State v. Coolidge
| Decision Date | 13 January 1993 |
| Docket Number | No. 92-1683-CR,92-1683-CR |
| Parties | STATE of Wisconsin, Plaintiff-Respondent, v. Kevin COOLIDGE, Defendant-Appellant. |
| Court | Wisconsin Court of Appeals |
On behalf of the plaintiff-respondent, the cause was submitted on the brief of James E. Doyle, Atty. Gen., and Daniel J. O'Brien, Asst. Atty. Gen.
Before NETTESHEIM, P.J., and BROWN and ANDERSON, JJ.
Kevin Coolidge appeals from two judgments of conviction and an order denying his motion for postconviction relief pursuant to sec. 974.06, Stats. (1989-90). 1 Coolidge contends that the trial court relied upon erroneous and prejudicial information in the presentence investigation report (PSI). He also argues that the habitual criminality (repeater) portions of the sentences were not authorized by law because he did not directly and specifically admit to the prior conviction, nor did the state produce evidence of the prior conviction. We conclude that Coolidge did not establish that the information relied upon by the trial court in the PSI was erroneous. We also conclude, however, that the plea colloquy was not sufficient to constitute a direct and specific admission by Coolidge of the prior conviction. Therefore, we reverse the portions of the trial court's judgments convicting Coolidge as a repeater when imposing sentence and remand for resentencing. We affirm the remaining portions of the judgments. We also reverse the trial court's order denying the postconviction motion.
The state filed a criminal complaint against Coolidge alleging three counts. Count one alleged party to the crime of possession with intent to deliver lysergic acid diethylamide (LSD) while armed with a handgun and as a repeater, in violation of secs. 161.14(4)(j), 161.41(1m)(f)1, 161.48, 939.05, and 939.63(1)(a)3, Stats. Count two alleged party to the crime of intent to deliver marijuana while armed with a handgun and as a repeater, in violation of secs. 161.14(4)(t), 161.41(1m)(h)1, 161.48, 939.05, and 939.63(1)(a)3, Stats. Count three alleged the possession of a firearm by a person previously convicted of a felony, in violation of sec. 941.29(1) and (2), Stats. The prior conviction alleged as a basis for the repeater enhancer was the delivery of cocaine, a violation of secs. 161.16(2)(b) and 161.41(1)(c)1, Stats.
After a preliminary hearing, the state filed a criminal information against Coolidge. The information was in all material respects similar to the complaint except that the repeater allegation was not alleged in the paragraphs alleging the three counts against Coolidge. Instead, the assistant district attorney added the repeater allegation in a separate paragraph following the counts alleged. This repeater allegation did not indicate which counts it pertained to, nor did it indicate whether it was being alleged under sec. 161.48, Stats., the penalty enhancement statute applicable to second or subsequent violations of ch. 161, Stats. (the Uniform Controlled Substances Act), or sec. 939.62, Stats., the habitual criminality statute.
At the plea hearing held before Judge Robert C. Cannon, Coolidge pled guilty to counts one and two, and the state moved to dismiss count three. Before accepting the pleas, Judge Cannon determined that the pleas were voluntarily given by Coolidge, but did not ask Coolidge about the penalty enhancement allegations. The court granted the state's motion to dismiss count three.
The sentencing hearing was held before Judge Mary Kay Wagner-Malloy. Relying in part upon the presentence investigation report, Judge Wagner-Malloy stated the reasons for imposing the sentences. She then imposed a sentence of ten years in prison and a $1000 fine for count one. For count two, she stayed a five-year sentence and placed Coolidge on probation for ten years, to run consecutively to the prison term imposed for count one. A $500 fine and restitution of $420 also were imposed for count two. At no time did the state offer proof of the prior convictions which were the basis for the penalty enhancement allegations.
Coolidge filed a postconviction motion asking the court to modify the sentences. Coolidge argued that Judge Wagner-Malloy improperly based the sentencing decision in part upon erroneous information in the presentence investigation report. Coolidge also argued that because he did not admit nor did the state prove the repeater allegations, the imposition of the repeater statute at sentencing violated state law. Finally, Coolidge argued that the conviction underlying the repeater allegation was more than five years old, contrary to sec. 939.62(2), Stats. Judge Wagner-Malloy held that in a motion to reduce sentence, the defendant must produce a "new factor" or show that the sentence was unduly harsh. The judge denied the motion, holding that the issues raised by Coolidge in the postconviction motion met neither test.
The state and Judge Wagner-Malloy classified the defendant's challenge to his sentences as a motion for modification of sentence under sec. 973.19, Stats., requiring the defendant to prove the existence of a "new factor" as stated in State v. Franklin, 148 Wis.2d 1, 8, 434 N.W.2d 609, 611 (1989). We disagree. An examination of the challenges presented in the motion reveals that none ask the court to modify the sentences, but all ask the court to correct the sentences imposed in violation of Wisconsin law and which, therefore, are in excess of the maximum sentence authorized by law. The motion also asks the court to correct the sentences based on a due process violation. This type of motion is governed by sec. 974.06, Stats., 2 and does not require the application of the "new factor" test.
Coolidge argues on appeal that he was improperly sentenced with erroneous and prejudicial information supplied in the presentence investigation report. A defendant has a due process right to be sentenced based upon accurate and valid information. See State v. Johnson, 158 Wis.2d 458, 468, 463 N.W.2d 352, 357 (Ct.App.1990). To establish a due process violation, the defendant has the burden of proving by clear and convincing evidence the inaccuracy of the information and that the information was prejudicial. State v. Littrup, 164 Wis.2d 120, 132, 473 N.W.2d 164, 168 (Ct.App.1991). This constitutional issue presents a question of law which we review de novo. Id. at 126, 473 N.W.2d at 166.
At the sentencing proceeding, Judge Wagner-Malloy noted that Coolidge was "in an altercation at Danny's Bar." Coolidge's counsel pointed out to the court that Coolidge "was never charged with that, nor was [his parole] ever revoked on that." Coolidge's counsel also noted that "the Municipal Court dropped that because they determined that it wasn't him." Judge Wagner-Malloy then stated:
I'm not determining the guilt or whether or not he struck anyone in the mouth. It goes to alcohol treatment, [he] stops going to AA and NA, and then he's in an altercation. Somebody hit somebody in Danny's Bar. It doesn't look like very solid adherence to the AA....
On appeal Coolidge argues that the information about the altercation in Danny's Bar was inaccurate because the charges were dropped against him. Although it may be true that the charges were dropped because of mistaken identity, the information is still relevant to show that Coolidge was in a bar during the time he was supposed to be undergoing treatment for alcoholism. Coolidge never argued that he was not in the bar--only that he was not in the fight. The remarks by Judge Wagner-Malloy make clear that she considered the incident for the limited purpose of its relationship to treatment, which we believe was proper. Coolidge has not met the burden of showing that the information about being in Danny's Bar was inaccurate in that respect.
Coolidge challenges the sentences given him on the grounds that the repeater portions of the sentences were not authorized by law because he did not directly and specifically admit to the prior conviction, nor did the state produce evidence of the prior conviction. He also contends that the prior felony which was alleged as a basis of the repeater, a 1983 conviction for the delivery of cocaine, was more than five years old, contrary to sec. 939.62(2), Stats.
As an initial matter we must determine whether Coolidge was sentenced under sec. 939.62, Stats., 3 the general repeater statute, or sec. 161.48, Stats., 4 the penalty enhancer for prior violations of the Uniform Controlled Substances Act. Although the judgments of conviction indicate that Coolidge was sentenced as a repeater under sec. 939.62, we hold that Coolidge actually was sentenced under sec. 161.48.
The information as issued by the district attorney did not recite which statute the state was proceeding under for the repeater allegations, but the complaint alleges violations of sec. 161.48, Stats. An examination of the transcript of the motion hearing held on May 30, 1991 before Judge Jerold W. Breitenbach reveals that all parties were aware that the state was proceeding under sec. 161.48. The hearing concerned Coolidge's motion to dismiss the information and motion to dismiss the weapons enhancer of counts one and two. An extended discussion took place between Coolidge's counsel, Judge Breitenbach and the district attorney about whether the weapons enhancer was to be applied before consideration of any repeater provisions. During the course of the discussion, each participant assumed that the repeater provision doubled the maximum penalties. Coolidge's counsel more specifically referred to the "drug repeater enhancer, which says to double the maximum penalties." (Emphasis added.) B...
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