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Enhanced Penalties — Proof — Uncertified Judgment of Prior Conviction

State v. Patrick A. Saunders, 2002 WI 107, reconsideration denied, 2002 WI 119reversing unpublished opinion
For Saunders: Beth Ermatinger Hanan

Issue: Whether an uncertified copy of the prior judgment of conviction may serve as part of the proof requirement of a repeater allegation that is not personally admitted by the defendant.

Holding: In the absence of the defendant’s personal admission to the prior conviction(s), the state bears the burden of proof, under § 973.12(1). ¶20. A PSI will satisfy that burden if it recites the date of the prior conviction. ¶23. And, a certified copy of the prior judgment of conviction will suffice. ¶24. But this doesn’t mean that § 973.12(1) forbids use of an uncertified copy of the prior judgment as proof of repeater status. ¶¶25, 34. Nor do the rules of evidence inhibit such use; they don’t apply to sentencing, and a proceeding at which the state seeks to prove habitual criminality is “more analogous to the sentencing process than to trial.” ¶¶38-39.

¶46. To sum up, we know that proof of prior convictions must be made by the state, as clearly required under § 973.12(1). Yet it is equally true that a defendant’s repeater status is not an element of the underlying crime to be proved prior to the verdict. Because proof of the defendant’s qualifying prior convictions comes after the verdict and is heard solely by the sentencing judge, the statutory scheme and case law have treated proof of this element differently from traditional proof at trial. Overall, we believe the proof required of the state under § 973.12(1) fits much better with the process of sentencing. We conclude that the state’s proof process under § 973.12(1), at least as it pertains to the use of documentary evidence, is not governed by the formal rules of evidence applicable at trial. Therefore, a copy of a prior judgment of conviction need not be certified to be used as proof in this context.

The holding is informed by “(t)he concept that proof of prior convictions should be treated differently from other penalty enhancers is bolstered by recent U.S. Supreme Court decisions,” ¶44, citing Apprendi v. New Jersey, 530 U.S. 466, 499 (2000) (any fact which increases penalty beyond prescribed statutory maximum, other than the fact of a prior conviction, must be submitted to jury and proved beyond reasonable doubt), and Almendarez-Torres v. United States, 523 U.S. 224, 230 (1998) (statutory penalty enhancements based on criminal recidivism are not elements of the crime but are properly viewed as sentencing factors). Thus, Saunders concludes, id.: “When constitutional due process and jury trial requirements do not compel the determination of a defendant’s prior convictions at trial, there is no compelling reason why the rules governing proof of evidence at trial should be applied to a proceeding after trial.”

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