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Sentencing Enhancer – Proof

State v. Christopher J. Holan, 2011AP1717-CR, District 3, 1/31/12

court of appeals decision (1-judge, not for publication); for Holan: Martha K. Askins; case activity

Holan’s admission to his prior felony conviction satisfied § 973.12(1); the court rejects his argument that the record must show his knowledge that  he faced increased punishment because of the prior conviction:

¶10      Holan’s reliance on Rachwal and Goldstein is misplaced.  These cases do not stand for the proposition that a circuit court must establish the link between a defendant’s maximum penalty and the prior conviction in order for an admission to be valid.  Rather, these cases provide that a defendant who pleads to an offense, but never expressly admits to the prior conviction, can be held to have admitted the prior conviction if the record shows the defendant understood the link between the prior conviction and the increase in the maximum penalty.  See Rachwal, 159 Wis. 2d 509; Goldstein, 182 Wis. 2d at 256-57 (relying on Rachwal).

¶13      In this case, unlike the situations in Rachwal and Goldstein, we do not need to determine whether Holan’s no contest plea constitutes an admission to the prior conviction.  Here, the circuit court expressly asked Holan if he admitted to the prior conviction, and Holan responded, “yes.”

Prior convictions occurring more than 5 years prior to the present offense are off-limits to repeater enhancement, but time the defendant spent in custody is excluded from this 5-year period, § 939.62(2). Holan’s prior conviction was more than 5 years old, therefore “Holan needed to admit or the record needed to establish Holan was incarcerated,” ¶15. Holan’s stipulation to the complaint for the factual basis for the plea, and the complaint’s assertion that he had been incarcerated for three years and nine months as a result of his prior conviction satisfied this requirement, ¶16. (Remedy for an inadequately established repeater allegation, it should be noted, “is to commute the sentence to the maximum for the convicted offenses without the repeater enhancer,” citing Goldstein, 182 Wis. 2d at 262.)

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