
proof" of the prior convictions in the record. Spaeth, No. 95-1827-CR, slip op. at 18. Spaeth had remained silent at his sentencing
and his counsel had said only that "I understand that there is some jail
time that is necessary in this case," a remark falling short of an
admission by counsel of the prior convictions.
Id. at 5. The
failure to submit either the DOT driving record or certified copies of the
prior convictions was thus fatal to sustaining the enhanced penalties.
The
complaint against repeat OMVWI defendant Wideman recited only that the
complainant had reviewed a DOT driving record which showed two prior
convictions within the past five years.
Wideman, No. 95-0852-CR, slip op. at 4. As is true of the complaint against
Anderson, Wideman's complaint contained no specific dates for the prior
offenses and convictions. At sentencing
following the jury verdict, the trial court stated the number of Wideman's
convictions and the penalty range three times.
Defense counsel argued for the "minimum" incarceration and
fine. In response to the court's
question "whether the `state of the record' indicated that this was a
third conviction," defense counsel responded affirmatively. Id. at 5. Although it determined this record to be
"marginal," id. at 19, the supreme court concluded it
was sufficient to establish an admission of the prior offenses:
The complaint, although not evidence, when coupled with
the circuit court's direct inquiry at sentencing and defense counsel's
concessions, was sufficient to inform the defendant of the prior offenses and
to establish the prior offenses for purposes of sentencing.
Id. at 18 (footnotes omitted).
We
conclude that the record in this case is at least as adequate as that in Wideman
in establishing Anderson's admission of his prior convictions. Anderson pleaded no contest to what was
clearly communicated to him to be a sixth offense of OAR. He acknowledged his understanding of the
offense and its potential penalties, and he stated he had discussed the same
with counsel.[5] Defense counsel informed the court that the
plea was to sixth offense OAR and that the plea agreement was for the
"chart" penalties for that offense.
As in Wideman, the allegations in the complaint coupled with
Anderson's plea, the trial court's inquiries and defense counsel's concessions,
"was sufficient to inform the defendant of the prior offenses and to
establish the prior offenses for purposes of sentencing." Id. at 18.
By
the Court.—Judgment and order
affirmed.
This
opinion will not be published. See
Rule 809.23(1)(b)4, Stats.
[3] Specifically, Anderson claims the
requirements of § 973.12(1), Stats.,
as set forth in the following cases were not met on this record: State v. Farr, 119 Wis.2d 651,
350 N.W.2d 640 (1984); State v. Zimmerman, 185 Wis.2d 549, 518
N.W.2d 303 (Ct. App. 1994); State v. Goldstein, 182 Wis.2d 251,
513 N.W.2d 631 (Ct. App. 1994).
[4] This appeal was filed and briefed while State
v. Spaeth, No. 95-1827-CR (Wis. Dec. 20, 1996) and State v.
Wideman, No. 95-0852-CR (Wis. Dec. 20, 1996) were pending before the
Wisconsin Supreme Court. Anderson's
arguments on this appeal are virtually identical to those made by the
defendants in Spaeth and Wideman. On this court's own motion, not objected to
by the parties, submission was stayed until the cited decisions were
issued.