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Enhancer – § 939.62(2m)(d), Persistent Offender — Comparable Crime, Foreign Conviction – Determination

State v. Leonard T. Collins, 2002 WI App 177
For Collins: Paul G. LaZotte, SPD, Madison Appellate


¶2. We agree with Collins that Wis. Stat. § 939.62(2m)(d) requires circuit courts to determine independently whether an out-of-state crime is comparable to a Wisconsin “serious felony,” even if the defendant admits that he or she is a persistent repeater. However, because we can conclude as a matter of law that “second degree murder” in Illinois would be a “serious felony” if committed in Wisconsin, we affirm.

Collins, during a no contest plea, admitted that he’d been convicted of “second degree murder” in Illinois. Because this was an out-of-state conviction, his admission is not sufficient to establish persistent repeater status, because the court must still make a “comparability” determination:

¶13. Even if a defendant “admits” that his or her violation is “comparable,” this does not relieve the circuit court of its obligation to make an independent determination. Whether a crime in another state would be a “serious felony” if committed in Wisconsin is a legal, not a factual question. See State v. Burroughs, 2002 WI App 18, ¶¶ 23-27, 250 Wis. 2d 180, 640 N.W.2d 190 (treating the circuit court’s conclusion regarding “comparability” of Alabama conviction for “assault with attempt to murder” to Wisconsin’s crime against attempted first-degree intentional homicide as a question of law). Courts are generally not bound by a party’s concession on issues of law. State v. Kruzycki, 192 Wis. 2d 509, 517, 531 N.W.2d 429 (Ct. App. 1995) (stating that a question of law “cannot be bargained away”). Rather, Wis. Stat. § 939.62(2m)(d) expressly requires a court to independently determine if an out-of-state conviction qualifies as a “serious felony.” This provision does not permit courts to assume that a crime committed in another state would be a “serious felony” if committed in Wisconsin.

This doesn’t turn out to be much of a hurdle. The court of appeals determines that it has the authority to make the comparability determination, stressing both that Collins admitted the conviction, and also that comparability to a Wisconsin serious felony is a question of law. Though the court doesn’t go into it, it’s not hard to imagine instances where the inquiry is fact-bound; because the court of appeals doesn’t have constitutional authority to resolve disputed questions of fact, it shouldn’t in such cases be able to undertake this sort of inquiry. The court does, though, exhort sentencing courts to carefully explore the underlying facts of a foreign conviction. ¶¶23-24.

The subsequently decided Shepard v. U.S., 03-9168, 3/7/05 (re: parallel federal legislation, Armed Criminal Career Act), should be consulted where there is a dispute as to nature of prior conviction(s), for its suggestion that at least in some instances the prior-conviction exception does not apply, and the defendant is entitled to jury resolution of the dispute. See, e.g., U.S. v. Ngo, 7th Cir No. 04-2662, 5/3/05 (“This language suggests that the recidivism exception exempts only those findings traceable to a prior judicial record of ‘conclusive significance.’ Otherwise, Sixth Amendment concerns arise.”). However, see the post-Shepard, ACCA decision in U.S. v. Moore, 10th Cir No. 04-8078, 3/23/05, to the effect that, “It is a question of law whether a felony meets the statutory definition of a “violent felony,” and such a question does not trigger the Sixth Amendment concerns addressed in Booker“; People v. McGee, Cal SCt No. S123474, 5/22/06 (to same effect — albeit over strong dissent). For an example of arigorous comparability analysis, see People v. McGee, Cal SCt No. S126233, 8/10/06.On a different point, other states may treat a diversion program based on a guilty plea in a foreign state as a “conviction” for strike purposes, notwithstanding the lack of formal judgment of conviction. E.g., People v. Laino, Cal. S. Ct. No. S103324, 4/8/04 (full-faith-and-credit clause doesn’t require that Calfornia give full effect to Arizona judgment of dismissal; California instead may treat guilty plea as prior “conviction” for purpose of three strikes law).

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