State v. Collins

• Citation: 2002 WI App 177,649 N.W.2d 325,256 Wis.2d 697
• Decision Date: 13 June 2002
• Docket Number: No. 01-2185-CR.,01-2185-CR.
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. Leonard T. COLLINS, Defendant-Appellant.
• Court: Wisconsin Court of Appeals

256 Wis.2d 697

2002 WI App 177

649 N.W.2d 325

STATE of Wisconsin, Plaintiff-Respondent,¹ v. Leonard T. COLLINS, Defendant-Appellant.

No. 01-2185-CR.

Court of Appeals of Wisconsin.

Submitted on briefs March 14, 2002.

Decided June 13, 2002.

On behalf of the defendant-appellant, the cause was submitted on the briefs of Paul LaZotte, assistant state public defender of Madison.

On behalf of the plaintiff-respondent, the cause was submitted on the brief of James Doyle, attorney general, and Sandra L. Nowack, assistant attorney general.

Before Dykman, Roggensack and Lundsten, JJ.

¶ 1. DYKMAN, J.

Leonard Collins appeals from a judgment of conviction for attempted first-degree intentional homicide as a persistent repeater. Based on previous convictions in Missouri for "murder second degree" and Illinois for "second degree murder," the circuit court sentenced Collins to life in prison without the possibility of parole under WIS. STAT. § 939.62(2m)(c) (1997-98).² Collins argues that his sentence should be commuted under WIS. STAT. § 973.13 because the circuit court never determined whether the crime he committed in Illinois is "comparable" within the meaning of § 939.62(2m)(d) to a "serious felony" under § 939.62(2m)(a)2m.a-c.

¶ 2. We agree with Collins that WIS. STAT. § 939.62(2m)(d) requires circuit courts to determine independently whether an out-of-state crime is comparable to a Wisconsin "serious felony," even if the defendant admits that he or she is a persistent repeater. However, because we can conclude as a matter of law that "second degree murder" in Illinois would be a "serious felony" if committed in Wisconsin, we affirm.

BACKGROUND

¶ 3. On February 8, 2000, Leonard Collins stabbed a woman multiple times with a knife in a parking lot on Madison's West side. The victim survived, and the State charged Collins with both attempted first-degree intentional homicide while using a dangerous weapon and first-degree reckless injury. See WIS. STAT. §§ 939.32(1)(a), 940.01(1) and 940.23(1). In addition, the State alleged that Collins was a "persistent repeater" under WIS. STAT. § 939.62(2m)(b)1 because he had been previously convicted of two murders in other states.

¶ 4. Collins entered a plea of no contest to attempted first-degree intentional homicide and the State dismissed the reckless injury charge. Before accepting his plea, the circuit court informed Collins that he would be convicted of attempted first-degree intentional homicide with a dangerous weapon and as a persistent repeater, which would mean that he would be sentenced to life imprisonment "without the possibility of extended supervision."

¶ 5. The State presented judgments of conviction for "murder second degree" from Missouri and "second degree murder" from Illinois. When the court asked Collins if he was disputing the convictions, Collins replied, "Those are my convictions." Finally, the court asked Collins, "Do you agree that the State could prove that you committed this offense with a dangerous weapon and that you are a persistent repeater? Do you agree they could prove that?" Collins stated, "Yes." The court accepted Collins's plea and convicted him.

¶ 6. The court determined after a trial that Collins had failed to prove that he was "not responsible because of a mental disease or defect,"³ and sentenced Collins to life in prison without parole, as required by WIS. STAT. § 939.62(2m)(c). The court denied Collins's motion for postconviction relief and he appeals.

DECISION

[1]

¶ 7. Collins contends that there is "no factual basis" for concluding that his Illinois conviction for "second degree murder" would constitute a "serious felony" under WIS. STAT. § 939.62(2m)(a)2m.d, and therefore the circuit court erred when it sentenced him as a persistent repeater.⁴ The resolution of this issue requires interpretation of WIS. STAT. §§ 939.62 and 973.12. Statutory interpretation is an issue of law that we review de novo. State v. Campbell, 2002 WI App 20, ¶ 4, 250 Wis. 2d 238, 642 N.W.2d 230.

¶ 8. Under WIS. STAT. § 939.62(2m)(b)1, the State may charge a defendant as a "persistent repeater" if he or she has been previously convicted of two or more "serious felonies." Upon conviction for the third "serious felony," § 939.62(2m)(c) provides that "the term of imprisonment ... is life imprisonment without the possibility of parole or extended supervision."

¶ 9. WISCONSIN STAT. § 939.62(2m)(a)2m.a-c provides a list of crimes designated as "serious felonies," which includes intentional homicide, reckless homicide, aggravated battery, and many others.⁵ In addition to these specific crimes, § 939.62(2m)(a)2m.d provides that "serious felony" means: "A crime at any time under federal law or the law of any other state or, prior to April 28, 1994, under the law of this state that is comparable to a crime specified in subd. 2m. a., b. or c." (Emphasis added.)

¶ 10. Collins argues that WIS. STAT. § 939.62(2m)(d) was violated because it was never established that his Illinois conviction is "comparable" to one of the "serious felonies" listed in § 939.62(2m)(a)2m.a-c. The State does not dispute that neither it nor the circuit court demonstrated that Collins's Illinois conviction was "comparable" to a "serious felony" under § 939.62(2m)(d). Rather, the State responds that it was relieved of its burden to prove any aspect of Collins's status as a persistent repeater because Collins admitted this at the plea hearing. It points to WIS. STAT. § 973.12(1), which provides that § 939.62 applies "[i]f the prior convictions are admitted by the defendant or proved by the state, he or she shall be subject to sentence under s. 939.62." (Emphasis added.) The State contends that Collins admitted his Illinois conviction could be used to establish that he was a persistent repeater when he:

(a) entered knowing and voluntar[y] pleas to the charge and persistent repeater enhancer; (b) admitted the underlying convictions; (c) admitted that the state could prove his persistent repeater status; (d) admitted that he understood the nature and consequences of persistent repeater status; and (e) offered evidence of the crimes on his own behalf.

[2]

¶ 11. We agree that Collins admitted he was convicted of "Second Degree Murder" in Illinois and that the State could prove he was a persistent repeater.⁶ And in most cases, an admission of the prior convictions would be sufficient to establish that a defendant is a persistent repeater under WIS. STAT. § 939.62(2m) and for the circuit court to sentence him or her accordingly. As the State notes, a no contest plea to a charge containing a persistent repeater allegation is an admission to all the material facts alleged in the charging document so long as the "totality of the record" demonstrates that the defendant "understood the nature and consequences of the charges against him and the consequences of his plea." State v. Liebnitz, 231 Wis. 2d 272, 287, 603 N.W.2d 208 (1999); see also State v. Rachwal, 159 Wis. 2d 494, 511, 465 N.W.2d 490 (1991).

¶ 12. However, when the persistent repeater allegation is based at least in part on an out-of-state conviction, admitting the past convictions is not sufficient because the circuit court must still determine whether the out-of-state conviction is "comparable" to one of Wisconsin's "serious felonies." WISCONSIN STAT. § 939.62(2m)(d) provides that an out-of-state conviction is "comparable ... only if the court determines, beyond a reasonable doubt, that the violation relating to that conviction would constitute a felony specified under par. (a) 1m.a. or 2m.a., b. or c. if committed by an adult in this state."

[3]

¶ 13. Even if a defendant "admits" that his or her violation is "comparable," this does not relieve the circuit court of its obligation to make an independent determination. Whether a crime in another state would be a "serious felony" if committed in Wisconsin is a legal, not a factual question. See State v. Burroughs, 2002 WI App 18, ¶¶ 23-27, 250 Wis. 2d 180, 640 N.W.2d 190 (treating the circuit court's conclusion regarding "comparability" of Alabama conviction for "assault with attempt to murder" to Wisconsin's crime against attempted first-degree intentional homicide as a question of law). Courts are generally not bound by a party's concession on issues of law. State v. Kruzycki, 192 Wis. 2d 509, 517, 531 N.W.2d 429 (Ct. App. 1995) (stating that a question of law "cannot be bargained away"). Rather, WIS. STAT. § 939.62(2m)(d) expressly requires a court to independently determine if an out-of-state conviction qualifies as a "serious felony." This provision does not permit courts to assume that a crime committed in another state would be a "serious felony" if committed in Wisconsin.

¶ 14. Therefore, while a defendant can admit that he or she was convicted of a particular crime in another state and thus relieve the State of its burden to prove this, a defendant's admission that an out-of-state crime is a "serious felony" does not relieve a court of its obligation to make an independent determination on this issue. To hold otherwise would permit a court to base a persistent repeater enhancement on an out-of-state disorderly conduct conviction, so long as that defendant "admitted" that disorderly conduct in the other state would be a "serious felony" in Wisconsin. We therefore conclude that the circuit court erred when it did not determine whether Collins's Illinois violation would be a "serious felony" if committed in Wisconsin.

[5]

¶ 15. However, because Collins has admitted that he was convicted of "second degree murder" in Illinois, and whether an out-of-state crime is "comparable" to a "serious felony" under WIS. STAT. § 939.62(2m) is a question of law, we may determine independently if "second degree murder" in Illinois would be a "serious felony" if committed in Wisconsin. In Burroughs, a case that also involved the application of WIS. STAT. § 939.62(2m)(d), we made...