State v. Bonds
| Decision Date | 30 June 2006 |
| Docket Number | No. 2005AP948-CR.,2005AP948-CR. |
| Citation | 2006 WI 83,717 N.W.2d 133 |
| Parties | STATE of Wisconsin, Plaintiff-Respondent, v. Jamale A. BONDS, Defendant-Appellant-Petitioner. |
| Court | Wisconsin Supreme Court |
For the defendant-appellant-petitioner, there were briefs by Diana M. Felsmann, and oral argument by Jeremy C. Perri, assistant state public defenders.
For the plaintiff-respondent, the cause was argued by Aaron R. O'Neil, assistant attorney general, with whom on the brief was Peggy A. Lautenschlager, attorney general.
We review the State's post-conviction amendment to a criminal complaint for battery in violation of Wis. Stat. § 940.19(1) (2003-04),1 as the amendment affects the basis for the allegation that Jamale Bonds is an habitual criminal. In regard to habitual criminality, the complaint alleged three misdemeanor convictions. The date of the prior convictions was misstated in the body of the complaint, but certified copies of the judgments of conviction were attached to the copy of the complaint that was given to Bonds. Bonds pled not guilty and was convicted by a jury. At sentencing, he did not admit the allegation of habitual criminality. The State then changed the factual basis for its allegation that Bonds was a repeater and sought to prove a prior felony forgery conviction. The State submitted a Consolidated Court Automation Programs (CCAP) report as proof of that conviction. Bonds objected to amending the basis on which the State sought to prove habitual criminality and also asserted that the proof the State had submitted was insufficient to prove habitual criminality beyond a reasonable doubt. The circuit court permitted the amendment, accepted the CCAP report as sufficient proof of habitual criminality, and sentenced Bonds as a repeater. Bonds claims it was error to do so.
¶ 2 Four members of the court conclude that with sufficient proof, the State's post-conviction amendment of the basis for proving habitual criminality would have been permissible for two reasons: (1) The complaint satisfied the requirements of Wis. Stat. § 973.12 and of due process because Bonds had notice that he was being charged as an habitual criminal and of the potential maximum sentence he faced before he pled; and (2) Bonds was not prejudiced in making an intelligent plea as a result of the State's shift to a different prior conviction as the factual basis for its repeater allegation.2 However, a different majority of the court also concludes that the State's use of a CCAP report as evidence of Bonds's conviction does not constitute prima facie proof of that conviction and that Bonds did not waive his right to object to the State's use of the CCAP report.3 Accordingly, the court of appeals decision is reversed and the matter is remanded to the circuit court to vacate the enhancer portion of Bonds's sentence.
¶ 3 The relevant facts are undisputed. Jamale Bonds was charged with battery as an habitual criminal, in violation of Wis. Stat. §§ 940.19 and 939.62. In the criminal complaint, the State alleged three prior misdemeanor convictions as the basis for the habitual criminality allegation:
[T]he defendant is a repeater as defined in Wisconsin Statutes Section 939.62, in that the defendant was convicted of ... (three misdemeanors) during the five year period immediately preceding the commission of the crime charged in this complaint, which conviction(s) remain[] of record and unreversed. If this is found to be the case, the maximum term of imprisonment for this crime may be increased to not more than 2 years, exclusive of other enhanced penalties charged herein.
Criminal Complaint 1 (Milwaukee County Cir. Ct. July 29, 2003). The three prior misdemeanor convictions were described individually by: the offense committed, the statute that was contravened, the county of conviction and the case number for each matter. The date of the convictions was misstated in the body of the complaint; however, certified copies of the judgments of conviction were attached to the copy of the complaint that was given to Bonds.
¶ 4 Bonds pled not guilty, went to trial, and was convicted by a jury. At sentencing, the State recommended that Bonds be sentenced to the maximum term for battery with an habitual criminality enhancer: 18 months initial confinement and six months extended supervision. In support of its sentencing request, the State asked that the habitual criminality finding be based on a 1998 felony forgery conviction in lieu of the misdemeanor convictions that were alleged in the complaint. Bonds did not admit to a prior conviction so the State presented a CCAP report that indicated he was convicted of felony forgery one day after the misdemeanor convictions set out in the complaint. The sentencing transcript provides the following communication between the sentencing judge and the prosecutor about the amendment of the basis for habitual criminality that was alleged in the complaint and the calculations that bore on Bonds's repeater status:
So, with that we know the defendant was in custody for nearly ten months, far surpassing the five months that would be required in order to establish habitual criminality enhancer in this case. With that, I would ask that the court make those findings, either through those documents or through the defendant's own admission to the validity of the same.
¶ 5 Defense counsel objected to the State's amendment and asked the court to find that the habitual criminality allegation was defective for two reasons: (1) the felony conviction was not alleged in the complaint; and (2) the State had not proved the felony conviction beyond a reasonable doubt. The State responded that all that was required to advance on the habitual criminality enhancer was to allege prior to a plea that a person was an habitual criminal. The State contended that the complaint was not required to specifically allege which conviction or convictions formed the basis for the habitual criminality allegation. Additionally, the State contended that CCAP reports are sufficient proof.
¶ 6 CCAP is a case management system provided by Wisconsin Circuit Court Access program (WCCA). It provides public access online to reports of activity in Wisconsin circuit courts for those counties that use CCAP. Circuit court employees enter all CCAP data in the county where the case files are located, and the information feeds into the statewide access system. However, CCAP is a voluntary program, and only counties or divisions within a county that elect to use CCAP's case management system generate CCAP reports.
¶ 7 The WCCA website, through which all CCAP reports can be accessed by the public, asks all users of the system to read and accept the following agreement:
WCCA is not the official Judgment and Lien Docket. The official Judgment and Lien Docket is located in each county's Clerk of Circuit Court Office.
The data available in the CCAP database is limited by:
1. Some counties currently use CCAP for selected case types. Portage has data only for Probate cases.
2. Counties that are on CCAP began using it at different times and made independent decisions about the "backloading" of pre-CCAP cases.
3. All the data in the CCAP database is entered in the individual counties where the case files are located. Case information is updated hourly unless CCAP is performing periodic maintenance or experiencing technical problems.
If you believe any of the data contained in this database is inaccurate, please contact the circuit court where the original record was created and filed. CCAP provides no warranties insuring the accuracy of the information contained in records available on WCCA, or that electronic mail sent via WCCA is delivered to, accessed by, or read by its intended recipient.
Please indicate that you have read the above and agree to the use of WCCA subject to the above terms, and understand the limitations of the CCAP database.
http://wcca.wicourts.gov/index.xsl (last visited June 24, 2006).
¶ 8 The circuit court concluded that the criminal complaint gave Bonds notice that the State intended to ask the court to find that he is an habitual criminal because it alleged three prior misdemeanor convictions. The court also concluded that the shift to a felony conviction as the grounds for a finding of habitual criminality did not prejudice him. The court concluded that it could take judicial notice of the CCAP report of Bonds's conviction for felony forgery.4
¶ 9 The circuit court...
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