COURT OF APPEALS DECISION DATED AND RELEASED DECEMBER 3, 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. 96-2186-CR
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT III
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
KIM D. TESKY,
Defendant-Appellant.
APPEAL from a judgment
and an order of the circuit court for Lincoln County: J. MICHAEL NOLAN, Judge. Reversed
and cause remanded with directions.
LaROCQUE, J. Kim D. Tesky appeals the application of the
penalty enhancer for habitual criminality, § 939.62, Stats., to his sentence on a conviction for possession of
marijuana and the subsequent denial of his motions for postconviction
relief. Tesky argues that the portion
of his sentence attributable to that section is void because he did not admit,
and the State did not prove, any prior convictions. This court agrees and therefore reverses the repeater component
of Tesky's sentence and commutes the sentence to the maximum provided on the
underlying charge.
The relevant facts are
not in dispute. Pursuant to a plea
agreement, Tesky pled guilty to one count of possession of a substance
containing tetrahydrocannabinols contrary to § 161.41(3r), Stats.
Tesky's complaint alleged the following:
COUNT TWO: On January 22, 1994 in the City of Merrill, Lincoln County,
Wisconsin, the defendant did unlawfully possess tetrahydrocannabinols listed at
Sec. 161.14(4)(t), Wisconsin Statutes, to-wit:
the defendant did unlawfully possess marijuana in a bag, said marijuana
containing tetrahydrocannabinols contrary to Sec. 161.41(3r) and 939.62(1),
Wisconsin Statutes.
....
POSSIBLE PENALTY AS TO COUNT 2:
May
be fined not more than $1,000 or imprisoned for not more than three years or
both. (Habitual criminal)
The
complaint was otherwise silent as to the factual basis for the repeater
allegation. No prior felony or misdemeanor
convictions were alleged.
At the plea hearing, the
court questioned Tesky regarding his understanding of the consequences of his
guilty plea. The plea colloquy included
the following exchange regarding the repeater allegation:
[THE COURT]: Mr. Tesky, what
is your plea to a charge that on January 22nd, 1994, in the City of Merrill ...
you unlawfully possessed marijuana containing the ingredient
tetrahydrocannabinols? If convicted of
this offense you may be fined not more than a thousand dollars or imprisoned
not more than three years or both.
The reason you can be
imprisoned up to three years is because they claim that, due to prior
convictions, you are in a status known as a habitual criminal offender in the
State of Wisconsin. Understanding that,
what is your plea?
[MR. TESKY]: Guilty,
Your Honor.
The
State did not present any evidence of Tesky's prior convictions, nor did the
court question Tesky regarding those convictions.
At sentencing, the court
ordered Tesky incarcerated for a period not to exceed three years. This sentence included the statutory maximum
of six months under § 161.41(3r), Stats.,
with the remainder attributable to § 939.62, Stats.[1] After sentencing, Tesky filed a motion for
postconviction relief seeking that part of his sentence attributable to the
repeater provision be commuted. Tesky
argued that he did not admit, and the State did not prove, any particular prior
convictions to support the allegation that he was a habitual criminal. See § 973.12(1), Stats.
The court denied the motion, and Tesky appeals.
It is undisputed that
Tesky's complaint failed to allege any prior convictions. It is also undisputed that the State failed
to present any evidence of any prior convictions at any time in this proceeding
prior to taking Tesky's plea. Citing State
v. Rachwal, 159 Wis.2d 494, 465 N.W.2d 490 (1991), the State argues
that Tesky admitted his repeater status by pleading guilty to the charge contained
in the complaint. It does not contend
that it proved Tesky's repeater status.
The application of the repeater statute to an undisputed set of facts
presents a question of law that this court reviews de novo. State v. Zimmerman, 185 Wis.2d
549, 554, 518 N.W.2d 303, 304 (Ct. App. 1994).
This court concludes that Tesky 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 Rachwal, the court
stated that "Farr's prescription for determining an
admission is not necessarily exclusive."
Id. at 508, 465 N.W.2d at 496. 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 that specifically alleged Rachwal's prior convictions. 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.[2] Id. at 512, 465 N.W.2d at 497.
This case is not
governed by Rachwal, where the criminal complaint explicitly
alleged the prior convictions that created the repeater status. Here, in contrast, the criminal complaint
was completely silent as to any prior convictions. The mere allegation that Tesky was a "Habitual
criminal" under § 939.62(1), Stats.
is insufficient. For a guilty or no
contest plea to constitute an admission under § 939.62(2), Stats., the complaint must allege
specific prior convictions within the statutory period. Rachwal, 159 Wis.2d at 512-13,
465 N.W.2d at 497.
This court also
concludes that the plea colloquy does not constitute a sufficient
admission. The circuit court remarked
to Tesky that "[the State] claim[s] that, due to prior convictions, you
are in a status known as a habitual criminal offender" and that therefore
the potential penalty for the relevant charge was increased. Tesky's plea in response to this statement
demonstrates his understanding of the significance of the repeater allegation. Absent any specific allegations, it does not
constitute the "direct and specific" admission required. Farr, 119 Wis.2d at 659, 350
N.W.2d at 645. The point of the
specificity requirement is to assure a knowing admission.
The State's argument
that Tesky admitted his repeater status in his plea questionnaire fails for the
same reason. In that document, Tesky
acknowledged that he would plead guilty to "possession of marijuana as a
repeater" and that the possible penalty was a fine of $1,000 and/or three
years in prison. While this document
demonstrates Tesky's understanding of the significance of his plea, it does not
constitute the direct and specific admission required by § 939.62, Stats.
This court rejects the
State's request for remand for resentencing pursuant to § 161.48(2), Stats.
In State v. Coolidge, 173 Wis.2d 783, 496 N.W.2d 701 (Ct.
App. 1993), this court held that § 161.48, Stats.,
mandates the same "admit or prove" requirement expressed in §
973.12(1), Stats. Thus, this court concludes that Tesky did
not admit, and the State did not prove, Tesky's repeater status for purposes of
either §§ 939.62 or 161.48, Stats. Accordingly, this court reverses the
repeater component of Tesky's sentence and commutes the sentence to the maximum
on the underlying charge. See State
v. Zimmerman, 185 Wis.2d 549, 559, 518 N.W.2d 303, 306 (Ct. App. 1994)
(citations omitted); § 973.13, Stats. Upon remand, the circuit court is directed
to enter an amended judgment accordingly.
By the Court.—Judgment
and order reversed and cause remanded with directions.
This opinion will not be
published. Rule 809.23(1)(b)4, Stats.
[1]
Section 939.62, Stats.,
states in part:
939.62 Increased penalty for habitual criminality.
(1) If the actor is a
repeater, as that term is defined in sub. (2), and the present conviction is
for any crime for which imprisonment may be imposed ... the maximum term of
imprisonment prescribed by law for that crime may be increased as follows:
(a) A maximum term of
one year or less may be increased to not more than 3 years.
....
(2) The actor 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 presently is being sentenced, or if the actor was convicted of a misdemeanor on 3 separate occasions during that same period, which convictions remain of record and unreversed. It is immaterial that the sentence was stayed, withheld or suspended, or that the actor was pardoned, unless such pardon was granted on the ground of innocence. In computing the preceding 5-year period, time which the actor spent in actual confinement serving a criminal sentence shall be excluded.