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Enhancer – Proof: Timing (“Post-Trial”)

State v. Shane P. Kashney, 2008 WI App 164
For Kashney: Paul G. LaZotte, SPD, Madison Appellate

Issue/Holding: While State v. Patrick A. Saunders, 2002 WI 107 limits proof of a repeater enhancement to the “post-trial” setting, that limitation is satisfied if the State submits the proof after verdict (and before the court has pronounced judgment).

¶1        In State v. Saunders, 2002 WI 107, ¶¶67-69, 255 Wis. 2d 589, 649 N.W.2d 263, the supreme court stated that evidence of repeater status may not be submitted until “post-trial.”  Here, the evidence was submitted after the jury returned the guilty verdicts and had left the courtroom, but before the court had rendered judgment on the verdicts and concluded the trial.  We rejected a no-merit appeal to clarify what the term “post-trial” means, in our view.  Now, after full briefing on the subject, we are satisfied that the State may submit repeater evidence at any time following the jury verdict up until the actual sentencing.  We therefore affirm because the State met its burden regarding repeater evidence.

¶12      Based on our supreme court’s comments and our due process concern, we glean that post-trial means as early as “immediately after [the] verdict” and as late as “any time before actual sentencing.”  Saunders, 255 Wis. 2d 589, ¶¶48, 43 n.19.  This way, the evidence will not prejudice the decision maker, and the defendant can still challenge the evidence prior to sentencing.  Our confidence in this interpretation is bolstered by the fact that, in Saunders, the State submitted the repeater evidence “[i]mmediately after the jury had been dismissed,” which is very similar to the factual situation here.  See id., ¶59.  Moreover, the supreme court stated in Saunders that the trial court queried whether the parties disputed the existence of the judgment of conviction in the file at the close of trial.  Id., ¶60.   To interpret post-trial in a more restrictive way, as Kashney argues, would hold form over substance.  We decline to accept his argument.

¶13      In this case, the State submitted certified judgments both at the preliminary hearing and after the jury verdict.  We conclude that the evidence submitted after the jury verdict is post-trial and can be used to prove Kashney’s repeater status.

 

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