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COURT OF APPEALS DECISION DATED AND RELEASED February 12, 1997 |
NOTICE |
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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. |
Nos. 96-2700-CR
96-2701-CR
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT II
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
GARY A. MALKMUS,
Defendant-Appellant.
APPEAL from judgments
and an order of the circuit court for Fond du Lac County: STEVEN W. WEINKE, Judge. Affirmed.
BROWN, J. Gary
A. Malkmus alleges that the State did not sufficiently prove the repeat
offender penalty enhancements relating to his misdemeanor convictions. We do not agree.
The dispute arises out
of a comprehensive plea agreement that the State reached with Malkmus in
December 1990. The agreement covered a
total of fifteen charges in Fond du Lac and Dodge counties (“Malkmus plea agreement”). The charges involved two types of
offenses: issuing worthless checks, see
§ 943.24, Stats., and
administrative law violations relating to Malkmus's home contracting business. See Wis.
Adm. Code §§ ATCP 110.02(6)(m) and 110.04(1).
The agreement required
Malkmus to plead guilty to five of the fifteen charges—two of the check charges
and three of the home contracting charges.
The remaining counts were dismissed, but they were read in for
restitution. Moreover, Malkmus
permitted the State to read in allegations that he wrote eight other worthless
checks in Outagamie and Calumet counties for restitution purposes.
The penalty enhancer
related to four of the five charges to which Malkmus entered his guilty
pleas. Malkmus was convicted of felony
enticement of a child in April 1985.
This earlier offense was described on the two home contracting
complaints. Moreover, a certified copy
of Malkmus's prior conviction was attached to the plea questionnaire that
Malkmus completed for one of the check charges.
Although Malkmus entered
guilty pleas pursuant to this agreement in December 1990, the trial court
withheld sentencing and placed Malkmus on probation. However, his probation was later revoked in November 1995. And in January 1996, the court sentenced
Malkmus to three years of imprisonment on each of the home contracting
offenses.
Malkmus then filed a
postconviction motion seeking to have the penalty enhancements declared
void. Malkmus argued that the State had
not proven the existence of a prior conviction through either a certified
document or through his admission.
The court, however,
denied the motion. It first noted that
Malkmus had indeed admitted to the existence of the prior offense when he
answered “guilty” after the court asked if he was entering a plea to the check
charge “as a repeater.” Based on
this affirmation, the trial court inferred that Malkmus understood he was
likewise admitting to the same punishment on the other pleas that he was
offering during that hearing. The
court additionally found that one of the case files that was to be settled
during that plea hearing contained a certified copy of Malkmus's earlier
conviction. Thus, it concluded that the
one copy was “enough to incorporate and bring into each of the separate files
the basis on which the repeater status was made.”
Malkmus now renews his
claim that the penalty enhancers on the two home contracting charges are void
because the State failed to submit adequate proof of a prior offense. The issue of whether a penalty enhancer is
void presents a question of law that we answer independently of the trial
court. See State v. Koeppen,
195 Wis.2d 117, 126, 536 N.W.2d 386, 389-90 (Ct. App. 1995).
The State argues that it
proved Malkmus's prior conviction with an official document. It writes:
[T]he Court file indicates that a
certified copy of the defendant's prior record was on file with the Court in
the [check charge] case where the defendant filed the 32-B.[1]
Because
there was solid proof of Malkmus's prior conviction at this consolidated
hearing, the State contends that it satisfied the crucial task of proving that
Malkmus committed a prior offense.
Malkmus argues, however,
that the State never proved the repeater in the check charge case. He notes that defense counsel, not the
State, prepared the plea questionnaire and apparently attached the certified
copy of Malkmus's prior conviction to it.
Indeed, Malkmus suggests that the State could have directed the trial
court's attention to the attached copy had it wanted to rely on this document
to satisfy its burden.
Nonetheless, the answer
to this case rests with the trial court's postconviction finding that evidence
of Malkmus's prior conviction was before it at the plea hearing. Contrary to Malkmus's argument, this finding
means that the State did in fact provide adequate proof that he had a prior
offense. Thus, the question is not
whether the State proffered the proof; the question is whether
the court is provided with adequate proof to support a
finding that the defendant has a prior conviction.
Although the State may
have never asked the court to make an explicit finding that it had met its
burden of proof on this issue, the record plainly shows two things: one, that the plea questionnaire submitted
to the court during that hearing contained a certified copy of Malkmus's prior
conviction; and two, that the court read the plea questionnaire as it reviewed
the contents with Malkmus. Therefore,
we see no reason to upset the trial court's conclusion that the State had met
its burden of proving that Malkmus had a prior conviction.[2]
By the Court.—Judgments
and order affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)4, Stats.