Mikrut v. State

• Decision Date: 13 August 1997
• Docket Number: No. 96-2703,96-2703
• Citation: 569 N.W.2d 765,212 Wis.2d 859
• Parties: Charles A. MIKRUT, Petitioner- Respondent,d v. STATE of Wisconsin, Respondent-Appellant.
• Court: Wisconsin Court of Appeals

Page 765

569 N.W.2d 765

212 Wis.2d 859

Charles A. MIKRUT Petitioner- Respondent,d v. STATE of Wisconsin, Respondent-Appellant.

No. 96-2703.

Court of Appeals of Wisconsin.

Submitted on Briefs May 9, 1997.

Opinion Released Aug. 13, 1997.

Opinion Filed Aug. 13, 1997.

On behalf of the respondent-appellant, the cause was submitted on the briefs of James E. Doyle, Atty. Gen., and Daniel J. O'Brien, Asst. Atty. Gen.

On behalf of the petitioner-respondent, the cause was submitted on the brief of Peter DeWind of Legal Assistance to Institutionalized Persons Project of Madison.

Before SNYDER, P.J., and NETTESHEIM and ANDERSON, JJ.

NETTESHEIM, Judge.

In the trial court, Charles A. Mikrut challenged the repeater portion of his sentences by a habeas corpus action. Relying on an amended judgment of conviction which recited his prior conviction as of the date of his plea of no contest instead of the date the judgment of conviction was entered, Mikrut contended that the prior conviction fell outside the five-year period set out in § 939.62, STATS. The trial court agreed and entered an order commuting Mikrut's sentences from eleven years to three years.

The State appeals, raising various procedural challenges and one substantive challenge to the trial court's order. We reject the procedural challenges, but we agree with the substantive challenge. We hold that the amended judgment of conviction upon which Mikrut bases his argument is invalid. We reverse the order commuting the sentences.

FACTS AND PROCEDURAL HISTORY

The facts and procedural history of this case are somewhat involved. However, it will assist the reader to bear in mind Mikrut's core contention--for purposes of the repeater law, the prior conviction is measured from the date of the finding of guilt not the date the judgment of conviction is entered.

We begin with the convictions which form the basis of Mikrut's repeater status. Mikrut's repeater status was based on two judgments of conviction entered against him on April 3, 1986. One judgment, case No. 85-CF-240, recited a conviction for possession of a short-barrelled shotgun. The other judgment, case No. 85-CF-194, recited a conviction for party to the crime of possession of cocaine with intent to deliver. ¹ These judgments were the result of Mikrut's pleas of no contest on February 25, 1986, followed by his sentencing on April 3, 1986. Mikrut was sentenced to a total of five years on these convictions. Judge David Bastianelli conducted the proceedings in these matters.

Next, we address the convictions in this case. Mikrut was charged with second-degree reckless endangerment, false imprisonment, disorderly conduct and obstructing an officer. However, he was charged as a repeater only with regard to the disorderly conduct and obstructing charges. A defendant is a repeater if he or she has been convicted of a felony during the five-year period immediately preceding the commission of the crime underlying the present charge. See § 939.62(2), STATS. However, time spent in confinement while serving a sentence is excluded from this five-year period. See id. Because Mikrut was in custody serving his sentences on the prior convictions before committing the instant offenses, this "in custody" time was excluded from the five-year period. Thus, the State charged Mikrut as a repeater.

On February 28, 1994, judgments of conviction were entered against Mikrut on all of the charges in this case. On the disorderly conduct and obstructing convictions, Mikrut was sentenced as a repeater to two consecutive three-year terms, for a total of six years. On the reckless endangerment conviction, Mikrut was sentenced to a consecutive five-year term. This placed his total confinement at eleven years. On the false imprisonment conviction, Mikrut was sentenced to a consecutive, but stayed, eight-year sentence. Judge Bruce Schroeder conducted the proceedings in this case.

Mikrut appealed the repeater portion of the sentences imposed by Judge Schroeder. As one of his appellate issues, he argued that the date of conviction for the prior offenses should be measured from the date he was adjudged guilty based upon his no contest pleas, rather than from the date of the judgment of conviction when he was sentenced. Under Mikrut's computation method, his prior convictions would have fallen outside the five-year window set out in § 939.62(2), STATS. We rejected this argument and summarily affirmed Judge Schroeder's sentences. See State v. Mikrut, Nos. 94-2330-CR & 94-2331-CR, unpublished slip op. (Wis.Ct.App. May 3, 1995).

Following our decision, Mikrut wrote a letter to the Clerk of Courts for Kenosha County requesting the clerk to correct an error in the judgment of conviction in case No. 85-CF-240. Mikrut said that the correct date of his conviction was February 25, 1986, the date on which he was adjudged guilty in that case, not April 3, 1986, the date he was sentenced and the date the judgment of conviction was entered. ² This, of course, was the same argument which we had rejected in Mikrut's appeal.

In response, a deputy clerk prepared and signed an amended judgment of conviction correcting the original judgment per Mikrut's request. The amended judgment recited the following:

It is adjudged that the defendant is convicted on 2/25/86 as found guilty and ... on April 3, 1986, is sentenced to prison for 2 years.

The deputy clerk signed the amended judgment on August 15, 1995, nunc pro tunc to April 3, 1986. This amended judgment of conviction in case No. 85-CF-240 placed Mikrut's subsequent conviction outside of the five-year period even after excluding Mikrut's custody time under the sentences. See § 939.62(2), STATS. Thus, Mikrut accomplished via the amended judgment what he had failed to accomplish in his appeal.

Armed with this amended judgment of conviction, Mikrut filed another motion with Judge Schroeder again challenging the repeater portion of his sentence. Judge Schroeder denied the motion, citing to our previous decision.

That brings us to the instant appeal. Pro se, Mikrut next filed a petition for habeas corpus. The matter was assigned to Judge Schroeder who declined to hear the petition noting that it was a habeas action which challenged his sentences. Judge Schroeder directed that the matter be referred to the civil division. Thus, the matter was assigned to Judge Michael Fisher. It is Judge Fisher's ruling which we review in this case.

Judge Fisher agreed with Mikrut's argument. Relying on the amended judgment of conviction issued by the Kenosha county deputy clerk, Judge Fisher commuted Mikrut's sentences from eleven years to three years. In a document entitled "Final Order" entered on August 26, 1996, Judge Fisher ruled that Mikrut "was improperly sentenced in [the instant cases] as a repeater due to incorrect dates of conviction entered in the judgments of conviction in Kenosha County Case Nos. 85-CF-194 and 85-CF-240." The State appeals.

DISCUSSION

We begin by addressing the State's threshold procedural challenges to Mikrut's habeas corpus petition.

The State first contends that Mikrut is not entitled to habeas corpus relief because Judge Fisher did not have jurisdiction over the matter and that Mikrut had other available remedies, specifically an appeal of Judge Schroeder's rejection of his prior motion. When the State made these arguments to Judge Fisher, the judge responded that he saw the issue as not one of "illegal detention but one of improper sentence." We read this remark to mean that Judge Fisher was not construing Mikrut's pleading as one for habeas relief, but rather as a motion for correction of an improperly enhanced repeater sentence. We agree with Judge Fisher that correction of an improperly enhanced sentence does not require habeas corpus relief. This court has reviewed numerous challenges to enhanced sentences under the repeater statute. None have utilized habeas corpus as the mechanism for relief.

We take further note that, although Mikrut was represented by counsel at the proceedings before Judge Fisher, he filed his petition pro se. Courts are instructed to look to the substance rather than the label of a pro se pleading in order to determine if the petitioner may be entitled to relief. See bin-Rilla v. Israel, 113 Wis.2d 514, 521, 335 N.W.2d 384, 388 (1983). We conclude that Judge Fisher properly construed Mikrut's pleading under this standard.

Since Judge Fisher did not construe Mikrut's pleading as a habeas corpus action, we reject the State's arguments that Mikrut was not entitled to habeas relief.

Next, the State contends that our previous decision in the prior appeal barred Mikrut's action on grounds of issue preclusion or law of the case. We acknowledge that Mikrut's legal argument in this case is the same which we rejected in the prior appeal. There we held, "We cannot agree that the five-year period is to be measured from the date upon which Mikrut was found guilty." Mikrut, unpublished slip op. at 2. However, the facts upon which Mikrut bases his current argument are different since he now is armed with the amended judgment of conviction which he obtained from the deputy clerk. Thus, the facts are changed and our prior opinion does not govern the present circumstance.

Thus, we turn to the substantive issue--whether for purposes of repeater law the prior conviction is measured from February 25, 1986, the date when Mikrut pled no contest and the court found him guilty, or from April 3, 1996, the date of the judgment of conviction when Mikrut was sentenced.

The State first contends that the amended judgment of conviction is of no legal effect because it was entered sua sponte by a deputy clerk of court. Because the appellate record did not reveal whether this action was taken sua sponte or as the result of a hearing or directive of a circuit court, we instructed the parties to provide us with any information from the trial court records on this question....