State v. Flowers

• Decision Date: 15 July 1998
• Docket Number: No. 97-3682-CR,97-3682-CR
• Citation: 221 Wis.2d 20,586 N.W.2d 175
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. Josh F. FLOWERS, Defendant-Appellant. d
• Court: Wisconsin Court of Appeals

Page 175

586 N.W.2d 175

221 Wis.2d 20

STATE of Wisconsin, Plaintiff-Respondent, v. Josh F. FLOWERS, Defendant-Appellant. ^d

No. 97-3682-CR.

Court of Appeals of Wisconsin.

Submitted on Briefs April 1, 1998.

Opinion Released July 15, 1998.

Opinion Filed July 15, 1998.

On behalf of the defendant-appellant, the cause was submitted on the brief of Josh F. Flowers, pro se.

On behalf of the defendant-appellant, the cause was submitted on the briefs of Charles Bennett Vetzner, Assistant State Public Defender of Madison.

On behalf of the plaintiff-respondent, the cause was submitted on the brief of Scot T. Mortier, Assistant District Attorney of Fond du Lac County.

On behalf of the plaintiff-respondent, the cause was submitted on the brief of James E. Doyle, Attorney General, and David J. Becker, Assistant Attorney General.

Before BROWN, NETTESHEIM and ANDERSON, JJ.

BROWN, Judge.

Wisconsin case law has now forcefully and repeatedly determined that either proof of a prior felony conviction or a criminal defendant's admission of the prior conviction is essential if the State seeks additional punishment under § 939.62, STATS., the repeater statute. If a criminal defendant is sentenced as a repeater without either an admission or proof of a prior felony conviction within the statutory time limitation, the repeater portion of the sentence may not be imposed.

In the present case, the trial court sentenced Josh F. Flowers as a habitual criminal to the maximum term of three years in prison for retail theft. In his fourth postconviction motion, Flowers now claims, for the first time, that the repeater portion of the sentence is void as a matter of law because the State failed to prove the habitual criminality charge prior to sentencing. The State responds that § 974.06(4), STATS., and the supreme court's public policy statements contained in State v. Escalona-Naranjo, 185 Wis.2d 168, 517 N.W.2d 157 (1994), preclude Flowers from raising this issue because he did not raise it in his earlier postconviction motions. We disagree with the State. We conclude that § 973.13, STATS., commands courts to declare as void all sentences in excess of that authorized by law. We determine that a repeater portion of a sentence comes within the purview of § 973.13. We further determine that neither the procedural bar in § 974.06(4) nor the public policy discussion contained in Escalona-Naranjo precludes criminal defendants from seeking relief from faulty repeater sentences under § 973.13. Thus, we reach the merits. We conclude that the State provided sufficient proof of a prior felony conviction within five years of the present offense, as required by § 939.62(2), STATS. We ultimately affirm.

In August 1994, Flowers and a companion were arrested for stealing batteries, painkillers and toothbrushes from a food store. The State charged Flowers with two counts of retail theft, party to a crime, as a repeat offender contrary to §§ 943.50(1m), 939.05 and 939.62, STATS. Attached to the criminal complaint was a certified judgment of conviction showing that Flowers had an August 1988 felony conviction for possession of a firearm by a felon. Furthermore, the certified judgment stated that the court sentenced Flowers to four years in prison for this offense. Pursuant to a plea agreement, Flowers pled guilty to one count of retail theft, party to a crime, as a repeat offender. In return, the State moved to dismiss the second count and recommended two years' probation. However, at no point during the plea colloquy did Flowers admit to the prior felony conviction, nor did the State enter any evidence beyond the certified judgment of conviction to prove the prior felony conviction. Also, the plea questionnaire form signed by Flowers was silent on the charge of habitual criminality. The Honorable John Mickiewicz accepted Flowers' plea, withheld sentencing and placed Flowers on probation.

Flowers' probation agent subsequently initiated revocation proceedings and Flowers voluntarily waived his right to a hearing on the revocation issue. Flowers' probation was revoked in January 1995 and he returned to court for sentencing. Judge Mickiewicz first noted that a revocation summary report had been prepared by a parole agent and was present in the case file. That summary stated in pertinent part: "In 1988 [Flowers] was sentenced to four years [in prison] for felon in possession of a firearm and a consecutive three year [prison] term for retail theft as a habitual criminal. He was again paroled on 02/21/92...." Also, to prove the repeater charge, the State directed the court's attention to the certified judgment of conviction attached to the criminal complaint. Flowers was never asked about, and he never admitted to, the prior 1988 felony conviction, nor did the court or the prosecutor question him as to the length of time he spent in prison following the 1988 conviction. The trial court sentenced Flowers to an indeterminate term not to exceed three years--the maximum term permitted under the statutes as a repeat offender. ¹

Flowers, pro se, subsequently filed three successive postconviction motions under § 974.06, STATS. In each motion Flowers made essentially the same allegation that his waiver of a revocation hearing was not knowingly and voluntarily made. Although nothing in the record indicates that a court decided Flowers' second motion, the trial court denied his first and third motions for relief and we assume that the second motion was denied by the court as well.

In October 1997, Flowers, again pro se, filed another motion for postconviction relief under § 974.06, STATS. Unlike his previous motions, however, this motion alleged that because a six-year time span existed between the August 1988 felony conviction and his 1994 offense, the State failed to prove the repeater charge. Therefore, there was no basis in law for the trial court to sentence him as a repeater under § 939.62, STATS. Flowers asked the court to reduce his sentence "to 9 months in jail, the maximum penalty for Retail Theft."

Although the State argued that § 974.06(4), STATS., barred Flowers' motion, the Honorable Dale L. English, in a written opinion, declined to apply § 974.06(4) and addressed the merits of Flowers' motion. Judge English concluded that although Flowers never admitted to the charged repeater offense, the State had met its burden of proving a prior felony conviction within five years of Flowers' 1994 offense. Judge English first noted that § 973.12(1), STATS., allowed the State to prove a prior conviction and confinement by the use of an official report of a state agency. Judge English then observed that the record before the sentencing court contained both a certified judgment of conviction proving Flowers had been convicted of a felony in August 1988, and a revocation summary report giving a specific date of Flowers' subsequent release from confinement. Both documents, the judge concluded, were official reports of a state agency within the meaning of § 973.12(1). Because the documents together showed that the five-year period tolled while Flowers was confined from August 1988 to February 1992, the previous felony conviction was within five years of Flowers' 1994 offense. Based on its conclusion that the State proved Flowers' repeater status, the judge denied the motion. Flowers appeals. ²

As we stated earlier, this is Flowers' fourth § 974.06, STATS., postconviction motion. Unlike his previous three motions, however, Flowers alleged that the enhanced portion of his sentence is void as a matter of law and should be commuted to the maximum term permitted under the statutes--nine months. Although Flowers did not explicitly name the statute upon which he relied, we construe his motion as having asked the trial court to grant him relief under § 973.13, STATS. He argued before the trial court, and argues again here, that the State failed to offer any proof of criminal habituality prior to sentencing to justify the repeater enhancement portion of his sentence. And because it is undisputed that he did not admit to a prior felony conviction within five years of the 1994 offense, he asserts that the State failed to meet its burden under § 973.12(1), STATS., to prove the repeat offender charge. Flowers therefore contends that the sentence is void as a matter of law.

The State's position before the trial court, and raised again before us, is that Flowers is procedurally barred from bringing a successive postconviction motion under § 974.06, STATS., because he has not advanced any compelling reason why the issue was not raised in his earlier postconviction motions. See § 974.06(4). ³ The State also draws our attention to Escalona-Naranjo for the proposition that public policy precludes a defendant from bringing successive postconviction motions unless a compelling reason can be shown why the issue was not raised earlier. Whether § 974.06(4) and Escalona-Naranjo preclude Flowers' motion for relief under § 973.13, STATS., is a question of law which we review de novo. See State v. Tolefree, 209 Wis.2d 421, 424, 563 N.W.2d 175, 176 (Ct.App.1997).

In Escalona-Naranjo, the supreme court foreclosed a defendant from raising a new issue--failure to object to inadmissible evidence--in a § 974.06, STATS., motion in order to relitigate an ineffective assistance of counsel claim. See Escalona-Naranjo, 185 Wis.2d at 184, 517 N.W.2d at 163. The defendant had twice raised ineffective assistance of counsel claims in previous § 974.02, STATS., motions. See Escalona-Naranjo, 185 Wis.2d at 184, 517 N.W.2d at 163. The court held that the defendant could have raised the issue in the earlier § 974.02 motions and had not alleged any compelling reason as to why a court should now entertain the claim; therefore, he was barred by virtue of § 974.06(4) from raising the issue. See Escalona-Naranjo, 185 Wis.2d at 173, 517 N.W.2d at 159. The court then concluded that § 974.06 could not be...