On Point

State v. Thomas W. Koeppen, 2000 WI App 121, 237 Wis.2d 418, 614 N.W.2d 530
For Koeppen: Richard L. Zaffiro

Issue: Whether the repeater-qualifying convictions were inadequately proved merely because they weren’t made part of the appellate record.

Holding: “Even if the trial court did not include these documents in the appellate record, the documents’ existence at the time of sentencing is not negated because, as the appellant, Koeppen had the duty to ensure the completeness of the appellate record. … In such situations, we must assume that the missing material; supports the trial court’s ruling.” ¶37.

State v. Guy R. Willett, 2000 WI App 212, 238 Wis.2d 621, 618 N.W.2d 881
For Willett: Susan E. Alesia, SPD, Madison Appellate

Issue: Whether the trial court had authority to change its sentences from concurrent to consecutive to a separately imposed sentence, four months later, after concluding that its sentencing was based on an erroneous understanding of the law.

Holding: Although the trial court clearly wanted its sentences to run consecutive to a separately imposed sentence, the court (erroneously) believed that it lacked that authority, and therefore imposed its sentences concurrent with the other sentence. When the error was pointed out, the court modified the sentence structure four months later, so that its sentences would run consecutive to the other sentence. Given that Willett was four months into his sentence and that the trial court (even if based on misconstruction of its authority) imposed a valid, concurrent sentence, “a legitimate expectation of finality” vested in that sentence, and double jeopardy therefore precludes its increase. ¶6.

Like effect: U.S. v. Robinson, 6th Cir. No. 03-4593, 5/21/04 (though federal sentencing court can at any time correct “clerical error” in judgment, this authority doesn’t extend to “the vindication of the court’s unexpressed sentencing expectations, or for the correction of errors made by the court itself”).

State v. Frank James Burt, 2000 WI App 126, 237 Wis. 2d 610, 614 N.W.2d 42
For Burt: Michael P. Jakus

Issue: Whether the trial court violated double jeopardy by amending sentence the same day of imposition, before judgment of conviction had been entered, after realizing it had mistakenly said “concurrent” instead of “consecutive.”

Holding: “The double jeopardy clauses did not attach a degree of finality to Burt’s original sentence that prevented the trial court from correcting its error later in the same day,” ¶11.

The opinion simply isn’t clear as to when an expectation of finality, in a double jeopardy sense, attaches to sentence. The court rejects the idea that § 973.15(1) — all sentences commence at noon of the day of sentence — is relevant to double jeopardy analysis, ¶13, but doesn’t say what might fill the vacuum.See also U.S. v. Rosario, 386 F.3d 166 (2nd Cir. 2004), and cases string-cited:

After service of the sentence had begun, it was once thought that a sentence could never be increased, see United States v. Benz, 282 U.S. 304, 307 (1931). This view, however, has been altered in more recent times. See DiFrancesco, 449 U.S. at 138-39 (limiting import of language in Benz) …. The modern principle governing all of these situations appears to be, as succinctly synthesized by then-Judge Bork, “that the application of the double jeopardy clause to an increase in a sentence turns on the extent and legitimacy of a defendant’s expectation of finality in that sentence.” United States v. Fogel, 829 F.2d 77, 87 (D.C. Cir. 1987).The same principle applicable to sentence increases in general has been applied to determine the validity of written judgments that purport to increase a sentence as orally pronounced….

State v. David M. Hahn, 2000 WI 118, 238 Wis. 2d 889, 618 N.W.2d 528, on certification; clarified on reconsideration, on a different point, 2001 WI 6
For Hahn: Steven G. Bauer

Issue: “(W)hether the persistent repeater penalty enhancer as applied to the defendant violates the Eighth Amendment to the U.S. Constitution prohibiting cruel and unusual punishment.” ¶5.

Holding: Imposing a life sentence without possibility of parole, after three or more convictions for serious felonies, is not grossly disproportionate punishment, and therefore doesn’t violate the 8th amendment.

State v. Calvin E. Gibson, 2000 WI App 207, 238 Wis.2d 547, 618 N.W.2d 248
For Gibson: Margaret A. Maroney, SPD, Madison Appellate

Issue/Holding:

¶1. The question presented is whether the habitual criminality enhancer may be applied to a conviction for a second offense felony of firearm possession. Calvin E. Gibson, who was convicted of being a felon in possession of a firearm, second offense, with a repeater enhancer, argues that the application of both the criminal and repeater statutes is “double enhancement,” which this court prohibited in State v. Ray, 166 Wis. 2d 855, 873, 481 N.W.2d 288 (Ct. App. 1992). We hold that Wis. Stat. § 941.29(2m) (1997-98), the “second offense felon in possession” statute, creates its own separate offense. Because it is a separate crime and not a penalty enhancer, it will support the application of the habitual criminality statute. We affirm.

Ray says you can’t apply multiple repeater enhancers to the same substantive offense (at least where “the predicate offense is for the same conviction”). The question, then, is whether 2d-offense felon-in-possession is in the nature of a repeater for felon-in-possession (so as to preclude application of habitual criminality), or whether it’s a substantive offense in its own right. The wording of the section — “whoever violates … is guilty of a Class D felony” may seem to support the latter construction, but even so, a prior conviction raises a prototypical sentence-enhancement issue, as suggested by Apprendi v. N.J., 147 L.Ed.2d 443 (2000): “Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” Gibson, by saying that the traditional sort of enhancer (prior conviction) may be regarded as an element, not a mere enhancer, seems to invert Apprendi. The wording of the statute (“is guilty of”) might support the holding, but a contrary result on similar language was reached in State v. Morris, 108 Wis.2d 282, 322 N.W.2d 264 (1982), which isn’t discussed. The line between element and enhancer remains fuzzy, though Apprendi provides some guidance.

State v. John W. Page, 2000 WI App 267, 240 Wis.2d 276, 622 N.W.2d 285
For Page: William E. Schmaal, SPD, Madison Appellate

Issue: Whether possession of dangerous weapon enhancer, § 939.63, requires actual use or threat to use the weapon while committing the enhanced offense.

Holding:

Under the correct reading of [State v.] Peete [,185 Wis. 2d 4, 517 N.W.2d 149 (1994)], if the evidence is such that a reasonable jury may find beyond a reasonable doubt that the defendant possessed a dangerous weapon in order to use it or threaten to use it should that become necessary, the evidence is sufficient under § 939.63 even if the defendant did not actually use or threaten to use the weapon in the commission of the crime.

See U.S. v. Stallings, 11th Cir. No. 03-11905, 9/7/06:

Although “‘[e]xperience on the trial and appellate benches has taught that substantial dealers in narcotics keep firearms on their premises as tools of the trade,’” United States v. Alvarez, 755 F.2d 830, 849 (11th Cir. 1985) (citing United States v. Perez, 648 F.2d 219, 224 (5th Cir. Unit B 1981)), the mere fact that a drug offender possesses a firearm does not necessarily give rise to the firearms enhancement. The government must show some nexus beyond mere possession between the firearms and the drug crime. See, e.g., Timmons, 283 F.3d at 1251 (noting that the “‘in relation to’ language ‘allay[s] explicitly the concern that a person could be’ punished under § 924(c)(1) for committing a drug trafficking offense ‘while in possession of a firearm’ even though the firearm’s presence is coincidental or entirely ‘unrelated’ to the crime” (citing Smith v. United States, 508 U.S. 223, 238 (1993))); United States v. Siebe, 58 F.3d 161, 162–63 (5th Cir. 1995) (concluding that a firearms enhancement was not justified because, although police found ninety firearms in the defendant’s home, they found no evidence there of drug paraphernalia or drug trafficking activities); United States v. Salery, 119 F. Supp. 2d 1268, 1275 (M.D. Ala. 2000) (synthesizing cases and concluding that the government must prove that the weapon was found in the same location as the drugs or that the weapon was part of conduct involved in a drug transaction).

State v. David M. Hahn, 2000 WI 118, 238 Wis. 2d 889, 618 N.W.2d 528, clarified on reconsideration, 2001 WI 6, on certification
For Hahn: Steven G. Bauer

Issue: “(W)hether the U.S. Constitution requires that an offender be permitted during an enhanced sentence proceeding predicated on a prior conviction to challenge the prior conviction as unconstitutional because the conviction was allegedly based on a guilty plea that was not knowing, intelligent, and voluntary.” ¶3.

Holding:

¶4. We conclude that an offender does not have a federal constitutional right to use the enhanced sentence proceeding predicated on a prior state conviction as the forum in which to challenge the prior conviction, except when the offender alleges that a violation of the constitutional right to a lawyer occurred in the prior state conviction. We further conclude, as a matter of judicial administration, that an offender may not use the enhanced sentence proceeding predicated on a prior conviction as the forum in which to challenge the prior conviction, except when the offender alleges that a violation of the constitutional right to a lawyer occurred in the prior state conviction. Because the defendant in the present case does not allege that a violation of his constitutional right to a lawyer occurred in the prior conviction, he may not challenge his 1994 conviction during this 1997 persistent repeater proceeding.

The court previously held that a prior conviction alleged as a sentencing enhancer could be challenged during the sentencing proceeding, as based on an unknowing, involuntary guilty plea; challenged, that is, without much restriction as to the nature of the asserted constitutional infirmity of the enhancer. State v. Baker, 169 Wis. 2d 49, 485 N.W.2d 237 (1992). The court now limits Baker, on the strength of Custis v. United States, 511 U.S. 485 (1994), to claims that the prior conviction was obtained through denial of the right to assistance of counsel (not, it should be stressed, denial of effective assistance, but denial of counsel altogether), ¶17:

Accordingly, we conclude that Baker should be limited to adhere to Custis: In an enhanced sentence proceeding predicated on a prior conviction, the U.S. Constitution requires a trial court to consider an offender’s allegations that the prior conviction is invalid only when the challenge to the prior conviction is based on the denial of the offender’s constitutional right to a lawyer.

This new limitation may substantially alter present sentencing procedure by eliminating almost all attacks on enhancement, though the decision is carefully limited to attacks in the present sentencing proceeding (as clarified on reconsideration):

¶28 these administrative considerations may weigh differently in different cases, we conclude that considerations of judicial administration favor a bright-line rule that applies to all cases. We therefore hold that a circuit court may not determine the validity of a prior conviction during an enhanced sentence proceeding predicated on the prior conviction unless the offender alleges that a violation of the constitutional right to a lawyer occurred in the prior conviction. Instead, the offender may use whatever means available under state law to challenge the validity of a prior conviction on other grounds in a forum other than the enhanced sentence proceeding. If successful, the offender may seek to reopen the enhanced sentence. If the offender has no means available under state law to challenge the prior conviction on the merits, because, for example, the courts never reached the merits of this challenge under State v. Escalona-Naranjo, 185 Wis. 2d 168, 517 N.W.2d 157 (1994), or the offender is no longer in custody on the prior conviction, the offender may nevertheless seek to reopen the enhanced sentence. We do not address the appropriate disposition of any such application.

The U.S. Supreme Court subsequently held that habeas can’t be sued to support attack on an expired prior even if used to enhance the current sentence. Daniels v. U.S.;Lackawanna Co. D.A. v. Coss. Though the reconsideration clarification supports a more generous view of the right to proceed with a collateral attack under Wisconsin versus federal law, a somewhat casual explanatory aside in a more recent case also suggests otherwise. State v. Lawrence P. Peters, 2001 WI 74 ¶16, 244 Wis. 2d 470, 628 N.W.2d 797: “That is, a defendant may directly rather than collaterally challenge a prior conviction used to enhance a subsequent sentence, and if successful, apply to the court to have the enhanced sentence adjusted.”