2009 WI 36
SUPREME COURT
CASE NO.: COMPLETE TITLE:
OF
WISCONSIN
2007AP2307-CR State of Wisconsin, Plaintiff-Respondent, v. Michael Scott Long, Defendant-Appellant-Petitioner. REVIEW OF A DECISION OF THE COURT OF APPEALS Reported at: 314 Wis. 2d 260, 757 N.W.2d 850 (Ct. App. 2008-Unpublished)
OPINION FILED: SUBMITTED ON BRIEFS: ORAL ARGUMENT: SOURCE OF APPEAL: COURT: COUNTY: JUDGE: JUSTICES: CONCURRED: DISSENTED: NOT PARTICIPATING: ATTORNEYS:
May 27, 2009 March 6, 2009
Circuit St. Croix Edward F. Vlack
For the defendant-appellant-petitioner there were briefs by Joseph L. Sommers and Sommers Law Office, Oregon, and oral argument by Joseph L. Sommers. For the plaintiff-respondent the cause was argued by Anne C. Murphy, assistant attorney general, with whom on the brief was J.B. Van Hollen, attorney general.
2009 WI 36
NOTICE
This opinion is subject to further editing and modification. The final version will appear in the bound volume of the official reports.
No.
2007AP2307-CR
2005CF266)
(L.C. No.
STATE OF WISCONSIN State of Wisconsin, Plaintiff-Respondent, v.
:
IN SUPREME COURT
FILED
MAY 27, 2009
Michael Scott Long, Defendant-Appellant-Petitioner.
David R. Schanker Clerk of Supreme Court
REVIEW of a decision of the Court of Appeals. part, reversed in part, and cause remanded.
Affirmed in
¶1 review of
ANN an
WALSH
BRADLEY,
J.
Michael of the
Scott court
Long of
seeks appeals
unpublished
decision
affirming his conviction and sentence for second-degree sexual assault and false imprisonment.1 to He asserts of that there was In
insufficient addition, he
evidence
convict him that the
either
offense.
contends
circuit
court
erroneously
State v. Long, No. 2007AP2307-CR, unpublished slip op. (Ct. App. Aug. 12, 2008) (affirming judgments of the circuit court for St. Croix County, Edward F. Vlack, III, Judge.)
1
No.
2007AP2307-CR
concluded that he was a persistent repeater under Wis. Stat. § 939.62(2m) (2007-08).2 ¶2 We conclude that there was sufficient evidence for a
jury to find Long guilty of second-degree sexual assault and false imprisonment. However, we also determine that the circuit Under the in the
court incorrectly applied Wis. Stat. § 939.62(2m). plain language of the statute and the facts
alleged
complaint, Long is not a persistent repeater.
Accordingly, we
affirm the convictions, vacate the sentence, and remand to the circuit court for resentencing consistent with this opinion. I ¶3 On October 24, 2004, Michael S. Long entered the
Country Inn in River Falls and had an encounter with the front desk attendant, Bobbie D. According to the criminal complaint,
Bobbie D. told the police that Long asked her to hug him so that she could feel his penis. He then grabbed Bobbie D. from
behind, hugging her three or four times. that his penis touched her buttocks and
She told the police inner thigh through
their clothing. ¶4 Long
Ultimately, Bobbie D. fled and Long departed. was charged with one count of second-degree
sexual assault contrary to Wis. Stat. § 940.225(2)(a) and one count of false imprisonment contrary to § 940.30. For both
counts, he was charged as a persistent repeater under Wis. Stat. § 939.62(2m)(b)1. That subsection is commonly referred to as
All subsequent references to the Wisconsin Statutes are to the 2007-08 version unless otherwise indicated. 2
2
No.
2007AP2307-CR
the Wisconsin "three
strikes"
statute,
and
it
can
subject a
third-time offender to a mandatory term of life imprisonment without the possibility of parole. ¶5 been for To count as a strike, a previous conviction must have a "serious felony." The statute lists Wisconsin Wis. Stat. "comparable"
offenses that are considered to be serious felonies. § 939.62(2m)(a)2m. Further, it provides that a
out-of-state conviction can be counted as a strike "only if the court determines, beyond a reasonable doubt, that the violation relating to that conviction would constitute a [serious felony] if committed by an adult in this state." Wis. Stat.
§§ 939.62(2m)(a)d., 939.62(2m)(d). ¶6 basis for The complaint listed two Minnesota convictions as the application of the persistent repeater statute: a
December 18, 2003 conviction for first-degree burglary and a January conduct.3 enhancer. 7, 2004 conviction for fourth-degree criminal sexual
Long filed a motion to dismiss the persistent repeater The judge deferred consideration until after trial,
reasoning that Long's status as a persistent repeater would only be relevant for sentencing purposes if Long was found guilty of second-degree sexual assault or false imprisonment. ¶7 At trial, Bobbie D. testified that she was working
behind the desk at the Country Inn on the evening of October 24,
The complaint also listed an August 11, 2003 conviction for indecent exposure. Since the filing of the complaint, the State has not argued that the 2003 indecent exposure conviction would constitute a serious felony in Wisconsin. 3
3
No.
2007AP2307-CR
2004.
Long entered the motel wearing white spandex shorts, a He told her that he was
purple shirt, and a baseball cap.4
wearing spandex because he lost a bet, and he asked if it was revealing. She testified that she thought he was joking, and
when Long asked her to accompany him to the breakfast room, she went. ¶8 At that point, Long asked Bobbie D. to rate his penis
on a scale from one to ten and asked her to come hug him so that she could tell him how his penis felt. Bobbie D. testified that
she "didn't know what to do" and that she "just stood there" because "she was too afraid to leave at that point." testified, "I said no and I started to back away. one or two steps away. away and I said no." ¶9 On cross-examination, however, Bobbie D. was uncertain She also
I just took
I didn't leave the room but I backed
about whether she affirmatively told Long he could not hug her. The following exchange occurred between Bobbie D. and the
defense attorney: Q: And does the report indicate that Mr. Long asked you if you would mind if he hugged you? A: That's what it says. Q: And that your response anything, is that correct? A. I said I wouldn't do it. was that you didn't say
I'm not going to hug him.
Long did not testify, but he stipulated that he was the individual who approached Bobbie D. at the Country Inn on October 24, 2004. 4
4
No.
2007AP2307-CR
Q: Your testimony today is that you told Mr. Long that you would not hug him? A: When he asked if I would mind if he hugged me I don't remember, I guess I don't recall if I stood there or if I said no but he never asked if I would hug him. ¶10 Bobbie D. testified that Long assaulted her: "He
approached me and grabbed me and put his arms around me and hugged three to four different times." "[v]ery forceful. It was very tight." She described the hug as She testified that his
penis touched her buttocks and inner thigh through her clothes. "He just kept holding on very tight and both arms were around and it was just very tight and he didn't let go." further testified that she did not cry out or say Bobbie D. anything
because she was afraid, and she did not run away because he was holding her too tightly. When he let go, she ran behind the
desk and into a back room and called her supervisor. ¶11 The jury was instructed on second-degree sexual
assault and the lesser included crime of fourth-degree sexual assault,5 as well as on false imprisonment. The jury returned
guilty verdicts for both second-degree sexual assault and false imprisonment. ¶12 written Prior to sentencing, decision and the circuit court issued beyond a a
memorandum
order
concluding
Both second- and fourth-degree sexual assault require proof that the defendant had sexual contact with the victim and that the victim did not consent to the sexual contact. Seconddegree sexual assault requires proof of one additional element—— that the sexual contact was by use or threat of force or violence. Compare Wis. Stat. §§ 940.225(2)(a) and 940.225(3m). 5
5
No.
2007AP2307-CR
reasonable doubt that two of Long's previous convictions were comparable to serious felonies in Wisconsin. determined that Long would be sentenced to Thus, the court a life sentence
without the possibility of parole under the persistent repeater statute, Wis. Stat. § 939.62(2m)(c). ¶13 In reaching this conclusion, the circuit court
examined Long's previous conviction for fourth-degree criminal sexual conduct in Washington County, Minnesota. According to
the criminal complaint, Long entered a tanning salon on March 23, 2003, and had sexual contact with an employee without her consent. There is no plea colloquy or judgment of conviction in However, according to a Minnesota sentencing order,
the record.
it appears that Long pleaded guilty to fourth-degree criminal sexual conduct on January 7, 2004. case determined that this The circuit court in this was comparable to a
conviction
Wisconsin conviction for second-degree sexual assault, and thus the conviction counted as one strike. this ruling. ¶14 conviction Minnesota. The circuit court also examined in Long's Hennepin previous County, women Once The Long does not contest
for
first-degree to the
burglary criminal
According
complaint,
two
allowed Long to enter their apartment on March 26, 2003. inside, Long asked the women to rate the size of his penis. women told Long to leave, and he did.
About one minute later he
reentered the apartment without knocking, went into one of the bedrooms, and began to masturbate. him to leave. One of the women yelled at
Long told her that she had a "nice butt" and 6
No.
2007AP2307-CR
asked to see it.
When she refused, Long pulled down her pants
and grabbed her buttocks. ¶15 Long was charged with first-degree burglary, fifth-
degree criminal sexual conduct, and indecent exposure. no judgment of conviction or plea colloquy in the
There is record.
Nonetheless, according to a court document entitled "Terms and Conditions of Felony Sentence," it appears that Long pled guilty to the burglary charge on December 13, 2003. There is nothing
in the record indicating the disposition of the fifth-degree criminal sexual conduct charge or the indecent exposure charge. However, at oral argument the parties agreed that those charges had been dismissed. ¶16 conduct The circuit court also determined that the underlying in the Hennepin County conviction "would constitute The court
second-degree sexual assault under Wisconsin law."
thus concluded that the burglary conviction was a second strike, and that the persistent repeater enhancement would be applied to the sentence. ¶17 On November 26, 2006, Long was sentenced to life
imprisonment without the possibility of parole on the seconddegree sexual assault conviction. The court also sentenced him
to a concurrent sentence of three years confinement and three years extended supervision on the false imprisonment conviction. ¶18 evidence Long to appealed, him arguing of that there was insufficient assault and
convict
second-degree
sexual
false imprisonment. persistent repeater
He also challenged the application of the penalty enhancement, 7 asserting that his
No.
2007AP2307-CR
Hennepin
County
burglary
conviction
was
not
comparable
to
a
serious felony in Wisconsin.
The court of appeals issued a per
curiam decision affirming the convictions and sentences. II ¶19 This case requires us to review the sufficiency of When a defendant challenges of the evidence, we give
evidence supporting a jury verdict. a verdict based on sufficiency
deference to the jury's determination and view the evidence in the light most favorable to the State. 80, ¶57, 273 Wis. 2d 1, 681 State v. Hayes, 2004 WI If more than one
N.W.2d 203.
inference can be drawn from the evidence, we must adopt the inference that supports the conviction. Wis. 2d 532, 541, 356 N.W.2d 169 (1984). State v. Hamilton, 120 We will not substitute
our own judgment for that of the jury unless the evidence is so lacking in probative value and force that no reasonable jury could have concluded, beyond a reasonable doubt, that the
defendant was guilty.
State v. Poellinger, 153 Wis. 2d 493,
507, 451 N.W.2d 752 (1990). ¶20 This case also requires us to interpret and apply the Statutory
persistent repeater statute, Wis. Stat. § 939.62(2m).
interpretation and application present questions of law which we review independently of the determinations rendered by the
circuit court and the court of appeals.
State ex rel. Hipp v. We
Murray, 2008 WI 67, ¶20, 310 Wis. 2d 342, 750 N.W.2d 873.
interpret statutory language in the context in which it is used, not in isolation but as part of a whole and in relation to the
8
No.
2007AP2307-CR
language of surrounding or closely related statutes.
State v.
MacArthur, 2008 WI 72, ¶9, 310 Wis. 2d 550, 750 N.W.2d 910. III ¶21 We address first the challenges Long makes to his
Wisconsin convictions for second-degree sexual assault and false imprisonment. for a Long argues that there was insufficient evidence jury to convict him of either offense.
reasonable
Specifically, he argues that there was insufficient evidence of use of force to sustain his conviction for second-degree sexual assault. that As to the false imprisonment conviction, he argues was insufficient evidence that he confined or
there
restrained Bobbie D. and that there was insufficient evidence to show a lack of consent. We address these arguments in turn.6 A ¶22 The jury was instructed that to find Long guilty of
second-degree sexual assault, it must conclude that: (1) Long had sexual contact with Bobbie D.; (2) Bobbie D. did not consent to the sexual contact; and (3) the sexual contact was by use or threat of force or violence. The instructions specified that
the third element is satisfied if the "use or threats of force or violence compel the victim to submit. The phrase by use of
Long also asserts that the rule of lenity should apply here. Under the rule of lenity, we will construe a criminal statute in favor of the accused "[w]hen there is doubt as to the meaning of a criminal statute." State v. Quintana, 2008 WI 33, ¶66, 308 Wis. 2d 615, 748 N.W.2d 447 (quotations and citations omitted). Because we do not doubt the meaning of the criminal statutes at issue, we do not apply the rule of lenity here. 9
6
No.
2007AP2307-CR
force includes forcible
sexual
contact
or
force
used
as
the
means of making sexual contact." jury instructions were erroneous. ¶23 Instead, he argues
Long does not argue that the
that
there
was
insufficient
evidence of force because Bobbie D. testified that he hugged her and a hug is not equivalent to force. He further argues that
because Bobbie D. was not certain whether she told Long not to hug her, the jury was presented with insufficient evidence to conclude that Long forced her to submit to sexual contact. In
essence, Long argues that if Bobbie D. passively succumbed to the hug, the hug could not have been forceful or violent.7 ¶24 Long's arguments are not persuasive. Under Wisconsin
law, force has been used when the victim is compelled to submit. See State v. Bonds, 165 Wis. 2d 27, 32, 477 N.W.2d 265 (1991) (concluding that the force element of second-degree sexual
assault was met when Bonds grabbed a woman's nipple and squeezed it). In Bonds, the court said, "Force used at the time of
contact can compel submission as effectively as force or threat
Although Long's argument might be construed as an attempt to argue that Bobbie D. consented to the sexual contact, we do not and cannot read it that way. Sexual contact occurred when Long pressed his penis against Bobbie D's body. Even if Bobbie D. affirmatively consented to the hug, that fact would not establish that she consented to the sexual contact. Further, Long has conceded that there was sufficient evidence to convict him of fourth-degree sexual assault, defined as sexual contact without consent. Thus, Long has acknowledged that a jury could find that Bobbie D. did not consent to sexual contact. 10
7
No.
2007AP2307-CR
occurring
before
contact.
Regardless
of
when
the
force
is
applied, the victim is forced to submit." ¶25 Here, Bobbie D. testified
Id. Long grabbed her,
that
hugged her tightly and forcibly, and that she was too afraid to cry out. From this testimony, the jury could have determined
that Long forcibly held Bobbie D., compelling her to submit so that he could make sexual contact. We conclude that a
reasonable jury could have determined beyond a reasonable doubt that the sexual contact was by use or threat of force or
violence. B ¶26 Long also argues that there was insufficient evidence The jury was instructed
to convict him of false imprisonment.
on the five elements of false imprisonment: (1) the defendant confined or restrained Bobbie D.; (2) he did so intentionally; (3) he did so without her consent; (4) the defendant had no lawful authority to restrain her; and (5) he knew that she did not consent and that he did not have lawful authority to
restrain her.
The instruction further explained:
If the defendant deprived Bobbi D. of freedom of movement or compelled her to remain where she did not wish to remain then Bobbie D. was confined or restrained. The use of physical force is not required. One may be confined or restrained by acts or words or both. A person is not confined or restrained if she knew that she could have avoided it by taking reasonable action. A reasonable opportunity to escape does not change confinement or restraint that has occurred.
11
No.
2007AP2307-CR
¶27
Long
does
not
argue
that
the
instruction
misstates
Wisconsin law.
Instead, he argues that Bobbie D.'s testimony
was insufficient to establish that Long confined or restrained her. He contends that it would be absurd to conclude that one Instead, he argues that confinement
can be confined by a hug.
implies an action such as locking someone in a room or a car. Long further asserts that there was insufficient evidence that Bobbie D. did not consent to the hug. ¶28 is the This court has previously explained that confinement "restraint Herbst (1978). by v. one person of the 83 physical liberty 774, case of 266 law
another." N.W.2d 391 limits
Wuennenberg, in the
Wis. 2d 768, or our
Nothing to
statute the
confinement
situations
where
defendant
locks
another person in some sort of structure, as Long suggests. ¶29 In this case, Bobbie D. testified, "He just kept
holding on very tight and both arms were around and it was just very tight and he didn't let go." We conclude that, based on
such testimony, a reasonable jury could have determined beyond a reasonable liberty. ¶30 Long further argues that there was insufficient doubt that Long restrained Bobbie D.'s physical
evidence that Bobbie D. did not consent to the confinement or restraint. He points to her testimony during cross-examination,
where Bobbie D. equivocated about whether she had affirmatively told Long that he could not hug her. mark. Long's argument misses the
Even if Bobbie D. was silent and did not back away from
Long, those facts would not establish her consent. 12
No.
2007AP2307-CR
¶31
Although of
Wis.
Stat.
§ 939.22(48) "consent
enumerates in fact" in the
several is not
definitions specifically
"without in
consent," that
defined
statute
or
false
imprisonment statute.
Nonetheless, consent is defined in the
sexual assault statute as "words or overt actions by a person who is competent to give informed consent indicating a freely given agreement to have . . . sexual contact." 940.225(4). Wis. Stat. §
In the context of sexual assault, consent in fact A failure to
requires an affirmative indication of willingness.
say no or to resist does not constitute consent in fact. ¶32 In the context of false imprisonment, consent in fact
is established by words or overt actions by a person who is competent to give informed consent indicating a freely given agreement to be confined or restrained. See id. Long does not
point to any words or actions by Bobbie D. that would indicate her freely given agreement to be confined or restrained. Under
these circumstances, we conclude that even if the jury did not believe that Bobbie D. said no, a reasonable jury could have determined beyond a reasonable doubt that she did not consent in fact to the restraint. IV ¶33 to Having determined that there was sufficient evidence Long we of second-degree next to sexual assault and false the
convict
imprisonment,
turn
his
argument
regarding
persistent repeater penalty enhancer. circuit repeater. court He wrongly points concluded to Wis. 13 that
Long asserts that the he § was a persistent which
Stat.
939.62(2m)(d),
No.
2007AP2307-CR
provides counted
that as
"comparable" "only if
out-of-state the court
convictions determines,
can beyond
be a
strikes
reasonable doubt, that the violation relating to that conviction would constitute a [serious felony] if committed by an adult in this state." ¶34 Long acknowledges criminal that his previous in conviction for
fourth-degree
sexual
conduct
Washington
County,
Minnesota would have constituted a serious felony in Wisconsin and thus constitutes one "strike." second "strike," a Hennepin However, he asserts that his Minnesota conviction for
County,
first-degree burglary, is not comparable to a serious felony in Wisconsin. He contends that the circuit court erred by
concluding that, under the facts alleged in the Hennepin County complaint, Long would have been guilty beyond a reasonable doubt of second-degree sexual assault in Wisconsin. ¶35 We need not address this argument because we determine
that, based on the previous convictions that were listed in the complaint statute, and Long the is plain not a language of the persistent The repeater statute
persistent
repeater.
provides that an actor is a persistent repeater if: [1] The actor has been convicted of a serious felony on 2 or more separate occasions at any time preceding the serious felony for which he or she presently is being sentenced . . . and [2], of the 2 or more previous convictions, at least one conviction occurred before the date of violation of at least one of the other felonies for which the actor was previously convicted. Wis. Stat. § 939.62(2m)(b)1 (emphasis added).
14
No.
2007AP2307-CR
¶36
This
subsection
establishes
two
independent
requirements that must be met before a defendant is deemed a persistent repeater. The first clause requires that the two
previous strikes occurred before the Wisconsin felony for which the defendant is presently being sentenced. The second clause
requires that the conviction date for the first strike preceded the violation date for the second strike. ¶37 be When asked at oral argument how this subsection should counsel for the State argued that it simply
construed,
requires that at least one of the previous convictions preceded the present conviction. This proposed interpretation does not
comport with the plain meaning of the statute and principles of statutory interpretation. ¶38 First, the State's interpretation is inconsistent with
the text of the second clause, which provides that "of the 2 or more previous the convictions, of at least of at one least conviction one of occurred the other Id.
before
date
violation
felonies for which the actor was previously convicted." (emphasis added). This clause discusses the
relationship
between the two previous strikes, rather than the relationship between the previous strikes and the present Wisconsin
conviction. ¶39 Further, when construing statutes, meaning should be Hutson v. Wis. Pers. A
given to every word, clause, and sentence.
Comm'n, 2003 WI 97, ¶49, 263 Wis. 2d 612, 665 N.W.2d 212.
construction that would render part of the statute superfluous should be avoided. If the second clause meant only that one of 15
No.
2007AP2307-CR
the previous convictions must have occurred before the present Wisconsin offense, as the State asserts, then the second clause would be entirely superfluous. both previous convictions The first clause requires that before the date of the
occurred
present Wisconsin felony. ¶40 Lest there be any doubt about the intent of the
legislature in enacting this subsection, the legislative history confirms our analysis. Before the legislature passed 1993
Wisconsin Act 289, which codified the statutory language quoted above, the Legislative Reference Bureau provided the following analysis of the bill: This bill creates a persistent repeat serious felony offender category and persons who are persistent repeat serious felony offenders must be sentenced to life imprisonment without the possibility of parole. To be subject to this persistent repeat serious felony offender status, a person must currently be sentenced for a serious felony and must have had convictions, or delinquency adjudications,8 on 2 or more separate occasions for serious felonies preceding the current serious felony violation. In addition, of the prior convictions . . . , at least one of the convictions . . . must have occurred before the date of at least one of the other serious felony violations . . . . This analysis clearly states that: (1) the conviction date for the first offense must have preceded the violation date for the second offense, and (2) the conviction date for the second
offense must have preceded the violation date for the current Wisconsin offense. A later amendment removed juvenile adjudications from the list of serious felonies that would subject an offender to the persistent repeater penalty enhancement. 16
8
No.
2007AP2307-CR
¶41
Having determined that application of the persistent
repeater statute requires a particular sequence of convictions, we turn to the convictions listed in Long's criminal complaint. They do not meet these requirements. The violation date of the
Washington County, Minnesota offense is March 23, 2003, and the conviction date for that offense is January 7, 2004. The
violation date for the Hennepin County, Minnesota offense is March 26, 2003, and the conviction date for that offense is December 18, 2003. The conduct leading to his current Wisconsin
convictions occurred on October 24, 2004, and he was convicted on November 30, 2006. ¶42 Both of Long's prior convictions occurred before the
date of violation of his present Wisconsin felonies, satisfying the statutory requirement that "[t]he actor has been convicted of a serious felony on 2 or more separate occasions at any time preceding the serious felony for which he . . . presently is
being sentenced." the conviction the
See Wis. Stat. § 939.62(2m)(b)1. of the Hennepin the County offense County
However, was not
date
before
violation
date
of
Washington
offense.
Likewise, the conviction date of the Washington County offense was not before the violation of Long's date of the Hennepin County
offense.
Neither
previous
convictions
occurred
"before the date of violation of . . . the other felon[y] for which [Long] was previously convicted." See id. Therefore, the
previous convictions listed in the criminal complaint do not satisfy the statutory requirements for sentencing under the
persistent repeater statute. 17
No.
2007AP2307-CR
¶43 argument
Long at
did
not
advance court
this or at
statutory the
interpretation of appeals.
the
circuit
court
Normally, under such circumstances, we would conclude that an issue neither raised nor briefed is waived. Long's sole
recourse would be to file a motion for post-conviction relief, perhaps alleging ineffective assistance of counsel. ¶44 Nonetheless, waiver v. is merely 2005 a rule WI of judicial ¶31, 284
administration.
State
Moran,
115,
Wis. 2d 24, 700 N.W.2d 884.
Waiver does not limit this court's
authority to address unpreserved issues, particularly when doing so can clarify an issue of statewide importance. Inc. v. Pub. Serv. Comm'n, 2005 WI 93, Clean Wis., 282
¶¶270-71,
Wis. 2d 250, 700 N.W.2d 768.
The proper interpretation of the
persistent repeater statute is an issue of great importance in Wisconsin law. the defense and In this case, the circuit court, the State, and misinterpreted mistakenly the persistent Long repeater to life
attorneys the
statute,
court
sentenced
imprisonment without the possibility of parole. circumstances, waived. ¶45 We determine that the circuit court we decline to conclude that this
Under these argument is
incorrectly Under the in the
interpreted and applied Wis. Stat. § 939.62(2m)(b). plain language of the statute and the facts
alleged
complaint, Long is not a persistent repeater. vacate the sentence and remand to the
Accordingly, we court for
circuit
resentencing consistent with this opinion.
18
No.
2007AP2307-CR
V ¶46 On remand, this case may present several new and
complex issues.
Although we briefly note these issues below, we
need not and do not make any determinations about them today. ¶47 First, it is conceivable that the State may wish to
amend its complaint to substitute other prior convictions as the basis for the persistent repeater allegation. ¶48 Wis. Stat. § 973.12(1) provides in part: a if be or at it is
Whenever a person charged with a crime will be repeater or a persistent repeater under s. 939.62 convicted, any applicable prior convictions may alleged in the complaint, indictment or information amendments so alleging at any time before or arraignment, and before acceptance of any plea. ¶49 We have never specifically addressed whether
permissible for the State to amend a criminal complaint after the conclusion of a jury trial. We have, however, discussed
when it is permissible for the State to amend a complaint after the defendant enters a guilty plea. See, e.g., State v. Bonds,
2006 WI 83, 292 Wis. 2d 344, 717 N.W.2d 133; State v. Gerard, 189 Wis. 2d 505, 525 N.W.2d 718 (1995); State v. Martin, 162 Wis. 2d 883, 470 N.W.2d 990 (1991). ¶50 In Bonds, we stated that a post-plea amendment was
permissible in that case because (1) the defendant had notice that he was being charged as a habitual criminal, and (2) the defendant was not prejudiced in making an intelligent plea as a result of the substitution of a different previous conviction as a factual basis for its repeater allegation. 19 292 Wis. 2d 344,
No.
2007AP2307-CR
¶2.
These are factual determinations.
If, in this case, the
State wishes to substitute different previous convictions as the factual basis for the persistent repeater allegation, the
circuit court will have to determine whether it is permissible for the State to amend a criminal complaint after the conclusion of a jury trial. If so, it will have to determine what test is
appropriate for such a post-trial amendment. ¶51 complaint, documents Second, the are if the State court to is will permitted have the to fact as to amend its what prior
circuit necessary
determine of a the
establish is
convictions.
When an offender
sentenced
persistent
repeater, proof of a prior conviction directly affects a liberty interest, and proof beyond a reasonable doubt is essential. id., ¶40. See
The statutes provide that "[a]n official report of
the F.B.I. or any other governmental agency of the United States or of this or any other state shall be prima facie evidence of any conviction or sentence therein reported." Wis. Stat.
§ 973.12(1). ¶52 We have previously explained that:
To be an official report under sec. 973.12(1), Stats., on which reliance may be placed, the report must contain relevant information regarding the issue of repeater status and must specifically include the date of conviction for the previous offense. . . . The report in the present case did not contain such information and, therefore, could not be relied on for the penalty enhancement. State v. Farr, 119 Wis. 2d 651, 658, 350 N.W.2d 640 (1984). In
Bonds, we concluded that an internet report generated by the
20
No.
2007AP2307-CR
Wisconsin
Consolidated
Court
Automation
Programs
(CCAP)
is
insufficient to prove the fact of a previous conviction. 292 Wis. 2d 344, ¶¶46, 49. ¶53
Bonds,
There may be some circumstances when a judgment of
conviction or similar document is entirely unnecessary to prove the fact of the prior conviction. For instance, a defendant's See
admission can constitute proof beyond a reasonable doubt.
State v. Zimmerman, 185 Wis. 2d 549, 557, 518 N.W.2d 303 (Ct. App. 1994). Nonetheless, in such a circumstance, the admission
must contain specific reference to the date of conviction and to any periods of incarceration. ¶54 Id.
In this case, the State did not provide an official
judgment of conviction for either of the previous offenses it charged in the complaint. to amend its complaint, On remand, if the State is permitted the circuit court and State should
ensure that the record is complete and that it allows the court to make the necessary determinations beyond a reasonable doubt. ¶55 Finally, the circuit court will be required to grapple
with the difficult task of determining the nature of any out-ofstate convictions. is The question to a of whether an out-of-state in Wisconsin
conviction
"comparable"
serious
felony
raises difficult constitutional issues.
We do not address these
issues in any depth here because it is not necessary to do so in order to resolve this appeal. However, must be courts applying of a
persistent
repeater
statute
conscious
these
constitutional complexities.
21
No.
2007AP2307-CR
¶56
In Apprendi v. New Jersey, 530 U.S. 466, 489 (2000),
the Supreme Court declared that every fact that increases the penalty for a crime beyond the statutory maximum sentence must be submitted to a jury and proven beyond a reasonable doubt. The sole exception Id. to the rule is the fact of a prior
conviction. ¶57
However, when the court is required to compare an out-
of-state conviction to the Wisconsin criminal code, the court might be required but to assess the a not only the fact of a prior that these
conviction conviction.
also Whether
facts judge
and is
conduct permitted
underlying to make
assessments could implicate Apprendi. ¶58 The United States Supreme Court has struggled to
resolve a similar dilemma.
See Shepard v. United States, 544
U.S. 13, 26 (2005); Taylor v. United States, 495 U.S. 575, 601 (1990). In Shepard and Taylor, the Court was required to
determine whether the defendants' prior state convictions were comparable to the "generic burglary" offenses as contemplated by the federal Armed Career Criminal Act. judge's inquiry into the nature of The Court stated that a a previous offense "is
limited to the terms of the charging document, the terms of a plea agreement or transcript of colloquy between judge and
defendant in which the factual basis for the plea was confirmed by the defendant, or to some comparable judicial record of this information." Shepard, 544 U.S. at 26; see also State v.
LaCount, 2008 WI 59, ¶52, 310 Wis. 2d 85, 750 N.W.2d 780 ("[A] trial court judge, rather than a jury, is allowed to determine 22
No.
2007AP2307-CR
the applicability of a defendant's prior conviction for sentence enhancement purposes, when the necessary information concerning the prior conviction can be readily determined from an existing judicial record."). ¶59 The constitutional complexities are further heightened
when the court must review a complaint charging multiple crimes, yet the defendant pleaded guilty to only one. determine the factual basis for the plea, The court must whether that
and
factual basis would support a conviction for a serious felony in Wisconsin Supreme beyond a reasonable in doubt. As 495 the U.S. United at of 601, a States "the
Court
cautioned
Taylor, potential
practical
difficulties
and
unfairness
factual
approach are daunting." ¶60 In sum, we conclude that there was sufficient evidence
for a jury to find Long guilty of second-degree sexual assault and false imprisonment. We further conclude that the circuit Under the in the
court incorrectly applied Wis. Stat. § 939.62(2m). plain language of the statute and the facts
alleged
complaint, Long is not a persistent repeater.
Accordingly, we
affirm the convictions, vacate the sentence, and remand to the circuit court for resentencing consistent with this opinion. By the Court.—The decision of the court of appeals is
affirmed in part and reversed in part, and the cause is remanded to the circuit court for resentencing.
23
No.
2007AP2307-CR
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