PUBLISHED OPINION
Case No.: 95-2217-CR
†Petition for
review filed.
Complete
Title
of
Case:STATE OF
WISCONSIN,
Plaintiff-Respondent,
v.
CARLTON B. CAMPBELL,
Defendant-Appellant.†
Submitted
on Briefs: March 27, 1996
COURT COURT OF
APPEALS OF WISCONSIN
Opinion
Released: April 25, 1996
Opinion
Filed: April
25, 1996
Source
of APPEAL Appeal from a judgment
Full
Name JUDGE COURT: Circuit
Lower
Court. COUNTY: Dane
(If
"Special" JUDGE: Patrick
J. Fiedler
so
indicate)
JUDGES: Eich,
C.J., Dykman and Vergeront, JJ.
Concurred:
Dissented:
Appellant
ATTORNEYSFor the defendant-appellant the
cause was submitted on the briefs of Morris D. Berman of Giesen &
Berman, S.C. of Madison.
Respondent
ATTORNEYSFor the plaintiff-respondent the
cause was submitted on the brief of Robert J. Kaiser, Jr., Dane County
deputy district attorney.
COURT OF
APPEALS DECISION DATED AND
RELEASED April
25, 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, Stats. |
This opinion is subject to further editing. If published, the official version will appear in the bound
volume of the Official Reports. |
No. 95-2217-CR
STATE OF WISCONSIN IN
COURT OF APPEALS
STATE
OF WISCONSIN,
Plaintiff-Respondent,
v.
CARLTON
B. CAMPBELL,
Defendant-Appellant.
APPEAL
from a judgment of the circuit court for Dane County: PATRICK J. FIEDLER, Judge.
Affirmed.
Before
Eich, C.J., Dykman and Vergeront, JJ.
VERGERONT,
J. Carlton Campbell appeals from a
judgment of conviction for bail jumping as a repeater, in violation of
§§ 946.49(1)(a) and 939.62(1)(a), Stats.[1] He contends the trial court erred in
permitting the State to amend the information after arraignment to add a fourth
misdemeanor to the three already alleged as a predicate for the repeater
charge.[2] Campbell claims the amendment violated
§ 973.12(1), Stats., because
it was made after the trial court accepted his plea of not guilty at
arraignment. We conclude the amendment
did not violate § 973.12(1). We
also conclude that Campbell was not prejudiced by the amendment. We therefore
affirm.
BACKGROUND
Campbell
was charged in Case No. 94-CM-4470 with three counts of misdemeanor bail
jumping as a repeat offender. Shortly
thereafter he was charged in Case No. 95-CF-7 with one felony--false
imprisonment--and three misdemeanors--obstructing an officer, possession of
tetrahydrocannabinols (THC), and possession of drug paraphernalia. Each of these four counts contained an
allegation that Campbell was a repeater and that he had three previous
misdemeanor convictions in Dane County Circuit Court: July 22, 1991 for battery, June 29, 1992 for bail jumping and
August 4, 1994 for disorderly conduct.
At
the initial appearance on both cases held on January 3, 1995, Campbell stood
mute on the misdemeanor charges and the court commissioner entered not guilty
pleas on his behalf. After the
preliminary hearing on the felony charge, Campbell was bound over for arraignment. The information filed in Case No. 95-CF-7
before the arraignment alleged the same four offenses with the same repeater
allegations as those alleged in the complaint.
The information also alleged a fifth offense, misdemeanor bail jumping,
with the same repeater allegations. At
the arraignment held on February 16, 1995,
Campbell stood mute and the court entered not guilty pleas to all five
charges in the information.[3]
On
April 5, 1995, Campbell reached a plea agreement with the State whereby he was
to plead no contest to one charge of misdemeanor bail jumping as a repeater in
Case No. 94-CM-4470, and to one charge of misdemeanor bail jumping as a
repeater alleged in an amended information in Case No. 95-CF-7. All other counts were to be dismissed, but
read-in for purposes of sentencing.
There was no agreement as to sentencing.
In
the amended information in Case No. 95-CF-7, filed on April 5, 1995, the State
added a fourth misdemeanor to each of the repeater allegations: July 29, 1992 for disorderly conduct.[4] At the plea and sentencing hearing held on
the same date, Campbell objected to the amendment because it was made after the
pleas had been accepted at the arraignment.
However, he did stipulate to the fact of the fourth prior misdemeanor
conviction, as well as to the three prior misdemeanor convictions alleged in
the original information. Apparently,
the impetus for the amendment was that the State realized the August 4,
1994 misdemeanor conviction was being appealed, and wanted to make sure that if
that conviction were reversed, there were still three prior unreversed
misdemeanor convictions to support the repeater charge. The court permitted the amendment.
After
both the defense counsel and the prosecutor assured the trial court that the
dispute over the propriety of the amendment did not affect the court's ability
to sentence Campbell as a repeater and did not affect the validity of the plea
agreement, the court engaged in the required plea colloquy and accepted
Campbell's plea of no contest to misdemeanor bail jumping as a repeater in Case
No. 95-CF-7, and Campbell's plea of no contest to misdemeanor bail jumping as a
repeater in Case No. 94-CM-4470. The
court sentenced Campbell to eighteen months in the Wisconsin State Prison
System in Case No. 94-CM-4470 and to thirty months in Case No. 95-CF-7, to run
consecutively to each other and to a sentence already imposed in another case.
DISCUSSION
The propriety of the
amendment to the information depends, in the first instance, on an
interpretation of § 973.12(1), Stats.,
which provides in part:
Whenever a person
charged with a crime will be a repeater or a persistent repeater under s.
939.62 if convicted, any applicable prior convictions may be alleged in the
complaint, indictment or information or amendments so alleging at any time
before or at arraignment, and before acceptance of any plea.
Since
the original information alleged repeater status and the three required prior
misdemeanor convictions necessary for repeater status, the narrow question is
whether the post-arraignment amendment to add a fourth misdemeanor conviction
violates § 973.12(1), Stats. The application of § 973.12(1) to the
undisputed facts of this case presents a question of law, which we review de
novo. See Tahtinen v. MSI
Ins. Co., 122 Wis.2d 158, 166, 361 N.W.2d 673, 677 (1985).
The
supreme court has most recently addressed § 973.12, Stats., in State v. Gerard,
189 Wis.2d 505, 525 N.W.2d 718 (1995).
An understanding of Gerard requires a discussion of a
prior supreme court decision, State v. Martin, 162 Wis.2d 883,
470 N.W.2d 900 (1991).
Martin involved two consolidated appeals by separate
defendants raising the same issue. The
information filed against each defendant did not contain a repeater allegation. After the defendants pleaded not guilty at
arraignment, but before trial, the State amended each information to add a
repeater allegation. The supreme court
held that an examination of the statutory evolution of § 973.12, Stats., "makes clear that the
legislature has established the time of arraignment and of any plea
acceptance [not guilty, guilty, or no contest] as the cut-off point after which
time a defendant can no longer face exposure to repeater enhancement for the
crime set forth in the charging document and pleaded to by the defendant at
arraignment."[5] Martin, 162 Wis.2d at 900, 470
N.W.2d at 907 (emphasis in original; footnote omitted). The State argued that the defendants were
not prejudiced by the amendments since they pleaded not guilty and the
amendments occurred before trial. The
court rejected this argument, concluding that prejudice is an irrelevant
consideration under § 973.12(1):
The legislature has established a rule. Regardless of the kind of plea entered in
response to the charges alleged at arraignment, the defendant's plea will be
more meaningful if he or she is aware of the extent of potential punishment
which ensues from a conviction of the crime.
Id. at 902-03, 470 N.W.2d at 908 (footnote omitted).
In
Gerard, the complaint and information both alleged a penalty
enhancer based on repeater status for each of two counts. However, both documents incorrectly stated
the enhanced penalty for one of the two counts.[6] At arraignment, Gerard entered a plea of not
guilty to each count in the information.
Within nine days of Gerard's arraignment and nine months before trial,
the trial court permitted the State to amend the information to correct the
error and denied Gerard's motion to dismiss the defective portion of the
complaint. Gerard, 189
Wis.2d at 510, 525 N.W.2d at 719.
Relying on Martin, Gerard argued that the error in the
penalty enhancement failed to inform him of the extent of the punishment at the
time he pleaded to the charges and that the amendment meaningfully changed the
basis upon which he pleaded to the charges.
Id. at 511, 525 N.W.2d at 720.
The Gerard
court began its discussion by noting that the parties "do not dispute that
the defendant's prior convictions made him a repeater as defined in
sec. 939.62(2), Stats., and,
further, that the complaint and the information correctly alleged defendant's
repeater status." Gerard,
189 Wis.2d at 512, 525 N.W.2d at 720.
The court concluded that the mistake in the penalty enhancer did not
affect the sufficiency of the notice, and, therefore, the post-arraignment
correction of the mistake did not violate § 973.12, Stats.
In reaching this conclusion, the court noted that its concern in Martin--that
the defendant have knowledge of the potential punishment before pleading to the
charges--was satisfied because the information, at the time of arraignment,
correctly alleged Gerard's repeater status.
Id. at 514, 525 N.W.2d at 721. Although there was no statutory violation, the court determined
that it still had to consider whether Gerard was prejudiced by the amendment,
since "[p]rejudice has always been a consideration with regard to amending
a charging document." Id.
at 517 n.9, 525 N.W.2d at 722. The
court decided that the amendment did not prejudice Gerard. Id. at 518, 525 N.W.2d at
722.
Campbell
points to the Gerard court's description of that amendment as a correction
of a "clerical error," contending that the amendment in this case did
not correct a clerical error. That is
true but, in our view, the holding in Gerard is not limited to
post-arraignment amendments that can be characterized as corrections of a
clerical error. The Gerard
court describes Martin as holding that § 973.12(1), Stats., establishes the time of
arraignment and plea acceptance as a cut-off point "after which the
information could not be amended to include a penalty enhancement." Gerard, 189 Wis.2d at 517, 525
N.W.2d at 722. We read Gerard
to hold that, where the information correctly alleges a defendant's repeater
status, a post-arraignment amendment to the information does not violate §
973.12 as long as it does not affect the sufficiency of the notice to the
defendant concerning his or her repeater status.
As
in Gerard, there is no dispute that Campbell's prior convictions
made him a repeater and there is no dispute that Campbell's repeater status was
correctly alleged in the complaint and information--that is, by correctly
alleging the three prior misdemeanor
convictions. Campbell, like Gerard, had
accurate knowledge of his potential punishment at the time he entered his not
guilty pleas at the arraignment. The
amendment adding a fourth prior misdemeanor conviction did not affect the
sufficiency of that notice.
Campbell's
interpretation of § 973.12, Stats.,
would require that all prior convictions be alleged before or at arraignment,
even if they were not necessary to repeater status. That is inconsistent with the Gerard court's
discussion of Martin, and we reject this interpretation of §
973.12. We conclude that the amendment
did not violate § 973.12 because, at the time of the arraignment and before
acceptance of Gerard's plea at arraignment, the information correctly alleged
his repeater status, including the three necessary prior misdemeanor
convictions.
Although
the amendment to the information did not violate § 973.12, Stats., following Gerard
we must decide whether Campbell was prejudiced by the amendment. In Gerard, the court decided
that the defendant was not prejudiced because he did not seek to withdraw his
guilty plea once he became aware of the mistake; he did not argue prejudice in
his motion to the trial court to dismiss the defective complaint and amend the
information; and the court could not conceive how a misstatement of the penalty
enhancer discovered nine months before trial could have had any prejudicial
impact on Gerard's preparation for trial.
Gerard, 189 Wis.2d at 518-19, 525 N.W.2d at 722-23.
Campbell
argues that if the August 4, 1994 prior misdemeanor is reversed on appeal, then
his potential punishment differs depending on whether the amendment is
permitted. Campbell suggests that
without the amendment, a reversal of the August 4, 1994 misdemeanor would
require a reduction of that part of the sentence due to the penalty enhancer
because there would then only be two unreversed prior misdemeanor convictions
alleged in the information. Therefore,
Campbell claims, the amendment meaningfully changed the basis on which he
assessed his possible punishment at the time of his plea at arraignment.[7]
We
do not decide whether Campbell's assumption about the effect of a reversed
prior conviction is correct. Even if it
is correct, that does not explain how the amendment prejudiced his ability to
assess his potential punishment.
Campbell provides no detail to illuminate this general assertion. We can see no reason why Campbell would have
pleaded guilty rather than not guilty at the arraignment had he known the State
was going to add a fourth prior misdemeanor conviction to the information. Campbell knew of the amendment at the time
he changed his plea to no contest pursuant to the plea agreement and
nevertheless chose to plead no contest.
The "prejudice" Campbell describes is what he perceives to be
the potential adverse effect of the amendment on his chances of avoiding the
penalty enhancer; but we see no adverse effect from the amendment on his
ability to evaluate his potential punishment, either at the arraignment or at
the plea hearing.
Campbell
points to State v. Wilks, 165 Wis.2d 102, 477 N.W.2d 632 (Ct.
App. 1991), in support of his argument that he was prejudiced. In Wilks, the criminal
complaint charged the defendant with misdemeanor retail theft. It also contained a repeater allegation and
the date of a prior conviction.
Pursuant to a plea agreement, Wilks pleaded no contest to the
misdemeanor retail theft charge, but did not admit to the repeater
offense. The hearing on sentencing was
adjourned to permit the State to document the prior conviction. When the State conceded it could not do so,
the court permitted an amendment to the charging document to allege a different
prior offense, which the State could prove.
The court then sentenced Wilks.
We held that Wilks was prejudiced by the amendment because he entered
the no contest plea having notice of only the one alleged prior conviction,
which he believed the State could not prove and which it could not prove.[8]
The
analysis of prejudice in Wilks does not aid Campbell. Campbell knew at the time he entered his no
contest pleas pursuant to the plea agreement that the information was amended
to contain a fourth prior conviction.
By the Court.—Judgment affirmed.
[2] Section 939.62(1), Stats., provides for increased penalties upon the conviction
of a repeater. Section 939.62(2)
defines a repeater as follows:
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.
[3] Because the trial court was unable to find a
minute sheet indicating that pleas had been accepted in Case No. 94-CM-4470, it
conducted an arraignment on that complaint as well. As at the initial appearance, Campbell stood mute and the court
entered not guilty pleas to the charges.
[5] The court in State v. Martin,
162 Wis.2d 883, 470 N.W.2d 900 (1991), noted that "before or at
arraignment" and "before acceptance of any plea" are conjunctive
requirements and both must be met for repeater status to be timely alleged
under § 973.12(1), Stats. Id. at 905, 470 N.W.2d at 909.
[6] The amount by which a penalty is increased
under § 939.62(1), Stats.,
depends on the maximum penalty for the crime charged.
[7] We understand Campbell to be referring in
this argument to the pleas at arraignment.
However, because he does not always make this clear, we address this
argument in the contexts of arraignment
and of the pleas he later entered pursuant to the plea agreement.
[8] State v. Wilks, 165 Wis.2d 102,
477 N.W.2d 632 (Ct. App. 1991), was decided prior to State v. Gerard,
189 Wis.2d 505, 525 N.W.2d 718 (1995).
In Wilks, we read State v. Martin, 162
Wis.2d 883, 470 N.W.2d 900 (1991), to bar only those post-plea repeater
amendments under § 973.12(1), Stats.,
that violate due process by not sufficiently notifying the defendant of the
possible punishment at the time of the plea.
Wilks, 165 Wis.2d at 110 n.9, 477 N.W.2d at 636. Gerard does not refer to Wilks. To the extent that our interpretation of
§ 973.12 in Wilks is inconsistent with Gerard,
we must follow Gerard. See
State v. Kircher, 189 Wis.2d 392, 398, 525 N.W.2d 788, 790 (Ct.
App. 1994). However, any inconsistency
that may exist between those two cases does not affect our analysis of
prejudice in this case.