State v. Avila
| Citation | 532 N.W.2d 423,192 Wis.2d 870 |
| Decision Date | 11 May 1995 |
| Docket Number | No. 93-2794-CR.,93-2794-CR. |
| Parties | STATE of Wisconsin, Plaintiff-Respondent, v. Evaristo AVILA, Defendant-Appellant. |
| Court | Wisconsin Supreme Court |
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For the defendant-appellant there was a brief and oral argument by Jack E. Schairer, first assistant state public defender.
For the plaintiff-respondent the cause was argued by Paul Lundsten, assistant attorney general, with whom on the brief was James E. Doyle, attorney general.
Evaristo Avila, convicted of a number of criminal offenses, appeals from a judgment of conviction and an order of the circuit court denying post-conviction relief. He argues: (1) that denying him credit for the time he spent incarcerated prior to trial because of indigency, against jail time imposed as a condition of probation, denies him the equal protection of the laws; (2) that under sec. 973.04, Stats., the prison time he served pursuant to a judgment of conviction, which was later vacated upon a plea withdrawal, must be credited against his jail time imposed as a condition of probation; (3) that the standard reasonable doubt jury instruction, Wis. JI—Criminal 140 (1991), violates due process by diluting the State's burden of proving guilt beyond a reasonable doubt; and (4) that he is entitled to a new trial because the circuit court failed to instruct the jury on the weapons penalty enhancer in sec. 939.63 in a manner consistent with this court's recent holding in State v. Peete, 185 Wis. 2d 4, 517 N.W.2d 149 (1994).
We affirm the order of the circuit court. We reverse the judgment of conviction on possession with intent to deliver while possessing a dangerous weapon and consistent with Peete, remand and direct the circuit court to enter a judgment of conviction solely on the charge of possession of cocaine with intent to deliver. Further, Avila is entitled to a new trial on the issue of whether he was guilty of possession with intent to deliver while possessing a dangerous weapon. Finally, Avila's sentence with regard to the possession of cocaine with intent to deliver while armed should be vacated and Avila should be resentenced solely on the charge of possession with intent to deliver. In the event that he is retried, the court should vacate the sentence and resentence him after the new trial.
The facts for purposes of this appeal are undisputed. On October 9, 1991, Avila was arrested and charged with possession of a controlled substance which does not bear a tax stamp, possession of cocaine with the intent to deliver while possessing a dangerous weapon, and possession of marijuana. Because his indigency precluded him from posting bail, which was set at $10,000, he remained incarcerated for 145 days until March 4, 1992, when bail was reduced to $1,000. Avila remained out on bail until April 23, 1992, when he pled no contest to possession of cocaine with intent to deliver, and was sentenced to a term of two years in the Wisconsin State Prisons less 198 days of credit for pretrial incarceration. (The court apparently erred in crediting him for 198 days rather than 145 days.)
After serving 232 days in prison, Avila moved to withdraw his plea on the basis that he had not been informed that a plea of no contest could affect his status as a legal alien and that the Immigration Service could institute deportation proceedings against him. Avila's motion was granted, and three days later he was released on a signature bond.
On May 12, 1993, a jury found Avila guilty of party to the crime of possessing a controlled substance which does not bear evidence of a tax stamp, possession of cocaine with intent to deliver while possessing a dangerous weapon, and possession of marijuana. Avila was sentenced to two years in the state penal institution on count one, four years on count two, and six months on count three. All sentences were stayed, and he was placed on probation for five years with one year in the county jail as a condition of probation, less three months credit for good time. In addition, he was granted work release privileges and was given 446 days of credit in the event his probation was revoked.
In a postconviction motion, Avila requested credit for the time he spent incarcerated prior to trial due to his indigency. He claimed that denying him pretrial detention credit on his jail time imposed as a condition of probation would violate his right to equal protection of the laws. Further, he requested credit under sec. 973.04,1 Stats., for the time he was incarcerated in the state prison as a result of his original sentence, and good time credit. Finally, he argued that Wis. JI—Criminal 140 (1991) on reasonable doubt dilutes the State's burden of proving guilt beyond a reasonable doubt and thus violates the Due Process Clause of the Fourteenth Amendment.
The circuit court granted Avila's request for good time credits and denied the balance of Avila's postconviction motion. Avila appealed raising the additional issue that the State failed to prove possession of cocaine with a weapons enhancer since the enhancer for possessing a dangerous weapon is applicable only where actual possession, as opposed to constructive possession, is proved. In light of this court's recent decision in Peete, 185 Wis. 2d at 9, which resolves this issue, Avila now argues that he is entitled to a new trial because the circuit court failed to instruct the jury according to Peete. The court of appeals certified to this court the issues regarding credit for prior incarceration. We accepted certification on all issues raised before the court of appeals.
Because Avila has successfully completed his condition of probation, the issues with regard to credit for pretrial incarceration are moot as to Avila. However, these issues, which raise important questions of law and are likely to recur in the future, evade review because of the limited time a court may order a probationer confined. Therefore, we consider the issues in this appeal. See State ex rel. La Crosse Tribune v. Circuit Ct., 115 Wis. 2d 220, 229, 340 N.W.2d 460 (1983).
Avila spent time in jail prior to trial because his indigency precluded him from posting bond. He argues that failure to credit that pretrial detention time against the jail time he received as a condition of probation at sentencing following trial denies him the equal protection of the law.
The guarantees of equal protection in the United States and Wisconsin Constitutions2 require that persons similarly situated be accorded similar treatment. Walters v. City of St. Louis, 347 U.S. 231, 237 (1954). This does not require, however, that all persons be dealt with identically. Id. Rather, equal protection is only denied when persons similarly situated are classified in an irrational or arbitrary manner. Locklear v. State, 86 Wis. 2d 603, 611, 273 N.W.2d 334 (1979). The test is whether there exists any rational basis to justify the classification. Id. See also Hilber v. State, 89 Wis. 2d 49, 54, 277 N.W.2d 839 (1979) ().
Avila contends that because his pretrial detention was based upon his inability to post cash bail, he was required to serve more actual total confinement than one who receives the same confinement condition but who was able to post bond and obtain liberty prior to trial. That is, persons similarly situated to him who are able to post bond are subject to a lesser period of confinement.
We concede that on its face, this classification appears to discriminate against indigents who are confined as a condition of probation. Therefore, we must determine whether there is any rational basis for such classification. We conclude that there is a rational basis.
3
Our court has recognized that the Equal Protection Clause of the Federal Constitution and the Fourteenth Amendment require that all periods of custody occasioned by indigency shall be credited, as time already served, on the sentence imposed. See Klimas v. State, 75 Wis. 2d 244, 249, 249 N.W.2d 285 (1977). We reasoned in Klimas that discrimination imposed upon the poor who are unable to post bail prior to trial is tolerable in light of the State's overriding need to compel appearance at trial. Id. We stated, however, that after trial that need ends: "there is no constitutionally sufficient reason to permit the pretrial discrimination on the basis of wealth to go unrectified.... Id.
That reasoning, while applicable to cases in which a defendant is sentenced to prison, does not apply to probationers. Unlike a prison sentence in which punishment is the primary goal, probation is designed to rehabilitate. The need to implement the rehabilitation process serves as the rational basis for the classification.
"The conditions of probation are supposed to be tailored to serve the dual purposes of probation, i.e., to protect the public from criminal conduct and to help the probationer become a useful member of society." Wagner v. State, 89 Wis. 2d 70, 77, 277 N.W.2d 849 (1979). The theory is that an individual convicted of a crime "who is responsive to supervision and guidance may be rehabilitated without placing him or her in prison." State v. Hays, 173 Wis. 2d 439, 445, 496 N.W.2d 645 (Ct. App. 1992). Temporary confinement, often imposed in conjunction with other probation conditions, is aimed at rehabilitation; it is an effort to gradually ease the offender back into society by providing intense supervision and an opportunity to continue working independently outside the facility.
The ABA in its SENTENCING ALTERNATIVES & PROCEDURES, Standard 18-2.4 cmt. at 102 (1979), recognizes the benefits of temporary confinement in a local jail or facility:
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