Issue: Whether, on a § 939.62(2) “prior-conviction” penalty enhancer, the defendant is entitled to jury resolution that the conviction was in fact within 5 years of commission of the present offense.
¶52 … (W)hen Shepard and Apprendi are read together, a trial court judge, rather than a jury, is allowed to determine 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.
¶53 We further note that this court recently held that a presentence report, which listed the defendant’s crime and his or her date of conviction, was sufficient to “constitute an official report that would serve as prima facie proof of habitual criminality” for purposes of a penalty-enhancement statute. State v. Bonds, 2006 WI 83, ¶48, 292 Wis. 2d 344, 717 N.W.2d 133. We are satisfied that the same is true in the present case, because the presentence report listed LaCount’s period of actual confinement on the prior conviction in question.  We are satisfied that the presentence report, combined with the certified judgment of conviction, was a judicial record, not an executive branch record, even though it was prepared by the Wisconsin Department of Corrections. As a result, we are satisfied that the circuit court’s finding that LaCount was a habitual criminal did not violate LaCount’s right to a jury trial, because the relevant information could be readily determined from a judicial record, here the presentence report.
Apprendi v. New Jersey, 530 U.S. 466, 490 (2000) says: “Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” The rationale it offers for this “prior-conviction exception” is: “Both the certainty that procedural safeguards attached to any ‘fact’ of prior conviction … mitigate the due process and Sixth Amendment concerns otherwise implicated in allowing a judge to determine a ‘fact’ increasing punishment beyond the maximum of the statutory range.” However, § 939.62 requires that the qualifying conviction have occurred “during the 5-year period immediately preceding the commission of the [current] crime”; as for LaCount, his prior was from 11/12/93, and the current offense was around March or April of 1999. He might qualify as an habitual criminal, but only under the tolling provision of § 939.62(2) (“time which the actor spent in actual confinement serving a criminal sentence shall be excluded”). Why isn’t that tolling precisely the sort of factual question that exists outside the procedural niceties attending the conviction itself; and, therefore, outside the rationale for the prior-conviction exception? The court doesn’t quite say, not convincingly in any event.
¶29 Apprendi requires any fact other than the fact of a conviction which enhances a penalty beyond the prescribed statutory maximum to be submitted to the jury and proved beyond a reasonable doubt. Apprendi, 530 U.S. at 490. However, the Supreme Court in Shepard v. United States, 544 U.S. 13 (2005), appears to have relaxed Apprendi’s holding. In Shepard, the Supreme Court held:
[T]o determine whether a [prior] plea of guilty to burglary defined by a nongeneric statute necessarily admitted elements of the generic offense [to be used for sentence enhancement] 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.
Id. at 26. We agree with the State that when read together, Shepard and Apprendi suggest that a court, rather than a jury, may determine the applicability of a prior conviction for sentence enhancement where the applicability of the prior conviction is readily determined on the existing judicial record. Id.
This analysis involves a certain amount of question-begging. All the certified copy of the JOC established was when and for how long LaCount was sentenced. What happened after that is a “known unknown.” Did LaCount obtain sentence commutation or reduction, or some sort of early or emergency release? The odds against any such possibility are quite daunting, to be sure, but that’s not the point: the court document reflects only what happened to point of filing, not afterward; it’s what happened afterward that determined sentencing exposure.