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Enhancer – Waiver of Objection to Sufficiency of Repeater Proof

State v. Jamale A. Bonds, 2006 WI 83, reversing unpublished decision
For Bonds: Jeremy C. Perri, Diana M. Felsmann, SPD, Milwaukee Appellate

Issue/Holding: Failure to object to the manner of proving a repeater allegation (via CCAP) did not constitute waiver of an objection that the proof was insufficient:

¶51      The State contends that we concluded in Saunders that an objection to the sufficiency of the evidence of habitual criminality must be made in the circuit court or it is waived. …

¶52      However, … on the record in Saunders, the State did provide sufficient evidence to meet its burden of proof. [13]

¶53      Here, the CCAP report was not sufficient to constitute prima facie proof of Bonds’s repeater status. Therefore, not making a specific objection when evidence that is insufficient to constitute prima facie proof of a prior qualifying conviction is presented is not a waiver. Bonds did object to the sufficiency of the evidence the State presented, arguing that the State had not proved habitual criminality beyond a reasonable doubt. For the reasons explained above, a CCAP report does not come within our holding in regard to waiver set out in Saunders. Because the only evidence submitted was the CCAP report, we conclude that Bonds’s objection is sufficient to defeat the State’s contention that he waived his objection to proving habitual criminality with a CCAP report. Therefore, we conclude that the repeater portion of Bonds’s sentence must be vacated.

Lack of objection in Saunders constituted a stipulation to the State’s “mode of proof,” namely an uncertified copy of a judgment of conviction, ¶43. The court explains the difference between these forms of documentation, at least according to the court:

¶45      It is important to note that one of the questions we addressed in Saunders was whether an uncertified copy of a judgment of conviction was what it purported to be, i.e., an authentic copy of the judgment of conviction.  Id., ¶28.  That question differs markedly from the question posed by a CCAP report.  With a CCAP report, the question is whether the report is an accurate narration of the judgment of conviction of a particular defendant, for a particular crime, on a particular date. Koeppen, 195 Wis.  2d at 127.

That is, while “an uncertified copy is not materially different from a certified copy, and is identical with the exception of an official stamp,” ¶42, CCAP entries are not minimally reliable enough to satisfy proof beyond reasonable doubt.


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