State v. David M. Hahn

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2000 WI 118 SUPREME COURT OF WISCONSIN Case No.: 99-0554-CR Complete Title of Case: State of Wisconsin, Plaintiff-Respondent, v. David M. Hahn, Defendant-Appellant. ON CERTIFICATION FROM THE COURT OF APPEALS Opinion Filed: Submitted on Briefs: Oral Argument: Source of APPEAL COURT: COUNTY: JUDGE: November 1, 2000 September 7, 2000 Circuit Winnebago Robert A. Haase JUSTICES: Concurred: Dissented: Not Participating: ATTORNEYS: For the defendant-appellant there were briefs by Steven G. Bauer and Law Offices of Steven G. Bauer, Brownsville, and oral argument by Steven G. Bauer. For the plaintiff-respondent the cause was argued by Christopher G. Wren, assistant attorney general, with whom on the brief was James E. Doyle, attorney general. 2000 WI 118 NOTICE This opinion is subject to further editing and modification. The final version will appear in the bound volume of the official reports. No. 99-0554-CR STATE OF WISCONSIN : IN SUPREME COURT State of Wisconsin Plaintiff-Respondent FILED v. NOV 1, 2000 David M. Hahn Cornelia G. Clark Clerk of Supreme Court Madison, WI Defendant-Appellant APPEAL from a judgment of the Circuit Court for Winnebago County, Robert A. Haase, Circuit Court Judge. ¶1 appeal SHIRLEY from a S. ABRAHAMSON, judgment of the CHIEF Circuit Affirmed. JUSTICE. Court County, Robert A. Haase, Circuit Court Judge. This for is an Winnebago The appeal is here on certification from the court of appeals. Wis. Stat. (Rule) § 809.61 (1995-96).1 ¶2 life in The defendant, David M. Hahn, appeals his sentence of prison without the possibility of parole under Wisconsin's persistent repeater statute, Wis. Stat. § 939.62(2m) 1 All subsequent references to the Wisconsin Statutes are to the 1995-96 volumes unless otherwise indicated. Section 939.62(2m) was modified by the legislature by 1997 Wis. Act 326. No. 99-0554-CR (1997-98), commonly known as Wisconsin's "three strikes" law. The statute provides for mandatory life imprisonment for offenders convicted of committing for a third time a statutorily specified "serious offense." The statute in issue is silent about whether the offender may challenge the validity of a prior conviction at the enhanced sentence proceeding. ¶3 Two questions of law are presented in this case.2 The first is whether the U.S. Constitution requires that an offender be permitted during an enhanced sentence proceeding predicated on a prior conviction to challenge the prior conviction as unconstitutional because the conviction was allegedly based on a guilty plea that was not knowing, intelligent, and voluntary. The circuit court concluded that it had the power to examine the validity of the prior conviction on these grounds but was not required to do so. ¶4 We conclude that an offender does not have a federal constitutional right to use the enhanced sentence proceeding predicated on a prior state conviction as the forum in which to challenge the prior conviction, except when the offender alleges that a violation of the constitutional occurred in the prior state conviction.3 right to a lawyer We further conclude, as 2 Both questions of law are determined by this court independently of the circuit court, although we benefit from the analyses of the circuit court. 3 The Sixth Amendment to the U.S. Constitution guarantees the assistance of counsel. That amendment is made applicable to the states by virtue of the Fourteenth Amendment. Gideon v. Wainwright, 372 U.S. 335 (1963). 2 No. 99-0554-CR a matter of judicial administration, that an offender may not use the enhanced conviction as the sentence forum proceeding in which predicated to on challenge a prior the prior conviction, except when the offender alleges that a violation of the constitutional right to a lawyer occurred in the prior state conviction. Because the defendant in the present case does not allege that a violation of his constitutional right to a lawyer occurred in the prior conviction, he may not challenge his 1994 conviction during this 1997 persistent repeater proceeding. ¶5 The second question of law presented is whether the persistent repeater penalty enhancer as applied to the defendant violates the Eighth Amendment to the prohibiting cruel and unusual punishment. U.S. Constitution For the reasons set forth, we reject the defendant's Eighth Amendment challenge to Wisconsin's persistent repeater statute, Wis. Stat. § 939.62(2m). I ¶6 1997, The relevant facts in this case are undisputed. the Winnebago County district attorney charged In the defendant under Wis. Stat. § 948.02 with two counts of sexual assault on a child. Because the defendant had two prior felony convictions for sexual assault on a child, he was subject to a life sentence without the possibility of parole under Wis. Stat. § 939.62(2m). Both prior convictions were based on the defendant's guilty pleas, the first in 1990 and the second in 3 No. 1994. During the 1997 persistent repeater 99-0554-CR proceeding, the defendant sought to reopen the 1994 conviction on the grounds that his because plea the was circuit not knowing, court intelligent, failed to inform and voluntary him that the conviction could serve as a "strike" offense under the "three strikes" law. During the 1997 proceeding, the circuit court denied the defendant's motion to strike his 1994 conviction, holding that the circuit court's failure to inform the defendant during his 1994 guilty plea that the resulting conviction could later be used to sentence him as a persistent repeater did not render his guilty plea invalid. ¶7 the The defendant pled guilty to the 1997 offenses and, on basis of his prior convictions, was sentenced as a persistent repeater to life in prison without the possibility of parole under Wis. Stat. § 939.62(2m). The defendant appealed, arguing that the circuit court's denial of his motion to strike the 1994 conviction violated his due process rights and that his life sentence violated the Eighth against cruel and unusual punishment. Amendment's prohibition We address each issue in turn. II ¶8 The defendant contends that the circuit court erred by failing to strike the 1994 conviction because his guilty plea was not knowing, intelligent, and voluntary and therefore did not satisfy federal constitutional due process requirements. The 4 No. 99-0554-CR defendant relies on State v. Baker, 169 Wis. 2d 49, 485 N.W.2d 237 (1992), in which the offender was permitted to challenge a prior conviction in an enhanced sentence proceeding predicated on the prior conviction on the ground that the guilty plea in the prior conviction was not knowing, intelligent, and voluntary. ¶9 The State argues that this court should revisit its holding in Baker in light of Custis v. United States, 511 U.S. 485 (1994), a U.S. Supreme Court decision rendered after the Baker decision. The State contends that the U.S. Supreme Court held in Custis, in contrast to this court's holding in Baker, that only a prior conviction that violates an offender's constitutional right to a lawyer may be challenged during an enhanced sentence proceeding predicated on the prior conviction. ¶10 We therefore examine State v. Baker, 169 Wis. 2d 49, and Custis v. United States, 511 U.S. 485. ¶11 In Baker, the offender used the enhanced sentence proceeding in a conviction for operating after revocation of a license to challenge two convictions that the State enhancement purposes. The convictions because the allegedly challenged the obtained the operating-after-revocation sought to offender plea intelligent, and voluntary. offender prior was apply for challenged allegedly sentencing one not of knowing, Baker, 169 Wis. 2d at 58. other conviction conviction constitutional right to a lawyer. 5 in because violation the the of Baker, 169 Wis. 2d at 58. The State his No. ¶12 99-0554-CR The Baker court relied on Burgett v. Texas, 389 U.S. 109 (1967), and its progeny to allow the offender to challenge both convictions. ¶13 Burgett rendered had considered whether without the assistance of counsel enhance sentences for subsequent offenses. prior convictions could be used to The Burgett court disallowed the use of a prior conviction in an enhanced sentence proceeding predicated on the prior conviction when the prior conviction violated Gideon v. Wainwright, 372 U.S. 335 (1963). The Burgett court declared that such a use of the prior conviction was inherently prejudicial, amounted to a new denial of the right to counsel, and should be prohibited. Burgett, 389 U.S. at 115-16. ¶14 In Baker, this court was faced with the question of whether to extend the holding of Burgett to prior convictions allegedly obtained in violation of a constitutional right other than the Gideon right to a lawyer. unsettled applied at the that time, Burgett rule but a to The case law was largely number a prior of jurisdictions conviction had allegedly obtained in violation of a constitutional right other than the right to a lawyer.4 "[s]ome courts have The Baker court acknowledged, however, that confined the 4 application of Burgett to For examples of jurisdictions that extended Burgett v. Texas, 389 U.S. 109 (1967), to forbid the use of convictions obtained in violation of other constitutional rights, see Baker v. State, 169 Wis. 2d 49, 70 n.9, 485 N.W.2d 237 (1992). 6 No. 99-0554-CR convictions invalid under Gideon [v. Wainwright, 372 U.S. 335 (1963)]."5 ¶15 Baker, 169 Wis.2d at 69. The Baker court determined that the decision in Burgett rested on the principle that a prior conviction may not be used in an enhanced sentence proceeding predicated on a prior conviction if the prior conviction was allegedly obtained in violation of a constitutional right reliability of the prior conviction. that would affect the Baker, 169 Wis. 2d at 70. The Baker court viewed the question of whether a guilty plea was knowing, intelligent, and voluntary as one that affected the reliability of a conviction. As a result, the Baker court concluded that federal constitutional law prohibited a circuit court from proceeding using a prior predicated on conviction a prior in an enhanced conviction when sentence the prior conviction was based on a guilty plea that was not knowing, intelligent, and voluntary. ¶16 Baker, 169 Wis. 2d at 71. After Baker, the U.S. Custis v. Supreme Burgett decision in (1994). In Custis, the offender asserted ineffective assistance United Court States, clarified the 511 485 U.S. of counsel as a challenge to the validity of a prior state conviction that was used in the offender's federal enhanced sentence proceeding under the federal Armed Career Criminal Act. The Armed Career Criminal Act is silent about the means for 5 For examples of jurisdictions that narrowly construed Burgett v. Texas, 389 U.S. 109 (1967), to include only alleged violations of the right to a lawyer, see Baker, 169 Wis. 2d at 69 n.8. 7 No. challenging prior convictions. 99-0554-CR The Custis court concluded that the U.S. Constitution does not require that an offender be given an opportunity federal state to enhanced conviction conviction was constitutional challenge sentence state offender in violation a lawyer. conviction predicated the obtained to prior proceeding unless right a The on asserts of the Custis the the in a prior state offender's court thus expressly limited its holding in Burgett to instances in which an offender asserts the conviction was allegedly obtained in violation of an offender's constitutional right to a lawyer. Custis, 511 U.S. at 496. Relying on long-established case law that a violation of the constitutional right to the assistance of counsel is "a unique constitutional defect," the Custis court concluded that other constitutional violations do not merit the same treatment under Burgett. Custis, 511 U.S. at 496.6 6 For other states interpreting Custis v. United States, 511 U.S. 485 (1994), as we do, see Colorado v. Padilla, 907 P.2d 601 (Colo. 1995); Kansas v. Chiles, 917 P.2d 866 (Kan. 1996); McGuire v. Kentucky, 885 S.W.2d 931 (Ky. 1994); State v. Janes, 684 A.2d 499 (N.H. 1996). 8 No. ¶17 The Custis court read the federal 99-0554-CR constitutional rights of an offender to challenge a prior state conviction in a federal enhanced sentence proceeding more narrowly than did the Wisconsin supreme court in Baker. Accordingly, we conclude that Baker should be limited to adhere to Custis: In an enhanced sentence proceeding predicated on a prior conviction, the U.S. Constitution requires a trial court to consider an offender's allegations that the prior conviction is invalid only when the challenge to the prior conviction is based on the denial of the offender's constitutional right to a lawyer. ¶18 Accordingly, we conclude that the defendant in the present case has no federal constitutional right in his 1997 third strike proceeding as a persistent repeater under Wis. Stat. § 939.62(2m) to challenge the use of a prior conviction Custis does not bar states from allowing offenders to challenge prior state convictions in state enhanced sentence proceedings. New York courts, for example, continue to allow offenders charged as persistent repeaters to challenge unconstitutional prior state convictions in the repeater proceeding. See, e.g., People v. Zeoli, 232 A.D.2d 818 (N.Y. App. Div. 1996) (trial court was required to hear offender's claim that prior plea was not knowing and intelligent, but the offender failed to meet his burden of proof). However, these challenges have a statutory basis. See N.Y. CRIM. PROC. LAW § 400.21.7(b) (Consol. 2000) ("A previous conviction in this or any other jurisdiction which was obtained in violation of the rights of the defendant under the applicable provisions of the constitution of the United States must not be counted in determining whether the defendant has been subjected to a predicate felony conviction"). The defendant in the present case asserts no statutory basis for his challenge. 9 No. allegedly based on a guilty plea that was 99-0554-CR not knowing, intelligent, and voluntary.7 ¶19 The defendant argues that Custis is a forum case based on considerations of federalism and administrative convenience and that we should not alter our Baker decision.8 contends that Custis applies only to an The defendant enhanced sentence 7 In so holding, this court joins several other jurisdictions that have had to scale back Burgett v. Texas, 389 U.S. 109, protections in light of Custis v. United States, 511 U.S. 485 (1994). See, e.g., United States v. Cordero, 42 F.3d 697, 701 (1st Cir. 1994) (prior case law about challenging prior convictions during enhanced sentence proceedings is no longer valid precedent after Custis); United States v. Killion, 30 F.3d 844, 846 (7th Cir. 1994) (because Custis describes the rule governing a challenge to a prior conviction during an enhanced sentence proceeding in narrower terms than existing Seventh Circuit case law, "[i]t may well be, therefore, that Custis has limited the exception that we carved out"); United States v. Davis, 36 F.3d 1424, 1438 (9th Cir. 1994) (Custis "seriously undermines the validity" of existing case law allowing an offender to challenge a prior conviction during an enhanced sentence proceeding). 8 See, e.g., Nichols v. United States, 511 U.S. 738, 766, 114 S.Ct. 1921, 1937 (1994) (Ginsburg, J., dissenting) ("The issue [in Custis v. United States, 511 U.S. 485] was where, not whether, the defendant could attack a prior conviction for constitutional infirmity"). For discussions of Custis v. United States, 511 U.S. 485 (1994), and the contradictory aspects of the opinion regarding a substantive limitation on the challenge to a state conviction in a federal enhanced sentence proceeding and the forum and federalism issues in challenging a state conviction in a federal enhanced sentence proceeding, see, e.g., Alan C. Smith, Note, More Than a Question of Forum: The Use of Unconstitutional Convictions to Enhance Sentences Following Custis v. United States, 47 Stan. L. Rev. 1323 (1995); Barry W. Strike, Note, Custis v. United States: Are Unconstitutional Prior Convictions Being Used to Increase Prison Terms?, 25 Golden Gate U. L. Rev. 267 (1995). 10 No. 99-0554-CR proceeding in a federal court in which a challenge is made to a prior state conviction. Unlike Custis, the defendant argues, this case involves a challenge to a prior state conviction in a subsequent state enhanced sentence proceeding. ¶20 whether In an its final paragraph, offender who was the barred Custis from court challenging addressed a prior state conviction in a federal enhanced sentence proceeding could challenge the predicate state conviction by another means. U.S. Supreme Court stated: We recognize . . . that Custis, who was still "in custody" for purposes of his state convictions at the time of his federal sentencing under § 924(e), may attack his state sentences in Maryland or through federal habeas review. . . . If Custis is successful in attacking these state sentences, he may then apply for reopening of any federal sentence enhanced by the 11 The No. state sentences. We express no opinion on appropriate disposition of such an application.9 99-0554-CR the 9 Custis, 511 U.S. at 497. This language has been subject to conflicting interpretations by federal courts of appeals. See, e.g., United States v. Clark, 203 F.3d 358 (5th Cir. 2000) (offender who was no longer in custody for state conviction never obtained ruling that state conviction was invalid; court allows challenge to a prior state conviction in federal court under 28 U.S.C. § 2255); Smith v. United States, 213 F.3d 291 (6th Cir. 2000), rehearing en banc granted, opinion vacated by 213 F.3d 297 (6th Cir. 2000) (offender did not challenge state conviction in state court but claimed no reasonable access to review constitutionality of state convictions; court denied relief; result compelled by existing Sixth Circuit case law, Turner v. United States, 183 F.3d 474 (6th Cir. 1999), in the absence of en banc review; en banc review granted); Pack v. Yusuff, 218 F.3d 448 (5th Cir. 2000) (applying Sixth Circuit rule that offender challenging prior state conviction must first have prior convictions vacated either through state proceedings or § 2254 proceeding and then return to challenge federal sentence before the sentencing court); Ryan v. United States, 214 F.3d 877 (7th Cir. 2000) (offender failed to exhaust state remedies and lost them; court interprets Custis to disallow collateral attack under 28 U.S.C. § 2255 "as long as convictions remain undisturbed"; divided court denied relief); United States v. Daniels, 195 F.3d 501 (9th Cir. 1999) (court denied federal habeas review of state conviction in a § 2255 proceeding unless the offender who either has not challenged state conviction or was unsuccessful in the challenge raises a Gideon claim). The State has advised this court that the U.S. Supreme Court has granted a petition for a writ of certiorari in Daniels v. United States, No. 99-9136, ___ U.S. ___ (2000), to review the Ninth Circuit's decision in United States v. Daniels, 195 F.3d 501 (9th Cir. 1999). The solicitor general stated the question presented on certiorari as follows: May a defendant whose sentence was enhanced under a federal recidivist provision because of prior state convictions that have not been set aside by any court challenge his federal enhanced sentence in federal court under 28 U.S.C. § 2255 based on the claim that the prior state convictions are constitutionally invalid? 12 No. ¶21 99-0554-CR Thus the U.S. Supreme Court expressly left open the possibility that an offender may challenge a prior state conviction in a state court proceeding or in a federal habeas proceeding and then, if successful, apply to reopen his enhanced federal sentence. Custis, 511 U.S. at 497. The Custis decision does not appear to alter an offender's right to challenge in a state court an enhanced sentence based on an unconstitutional prior state conviction. ¶22 The issue then becomes whether this court should, as a matter of judicial administration rather than as a matter of federal constitutional right, allow an offender to challenge a prior state conviction in an enhanced sentence proceeding on grounds other than an alleged violation of the constitutional right to a lawyer, or whether this court should require an offender to use available procedures other than the enhanced sentence proceeding to challenge a prior conviction. ¶23 The Custis court presents two justifications based on considerations of judicial administration and federalism to support its constitutional holding that in an enhanced sentence proceeding predicated on a prior conviction the U.S. The issue presented in the Daniels case relates to procedures available to an offender in federal court, other than in the enhanced sentence proceeding, to challenge a prior state conviction. The present case relates to an offender's challenges in a state enhanced sentence proceeding to a prior state conviction. We do not consider Daniels so directly related to the present case to require us to withhold our decision pending the decision of the U.S. Supreme Court in Daniels. 13 No. 99-0554-CR Constitution requires a trial court to consider an offender's allegations that the prior conviction is invalid only when the challenge to the prior conviction is based on the denial of the offender's constitutional right to a lawyer. Custis, 511 U.S. at 496-97. ¶24 First, the Custis court states that it would be difficult for federal courts to review a multitude of potential constitutional violations in convictions from 50 different While Burgett focused on the lack of a lawyer, which states. the U.S. Supreme Court viewed as readily apparent in the record of a conviction, violations require such federal existent or extending as Burgett ineffective courts difficult to to to other assistance "rummage obtain constitutional of through counsel would frequently non- state-court records that may date from another era." transcripts or Custis, 511 U.S. at 496. ¶25 Although this justification does have merit in the context of state court proceedings, it may not apply with equal force. It is probably easier for a Wisconsin court to review a conviction entered by another Wisconsin court than for a federal court to review a state court conviction. Nevertheless, we conclude that an offender should not be permitted to challenge a prior conviction in an enhanced sentence proceeding predicated on the prior conviction except for an alleged violation of the constitutional right to a lawyer. Administrative difficulties arise when a Wisconsin circuit court reviews a prior conviction entered by another Wisconsin court; the reviewing court does not 14 No. 99-0554-CR have the record of the prior conviction or of post-conviction proceedings. In addition, it seems preferable from an administrative standpoint to require all offenders to use the same procedures to review convictions, irrespective of whether the conviction becomes the basis of an enhanced penalty in a subsequent sentencing procedure. ¶26 Second, the Custis court promoting finality of judgments. justified its holding as A broad reading of Burgett, the U.S. Supreme Court concluded, would "undermine confidence in the integrity of our procedures" by calling into question the finality of enhancement prior convictions proceedings. Custis, and 511 by U.S. delaying at 497 penalty (quoting United States v. Addonizio, 442 U.S. 178, 184 n.11 (1979)). The U.S. Supreme Court noted that by challenging a previous state court conviction, an offender is asking the federal district court to "deprive [the state-court judgment] of [its] normal force and effect in a proceeding that ha[s] an independent purpose other than to overturn the prior judgmen[t]." Custis, 511 20, U.S. at 497 (quoting Parke v. Raley, 506 U.S. 30 (1992)). ¶27 Custis, context. The Custis court concerns about finality and delay, 511 U.S. at 497, carry weight in the state court The process prescribed by Custis avoids delay in an enhanced sentence proceeding and prevents an offender from using the proceeding for a tangential purpose. ¶28 Although these administrative considerations may weigh differently in different cases, we conclude that considerations 15 No. 99-0554-CR of judicial administration favor a bright-line rule that applies to all cases. We therefore hold that a circuit court may not determine the validity of a prior conviction during an enhanced sentence proceeding predicated on the prior conviction unless the offender alleges that a violation of the constitutional right to a lawyer occurred in the prior conviction. Instead, the offender may use whatever means available under state law to challenge the validity of a prior conviction on other grounds in a forum other than the enhanced offender may sentence seek to proceeding. reopen the If successful, the enhanced sentence.10 If the offender has no means available under state law or is unsuccessful in challenging the prior conviction, the offender may nevertheless seek to reopen the enhanced sentence. We do not address the appropriate disposition of any such application. ¶29 In sum, the primary holding of Custis, to which this court is bound as a matter of federal constitutional law, is that an offender does not have a federal constitutional right to use an enhanced conviction as sentence the forum proceeding in which predicated to on challenge a prior the prior conviction except when the offender alleges that a violation of the constitutional right to a 10 lawyer occurred in the prior We do not address the validity of the 1994 conviction because the defendant's challenge to the 1994 conviction cannot be raised in the enhanced sentence proceeding that is the subject of this appeal. The question of whether the defendant has means available under state law to challenge the 1994 conviction in another proceeding is not before us. 16 No. conviction. 99-0554-CR An offender may challenge the validity of a prior conviction on other grounds in a forum other than the enhanced sentence proceeding by whatever means available under state law. If the offender succeeds, the offender may seek to reopen a sentence imposed § 939.62(2m) as conviction. if a that persistent sentence repeater was under based on Wis. the Stat. vacated Accordingly, we conclude that the defendant in this case does not have a federal constitutional right to use the 1997 enhanced sentence proceeding that was predicated on the 1994 state conviction as the forum in which to challenge the 1994 conviction because the defendant did not assert that a violation of the constitutional right to a lawyer occurred in that prior conviction. III ¶30 We also reject the defendant's Eighth Amendment cruel and unusual punishment challenge to his life sentence under Wis. Stat. § 939.62(2m)(b). A statute is presumed constitutional and will be held unconstitutional only if it appears so beyond a reasonable doubt. The burden of establishing unconstitutionality of a statute is on the party attacking its constitutionality. State v. Borrell, 167 Wis. 2d 749, 762, 482 N.W.2d 883 (1992). ¶31 offense The is defendant not maintains proportional to that his the gravity punishment for of his several reasons: his sexual assault contact offenses are less serious 17 No. 99-0554-CR than sexual intercourse; he is 26 years old so life imprisonment for him amounts to a greater punishment than for an older person; and his sentence is disproportionate to the sentence for a more serious crime such as first-degree intentional homicide. ¶32 Several decisions of the U.S. Supreme Court and this court compel the conclusion that the application of Wis. Stat. § 939.62(2m) to the defendant does not constitute cruel and unusual punishment. ¶33 The first principle of Eighth Amendment jurisprudence established in Rummel v. Estelle, 445 U.S. 263, 275-76 (1980), is that judgments about appropriate punishment require subjective line-drawing, which is "properly within the province of legislatures, not courts." The Rummel court recognized the validity of a state's "interest, expressed in all recidivist statutes, in dealing in a harsher manner with those who by repeated criminal acts have shown that they are simply incapable of conforming to the norms of society as established by its criminal law. . . . [T]he point at which a recidivist will be deemed to have demonstrated the necessary propensities and the amount of time that the recidivist will be isolated from society are matters largely jurisdiction." ¶34 within the discretion of the punishing Rummel, 445 U.S. at 276, 284-85. The Wisconsin legislature has determined that sexual contact is a "serious felony" and that three or more violations of crimes classified imprisonment. as serious felonies See Wis. Stat. § 939.62(2m). merit lifetime Forty-seven states and the District of Columbia have enacted persistent repeater 18 No. statutes, many of which require offender's third offense. and the resulting life 99-0554-CR sentences upon an These persistent repeater statutes sentences have withstood Eighth Amendment challenges.11 ¶35 The defendant asserts that application of Wisconsin's persistent repeater statute to his case imposes punishment grossly disproportionate to the severity of the crime. Supreme Court decisions relating to the The U.S. doctrine of disproportionate sentences in Eighth Amendment jurisprudence are not clear.12 Nevertheless, the defendant's claim must fail. In Rummel, 445 U.S. 263, the U.S. Supreme Court upheld a habitual offender's violent Harmelin life property sentence without crimes involving v. Michigan, 501 U.S. parole 957 a based total (1991), on the non- $229.11. of three In U.S. Supreme Court held that a mandatory sentence of life in prison without the possibility of parole for possession of 672 grams of cocaine did not violate the Eighth Amendment. 11 See, e.g., United States v. Kaluna, 192 F.3d 1188, 11991200 (9th Cir. 1999) (en banc) (upholding sentence under federal three strikes statute); McGruder v. Puckett, 954 F.2d 313, 31517 (5th Cir. 1992) (upholding life sentence without possibility of parole for habitual offender convicted of stealing beer from a delivery truck); People v. Mershon, 874 P.2d 1025, 1030-35 (Colo. 1994) (en banc) (upholding life sentence without the possibility of parole for selling small amounts of heroin, when all predicate offenses were non-violent); People v. Dunigan, 650 N.E.2d 1026, 1031-32 (Ill. 1995) (upholding life sentence without parole based on third sexual assault conviction). 12 See, e.g., Harvard Law Review Association, 1990 Term Leading Cases, 105 Harv. L. Rev. 245 that "[t]he fractured Harmelin [v. Michigan, (1991)] opinions may be difficult for lower courts 19 Supreme Court: (1991) (noting 501 U.S. 957 to apply"). No. ¶36 99-0554-CR The case law in Wisconsin reflects a similar pattern. In State v. Lindsey, 203 Wis. 2d 423, 554 N.W.2d 215 (Ct. App. 1996), the court of appeals rejected an Eighth Amendment attack on Wis. Stat. § 939.62(2m)(b), the same statute the defendant is attacking. In Lindsey, the offender violated the same statutory subsection that the defendant in the present case violated in two of his prior offenses. In State v. Borrell, 167 Wis. 2d 749, 777, 484 N.W.2d 883 (1992), this court rejected an Eighth Amendment attack permitted a imprisonment on circuit with Wis. court parole Stat. to § 973.014 sentence eligibility the (1987-88), offender after which to life approximately 35 years for first-degree murder. ¶37 this On the basis of these cases and the circumstances of case, we conclude that application of the persistent repeater statute to the defendant does not violate the Eighth Amendment's prohibition against cruel and unusual punishment. ¶38 For the reasons set forth we affirm the judgment of the circuit court. By the Court. The judgment affirmed. 20 of the circuit court is No. 1 99-0554-CR

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