State v. Farr, 82-1805-CR

• Citation: 350 N.W.2d 640,119 Wis.2d 651
• Decision Date: 28 June 1984
• Docket Number: No. 82-1805-CR,82-1805-CR
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. Christopher Wayne FARR, Defendant-Appellant-Petitioner.
• Court: United States State Supreme Court of Wisconsin

Page 640

350 N.W.2d 640

119 Wis.2d 651

STATE of Wisconsin, Plaintiff-Respondent, v. Christopher Wayne FARR, Defendant-Appellant-Petitioner.

No. 82-1805-CR.

Supreme Court of Wisconsin.

Submitted on Briefs May 29, 1984.

Decided June 28, 1984.

Steven P. Weiss, Asst. State Public Defender, on brief, for defendant-appellant-petitioner.

Stephen W. Kleinmaier, Asst. Atty. Gen., with whom on the brief was Bronson C. La Follette, Atty. Gen., for plaintiff-respondent.

STEINMETZ, Justice.

There are two issues in this case. The first one is whether the presentence report which contained the defendant's "prior record" met the status of an official report pursuant to sec. 973.12(1), Stats. ¹ The other issue is whether the defendant admitted that he had been convicted of a felony during the five-year period immediately preceding the commission of the present burglary offense for which he was being sentenced and therefore relieved the state of its proof pursuant to sec. 973.12(1).

This case was commenced by the filing of a criminal complaint on March 16, 1981, which charged the defendant, Christopher Wayne Farr, with one count of burglary and as a repeat offender contrary to secs. 943.10(1)(a) and 939.62(1)(b), Stats. ² The complaint alleged the defendant was a repeater based upon the fact that: "[T]he official records of the Racine County Circuit Court indicate that on July 20, 1979, Circuit Court Br. No. 7 defendant was convicted of a charge of felony burglary contrary to Sec. 943.10(1)(a) which conviction remains of record and unreversed."

Following a preliminary hearing on March 27, 1981, the defendant was bound over for trial.

On March 30, 1981, an information was filed alleging that the defendant committed a burglary and further informing the court that "the said defendant was within 5 years convicted of a felony, to-wit: Burglary, on July 20, 1979, in Racine Circuit Court, sentence therefor remaining of record and unreversed."

After a jury trial which was held on May 6, 1981, the defendant was found guilty of burglary. The court granted the state's motion for judgment to be entered on the verdict and set the case for sentencing to be held on May 20, 1981.

Sentencing was held before the Honorable Dennis J. Flynn on the scheduled date. At that time, the district attorney indicated: "The matter is set for sentencing following a jury verdict of guilty on the charge of burglary as a habitual offender." The state recommended a maximum sentence of 16 years imprisonment; ten years as the maximum for the burglary conviction and six years as a penalty enhancer under the repeater statute.

The trial court sentenced the defendant to serve a term of imprisonment not to exceed ten years which was the maximum sentence for conviction of burglary. It was to be served concurrent with any other sentence that had been imposed by any other court.

A postconviction motion hearing was held on August 6, 1982, before the Honorable Dennis D. Costello, Racine county circuit judge. ³ The court denied the portions of the motion which pertained to an alleged excessiveness of sentence and insufficiency of evidence, but took the repeater issue under advisement. That issue was whether there was any proof before the sentencing judge on which the repeater finding was properly based and whether the trial court had properly found the defendant to be a repeater. The court determined that it would require briefs on the repeater issue and directed the district attorney to "dig up the record on this person." Judge Costello obviously meant some record other than the police record which had been before Judge Flynn as a part of the presentence report at the time of sentencing.

In its written decision, the motion court denied the defendant's postconviction motion. Although the court noted that there was a discrepancy as to the date of a prior conviction, ⁴ the court stated that "[a] certified copy of the actual judgment of conviction filed by the State for purposes of this motion shows a burglary offense was committed by the defendant on March 6, 1978 and the sentence took place on July 20, 1979." Neither the state's brief regarding the repeater issue nor the judgment of conviction alluded to in the court's decision was ever served on the defendant's attorney, nor are they in the record. In denying the defendant's postconviction motion, the judge stated:

"This court is satisfied that the pre-sentence report of a State agency, which was ordered by Judge Flynn, sufficiently set forth and 'proved' the prior felony conviction before sentencing. Thus, the repeater statute was available to Judge Flynn at sentencing. Even without the repeater statute, the sentence was within statutory limitations for the crime burglary."

The prior felony conviction referred to was one within five years preceding the commission of the charged felony for which the defendant was convicted as required by sec. 939.62(2), Stats.

The proof referred to in the judge's statement is set out in sec. 973.12(1), Stats. That statute allows for proof of the prior crime or crimes for repeater sentencing to be provided by an admission of the defendant or proved by the state which may be done by presenting the court with "[a]n official report of the F.B.I. or any other governmental agency of the United States or of this or any other state." The statute further provides that such report "shall be prima facie evidence of any conviction or sentence therein reported."

Judge Costello ruled favorably to the state's position that the probation report which recited the defendant's prior record met the status of being such an official report of the probation department which is a governmental agency of Wisconsin. If the report is properly prepared with that use and status as an objective, the argument may be acceptable. However, we do not so rule since it is not necessary to our decision and the relevant portions of this report merely reflect the prior record of the defendant from some law enforcement agency which is not even identified. The information in the report regarding his prior record does not state the dates of prior convictions which sec. 939.62(2), Stats., requires since the prior conviction date must be compared to the date of commission of the present crime for which he was being sentenced. In analyzing the five-year period for the application of the repeater statute, sec. 939.62(2) requires that the conviction of the earlier felony be considered and compared to the commission date of the present crime for which he is being sentenced. From the report in this case, we do not know with certainty the conviction date of the previous felony. It could be surmised as being within the previous five-year period; however, such hypothesis should not have to be resorted to when dealing with a substantial penalty enhancer. In this case a burglary conviction carried a maximum ten-year imprisonment penalty and the repeater enhancer another six years of imprisonment.

Although the presentence report showed that the defendant had five prior felony convictions, it did not provide the dates of conviction, and, therefore, left to conjecture whether any of them were within the previous five years.

When an assignment is made to the probation department for a presentence report, that department knows from the contents of the filed information that the defendant is charged with being a repeater. In gathering information for the report the department should check the court files, if locally located, and in the report should include a brief synopsis of the prior conviction relied on in the information for repeater status. The report can reflect the date of commission of the previous offense but what is critical is the date of conviction of the prior offense. To be an official report under sec. 973.12(1), Stats., on which reliance may be placed, the report must contain relevant information regarding the issue of repeater status and must specifically include the date of conviction for the previous offense. The statute refers to an official report of the F.B.I. or any other governmental agency of the United States or of any state; however, such official report must contain critically relevant facts to be acceptable for applying the repeater statute. The report in the present case did not contain such information and, therefore, could not be relied on for the penalty enhancement.

The court of appeals, 114 Wis.2d 595, 338 N.W.2d 528, in an unpublished decision affirmed the trial court, not on the basis that the presentence report was a report referred to in sec. 973.12(1), Stats., but rather, on the basis that during sentencing procedures the defendant admitted that the requisite previous felony conviction had been within the previous five years. This alleged admission was based on the fact that the defendant's attorney did not object to the trial judge's statement of 16 years being available for sentencing and that defendant's probation had been revoked earlier in the year, in January, 1981. Even if these actions or silences were some form of admission, they do not specify the date of the previous conviction. At the time of the sentencing hearing, the defendant stated that he was serving a five-year sentence, which he had received in 1979. That, however, is not an admission as to the time of a previous felony conviction which must be known for a repeater status. The defendant could have been previously convicted but sentence withheld until it was imposed in 1979 and therefore the conviction date is not certain or known. This record does not show that either the defendant or his attorney admitted other than by inferences to a previous felony conviction of the defendant within five years prior to the commission date of the burglary for which the defendant was being sentenced. Therefore, the state was not relieved of the burden of proving the prior conviction.

The state argues that in light of this...