State v. Goldstein
| Decision Date | 02 February 1994 |
| Docket Number | No. 93-1358-CR,93-1358-CR |
| Citation | 182 Wis.2d 251,513 N.W.2d 631 |
| Parties | STATE of Wisconsin, Plaintiff-Respondent, v. Seth GOLDSTEIN, Defendant-Appellant. |
| Court | Wisconsin Court of Appeals |
Before BROWN, NETTESHEIM and SNYDER, JJ.
Seth Goldstein appeals from a judgment of conviction for operating a motor vehicle without owner's consent (OMVWOC) pursuant to § 943.23(2), STATS., and obstructing an officer pursuant to § 946.41, STATS. Goldstein was charged and sentenced as a repeat offender. The appellate issue is whether Goldstein's prior conviction was adequately proven pursuant to § 973.12(1), STATS. We hold it was not. We reverse the enhanced penalty provisions of the judgment. We remand with directions that the trial court enter an amended judgment sentencing Goldstein to the maximum sentences permitted for the underlying offenses.
The facts are not disputed. On February 26, 1992, the State issued a criminal complaint against Goldstein charging the OMVWOC and obstructing counts plus second-degree recklessly endangering safety pursuant to § 941.30(2), STATS. The offenses were alleged to have occurred on February 25, 1992.
The complaint also alleged that Goldstein had previously been convicted on September 19, 1986 of [182 Wis.2d 253] battery to a police officer and that he had been placed on probation. The complaint further stated that this probation had been revoked following Goldstein's February 1988 conviction for fourth-degree sexual assault and that, as a result, Goldstein had been sentenced on November 19, 1988 to three years imprisonment.
On August 20, 1992, the State filed an information charging the same three counts as charged in the complaint and reciting the prior conviction as alleged in the complaint. 1
On January 7, 1993, pursuant to a plea agreement, the State dismissed the reckless endangerment charge and Goldstein pled no contest to the remaining two charges. During the plea hearing, the State advised Goldstein At the sentencing, the trial court confirmed that Goldstein was charged as a repeater. The court also inquired about certain entries in the presentence report regarding Goldstein's prior record. The court sentenced Goldstein to a prison term of eleven years on the OMVWOC charge. Since the maximum term for this Class D felony is five years, see § 939.50(3)(d), STATS., the repeater portion of this sentence is six years pursuant to § 939.62(1)(b), STATS. The court also sentenced Goldstein to a consecutive sentence of three years on the obstructing charge. Since the maximum term for this Class A misdemeanor is nine months, see § 939.51(3)(a), STATS., the repeater portion of this sentence is two years and three months pursuant to § 939.62(1)(a). The sentences were stayed and Goldstein was placed on probation for eleven years with conditions.
that the maximum penalties on the two charges were eleven years on the OMVWOC charge and three years on the obstructing charge. At this plea hearing, the court did not obtain any admissions from Goldstein regarding the prior felony conviction; nor did the State provide any evidence of the prior conviction. The trial court ordered a presentence report.
Postconviction, Goldstein challenged the repeater portion of his sentence, arguing that the prior conviction had not been proven pursuant to the requirements of § 973.12(1), STATS., and the case law interpreting the statute. The trial court denied Goldstein's motion. Goldstein appeals.
The Statute
Section 973.12(1), STATS., provides in relevant part:
If such prior convictions are admitted by the defendant or proved by the state, [the defendant] shall be subject to sentence under s. 939.62. An official report of the F.B.I. or any other governmental agency of the United States or of this or any other state shall be prima facie evidence of any conviction or sentence therein reported.
The State first argues that Goldstein waived his right to raise this issue by postconviction motion and on appeal because "Goldstein and his trial counsel effectively sat 'silently by' at his sentencing hearing during a discussion of the very proof he now challenges." The State also bases its waiver argument on Goldstein's response to an inquiry from the trial court regarding how long he had been incarcerated following the revocation of probation on the battery charge. Goldstein replied "10 months, about."
In support of its waiver claim, the State cites to State v. Rachwal, 159 Wis.2d 494, 465 N.W.2d 490 (1991). Rachwal held that "the defendant's no contest plea, viewed in the context of the record discussion constituted an affirmative admission of the allegations contained in the complaint." Id. at 508, 465 N.W.2d at 495 (emphasis added). The Rachwal court further stated:
The admission in this case was an affirmative one. It was direct and specific, as called for by Farr. The trial judge expressly drew the defendant's attention to the repeater nature of the charge and to the fact that the possible penalties the defendant was facing might be enhanced, pursuant to the repeater statute, as a result of the defendant's being found guilty pursuant to his no contest plea. In this light, the colloquy into the defendant's understanding of the meaning of the allegations he was facing can be said to have produced a direct and specific admission. [Emphasis added.]
Id. at 509, 465 N.W.2d at 496.
From this language, it is clear that Rachwal is not a waiver case. Rather, it is an admission case, satisfying one of the alternative forms of proof contemplated under the statute. Thus, Rachwal does not support the State's waiver argument. Beyond Rachwal, the State does not cite to any other authority which holds that waiver principles apply to the proof requirements of § 973.12(1), STATS. We reject the State's argument. 2
We now address whether the proceedings at Goldstein's sentencing reveal an admission by Goldstein to the repeater allegations. Here again, Rachwal plays a prominent role. As with Rachwal, the trial court here did not obtain a specific admission from Goldstein as to the repeater allegations. However, the court here did clarify at the outset of the sentencing that Goldstein was to be sentenced as a repeater. In addition, the court's recital of the maximum possible penalties to Goldstein included the added penalties permitted by the repeater allegations.
However, unlike Rachwal, the colloquy here did not obtain Goldstein's express understanding that the repeater allegations increased the possible penalties. We view this as the touchstone of the admission component of § 973.12(1), STATS., and of Rachwal. "The trial judge expressly drew the defendant's attention to the repeater nature of the charge and to the fact that the possible penalties the defendant was facing might be enhanced, pursuant to the repeater statute." Rachwal, 159 Wis.2d at 509, 465 N.W.2d at 496. In this case, neither the plea hearing record nor the sentencing hearing record demonstrates, expressly or inferentially, that Goldstein understood or acknowledged the linkage between his prior record and the possible maximum penalties.
State v. Farr, 119 Wis.2d 651, 350 N.W.2d 640 (1984), cautions that "[an] admission may not be inferred but rather, must be a direct and specific admission by the defendant." Id. at 659, 350 N.W.2d at 645. And while we see Rachwal as retreating somewhat from this language, at the same time Rachwal cautions that the circumstances of that case "approach[ed] the absolute bare minimum necessary for a valid admission." Rachwal, 159 Wis.2d at 513, 465 N.W.2d at 497. Here, we conclude that the sentencing proceedings fell below this minimum.
We next consider whether the presentence report constituted sufficient proof of Goldstein's prior conviction. Goldstein concedes that State v. Caldwell, 154 Wis.2d 683, 454 N.W.2d 13 (Ct.App.1990), holds that a presentence report can qualify as an official report within the meaning of § 973.12(1), STATS., if the report includes the date of conviction for the prior offense. Id. at 694, 454 N.W.2d at 18. Here, the presentence report recited that on September 19, 1986, Goldstein was placed on two years probation regarding the battery to a police officer charge.
Goldstein argues that the date a finding of guilt is made, not the date of conviction, is the conviction contemplated by § 973.12(2), STATS. In support, Goldstein cites State v. Wimmer, 152 Wis.2d 654, 449 N.W.2d 621 (Ct.App.1989). Wimmer presented a unique fact situation where the defendant received an enhanced sentence as a repeater where he had pled guilty to the prior offense but had not yet been sentenced. Id. at 656-57, 449 N.W.2d at 621. Nonetheless, the court of appeals affirmed the enhanced sentence. Id. at 663, 449 N.W.2d at 624.
Goldstein reads Wimmer to decree that, in all repeater cases where the defendant does not admit the prior conviction, the State must establish the date of the finding of guilt. We disagree. Although Wimmer focuses on the significance of the dates of the guilt finding versus the date of conviction, the critical issue in Wimmer was not the date of the controlling event; rather, the issue was whether a finding of guilt (regardless of its date) could constitute a conviction for purposes of the repeater statute. As noted, the court concluded that it could.
However, Wimmer does not apply in a case such as this where a formal conviction has been entered. In the words of Wimmer itself:
Finally, we note that this decision may have only limited applicability. In the vast majority of cases involving the repeater statute, courts will correctly rely on the date of conviction entered on the written judgment of conviction. It is only when this written document is unavailable or has not yet been...
To continue reading
Request your trial
-
State v. Bonds
...to be sufficient by a Wisconsin appellate court. Saunders, 255 Wis.2d 589, ¶ 33, 649 N.W.2d 263; see also State v. Goldstein, 182 Wis.2d 251, 259, 513 N.W.2d 631 (Ct.App. 1994); State v. Caldwell, 154 Wis.2d 683, 694-95, 454 N.W.2d 13 (Ct.App.1990). And, as the court of appeals explained in......
-
State v. Bonds, 2006 WI 83 (Wis. 6/30/2006)
...have been held to be sufficient by a Wisconsin appellate court. Saunders, 255 Wis. 2d 589, ¶33; see also State v. Goldstein, 182 Wis. 2d 251, 259, 513 N.W.2d 631 (Ct. App. 1994); State v. Caldwell, 154 Wis. 2d 683, 694-95, 454 N.W.2d 13 (Ct. App. 1990). And, as the court of appeals explaine......
-
State v. Saunders
...the sentencing process and not contemporaneously with the issue of guilt." Block, 41 Wis. 2d at 212; see also State v. Goldstein, 182 Wis. 2d 251, 260, 513 N.W.2d 631 (1994) ("prior conviction is an essential element of proof to be satisfied at sentencing if the State is to secure the addit......
-
State v. Faust
... ... 2d 589, 649 N.W.2d 263; State v. Wideman, 206 Wis. 2d 91, 94, 107-08 n.24, 556 N.W.2d 737 (1996); State v. Koeppen, 195 Wis. 2d 117, 121, 130, 536 N.W.2d 386 (Ct. App. 1995); State v. Theriault, 187 Wis. 2d 125, 130, 132 n.1, 522 N.W.2d 254 (Ct. App. 1994); State v. Goldstein, 182 Wis. 2d 251, 254, 261, 513 N.W.2d 631 (Ct. App. 1994).6 ... 267 Wis.2d 798 ¶ 24. The supreme court's isolated statement in Krajewski, upon which the majority opinion rests, appears to hold that the exigency of an OWI suspect's dissipating alcohol level is eliminated because a ... ...