State v. Hahn

• Decision Date: 01 November 2000
• Docket Number: No. 99-0554-CR.,99-0554-CR.
• Citation: 2000 WI 118,618 N.W.2d 528,238 Wis.2d 889
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. David M. HAHN, Defendant-Appellant.
• Court: Wisconsin Supreme Court

238 Wis.2d 889

2000 WI 118

618 N.W.2d 528

STATE of Wisconsin, Plaintiff-Respondent,¹ v. David M. HAHN, Defendant-Appellant.

No. 99-0554-CR.

Supreme Court of Wisconsin.

Oral argument September 7, 2000.

Decided November 1, 2000.

For the defendant-appellant there were briefs by Steven G. Bauer and Law Offices of Steven G. Bauer, Brownsville, and oral argument by Steven G. Bauer.

For the plaintiff-respondent the cause was argued by Christopher G. Wren, assistant attorney general, with whom on the brief was James E. Doyle, attorney general.

¶ 1. SHIRLEY S. ABRAHAMSON, CHIEF JUSTICE.

This is an appeal from a judgment of the Circuit Court for Winnebago County, Robert A. Haase, Circuit Court Judge. The appeal is here on certification from the court of appeals. Wis. Stat. (Rule) § 809.61 (1995-96).²

¶ 2. The defendant, David M. Hahn, appeals his sentence of life in prison without the possibility of parole under Wisconsin's persistent repeater statute, Wis. Stat. § 939.62(2m) (1997-98), commonly known as Wisconsin's "three strikes" law. The statute provides for mandatory life imprisonment for offenders convicted of committing for a third time a statutorily specified "serious offense." The statute in issue is silent about whether the offender may challenge the validity of a prior conviction at the enhanced sentence proceeding.

¶ 3. Two questions of law are presented in this case.³ The first is whether the U.S. Constitution requires that an offender be permitted during an enhanced sentence proceeding predicated on a prior conviction to challenge the prior conviction as unconstitutional because the conviction was allegedly based on a guilty plea that was not knowing, intelligent, and voluntary. The circuit court concluded that it had the power to examine the validity of the prior conviction on these grounds but was not required to do so.

¶ 4. We conclude that an offender does not have a federal constitutional right to use the enhanced sentence proceeding predicated on a prior state conviction as the forum in which to challenge the prior conviction, except when the offender alleges that a violation of the constitutional right to a lawyer occurred in the prior state conviction.⁴ We further conclude, as a matter of judicial administration, that an offender may not use the enhanced sentence proceeding predicated on a prior conviction as the forum in which to challenge the prior conviction, except when the offender alleges that a violation of the constitutional right to a lawyer occurred in the prior state conviction. Because the defendant in the present case does not allege that a violation of his constitutional right to a lawyer occurred in the prior conviction, he may not challenge his 1994 conviction during this 1997 persistent repeater proceeding.

¶ 5. The second question of law presented is whether the persistent repeater penalty enhancer as applied to the defendant violates the Eighth Amendment to the U.S. Constitution prohibiting cruel and unusual punishment. For the reasons set forth, we reject the defendant's Eighth Amendment challenge to Wisconsin's persistent repeater statute, Wis. Stat. § 939.62(2m).

I

¶ 6. The relevant facts in this case are undisputed. In 1997, the Winnebago County district attorney charged the defendant under Wis. Stat. § 948.02 with two counts of sexual assault on a child. Because the defendant had two prior felony convictions for sexual assault on a child, he was subject to a life sentence without the possibility of parole under Wis. Stat. § 939.62(2m). Both prior convictions were based on the defendant's guilty pleas, the first in 1990 and the second in 1994. During the 1997 persistent repeater proceeding, the defendant sought to reopen the 1994 conviction on the grounds that his plea was not knowing, intelligent, and voluntary because the circuit court failed to inform him that the conviction could serve as a "strike" offense under the "three strikes" law. During the 1997 proceeding, the circuit court denied the defendant's motion to strike his 1994 conviction, holding that the circuit court's failure to inform the defendant during his 1994 guilty plea that the resulting conviction could later be used to sentence him as a persistent repeater did not render his guilty plea invalid. ¶ 7. The defendant pled guilty to the 1997 offenses and, on the basis of his prior convictions, was sentenced as a persistent repeater to life in prison without the possibility of parole under Wis. Stat. § 939.62(2m). The defendant appealed, arguing that the circuit court's denial of his motion to strike the 1994 conviction violated his due process rights and that his life sentence violated the Eighth Amendment's prohibition against cruel and unusual punishment. We address each issue in turn.

II

¶ 8. The defendant contends that the circuit court erred by failing to strike the 1994 conviction because his guilty plea was not knowing, intelligent, and voluntary and therefore did not satisfy federal constitutional due process requirements. The defendant relies on State v. Baker, 169 Wis. 2d 49, 485 N.W.2d 237 (1992), in which the offender was permitted to challenge a prior conviction in an enhanced sentence proceeding predicated on the prior conviction on the ground that the guilty plea in the prior conviction was not knowing, intelligent, and voluntary.

¶ 9. The State argues that this court should revisit its holding in Baker in light of Custis v. United States, 511 U.S. 485 (1994), a U.S. Supreme Court decision rendered after the Baker decision. The State contends that the U.S. Supreme Court held in Custis, in contrast to this court's holding in Baker, that only a prior conviction that violates an offender's constitutional right to a lawyer may be challenged during an enhanced sentence proceeding predicated on the prior conviction.

¶ 10. We therefore examine State v. Baker, 169 Wis. 2d 49, and Custis v. United States, 511 U.S. 485. ¶ 11. In Baker, the offender used the enhanced sentence proceeding in a conviction for operating after revocation of a license to challenge two prior operating-after-revocation convictions that the State sought to apply for sentencing enhancement purposes. The offender challenged one of the convictions because the plea was allegedly not knowing, intelligent, and voluntary. Baker, 169 Wis. 2d at 58. The offender challenged the other conviction because the State allegedly obtained the conviction in violation of his constitutional right to a lawyer. Baker, 169 Wis. 2d at 58.

¶ 12. The Baker court relied on Burgett v. Texas, 389 U.S. 109 (1967), and its progeny to allow the offender to challenge both convictions.

¶ 13. Burgett had considered whether prior convictions rendered without the assistance of counsel could be used to enhance sentences for subsequent offenses. The Burgett court disallowed the use of a prior conviction in an enhanced sentence proceeding predicated on the prior conviction when the prior conviction violated Gideon v. Wainwright, 372 U.S. 335 (1963). The Burgett court declared that such a use of the prior conviction was inherently prejudicial, amounted to a new denial of the right to counsel, and should be prohibited. Burgett, 389 U.S. at 115-16.

¶ 14. In Baker, this court was faced with the question of whether to extend the holding of Burgett to prior convictions allegedly obtained in violation of a constitutional right other than the Gideon right to a lawyer. The case law was largely unsettled at that time, but a number of jurisdictions had applied the Burgett rule to a prior conviction allegedly obtained in violation of a constitutional right other than the right to a lawyer.⁵ The Baker court acknowledged, however, that "[s]ome courts have confined the application of Burgett to convictions invalid under Gideon [v. Wainwright, 372 U.S. 335 (1963)]."⁶Baker, 169 Wis. 2d at 69.

¶ 15. The Baker court determined that the decision in Burgett rested on the principle that a prior conviction may not be used in an enhanced sentence proceeding predicated on a prior conviction if the prior conviction was allegedly obtained in violation of a constitutional right that would affect the reliability of the prior conviction. Baker, 169 Wis. 2d at 70. The Baker court viewed the question of whether a guilty plea was knowing, intelligent, and voluntary as one that affected the reliability of a conviction. As a result, the Baker court concluded that federal constitutional law prohibited a circuit court from using a prior conviction in an enhanced sentence proceeding predicated on a prior conviction when the prior conviction was based on a guilty plea that was not knowing, intelligent, and voluntary. Baker, 169 Wis. 2d at 71.

¶ 16. After Baker, the U.S. Supreme Court clarified the Burgett decision in Custis v. United States, 511 U.S. 485 (1994). In Custis, the offender asserted ineffective assistance of counsel as a challenge to the validity of a prior state conviction that was used in the offender's federal enhanced sentence proceeding under the federal Armed Career Criminal Act. The Armed Career Criminal Act is silent about the means for challenging prior convictions. The Custis court concluded that the U.S. Constitution does not require that an offender be given an opportunity to challenge a prior state conviction in a federal enhanced sentence proceeding predicated on the prior state conviction unless the offender asserts the state conviction was obtained in violation of the offender's constitutional right to a lawyer. The Custis court thus expressly limited its holding in Burgett to instances in which an offender asserts the conviction was allegedly obtained in violation of an offender's constitutional right to a lawyer. Custis, 511 U.S. at 496. Relying on long-established case law that a violation of the constitutional right to the assistance of counsel is "a unique constitutional defect," the Custis court concluded that other constitutional violations do...