COURT OF APPEALS DECISION DATED AND RELEASED December
7, 1995 |
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. 95-1601-CR
STATE OF WISCONSIN IN
COURT OF APPEALS
DISTRICT IV
STATE
OF WISCONSIN,
Plaintiff-Respondent,
v.
TYRONE
JACKSON,
Defendant-Appellant.
APPEAL
from a judgment and an order of the circuit court for Dane County: MARK A. FRANKEL, Judge. Affirmed.
EICH,
C.J.[1] Tyrone Jackson appeals from a judgment of
conviction and sentence for criminal trespass to a dwelling, and from an order
denying his motion for postconviction relief.
He
raises a single issue: whether the State proved his repeater status. We believe it did and we therefore affirm
the judgment and order.
On
July 10, 1993, a complaint was issued charging Jackson with felony bailjumping
and two misdemeanors: criminal trespass and disorderly conduct. The offenses were alleged to have taken
place on June 29, 1993. Each charge
contained a repeater allegation stating that Jackson had been convicted of
three misdemeanors--battery on June, 18, 1991, and of bailjumping and theft on
November 16, 1992--within the five-year period required for application of the
repeater statute, § 939.62, Stats.[2] The complaint alleged that, because of the
prior convictions, the applicable penalties for the currently-charged offenses
could be increased by the periods of time specified in the statute.
After
a preliminary hearing on the felony bailjumping charge, an information was
issued charging him with bailjumping and criminal trespass, and restating the
repeater allegations from the complaint.
On
the day his trial was to begin, he entered into a plea agreement with the
prosecution, pleading no contest to criminal trespass, and also to another
pending charge of battery by a prisoner.
In the plea colloquy, the court discussed the charges with Jackson:
THE COURT: And you underst[an]d that because of
the repeater allegations here that the maximum penalties that you were looking
at were seven years in jail and/or a $10,000 fine on the battery by an inmate,
and on the criminal trespass charge you were looking at a maximum of three
years and nine months or a $10,000 fine?
MR. JACKSON: Yes.
MS. HAYWARD [for the State]: Actually, Your
Honor, it is just three years.
THE COURT: It is not an additive?
MS. HAYWARD: No.
THE COURT: Thank you for that correction. I stand corrected. It's a maximum of three years and a $10,000 fine on the
misdemeanor with the repeater. Is that
understood?
MR. JACKSON: Yes.
THE COURT: And you understand that I'm free to
impose whatever sentence I feel is appropriate in these cases and that I'm not
bound by any recommendations that might be made?
MR. JACKSON:
Definitely.
The
court continued to question Jackson about his understanding of the charges and
the voluntary nature of his plea and then asked:
THE COURT: Is Mr. Jackson willing to stipulate
to his status as a repeater with regard to both counts that we have entered
pleas on here, Mr. Burr, or do you want some proof offered by Ms. Hayward?
MR. BURR [for the defendant]: No, we're willing
to stipulate to that.
THE COURT: I'll so
find based on the defense stipulation that the defendant is a repeater with
regard to both offenses.
The
court ordered a presentence investigation and report and adjourned the
proceedings. The report, as eventually
prepared, began by reciting the charged offenses and the statutory penalties,
adding that, "[u]nder the Habitual Criminality statute," Jackson
could be imprisoned for an additional two years on the battery charge and an
additional two years and three months for trespass under § 939.62, Stats.
The report went on to list Jackson's prior record, including the
following convictions occurring within five years of the date on which the
present offenses were alleged to have been committed: (1) felony possession of
cocaine on July 10, 1989; (2) misdemeanor trespass on February 15, 1990; (3)
misdemeanor resisting/obstructing an officer on June 18, 1991; (4) misdemeanor
domestic abuse on June 18, 1991; and (5) misdemeanor theft on November 16,
1992. Elsewhere in the report it is
stated that, after absconding from supervision in January 1992, Jackson was
arrested and, on December 3, 1992, "was sentenced to ... three months for
... bailjumping." The report also
indicates that the agent preparing the document discussed all these charges and
convictions with Jackson in some detail.
The
court withheld sentence and placed Jackson on probation for two years. His probation was subsequently revoked and
he was returned to court for sentencing on December 15, 1994. He was sentenced to four years for battery
and two years for trespass.
Jackson
filed a postconviction motion seeking to have his two-year trespass sentence
reduced to nine months--which would be the maximum unenhanced sentence
for the misdemeanor. He claimed that he
never "personally acknowledge[d]" the prior convictions and that the
State never "adequately prove[d] their existence." The trial court denied the motion, stating:
First of all, rather than claiming that there's
anything inaccurate about any of the allegations here, we're talking about the
admission coming from the defendant's attorney rather than the defendant. The defendant hasn't submitted any
affidavits ... saying that there's anything inaccurate about any of the
allegations about the underlying convictions.
It appears there are even additional convictions that would have
sufficed to render the defendant a repeater. There was no misunderstanding on
his part. There are indications from
other sources that these same convictions were timely had, and clearly there's
no dispute as to two out of the three being established in the Presentence....
... The defendant's attorney conceded that he
had sustained the appropriate convictions.
There were additional convictions he clearly sustained that would have
justified his status. He is not saying
now that he didn't know that he was a repeater. In fact he did know fully the maximum penalty that he was
facing. He bargained for the sentence
that he got, and he got the sentence that he bargained for....
Given the
existence of the Presentence which seems to adequately ... corroborate the
existence of the defendant's repeater status, I'm going to have to deny the
relief that's [requested].
Our
review of the trial court's application of the penalty enhancers is de
novo. State v. Zimmerman,
185 Wis.2d 549, 554, 518 N.W.2d 303, 304 (Ct. App. 1994). And our independent review of the record
satisfies us that there was no error.
In
State v. Farr, 119 Wis.2d 651, 659-60, 350 N.W.2d 640, 645
(1984), the supreme court stated that, under § 973.12(1), Stats., which provides that "[i]f
such prior convictions are admitted by the defendant or proved by the
state," he or she shall be subject to sentence as a repeater,
[t]he admission may not ... be inferred nor made by
defendant's attorney, but rather, must be a direct and specific admission by
the defendant. The trial court may ask
the defendant the direct question while observing the defendant's criminal
record before him whether the defendant was convicted on a particular date of a
specific crime .... If that is done,
the admission of the defendant as allowed by the statute is satisfied. If the defendant stands mute or denies the
conviction, a certified copy ... can be presented to the trial court ... or in
the alternative, the proof may be made by an official report ... which is
specific enough to identify the defendant, the [crime], and the date of
conviction.
In
a later case, State v. Rachwal, 159 Wis.2d 494, 465 N.W.2d 490
(1991), the trial court, like the court in this case, never specifically asked
the defendant about the prior convictions.
In explaining the charges to him at the plea hearing, however, the court
asked whether the defendant understood that the offense, a misdemeanor carrying
a nine-month maximum jail sentence, could be "increase[d] ... up to a
maximum of zero to three years" because it was "a repeater type of an
offense," to which the defendant responded "Yes." Id. at 503, 465 N.W.2d at
493. The supreme court held that
"the colloquy into the defendant's understanding of the meaning of the
allegations he was facing can be said to have produced a direct and specific
admission" within the meaning of Farr. Id. at 509, 465 N.W.2d at 496.
While
we think the court's colloquy with Jackson in this case is sufficiently similar
to that in Rachwal to reach the same result, we are also
satisfied that Jackson's repeater status was adequately established by the
presentence report prepared and filed in his case. See State v. Caldwell, 154 Wis.2d 683, 693,
454 N.W.2d 13, 18 (Ct. App. 1990), where we held that the State may prove a
defendant's repeater status by reference to the presentence report.
Jackson
does not dispute the contents of the presentence investigation report with
respect to the prior convictions. He
claims only that, of the three predicate misdemeanor offenses alleged in the
charging documents as supporting repeater enhancement--battery on June 18,
1991, bailjumping on November 16, 1992, and theft on November 16, 1992--only
the battery and theft convictions are identified in the criminal record listed
in the report. He acknowledges the
later reference in the report to the bailjumping charge. He maintains, however, that the report states
only the date of sentencing, not the date of conviction and, additionally, that
the stated sentencing date, December 3, 1992, differs from the November 16,
1992, conviction date alleged in the information; and he claims that this "discrepancy" fails to
adequately establish Farr's
"conviction-on-a-particular-date" requirement.
The
argument is readily answered. First,
there is no question that the report's compilation of Jackson's prior record
shows conviction dates for at least one felony and five misdemeanors, all
occurring within the requisite five-year period. And we consider his contention that our decision in State
v. Wilks, 165 Wis.2d 102, 477 N.W.2d 632 (Ct. App. 1991), bars
consideration of these other offenses to be unavailing.
We held in Wilks
that where the charging documents listed a prior conviction which did not
exist as justifying repeater enhancement, and where the defendant pled to
the charge on that basis, the information could not later be amended, after the
State learned of its error, to reflect another prior conviction to justify
enhancing the sentence. Id.
at 110-11, 477 N.W.2d at 636. Our
decision in Wilks was based on the following analysis: because
Wilks entered his plea "believing that the state could not prove the [stated]
conviction" because it did not exist, "the basis upon which [he] pled
has been changed by the amendment" and, as a result, "the due process
considerations which underpin ... the repeater statute" barred the
amendment. Id. We believe Wilks does not compel
the result Jackson urges because there is no suggestion in this case that the
1992 bailjumping conviction did not exist.
Indeed, Jackson's only argument with respect to that conviction is that
the presentence investigation report does not state the date of conviction with
sufficient clarity.
We
reject that argument as well. We said
in Wilks that the State's burden in this regard is "to plead
a repeater allegation with relative clarity and precision." Id. at 111, 477 N.W.2d at
636. And we agree with the State's
argument that the difference between the statement in the information that
Jackson was convicted of bailjumping on November 16, 1992, and the statement in
the presentence that he was sentenced for the offense on December 3, 1992, is
not a material discrepancy. "These
dates," says the State, "are neither different nor mutually exclusive
since a person can be convicted on a different date than [he or she is]
sentenced, and since both [dates] are within the five years required by the
habitual offender statute, there is no legally relevant difference between
them."
Again,
we think the trial court correctly summarized the situation when it stated:
The
defendant hasn't submitted any affidavits here saying that there's anything
inaccurate about any of the allegations about the underlying convictions....
....
... He is not now
saying that he didn't know that he was a repeater.... Frankly, I see no injustice here. It's clear that the underlying reality is that the defendant was
a repeater that he was alleged to be.
He hasn't suggested anything to the contrary.
We
stated in Caldwell that because the defendant in that case could
have challenged the pertinent facts in the presentence investigation report but
elected not to, "[t]he court was therefore free to rely on the report and
sentence [him] as a repeater." Caldwell,
154 Wis.2d at 695, 477 N.W.2d at 18.
The same is true here. The
presentence report establishes that Jackson's criminal record of one felony and
six misdemeanor convictions within the requisite five-year period is more than
adequate to support enhancement of his sentence as a repeater. He does not challenge the existence of any
of those convictions--only that the presentence report does not state the exact
date of one of the convictions alleged in the charging documents. And a commonsense reading of the report's
statement that he was sentenced for bailjumping shortly after he was arrested
for absconding from supervision in 1992 establishes that his conviction for
that offense occurred between April 5, 1987, and April 5, 1993, the applicable
dates under the five-year provisions of § 939.62, Stats. The Caldwell
test was met.
By
the Court.—Judgment and order
affirmed.
This
opinion will not be published. See
Rule 809.23(1)(b)4, Stats.
[2] Sections 939.62(1) and (2), Stats., provide that if the defendant
was either convicted of a felony during the five-year period immediately
preceding the commission of the presently charged offense, or else "was
convicted of a misdemeanor on 3 separate occasions during that same
period," he or she is a "repeater" within the meaning of the
statute and subject to increased penalties as follows:
(a) A maximum term of one year or less may be increased
to not more than 3 years.
(b) A maximum term of more than one year but not more
than 10 years may be increased by not more than 2 years if the prior
convictions were for misdemeanors and by not more than 6 years if the prior
conviction was for a felony.