State v. Paul Delao Quiroz, 2002 WI App 52
For Quiroz: Chad G. Kerkman
Issue: Whether the maximum penalty for first-degree reckless endangerment of safety, enhanced by while armed and gang-related provisions, was 13 or 14 years.
¶13 … [State v. Pernell, 165 Wis. 2d 651, 656, 478 N.W.2d 297 (Ct. App. 1991)] establishes that when two penalty enhancers are applicable to the same crime, the length of the second penalty enhancer is based on the maximum term for the base crime as extended by the first penalty enhancer.
¶14 Here, the maximum for Quiroz’s Class D felony crime was five years. With the dangerous weapon penalty enhancer, this five-year penalty could be increased by no more than four years, WIS. STAT. § 939.63(1)(a)3, for a new maximum penalty of nine years. We now add the gang-related penalty enhancer to the nine-year maximum penalty. Because the maximum term of imprisonment is more than five years, it can be increased by up to five years, WIS. STAT § 939.625(1)(b)2, for a maximum penalty of fourteen years.”
How do you determine which is the “first” enhancer? The court doesn’t say. Pernell is less than helpful on this point. Apparently, by “first” the court simply means whatever order of computation generates the greater maximum. Moreover, this is all dicta, because the court goes on to say that the exact maximum had no impact on the real issue, which is plea-withdrawal due to asserted incorrect advice about the maximum, ¶¶16-17.