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Enhancer — Persistent Repeater, § 939.62(2m)(b) — Equal Protection Challenge

State v. Damone J. Block, 222 Wis. 2d 586, 587 N.W.2d 914 (Ct. App. 1998)
For Block: James M. Weber

Issue/Holding: The persistent repeater scheme survives equal protection challenge.

Block concedes that the persistent repeater statute deserves only the rational basis test.  He argues that there are no reasonable or practical grounds for the manner in which the legislature has chosen serious crimes under § 939.62(2m), STATS.  We do not agree.

Block initially argues that the determination of which crimes are serious for purposes of the persistent repeater statute is arbitrary because it does not follow the general classification of felonies under § 939.50,STATS.  He points out that some Class C felonies are included as serious, but not all.  He contends that “[t]here is nothing that differentiates the chosen class C felonies from those that are deemed not to be ‘serious.’”

First, we note that only six Class C felonies are included as serious under the repeater statute.[2]  See § 939.62(2m)(a)2, STATS.  All six involve bodily harm or crimes against children.  Many of the Class C felonies not included are property crimes.  See, e.g., § 943.10, STATS. (burglary).  True, there are some violent Class C felonies the legislature chose not to include.  See, e.g., § 940.23(1)(a), STATS. (first-degree reckless injury); §941.20(3), STATS. (intentional discharge of a firearm from a vehicle).  However, as we stated above, the legislature may address one evil at a time.  See  Martin, 191 Wis.2d at 659, 530 N.W.2d at 426.  And, it is the role of the legislature to determine which crimes are in need of more urgent repression than others.  See id. at 658, 530 N.W.2d at 425.  The legislature may have found the included crimes to be more common than those not included, or may be addressing “one evil at a time.”  See id. at 659, 530 N.W.2d at 426.  We do not require that the legislative rationale be articulated.  See id. at 658, 530 N.W.2d at 425.  Because the classification does not “[rest] on grounds wholly irrelevant to the achievement of the State’s objective,” we will not tamper with it.  Id. at 657, 530 N.W.2d at 425 (quoted source omitted).  The decision of which crimes to include is for the legislature, not the courts, and we will not second-guess that decision.  See Castellani, 218 Wis.2d at 265, 578 N.W.2d at 175 (“[I]t is not our task to determine the wisdom of the rationale or the legislation”) (quoted source omitted).


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