The court of appeals holds that the standards for alleging and applying the ordinary repeater enhancer under § 939.62 also govern the domestic abuse repeater enhancer under § 939.621. Thus, the state must either prove that the defendant was convicted of the required predicate offenses or the defendant must admit that he was convicted of those offenses.
Hill was charged with disorderly conduct as an ordinary repeater under § 939.62 and as a domestic abuse repeater under § 939.621. (¶2). A person is a domestic abuse repeater if he or she “was convicted, on 2 separate occasions, of a felony or a misdemeanor for which a court imposed a domestic abuse surcharge under s. 973.055(1) or waived a domestic abuse surcharge pursuant to s. 973.055(4), during the 10-year period immediately prior to the commission of the crime for which the person presently is being sentenced, if the convictions remain of record and unreversed.” § 939.621(1)(b).
To support the ordinary repeater allegation, the complaint listed three specific prior convictions, but it did not refer to specific cases in support of the domestic abuse repeater allegation. Attached to the complaint were CCAP printouts for five cases—the three listed to support the ordinary repeater and two others—and four of the five printouts indicated the domestic abuse modifier under § 968.075(1)(a) applied. (¶3).
Hill ultimately pleaded no contest, and received an enhanced sentence. Postconviction, he claimed that the record did not support application of the domestic abuse repeater enhancer. (¶¶5-6).
The threshold question is whether the standard for alleging and applying the enhancer is the same as the standard governing the ordinary repeater enhancer set out in § 973.12(1). The court of appeals agrees with the parties that the standard should be the same. (¶9). While the text of § 973.12(1) refers only to § 939.62, the statute governing the ordinary repeater enhancer, “due process concerns” led the court to apply § 973.12(1) to the enhanced penalty provisions under ch. 961. State v. Coolidge, 173 Wis. 2d 783, 792-93, 496 N.W.2d 701 (Ct. App. 1993). And, while § 973.12(1) does not apply to prove prior OWI or OAR convictions for sentence enhancement purposes, State v. Wideman, 206 Wis. 2d 91, 556 N.W.2d 737 (1996), and State v. Spaeth, 206 Wis. 2d 135, 556 N.W.2d 728 (1996), that’s because § 939.62(3)(a) expressly excludes “motor vehicle offenses under chs. 341 to 349” from the definition of a repeater.
¶10 Unlike OWI and OAR convictions, the prior convictions that are considered for purposes of the domestic abuse repeater enhancer are not explicitly excluded from consideration under the ordinary repeater statute. In addition, as in Coolidge, due process concerns support applying the proof requirements of Wis. Stat. § 973.12(1) to domestic abuse repeater allegations. We therefore agree with the parties that the proof requirements of § 973.12(1) apply in this case.
The next question is whether the § 973.12(1) standard was satisfied here. To meet the standard, the state either has to prove the prior convictions beyond a reasonable doubt or the defendant has to personally, directly, and specifically admit the prior convictions. State v. Kashney, 2008 WI App 164, ¶8, 314 Wis. 2d 623, 761 N.W.2d 672; State v. Farr, 119 Wis. 2d 651, 659, 350 N.W.2d 640 (1984). The state concedes it didn’t prove the prior convictions: The CCAP printouts aren’t the kind of official report required by § 973.12(1), State v. Bonds, 2006 WI 83, ¶¶48-49, 292 Wis. 2d 344, 717 N.W.2d 133, and the PSI didn’t provide enough of the information required under State v. Caldwell, 154 Wis. 2d 683, 693-95, 454 N.W.2d 13 (Ct. App. 1990), to constitute prima facie evidence of the prior convictions. (¶11 & n.6).
However, Hill’s no contest plea constituted an admission to the prior convictions under State v. Liebnitz, 231 Wis. 2d 272, 603 N.W.2d 208 (1999), and State v. Rachwal, 159 Wis. 2d 494, 465 N.W.2d 490 (1991), which held that a guilty or no contest plea can constitute an admission to the repeater enhancer:
¶20 As in Liebnitz, the “totality of the record” in this case demonstrates that Hill was “fully aware” of the domestic abuse repeater allegation and its consequences when he entered his no contest plea to the disorderly conduct charge. See id. at 285, 288. Both the complaint and Information alleged Hill had committed that offense as a domestic abuse repeater. In particular, both documents parroted the language of Wis. Stat. § 939.621(1)(b), alleging Hill had “been convicted on 2 separate occasions of a felony or misdemeanor for which a court imposed a domestic abuse surcharge under sec. 973.055(1) Wis. Stats. or waived a domestic abuse surcharge pursuant to sec. 973.055(4) Wis. Stats., during the ten year period immediately preceding the commission of this offense[.]”
¶21 Neither the complaint nor the Information specified which prior convictions the State was relying on to support its allegation that Hill was a domestic abuse repeater. However, that deficiency was remedied by the CCAP records attached to the complaint. Although CCAP records do not constitute prima facie proof of prior convictions for purposes of Wis. Stat. § 973.12(1), see Bonds, 292 Wis. 2d 344, ¶49, nothing prevents us from relying on those records to determine whether Hill understood the domestic abuse repeater allegation in the charging documents and therefore admitted, by virtue of his no contest plea, that he qualified as a domestic abuse repeater. Here, when the allegations in the charging documents are read together with the CCAP reports, the convictions on which the State was relying to support the domestic abuse repeater enhancer become sufficiently clear.
Moreover, the circumstances surrounding Hill’s no contest plea show the plea constituted an admission of the domestic abuse repeater allegation. The Plea Questionnaire/Waiver of Rights form contained handwritten notations indicating the DC was committed as both an ordinary repeater and a domestic abuse repeater and, during the plea hearing, the circuit court methodically explained the allegations in the Information pertaining to the disorderly conduct charge, gave a detailed recitation of the repeater allegations, and explained how those allegations enhanced the penalty. (¶¶23-24).
¶25 The plea colloquy and Plea Questionnaire/Waiver of Rights form demonstrate that Hill understood “the nature and consequences of the charges against him and the consequences of his plea.” See Liebnitz, 231 Wis. 2d at 287. Notably, the colloquy here contained far more information regarding the applicable repeater enhancers than the plea colloquy in Liebnitz, during which the court did not even address the repeater enhancer. See id. at 282. In addition, the Plea Questionnaire/Waiver of Rights form in this case specifically stated Hill committed the charged offense as a domestic abuse repeater, unlike the Request to Enter a Plea and Waiver of Rights form in Liebnitz, which did not state the defendant was a repeater. See id. at 281.
Hill also challenged the order that he pay the $250 DNA surcharge for his conviction (which, by virtue of § 939.621(2), metamorphosed into a felony) because the crime occurred in 2013, before the law mandating a surcharge took effect. This claim must be rejected under State v. Scruggs, 2015 WI App 88, 365 Wis. 2d 568, 872 N.W.2d 146. (¶¶27-29).