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Defense win! Courts can’t apply §939.62(1) and §961.48 enhancers at the same time

State v. Tracy Laver Hailes, 2021AP1339-CR, 5/9/23, District 1, (recommended for publication); case activity (including briefs)

In a decision recommended for publication, the court of appeals holds that under §973.01(2)(c) a circuit court may apply either §939.62(1) (governing habitual criminality) or §961.48 (governing second or subsequent offenses) to enhance a penalty, but it may not apply both. While the circuit court erroneously applied both enhancers in this case, the court of appeals nevertheless denied Hailes’s claims for plea withdrawal, sentence modification, and resentencing.

In State v. Maxey, 2003 WI App 94, 264 Wis. 2d 878, 663 N.W.2d 811, the court of appeals held that a sentencing court could apply the penalty enhancers in §939.62(1)  and §961.48 to a defendant at the same time. Maxey interpreted the statutes in effect in 1999-2000. In 2001, the legislature created §973.01(2)(c), governing penalty enhancement. It provides in part:

2. If more than one of the following penalty enhancement statutes apply to a crime, the court shall apply them in the order listed in calculating the maximum term of imprisonment for that crime:
a. Sections 939.621, 939.623, 939.632, 939.635,
939.645, 946.42(4), 961.442, 961.46, and 961.49.
b. Section 939.63.
c. Section 939.62(1) or 961.48. (Emphasis supplied).

Under the plain language of the statute, “or” means either §939.62(1) applies or  §961.48 applies. The legislature’s use of the word “or” in sub. c  stands in contrast to its use of the word “and” in sub. a. Maxey does not govern cases after §973.01(2)(c) went into effect. Opinion, ¶¶28-33.

Hailes sought plea withdrawal on two grounds. First, his plea was not knowing and voluntary because he received affirmative misinformation that both penalty enhancers applied to his charges. The court of appeals rejected this claim because under Wisconsin law Hailes had to prove that he entered his plea based on the misinformation. (Opinion, ¶¶39-41)(citing State v. Woods, 173 Wis. 2d 129, 496 N.W.2d 144 (Ct. App. 1992); State v. Riekkoff, 112 Wis. 2d 119, 332 N.W.2d 744 (1983); and State v. Brown, 2004 WI App 179, 276 Wis. 2d 559, 687 N.W.2d 543; and State v. Dillard, 2014 WI 123, ¶37, 358 Wis. 2d 543, 859 N.W.2d 44).

However, the record showed that the penalty enhancers did not induce Hailes’s pleas. He pled because the trial court denied his motion to suppress, and he heard the State describe the evidence it planned to present at trial. (Opinion, ¶45).

Second, Hailes sought plea withdrawal because his trial lawyer failed to argue that the circuit court could not apply both §939.62(1) and §961.48. The court of appeals held that trial counsel was not deficient because Maxey‘s holding had not been reversed when the sentencing court applied both enhancers. (Opinion, ¶49). Nor did Hailes show prejudice. He did not claim that but for the penalty enhancers, he would not have pled guilty. (Opinion, ¶¶50-53).

As an alternative to plea withdrawal, Hailes argued that he was entitled to sentence modification based on a new factor (a change in the law) or resentencing because he was sentenced on inaccurate information (outdated law). Both claims failed. The two enhancers weren’t “highly relevant” to the sentence the court chose to impose. The court did not cite them as a reason for its sentence. The court focused on the seriousness of Hailes’s crimes. (Opinion, ¶¶54-61).

In addition to the enhancers issue, Hailes argued that the circuit court erroneously denied his motion to suppress because the affidavits attached to the search warrant did not establish probable cause of illegal activity. The court of appeals denied that claim based on facts unique to this case. (Opinion, ¶¶15-26).


{ 2 comments… add one }
  • Peter Heyne May 12, 2023, 9:59 am

    Thanks to Appellate and Atty. August for bringing and arguing this issue that has been unresolved at the trial court level since at least 2016. Thanks also to my fellow ASPD Atty. Shannon Viel (Green Bay trial) for brainstorming and helping research the legislative history to Act 109; he also co-presented at the annual SPD conference on stacking penalty enhancers (“Evil Pancakes”).

  • Christopher August May 15, 2023, 12:22 pm

    Peter’s comment is a good reminder for readers of this blog to attend the annual conference. This appeal was wholly based on Peter’s presentation, without which I would have been ignorant of the issue.

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