State v. Finley

Decision Date10 May 2022
Docket Number2021AP778-CR
PartiesState of Wisconsin, Plaintiff-Respondent, v. Timothy L. Finley, Jr., Defendant-Appellant.
CourtCourt of Appeals of Wisconsin

This opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)5.

Before Stark, P.J., Hruz and Gill, JJ.

Per curiam opinions may not be cited in any court of this state as precedent or authority, except for the limited purposes specified in Wis.Stat. Rule 809.23(3).

PER CURIAM

¶1 Timothy L. Finley, Jr., pro se, appeals from an order denying his postconviction motion to vacate allegedly excessive sentences.

Finley pled guilty to, and was sentenced for, one count of substantial battery and one count of strangulation and suffocation, both counts as acts of domestic abuse and as a repeater. Finley now argues that his sentences on those counts were excessive because he "never admitted to being a repeater," nor did he admit that the prior offenses alleged in the Information, which served as the basis for the repeater enhancers, occurred within the five-year time period immediately preceding the commission of the crimes at issue in this case. We reject these arguments and affirm.

BACKGROUND

¶2 The following facts are undisputed for purposes of this appeal. On June 27, 2011, the State filed an Information charging Finley with four crimes: first-degree reckless endangerment, by use of a dangerous weapon (Count 1) substantial battery (Count 2); strangulation and suffocation (Count 3); and false imprisonment (Count 4). The charges arose from allegations that Finley had beaten, strangled, and threatened his live-in girlfriend with a knife on June 5 2011.

¶3 Each count in the Information was charged as an act of domestic abuse under Wis.Stat. § 968.075 (2019-20) [1] and as a repeat offender under Wis.Stat. § 939.62. With respect to the repeater enhancers, the Information alleged as to each count that Finley had "been convicted of Possession of Cocaine- Subsequent Offender and Possession of THC-Subsequent Offender, Felonies, on September 12, 2008 in Brown County Case No. 08CF41, which conviction(s) remain of record and unreversed." Based on those prior convictions, the Information alleged that under § 939.62(1)(c), the maximum term of imprisonment on Count 1 could "be increased by not more than 6 years." The Information further alleged that under § 939.62(1)(b), the maximum terms of imprisonment on Counts 2, 3 and 4 could "be increased by not more than 4 years."

¶4 On June 25, 2012, Finley entered a no-contest plea to Count 1 of the Information. However, both the circuit court and the Plea Questionnaire/Waiver of Rights form incorrectly advised Finley of the maximum penalty for that offense. See State v. Finley, 2016 WI 63, ¶¶28-32, 370 Wis.2d 402, 882 N.W.2d 761. As a result, our supreme court ultimately determined that Finley should be permitted to withdraw his no-contest plea. Id., ¶96.

¶5 During a subsequent plea hearing on January 24, 2018, Finley entered guilty pleas to Counts 2 and 3 of the Information: substantial battery, as a repeater and as an act of domestic abuse; and strangulation and suffocation, as a repeater and as an act of domestic abuse. During the plea colloquy, Finley confirmed, as a general matter, that he had reviewed the elements of the charges with his attorney and understood the charges to which he was pleading. The circuit court then reviewed the elements of Counts 2 and 3 with Finley and expressly addressed the application of the repeater enhancers to those counts.

¶6 Specifically, with respect to Count 2, the circuit court stated: "Now we have a repeater. And what it says here is that you were convicted of possession of cocaine; second and subsequent offender and possession of THC, second and subsequent offender, both felonies, on September 12, 2008 in Brown County Case No. 08 CF 41, is that accurate?" Finley responded, "Yes, Your Honor." Addressing Count 3, the court then stated:

Then on Count No. 3, strangulation and suffocation repeater, domestic abuse, the repeater allegation is the same. And that is you agree you were convicted of possession of cocaine-excuse me, subsequent offender and possession of THC, subsequent offender, both felonies, on September 12, 2008 in Brown County Wisconsin file 08 CF 41?

Finley again responded, "Yes, Your Honor."

¶7 The circuit court then stated, "Now, because these are repeaters it adds four years on Count 2 and 4 years on Count No. 3. Do you understand that?" Finley responded, "Yes, Your Honor." The court continued:

I am looking also at [Wis. Stat. §] 939.62, increased penalty for habitual criminality. And this would be under Section (1)(b) it reads: That a maximum term of imprisonment of more than one year but not more than ten years-that's what Counts 2 and 3 are-may be increased by not more than two years if the prior conviction[s] were for misdemeanors; and by not more than four years if the prior conviction was for a felony.
In this case they're felonies. So we have four years. Do you understand that?

Finley responded, "Yes, I do." The court subsequently informed Finley of the maximum penalties that he faced upon conviction for Counts 2 and 3. In doing so, the court reiterated that Finley was being sentenced as a repeater under § 939.62(1)(b), which increased the maximum term of imprisonment for each count by not more than four years. Finley confirmed that he understood that information.

¶8 The circuit court ultimately imposed the maximum sentences on Counts 2 and 3, to be served consecutively. Together, Finley's sentences totaled twelve years and six months of initial confinement, followed by five years of extended supervision.

¶9 On February 10, 2021, Finley filed a pro se "Notice/Motion for Court to Vacate Excessive Sentence." In the motion, Finley alleged that he "did not give a direct and specific admission to facts necessary to establish the habitual criminality enhancer and that the State failed to adequately prove the prior convictions occurred within the 5 year[s] preceding [the] commission of the crime for which he was being sentenced." Finley therefore asked the circuit court to vacate the portions of his sentences that were attributable to the repeater enhancers.

¶10 The circuit court denied Finley's motion. The court noted that Finley had admitted during the plea hearing that "he was convicted of the two offenses in 08-CF-41." The court reasoned, "If one does the math, 08-CF-41 and this file number, 11-CF-671, is within the five-year period. Certainly, the Court can impute the five-year period based upon the defendant's admission to 08-CF-41." The court further concluded that State v. Zimmerman, 185 Wis.2d 549, 518 N.W.2d 303 (Ct. App. 1994), the principal case on which Finley relied, was distinguishable. The court also explained that, during the plea hearing, it "expressly drew [Finley's] attention to the repeater charge and to the fact that the penalties [Finley] was facing might be enhanced as a result of [Finley] being found guilty pursuant to his … plea." The court therefore stated that this case was "more similar to" State v. Rachwal, 159 Wis.2d 494, 465 N.W.2d 490 (1991), in that there was "no confusion" during the plea hearing and Finley "did[] plead to the repeater charges." Finley now appeals.

DISCUSSION

¶11 "The question of whether penalties based on a defendant's repeater status were properly applied involves the application of Wis.Stat. § 973.12(1) to a set of undisputed facts." State v. Saunders 2002 WI 107, ¶15, 255 Wis.2d 589, 649 N.W.2d 263. This inquiry presents a question of law that we review independently. Id.

¶12 Wisconsin Stat. § 939.62(1) allows for an increase in the maximum term of imprisonment for most crimes for which imprisonment may be imposed if the defendant is a "repeater." As relevant here, the statute defines a "repeater" as a person who "was convicted of a felony during the 5-year period immediately preceding the commission of the crime for which the actor presently is being sentenced," if the conviction "remain[s] of record and unreversed." Sec. 939.62(2).

¶13 Before a defendant may be sentenced as a repeater under Wis.Stat. § 939.62, the defendant's "repeater status must be established before the circuit court." Saunders, 255 Wis.2d 589, ¶19. Under Wis.Stat. § 973.12(1), a defendant may be sentenced as a repeater only if: "(1) the defendant personally admits to qualifying prior convictions, or (2) the existence of qualifying prior convictions is proved by the state." Saunders, 255 Wis.2d 589, ¶19 (citing § 973.12(1)). In this case, it is undisputed that the State did not prove the existence of any qualifying prior convictions. Instead, the issue is whether Finley personally admitted to such prior convictions.

¶14 Finley contends that he did not make any such admission. Finley concedes that the circuit court asked him about the prior convictions set forth in the Information during the plea colloquy. He asserts, however, that in response to the court's questions, he merely admitted that the Information alleged he had been convicted of two felony offenses in 2008. He contends he never admitted that the allegations in the Information regarding his prior convictions were correct. Finley therefore denies that he made "any direct admission to being a repeater."

¶15 This argument fails for two reasons. First, when addressing the repeater allegation with respect to Count 3 during the plea colloquy, the circuit court asked Finley, "And that is you agree you were convicted of possession of cocaine-excuse me, subsequent offender and possession of THC subsequent offender, both felonies, on September 12, 2008 in Brown...

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