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Domestic abuse repeater enhancer applies only if state proves or defendant admits prior convictions

State v. Gavin S. Hill, 2016 WI App 29; case activity (including briefs)

The court of appeals holds that the standards for alleging and applying the ordinary repeater enhancer under § 939.62 also govern the domestic abuse repeater enhancer under § 939.621. Thus, the state must either prove that the defendant was convicted of the required predicate offenses or the defendant must admit that he was convicted of those offenses.

Hill was charged with disorderly conduct as an ordinary repeater under § 939.62 and as a domestic abuse repeater under § 939.621. (¶2). A person is a domestic abuse repeater if he or she “was convicted, on 2 separate occasions, of a felony or a misdemeanor for which a court imposed a domestic abuse surcharge under s. 973.055(1) or waived a domestic abuse surcharge pursuant to s. 973.055(4), during the 10-year period immediately prior to the commission of the crime for which the person presently is being sentenced, if the convictions remain of record and unreversed.” § 939.621(1)(b).

To support the ordinary repeater allegation, the complaint listed three specific prior convictions, but it did not refer to specific cases in support of the domestic abuse repeater allegation. Attached to the complaint were CCAP printouts for five cases—the three listed to support the ordinary repeater and two others—and four of the five printouts indicated the domestic abuse modifier under § 968.075(1)(a) applied. (¶3).

Hill ultimately pleaded no contest, and received an enhanced sentence. Postconviction, he claimed that the record did not support application of the domestic abuse repeater enhancer. (¶¶5-6).

The threshold question is whether the standard for alleging and applying the enhancer is the same as the standard governing the ordinary repeater enhancer set out in § 973.12(1). The court of appeals agrees with the parties that the standard should be the same. (¶9). While the text of § 973.12(1) refers only to § 939.62, the statute governing the ordinary repeater enhancer, “due process concerns” led the court to apply § 973.12(1) to the enhanced penalty provisions under ch. 961. State v. Coolidge, 173 Wis. 2d 783, 792-93, 496 N.W.2d 701 (Ct. App. 1993). And, while § 973.12(1) does not apply to prove prior OWI or OAR convictions for sentence enhancement purposes, State v. Wideman, 206 Wis. 2d 91, 556 N.W.2d 737 (1996), and State v. Spaeth, 206 Wis. 2d 135, 556 N.W.2d 728 (1996), that’s because § 939.62(3)(a) expressly excludes “motor vehicle offenses under chs. 341 to 349” from the definition of a repeater.

¶10     Unlike OWI and OAR convictions, the prior convictions that are considered for purposes of the domestic abuse repeater enhancer are not explicitly excluded from consideration under the ordinary repeater statute. In addition, as in Coolidge, due process concerns support applying the proof requirements of Wis. Stat. § 973.12(1) to domestic abuse repeater allegations. We therefore agree with the parties that the proof requirements of § 973.12(1) apply in this case.

The next question is whether the § 973.12(1) standard was satisfied here. To meet the standard, the state either has to prove the prior convictions beyond a reasonable doubt or the defendant has to personally, directly, and specifically admit the prior convictions. State v. Kashney, 2008 WI App 164, ¶8, 314 Wis. 2d 623, 761 N.W.2d 672; State v. Farr, 119 Wis. 2d 651, 659, 350 N.W.2d 640 (1984). The state concedes it didn’t prove the prior convictions: The CCAP printouts aren’t the kind of official report required by § 973.12(1), State v. Bonds, 2006 WI 83, ¶¶48-49, 292 Wis. 2d 344, 717 N.W.2d 133, and the PSI didn’t provide enough of the information required under State v. Caldwell, 154 Wis. 2d 683, 693-95, 454 N.W.2d 13 (Ct. App. 1990), to constitute prima facie evidence of the prior convictions. (¶11 & n.6).

However, Hill’s no contest plea constituted an admission to the prior convictions under State v. Liebnitz, 231 Wis. 2d 272, 603 N.W.2d 208 (1999), and State v. Rachwal, 159 Wis. 2d 494, 465 N.W.2d 490 (1991), which held that a guilty or no contest plea can constitute an admission to the repeater enhancer:

¶20     As in Liebnitz, the “totality of the record” in this case demonstrates that Hill was “fully aware” of the domestic abuse repeater allegation and its consequences when he entered his no contest plea to the disorderly conduct charge. See id. at 285, 288. Both the complaint and Information alleged Hill had committed that offense as a domestic abuse repeater. In particular, both documents parroted the language of Wis. Stat. § 939.621(1)(b), alleging Hill had “been convicted on 2 separate occasions of a felony or misdemeanor for which a court imposed a domestic abuse surcharge under sec. 973.055(1) Wis. Stats. or waived a domestic abuse surcharge pursuant to sec. 973.055(4) Wis. Stats., during the ten year period immediately preceding the commission of this offense[.]”

¶21     Neither the complaint nor the Information specified which prior convictions the State was relying on to support its allegation that Hill was a domestic abuse repeater. However, that deficiency was remedied by the CCAP records attached to the complaint. Although CCAP records do not constitute prima facie proof of prior convictions for purposes of Wis. Stat. § 973.12(1), see Bonds, 292 Wis. 2d 344, ¶49, nothing prevents us from relying on those records to determine whether Hill understood the domestic abuse repeater allegation in the charging documents and therefore admitted, by virtue of his no contest plea, that he qualified as a domestic abuse repeater. Here, when the allegations in the charging documents are read together with the CCAP reports, the convictions on which the State was relying to support the domestic abuse repeater enhancer become sufficiently clear.

Moreover, the circumstances surrounding Hill’s no contest plea show the plea constituted an admission of the domestic abuse repeater allegation. The Plea Questionnaire/Waiver of Rights form contained handwritten notations indicating the DC was committed as both an ordinary repeater and a domestic abuse repeater and, during the plea hearing, the circuit court methodically explained the allegations in the Information pertaining to the disorderly conduct charge, gave a detailed recitation of the repeater allegations, and explained how those allegations enhanced the penalty. (¶¶23-24).

¶25     The plea colloquy and Plea Questionnaire/Waiver of Rights form demonstrate that Hill understood “the nature and consequences of the charges against him and the consequences of his plea.” See Liebnitz, 231 Wis. 2d at 287. Notably, the colloquy here contained far more information regarding the applicable repeater enhancers than the plea colloquy in Liebnitz, during which the court did not even address the repeater enhancer. See id. at 282. In addition, the Plea Questionnaire/Waiver of Rights form in this case specifically stated Hill committed the charged offense as a domestic abuse repeater, unlike the Request to Enter a Plea and Waiver of Rights form in Liebnitz, which did not state the defendant was a repeater. See id. at 281.

Hill also challenged the order that he pay the $250 DNA surcharge for his conviction (which, by virtue of § 939.621(2), metamorphosed into a felony) because the crime occurred in 2013, before the law mandating a surcharge took effect. This claim must be rejected under State v. Scruggs, 2015 WI App 88, 365 Wis. 2d 568, 872 N.W.2d 146. (¶¶27-29).

{ 3 comments… add one }
  • Peter Heyne March 2, 2016, 6:22 am

    As this case is recommended for publication I have a few questions.

    First, did the defense attorney in any way incorporate and/or reference with the Plea Questionnaire the criminal jury instruction 984, which specifically defines domestic abuse for the domestic release repeater? Relatedly did the trial court go over these additional 2 elements at the plea? I don’t know anything about the facts not having the charging documents but I do wonder if the disorderly conduct was indeed domestic abuse per 968.075(1)(a).

    Second, were the two prior “Domestic Abuse” convictions indeed qualifying offenses for 939.621? Namely putting aside the (non-dispositive) labels on CCAP, did the trial court in those older cases actually impose or waive the surcharge? Or did the court clerk simply add the surcharge to total costs, because the criminal complaint had the “Domestic Abuse” label with the charge?

    In my experience especially in Brown County there’s no way to know if the trial court followed 973.055 for the surcharge, if one looks at just CCAP or even the judgments of conviction. The judgment of conviction spells out the DNA surcharges imposed but not the domestic abuse surcharges imposed. The only real way to know for sure is to get the old transcript of the sentencing hearing.

    Additionally, by statute to impose the surcharge the court first has to make an affirmative finding of fact that there was a domestic relationship with the victim. Then the court has to determine if the conduct was in fact abusive.

    There are no settled case-law criteria because there are different definitions for abuse in the surcharge statute and the domestic abuse arrest statute. To resolve this mess the Court of Appeals in a fairly recent one judge unpublished case held that one should look to the DV arrest statute not just to the laundry list of offenses in the surcharge statute. See State v. Ryan P. O’Boyle, in which the Court of Appeals struck down the surcharge finding the disorderly conduct was not domestic abuse. It makes the most sense to use 968.075(1)(a) because those are also the exact criteria in JI-984.

    Thus even if the trial court made the finding of fact on the record that there was a domestic relationship, which by the way I almost never seen trial courts do especially here in Brown County, the question remains whether the conduct was in fact abusive. O’Boyle looked at the probable cause section in the criminal complaint, not just the DA’s label on the charge.

    This all presupposes by the way that these findings of fact of the domestic relationship and abuse of conduct that trigger the surcharge, and by triggering the surcharge set up the domestic abuse repeater, are not in fact questions proper for a jury. I have been arguing for many years that the domestic abuse surcharge is punishment–ergo, Apprendi applies–not only because it increases the statutory maximum penalty by $100 per count but more importantly because it sets up the domestic abuse repeater. I have an appeal on this very issue just starting in District 3.

    But all of this probably does not matter, esp. any Apprendi claims, in this case because the guy entered a plea. But one wonders if that plea was knowing and intelligent, given there’s really not much case law on the domestic abuse repeater. Did the defendant really know that the domestic abuse repeater requires additional elements set forth on jury instruction 984? Did he know that the prior qualifying offenses had to actually be domestic abuse offenses, CCAP labels be damned?

  • Peter Heyne March 3, 2016, 11:56 am

    Further investigation on this topic reveals a pending CtApp District I case, State v. James Johnson, 15 AP 1153-CR, that addresses some of the underlying issues with domestic abuse. ASPD Atty. Andrea Taylor Cornwall for the defense. Both State and defense cite State v. Ryan P. O’Boyle.

    Issues include the (im)proper use of the “modifier”/label of 968.075(1)(a) on criminal complaints and Judgments of Conviction; and the proper process that the trial court must follow before imposing the DV surcharge.

    On this first point, the State admits that the “modifier”/label of 968.075(1)(a) is not dispositive that the act was domestic abuse for either the DV Repeater or DV surcharge. Brief p. 4. “Rather, the use of Wis. Stat. § 968.075(1)(a) in court documents denotes that specific law enforcement procedures were followed and flags the case to alert the court and the parties that Wis. Stat. §§ 939.621, 973.055, or 973.09(2)(a)1.b.1 may be applicable.” Id.

    Continuing, “Like Wis. Stat. § 939.621, the imposition of the domestic abuse
    surcharge under Wis. Stat. § 973.055 depends on additional facts: whether the defendant committed one of the enumerated offenses and the nature of the relationship between the defendant and the victim. See Wis. Stat. §§ 973.055(1)(a)1. and 2. Therefore, the surcharge cannot be imposed simply by noting Wis. Stat. § 968.075(1)(a) on the judgment of conviction.” Id. p. 5.

    On the second point, the State tries to argue, contrary to the plain text of the surcharge statute (Wis. Stat. § 973.055(1)(a)2. ), that the trial court does not have to make the express finding at sentencing of a qualifying domestic relationship. The defense reply brief deftly skewers this claim like a glinting Toledo Salamanca rapier into moldy tangerine Jell-O.

    We will see how the case turns out!

  • Peter Heyne June 1, 2016, 10:03 am

    Updates on the DV front. Two cases have just been released, and though losses for the defense, are fortunately both per curiam. For further reading (but of course NOT for citation, for any purpose; see Rule 809.23(3)(b)), the cases are
    1. State v. Shane Clark, 15 AP 141
    2. State v. James Johnson, 15 AP 1153

    I. Proper Definition for DVO–still look to DV arrest criteria

    In both cases, the CtApp thankfully follows the logic of State v. O’Boyle, No. 2013AP1004-CR, unpublished slip op. (WI App Feb. 4, 2014)–unpublished but citable!–that the proper definition of DV is the DV arrest statute and its four criteria (968.075(1)(a)), NOT the DV surcharge statute and its litany of qualifying offenses (973.055).

    This is good, because then the trial court cannot just automatically impose the DV surcharge if the crime of conviction, like DC, falls in the list. Rather, the trial court has to examine whether the actual conduct is abuse–and as O’Boyle showed, not all DC is DV.

    >> ¶27 Clark’s contention that his conduct in Rock II did not properly constitute a “domestic abuse incident” hinges entirely on his assertion that the charged conduct in Rock II (telephone calls) does not fall within the statutory definition of domestic abuse. Domestic abuse has four meanings described in WIS. STAT. § 968.075(1)(a)1.-4. One definition is that an adult engages in “[a] physical act that may cause the other person reasonably to fear imminent engagement in the conduct described” in the other subsections of the statute. § 978.075(1)(a)4.

    >>[in Johnson] ¶11 “Domestic abuse” is not a standalone crime but, rather, a modifier that can be attached to other offenses. Whether an offense qualifies as “domestic abuse” within the meaning of WIS. STAT. § 968.075(1)(a) is a mixed question of fact and law.

    Under the criteria of § 968.075(1)(a), both defendants lost, but for different reasons.

    1. Johnson, who contested on appeal the domestic relationship prong of DV, lost because he did not dispute the criminal complaint or PSI, and both established a domestic relationship.

    2. Clark, who contested on appeal the abuse prong of DV, lost not on substantive but procedural grounds. He argued that using the telephone to harass the victim was not a “physical act” within the meaning of WIS. STAT. § 968.075(1)(a)4. But he did not appeal the conviction for that older case, so his collateral attack fails. “Clark does not argue that the Rock II judgment was procured by fraud.” Lesson learned: don’t forfeit the issue by forgoing a direct appeal.

    FYI: even if he had directly attacked the conviction, the facts of the case showed that Clark did more than just make a phone call. Both trial and appellate defense counsel did not dispute the facts that the State laid out in its reply brief:

    >>”At the postconviction-motion hearing, the prosecutor summarized the circumstances leading up to the domestic-abuse arrest in Rock II that underlay the no-contact violation in Rock III:
    >>>>[W]hat occurred that gave rise to 13 CF 510 [Rock II], the event on February 23, 2013, that was, I believe, the defendant making repeated phone calls to the victim and to a person the victim was with making various threats about what he was gonna do, and that in those calls, in addition to making the threats, he was saying, I am on my way to the house, you better make sure the kids aren’t there, I’m getting closer, I’m getting closer. And, in fact, the police, in response to the report of that, looked for him and found him. He had come from, I think, Racine and was in Janesville quite close to her residence at the point that the police stopped him. So I would say that the physical act was not only the repeated making of the phone calls, but him saying, I am coming to get you. And he was, in fact, driving, I think, from Racine to her residence and was almost there. So that fact of approaching her with the statements of, I am — essentially, I’m coming to get you, I think gave rise to a reasonable fear that he was going to physically harm her.”

    Clark did not dispute the prosecutor’s summary at any point afterward.”

    II. Duty of Trial Court to Find Domestic Relationship

    In Johnson, the defense argued that 973.055 requires the trial court to make an explicit factual finding of a domestic relationship before imposing the DV surcharge. Trial court did not do so at sentencing–but did so at the postconviction motion hearing. The CtApp holds:

    >>¶21 Here, the circuit court ordered Johnson to pay domestic violence surcharges without expressly stating its finding that Johnson and the victim had a qualifying relationship. **While an express finding at the time of sentencing would have been preferable**, the circuit court made clear in its postconviction decision that it implicitly found Johnson resided with the victim. See State v. Fuerst, 181 Wis. 2d 903, 915, 512 N.W.2d 243 (Ct. App. 1994) (The circuit court has an additional opportunity to explain its sentence when challenged by postconviction motion.). In its written decision denying Johnson’s motion for postconviction relief, the circuit court explained that the presentence investigation report (PSI) was part of the record and was reviewed by the parties prior to sentencing. The circuit court went on to point out that Johnson did not object to the numerous references in the PSI that he and the victim lived together, and it quoted various excerpts containing remarks to this effect, which were attributed to Johnson.

    >>¶22 Because Johnson did not object to any of the information in the record, including statements attributed to him that showed he was living with the victim at the time of these offenses, the circuit court concluded that it was unnecessary for it to make an express finding on a factual issue that was not in dispute. Again, while this court would have preferred such a finding, under the circumstances presented, its absence is not fatal. See id.”

    So bottom line: if not accurate, object to any references to a domestic relationship in the criminal complaint, PSI, etc. , both at sentencing and at any PCM hearing.

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