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Enhancer – § 939.62(2m)(d), Persistent Offender – “Prior” Strike

State v. Michael Scott Long, 2009 WI 36, affirming in part and reversing in part unpublished opinion
For Long: Joseph L. Sommers

Issue/Holding: The “3-strike” persistent repeater enhancement, § 939.62(2m)(d), requires that the two prior strikes occur before the current felony and the 1st strike’s conviction date precede the 2nd strike’s violation date. Although Long’s two prior strikes occurred before the current felony, neither of these convictions occurred prior to the other’s violation date and his sentence as a persistent repeater must be vacated. The remedy is resentencing, ¶¶33-45.

On remand, the circuit court may allow the State to amend the complaint and substitute other prior convictions as the basis for persistent repeater enhancement, ¶¶46-54. The supreme court apparently leaves this to trial court discretion under the 2-part test of State v. Jamale A. Bonds, 2006 WI 83 (defendant must have notice charged with enhancer, and must not be “prejudiced in making an intelligent plea as a result of the” post hoc amendment). This is what we like to call a test without any teeth. Notice is a given, and good luck showing prejudice. But then the fun really begins: just how does the judge determine whether a prior conviction, especially if foreign, qualifies as strike? Not really a problem where the priors are Wisconsin-based, as enumerated in § 939.62(2m)(a)1m.a., but foreign convictions, as in Long’s instance, must be “comparable”: how can you tell? In several glancing paragraphs the court recognizes this to be a potentially daunting, constitutionally fraught, exercise, ¶¶56-59, and cites Shepard v. United States, 544 U.S. 13, 26 (2005) and Taylor v. United States, 495 U.S. 575, 601 (1990), for the idea

that a judge’s inquiry into the nature of a previous offense “is limited to the terms of the charging document, the terms of a plea agreement or transcript of colloquy between judge and defendant in which the factual basis for the plea was confirmed by the defendant, or to some comparable judicial record of this information.”

Shepard, it should be noted, is an “opaque work” whose implications are quite unclear. Convicted of federal felon-in-possession, 18 USC § 922(g)(1), and coming under the Armed Career Criminal Act enhancement provision, 18 USC § 924(e) (enhanced sentence if 3 priors for violent felonies or drug offenses), Shepard disputed whether one of his felony priors was “violent,” within the meaning of the Act. The issue therefore became how the nature of the prior conviction might be satisfied. (Caveat: the prior was not necessarily “violent” as defined by the ACCA, given the elements of the offense; if it had been, you’d have a different situation.) The Court previously held that where the prior conviction was obtained after jury trial you can look to “statutory elements, charging documents, and jury instructions” to see if the enhancement requirement is satisfied. But for a plea-based prior such as Shepard’s, the sentencing court may not look at extrajudicial documents such as “police reports or complaint applications,” and instead “is generally limited to examining the statutory definition, charging document, written plea agreement, transcript of plea colloquy, and any explicit factual finding by the trial judge to which the defendant assented.”

Although the Court was engaged in what it termed “an issue of statutory interpretation” of a federal scheme, the Court’s construction was explicitly devised “to avoid serious risks of unconstitutionality,” which is to say Apprendi’s general guarantee of jury resolution of disputed facts enhancing the sentence beyond the statutory maximum. More particularly, the Court perceived that, “While the disputed fact here can be described as a fact about a prior conviction, it is too far removed from the conclusive significance of a prior judicial record, and too much like the findings subject to Jones and Apprendi, to say that [the prior-conviction exception] clearly authorizes a judge to resolve the dispute. … [and] therefore counsels us to limit the scope of judicial factfinding on the dispute[.]” (By “prior conviction exception” is simply meant that repeater-type enhancement may be decided by the judge without jury involvement.) You can see from this just why the decision is “opaque”: either there is or there isn’t a jury trial right to resolve the dispute; limiting the search to truffles doesn’t really solve the problem of who’s on the hunt, does it? With that in mind, Wisconsin caselaw does not appear, at least under the facts, inconsistent with Shepard– State v. Leonard T. Collins, 2002 WI App 177, ¶¶23-24 (may look to facts in charging document); State v. Charles J. Burroughs, 2002 WI App 18, ¶¶25-27 (look to elements, as interpreted by caselaw of that jurisdiction). And now Long, which for better or worse simply recognizes the difficulty of the enterprise without really adding to our understanding of it. The point is that Shepard inhibits a sentencing court from going much if at all beyond such efforts to determine the nature of the foreign prior.


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