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Enhancer — Pleading — Untimely Allegation, But Pursuant to Plea Bargain

State v. Joel O. Peterson, 2001 WI App 220, PFR filed 9/21/01
For Peterson: William E. Schmaal

Issue: Whether the charge may be amended to include a repeater allegation, otherwise untimely under § 973.12(1), if accomplished as part of a plea bargain.


¶24 … (A)llowing a defendant to agree to amend an information to add repeater allegations as part of an agreement to plead guilty or no contest is consistent with the goal of providing the defendant all the information about the potential punishment at the time he or she pleads guilty or no contest.

¶25. In addition, we can see no purpose served by interpreting the statute to prevent a defendant from agreeing to add repeater allegations to an information as part of a plea agreement. Since a defendant need not agree to that amendment, presumably a defendant will agree only when he or she perceives it is in his or her interest to do so. For example, in this case, postconviction counsel acknowledged to the trial court that the amendment to the information benefited Peterson. The requirement that guilty and no contest pleas be knowing, voluntary, and intelligent ensures that defendants will not be coerced into agreeing to the addition of repeater allegations that the State could not add unilaterally.

¶27. For the above reasons, we conclude that the legislature did not intend in Wis. Stat. § 973.12(1) to prohibit defendants from agreeing, after arraignment and entry of a not guilty plea and as part of a plea agreement, to amend charging documents to add repeater. Accordingly, the repeater penalty portions of Peterson’s sentences on Count 1 and 2 are not void and the trial court did not err in denying Peterson’s motion to vacate those portions of his sentences.


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