State v. Kruzycki

Decision Date09 March 1995
Docket NumberNo. 93-0292-CR,93-0292-CR
Citation531 N.W.2d 429,192 Wis.2d 509
PartiesSTATE of Wisconsin, Plaintiff-Respondent, v. Mark A. KRUZYCKI, Defendant-Appellant. d
CourtWisconsin Court of Appeals

For the defendant-appellant, the cause was submitted on the brief of David R. Karpe of Madison.

For the plaintiff-respondent, the cause was submitted on the brief of James E. Doyle, Atty. Gen., with Mary E. Burke, Asst. Atty. Gen.

Before GARTZKE, P.J., and DYKMAN and SUNDBY, JJ.

GARTZKE, Presiding Judge.

Mark Kruzycki appeals from a judgment convicting him on four counts of first-degree sexual assault, § 940.225(1)(b), STATS., battery, § 940.19(1), STATS., false imprisonment, §§ 940.30 and 939.63(1)(a) 4, STATS., and kidnapping, §§ 940.31(1) and 939.63(1)(a)2, STATS. 1 He also appeals from an order denying his motion for postconviction relief.

Kruzycki raises several issues: (1) whether commitment under the now-repealed provisions of the Sex Crimes Law, ch. 975, STATS., 1977, 2 is a sentence for purposes of the repeater statute, § 939.62, STATS.; (2) whether convicting him on two counts of first-degree sexual assault subjects him to double jeopardy; (3) whether the trial court erred by admitting in evidence his three 1979 convictions to impeach his credibility; and (4) whether we should order a new trial because of prosecutorial misconduct.

We conclude that Kruzycki was erroneously sentenced as a repeater, but he was not subjected to double jeopardy, and the trial court properly allowed the prosecution to use his 1979 convictions to impeach his credibility. Because Kruzycki did not object to the alleged prosecutorial misconduct, and the alleged misconduct was not plain error, and the criteria for a new trial under § 752.35, STATS., have not been met, we decline to order a new trial. We reverse the judgment as to the sentences and remand for resentencing without recourse to the repeater statute, and otherwise affirm the judgment of conviction and the order denying Kruzycki's motion for postconviction relief.

1. Sentencing Under the Repeater Statute

The repeater statute, § 939.62, STATS., permits a court to impose enhanced penalties on a defendant convicted of a felony within the five-year period immediately preceding the crime for which the defendant is presently being sentenced. "In computing the preceding 5-year period, time which the actor spent in actual confinement serving a criminal sentence" is excluded. Section 939.62(2).

The crimes for which Kruzycki was convicted and sentenced in the case resulting in this appeal were committed in September 1991. In 1979, he was convicted of first-degree sexual assault and second-degree sexual assault, § 940.225(1)(b) and (2), STATS., 1977. He was committed for those convictions under the Sex Crimes Law from July 1979 through February 1985 and from September 1986 through July 1990. Before trial, his counsel withdrew a motion challenging the applicability of the repeater statute to Kruzycki, and after the jury rendered its verdict, his counsel stipulated that the repeater statute applied. The trial court applied the repeater statute to increase the term of his sentence on each conviction.

The trial court denied Kruzycki's postconviction motion challenging the increases to his terms of imprisonment under the repeater statute. It reasoned that because he had been in "actual confinement" when serving his commitments under the Sex Crimes Law, he had no opportunity for criminal conduct, and therefore the period of that confinement is excluded when computing the "preceding 5-year period" described in § 939.62(2), STATS.

The State contends that Kruzycki waived the right on appeal to question his sentence as a repeater when he withdrew his motion challenging the applicability of the repeater statute and again when he stipulated to its applicability. We consider the withdrawal as essentially nothing more than the usual waiver which occurs when trial counsel fails timely to object to error and thus usually prevents his or her client from raising the issue for the first time on appeal. The waiver rule is one of judicial administration, and it does not affect our power to deal with an issue. Wirth v. Ehly, 93 Wis.2d 433, 443-44, 287 N.W.2d 140, 145-46 (1980). Kruzycki's stipulation to the applicability of the repeater statute does not affect our review. A concession on an issue of law does not bind an appellate court. A question of law "cannot be bargained away by counsel nor shielded from ab initio consideration by successive court reviews." Fletcher v. Eagle River Memorial Hosp., Inc., 156 Wis.2d 165, 182, 456 N.W.2d 788, 796 (1990).

No Wisconsin precedent specifically states that commitment under the now-repealed provisions of the Sex Crimes Law tolls the five-year limit on the use of prior convictions to enhance sentences under the repeater statute, § 939.62, STATS. Resolution of the issue is important to the sentencing process. We should set aside an unlawfully imposed sentence. We therefore exercise our discretion to review the issue in this appeal.

The State urges that we treat the word "sentence" in § 939.62(2), STATS., as ambiguous and reminds us that a literal construction of a statute should not be adopted if it defeats the legislative purpose. State ex rel. Tessmer v. Circuit Court Branch III, 123 Wis.2d 439, 443, 367 N.W.2d 235, 237 (Ct.App.1985). It asserts that the intent of the statute is to exclude from the computation the time during which a previously convicted offender is removed from the community and is unable to endanger the community or commit further offenses. The State claims that any other interpretation is unreasonable, and notes that we are to interpret statutes to avoid unreasonable results. State v. Robertson, 174 Wis.2d 36, 46, 496 N.W.2d 221, 225 (Ct.App.1993).

However, the considered views repeatedly expressed in State v. Hungerford 76 Wis.2d 171, 251 N.W.2d 9 (1977), regarding the nature of the confinement of a person committed under the Sex Crimes Law, are such that we cannot hold that a commitment is a sentence for purposes of the repeater statute, § 939.62(2), STATS. The Hungerford court quoting from Huebner v. State, 33 Wis.2d 505, 526, 147 N.W.2d 646, 656 (1967), stated that a commitment under ch. 975, STATS., 1975, is "so essentially different from penal sentencing as to amount to an independent proceeding...." Hungerford, 76 Wis.2d at 176, 251 N.W.2d at 10. The Hungerford court continued, "Commitment is an alternative disposition to sentencing. Commitment proceedings pursuant to ch. 975 constitute neither civil commitment nor sentencing." Id. (footnotes omitted). The court ruled that because Hungerford had been committed under ch. 975, he "was not previously sentenced...." Id. at 177, 251 N.W.2d at 11.

The issue in Hungerford was whether a sentence for the crime of escape under § 946.42(4), STATS., 1975, had to be consecutive to a Sex-Crimes-Law commitment. Section 946.42(4) provided that a sentence imposed for an escape had to be consecutive to any sentence previously imposed. Because a commitment under ch. 975, STATS., 1975, is not a sentence, the supreme court concluded that the trial court could impose a sentence concurrent with a commitment. The question before us is how the legislature used the word "sentence" in the repeater statute, § 939.62(2), STATS., and, in particular, what the legislature meant in the last sentence of that subsection: "In computing the preceding 5-year period, time which the actor spent in actual confinement serving a criminal sentence shall be excluded." We consider ourselves bound by the Hungerford court's conclusion that a commitment under ch. 975 is not a sentence.

The Hungerford court foreshadowed the State's argument in this appeal on the legislature's intent. The court said,

While the argument can be made that the legislature intended that persons who escape from custody while under a commitment pursuant to ch. 975, STATS., should be sentenced consecutively to the commitment, the language of the statute [§ 946.42(4), STATS., 1975] is plain and unambiguous. Hungerford had not been sentenced nor could a sentence be imposed under the sex deviate commitment.

Hungerford, 76 Wis.2d at 177-78, 251 N.W.2d at 11 (footnote omitted).

The repeated language in Hungerford having hammered the point that a commitment under the Sex Crimes Law is not a sentence, we reject the State's proposed construction of the last sentence in § 939.62(2), STATS. We hold that the trial court erred when it concluded that Kruzycki's commitment under the Sex Crimes Law was "actual confinement serving a criminal sentence" for purposes of § 939.62(2). The court should not have excluded the time he spent under such a commitment when computing the "preceding 5-year period" described in the last sentence of that subsection. We therefore reverse the judgment as to the sentences and remand for the trial court to resentence Kruzycki without adding a penalty enhancement under § 939.62.

2. Double Jeopardy

The complaining witness, J.T., testified that on September 13, 1991, Kruzycki invited her to his apartment that evening. When she arrived, Kruzycki had the lights out, candles burning and music playing. They sat down at a table and talked, drank coffee and smoked cigarettes. After fifteen to twenty minutes, J.T. got up to make a telephone call. The telephone sat on a mattress in the corner of the one-room efficiency. J.T. sat on the edge of the mattress to make her call. Before she could finish dialing, something heavy and hard hit her head and she fell onto the mattress. She realized Kruzycki was on top of her. At knife point, he ordered her, "Do exactly as I tell you and you won't get hurt." He bound, gagged and blindfolded her and cut off some of her clothes. He performed cunnilingus on her for about ten minutes, and then he engaged in vaginal...

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