State v. Koeppen
| Decision Date | 31 May 1995 |
| Docket Number | No. 94-2386-CR,94-2386-CR |
| Citation | 195 Wis.2d 117,536 N.W.2d 386 |
| Parties | STATE of Wisconsin, Plaintiff-Respondent, v. Thomas William KOEPPEN, Defendant-Appellant. d |
| Court | Wisconsin Court of Appeals |
On behalf of the defendant-appellant, the cause was submitted on the briefs of Rex R. Anderegg of Anderegg Law Office of Milwaukee.
On behalf of the plaintiff-respondent, the cause was submitted on the brief of William J. Roach, Asst. Dist. Atty., Waukesha.
Before ANDERSON, P.J., and NETTESHEIM and SNYDER, JJ.
Thomas William Koeppen appeals from a judgment of conviction for bail jumping and disorderly conduct pursuant to §§ 946.49(1)(a) and 947.01, STATS., and from an order denying postconviction relief. Koeppen was sentenced as a repeat offender pursuant to §§ 939.62(2) and 973.12(1), STATS. 1 Koeppen raises two appellate issues: (1) the trial court improperly allowed a midtrial amendment to the criminal information, and (2) the trial court improperly employed judicial notice to establish his repeater status. We hold that the court properly allowed the amendment. Therefore, we affirm that portion of the judgment reciting Koeppen's convictions. However, because Koeppen's prior convictions were not properly established at the sentencing hearing, we hold that the court erred by later judicially noticing the convictions at a postsentencing hearing. We therefore reverse the repeater portions of the sentences and commute them to the maximum permitted for the underlying offenses. We remand for entry of a judgment reflecting the proper sentences.
The charges in the criminal complaint alleged charges of intentionally causing bodily harm to a child, battery, disorderly conduct and bail jumping. The charges grew out of a domestic altercation on July 8, 1993, involving Koeppen and his family.
The factual portion of the complaint in support of the bail jumping charge stated that Koeppen had violated the conditions of bail in a prior case numbered "2239"; that Koeppen had been released on bail pending sentencing in that case on April 7, 1993; and that the conditions of bail in that case included that he "not commit any further crimes or engage in criminal activity and that he should not directly or indirectly threaten, harass, intimidate or otherwise interfere with the victims or witnesses in the case." The State's theory of prosecution was that Koeppen's commission of the other charges alleged in the complaint also constituted a violation of those conditions of bail.
Following preliminary hearing, Koeppen was bound over on the felony charge, and the information realleged all the offenses stated in the complaint.
During the ensuing trial, the State desired to introduce evidence of Koeppen's consumption of alcohol in conjunction with the incidents involving the bail jumping charge. The State noted that in addition to Koeppen's release on bail on April 7, 1993, in case number 2239, he had also been released on bail pending sentencing the same day in a companion case numbered "2315." In that case, the court had imposed a condition of bail that Koeppen was not to consume any alcoholic beverages. The State sought leave to amend the information to include case number 2315 and its attendant condition of bail.
Koeppen objected to the amendment because case number 2315 and the condition of bail related to that case had not been alleged in the complaint or the information. The trial court granted the amendment and allowed the State to present evidence of Koeppen's consumption of alcohol.
On appeal, Koeppen argues that the trial court misused its discretion by allowing the amendment to the information. He claims that this action allowed the State to unfairly broaden the factual basis for the bail jumping charge and required him to defend against conditions of bail different from those specifically enumerated in the complaint. As such, Koeppen contends that he did not have sufficient notice of the charge against him.
The purpose of the charging document is to inform the accused of the acts he or she allegedly committed and to enable him or her to understand the offense charged so as to prepare a defense. See State v. Wickstrom, 118 Wis.2d 339, 348, 348 N.W.2d 183, 188 (Ct.App.1984). At trial, a court may allow amendment of a complaint, indictment We conclude that Koeppen was not prejudiced by the trial court's allowance of the amendment. While case number 2315 and the condition of bail that Koeppen not consume alcoholic beverages were not specifically recited in the original complaint and information, Koeppen's consumption of alcohol was part and parcel of the events of July 8, 1993, which formed the basis of all the charges alleged in the information, including the bail jumping charge. Thus, the original complaint and information fairly informed Koeppen that his entire conduct related to the events of that day were under scrutiny, particularly as to the bail jumping charge. The amendment did not alter the transaction under scrutiny.
or information to conform to the proof where the amendment is not prejudicial to the defendant. Section 971.29(2), STATS. When an amendment to the charging document does not change the crime charged, and when the alleged offense is the same and results from the same transaction, there is no prejudice to the defendant. State v. Gerard, 189 Wis.2d 505, 517 n. 9, 525 N.W.2d 718, 722 (1995)
Our conclusion is reinforced by the fact that the condition of bail in case number 2315 was imposed on the very same day as those in the companion case which was recited in the complaint, and by the fact that the State's intention to proceed under case number 2315 as a further basis for the bail jumping charge was made known to Koeppen in various pretrial proceedings.
We hold that the trial court did not misuse its discretion in allowing the amendment to the information.
In the criminal complaint, the State charged Koeppen as a repeat offender pursuant to § 939.62(2), STATS., based on his alleged June 18, 1991, convictions for three misdemeanors. 2
At sentencing, the prosecutor stated his belief that Koeppen was not contesting the 1991 convictions that were alleged in the complaint. Koeppen's attorney advised that Koeppen was not contesting the three convictions, but additionally stated: "We will reserve the right to contest whether or not these actually constitute a substantial basis for the repeater or habitual criminality finding." During the sentencing hearing, the trial court did not personally question Koeppen about the prior convictions or obtain an admission from Koeppen regarding the three prior convictions. Nor did the State offer formal proof of the repeater allegations.
Nevertheless, the trial court sentenced Koeppen as a repeater for both convictions, imposing concurrent three-year sentences of imprisonment. The court stayed the sentences and placed Koeppen on probation for a maximum period of three years. As a condition of probation, the court ordered Koeppen to serve ninety days in the county jail under the Huber law. 3
On May 17, 1994, Koeppen filed a postconviction motion contending that the repeater convictions had not been properly proven at the sentencing hearing. He asked that his imposed and stayed sentences be commuted to the maximum terms permitted for the underlying offenses. At the hearing on Koeppen's motion, the trial court acknowledged that Koeppen had not personally admitted to the repeater convictions and that the State had not offered competent proof of them. However, the court concluded that because the convictions came from another branch of the Waukesha County Circuit Court, the court could take judicial notice of the judgments. Accordingly, the trial court denied Koeppen's postconviction motion and upheld the enhanced penalties for both sentences. Koeppen appeals.
Our review of the trial court's use of penalty enhancers requires us to apply §§ 939.62 and 973.12, STATS., to the undisputed facts of this case. See State v. Theriault, 187 Wis.2d 125, 131, 522 N.W.2d 254, 257 (Ct.App.1994). Whether the penalty enhancers are void as a matter of law presents a Section 939.62(2), STATS., provides that a defendant is a repeater:
question of law for our independent review. Id.
if he was convicted of a felony during the 5-year period immediately preceding the commission of the crime for which he presently is being sentenced, or if he was convicted of a misdemeanor on 3 separate occasions during that same period, which convictions remain of record and unreversed. 4
A defendant charged as a repeater is subject to an enhanced penalty under § 939.62 for a present crime "[i]f such prior convictions are admitted by the defendant or proved by the state." Section 973.12(1), STATS.
On appeal, the parties initially debate whether repeater allegations can be proven by judicial notice. We do not reach this question because, even assuming that such form of proof is acceptable, in this case it came too late.
When the trial court addressed the repeater allegations at the sentencing hearing, Koeppen's trial attorney informed the court that "the actual [prior] convictions that are set forth are correct." However, an admission of prior convictions as required by § 973.12(1), STATS., may not "be inferred nor made by [a] defendant's attorney, but rather, must be a direct and specific admission by the defendant." State v. Farr, 119 Wis.2d 651, 659, 350 N.W.2d 640, 645 (1984). Here, it is undisputed that the trial court did not obtain an admission by Koeppen at any time during the sentencing hearing. Consequently, the State had the burden of proving Koeppen's prior convictions. See § 973.12(1); Theriault, 187 Wis.2d at 132, 522 N.W.2d at 257. We now move to that question.
At the sentencing hearing, the prosecutor detailed...
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State v. Conger
...N.W.2d 718 (1995) (“Prejudice has always been a consideration with regard to amending a charging document.”); State v. Koeppen, 195 Wis.2d 117, 123, 536 N.W.2d 386 (Ct.App.1995). ¶ 142 The majority opinion puts a different spin on § 971.29, changing subsection (1) from a shield to protect d......
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...decisions. State ex rel. Bingen v. Bzdusek, 2002 WI App 210, ¶ 8, 257 Wis.2d 193, 650 N.W.2d 894; see also State v. Koeppen, 195 Wis.2d 117, 126, 536 N.W.2d 386 (Ct.App.1995). When we determine whether a defendant has notice that the State intends to seek increased imprisonment, we independ......
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State v. Bonds, 2006 WI 83 (Wis. 6/30/2006)
...decisions. State ex rel. Bingen v. Bzdusek, 2002 WI App 210, ¶8, 257 Wis. 2d 193, 650 N.W.2d 894; see also State v. Koeppen, 195 Wis. 2d 117, 126, 536 N.W.2d 386 (Ct. App. 1995). When we determine whether a defendant has received notice that the State intends to seek increased imprisonment,......
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