State v. Liebnitz, 98-2182.

• Decision Date: 21 December 1999
• Docket Number: No. 98-2182.,98-2182.
• Citation: 231 Wis.2d 272,603 N.W.2d 208
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. David C. LIEBNITZ, Defendant-Appellant.
• Court: Wisconsin Supreme Court

231 Wis.2d 272

603 N.W.2d 208

STATE of Wisconsin, Plaintiff-Respondent, v. David C. LIEBNITZ, Defendant-Appellant.

No. 98-2182.

Supreme Court of Wisconsin.

Oral argument October 12, 1999.

Decided December 21, 1999.

For the defendant-appellant there were briefs (in the court of appeals) by Rex R. Anderegg and Anderegg & Mutschler, LLP, Milwaukee and oral argument by Rex R. Anderegg.

For the plaintiff-respondent the cause was argued by Gregory M. Posner-Weber, assistant attorney general with whom on the brief was James E. Doyle, attorney general.

¶ 1. WILLIAM A. BABLITCH, J.

Defendant David C. Liebnitz (Liebnitz) was charged with multiple felony counts and as a habitual criminal (a repeat offender or repeater) pursuant to Wis. Stat. § 939.62 (1991-92).¹ Liebnitz and the State of Wisconsin (State) subsequently entered into an agreement in which Liebnitz agreed to enter a plea of no contest. The agreement included a sentencing recommendation that could be attained only through application of the repeater statute. The circuit court accepted Liebnitz's no contest plea and imposed the recommended penalty.

[1]

¶ 2. Liebnitz now contends that the years of incarceration attributable to his status as a repeater are void. To sentence a defendant as a repeater, Wis. Stat. § 973.12(1)² requires the State to prove, or the defendant to admit, any prior convictions that form the basis of the defendant's repeater status. Liebnitz contends that § 973.12(1) was not satisfied in his case. We disagree. The record establishes that Liebnitz fully understood the nature of the repeater charge. Based upon the totality of the record, we conclude that Liebnitz's plea to the information constituted an admission under § 973.12. Therefore, we affirm the circuit court order denying his motion to void an excess sentence not authorized by law. ¶ 3. The facts in this case are not in dispute. On August 27, 1992, Liebnitz was in an automobile collision in which three people were killed and two were seriously injured. Liebnitz was also injured in the crash.

¶ 4. On the following day, the State charged Liebnitz with three felony counts of homicide by negligent operation of a vehicle³ and two counts of causing great bodily harm by negligent operation of a vehicle.⁴ With each of these five counts, the criminal complaint charged Liebnitz as a repeat offender under Wis. Stat. § 939.62.⁵ Each repeater charge in the criminal complaint set forth the facts supporting its application to Liebnitz. Liebnitz does not challenge the accuracy or specificity of the repeater provisions detailed within the complaint.

¶ 5. Liebnitz appeared before the Washington County Circuit Court for a hearing on August 31, 1992. At the hearing, Liebnitz, through his counsel, received a copy of the criminal complaint.

¶ 6. Although Liebnitz's counsel waived reading of the complaint, the circuit court judge proceeded to read the charges and the repeater allegations:

THE COURT: Mr. Liebnitz, what Count 1 says is that on August 27, 1992, in the Town of Jackson, in Washington County, you did feloniously cause the death of John Talbot by the negligent operation or handling of a vehicle. Do you understand the nature of the charge?

MR. LIEBNITZ: Yes, I do.

THE COURT: The penalty, if you are convicted, is one for which you could be fined not to exceed $10,000.00 or imprisonment not to exceed two years, or both. Do you understand the nature of the penalties?

MR. LIEBNITZ: Yes.

THE COURT: I should advise you further that the complaint further alleges that pursuant to the statutes, you are a repeater in that you were convicted of a felony being the delivery of a controlled substance contrary to the law in that on March 27, 1989, you were in possession with intent to deliver a controlled substance as a subsequent offender contrary to the law and that on October 17, 1989, and therefore by virtue of your repeater status under the section of the statute, the above penalty is enhanced or increased by six years so that the maximum possible penalty can be imprisonment for a term not to exceed eight years. Do you understand the possible enhancement of the penalty involved here?

MR. LIEBNITZ: Yes, sir.

THE COURT: Further, it indicates that on August 27, 1992 in Count 2 in the Town of Jackson, Washington County, you did feloniously cause the death of Dolores M. Harrigan by the negligent operation or handling of a vehicle. Do you understand the nature of this charge?

MR. LIEBNITZ: Yes.

THE COURT: And you should be further advised that if you are convicted of this charge, there could be a penalty of a fine not to exceed $10,000.00, or imprisonment not to exceed two years or both. Do you understand the nature of this charge and the possible penalties?

MR. LIEBNITZ: Yes.

THE COURT: The criminal complaint further says with reference to Count 2 that you are a repeater in that you were convicted of felonies being the delivery of a controlled substance contrary to the section of the statutes and alleges that on October 17, 1989 and therefore, by virtue of your repeater status under the section of the Wisconsin Statutes, the penalty is enhanced by six years so that the maximum possible imprisonment is for a term not to exceed eight years. Do you understand the increased or enhanced penalty?

MR. LIEBNITZ: Yes.

THE COURT: Count 3 says that on August 27, 1992 in the Town of Jackson, Washington County, Wisconsin, you did feloniously cause the death of Mark A. Talbot by the negligent operation or handling of a vehicle. Do you understand the nature of this charge?

MR. LIEBNITZ: Yes.

THE COURT: If you should be found guilty of this charge, you could be fined not to exceed $10,000.00 or imprisonment not to exceed two years or both under the law. Do you understand those penalties?

MR. LIEBNITZ: Yes.

THE COURT: Again with respect to Count 3, it goes on to further say and indicate that pursuant to the statutes of Wisconsin, you are a repeater in that you were convicted of felonies, and again it indicates the delivery of a controlled substance contrary to the law in that on March 27, 1989, you were in possession with intent to deliver a controlled substance as a subsequent offender, again contrary to the law in that on October 17, 1989, and therefore by virtue of your repeater status under the statute, the above penalty is enhanced by six years so that the maximum possible imprisonment is for a term not to exceed eight years. Do you understand the possible enhanced and increased penalty?

MR. LIEBNITZ: Yes.

THE COURT: Count 4 says that on August 27, 1992, in the Town of Jackson, Washington County, you did feloniously cause great bodily harm to Merry L. Talbot, by the negligent operation of a vehicle. Do you understand the nature of this charge?

MR. LIEBNITZ: Yes.

THE COURT: You should know that if you are found guilty of this charge, there could be a fine of not less that [sic] $600.00 nor more than $2,000.00 and you may be imprisoned for not less than 90 days nor more than 18 months contrary to the Wisconsin statutes. Do you understand the penalty?

MR. LIEBNITZ: Yes.

THE COURT: It further indicates that in connection with Count 4, that you are a repeater in that you were convicted of felonies being the delivery of a controlled substance contrary to the law on March 27, 1989 and possession with intent to deliver a controlled substance as a subsequent offender on October 17, 1989, and the above penalty is enhanced or increased by six years to that the maximum possible imprisonment is for a term not to exceed 7 years 6 months. Do you understand these penalties?

MR. LIEBNITZ: Yes.

THE COURT: Further, it alleges in Count 5 that on August 27, 1992 in the Town of Jackson, Washington County, you did feloniously cause great bodily harm to Mary D. Talbot by the negligent operation of a vehicle. Do you understand the nature of this charge?

MR. LIEBNITZ: Yes.

THE COURT: The penalty in connection with this, if you should be found guilty or convicted, is that you could be fined not less than $600.00 nor more than $2,000.00, and may be imprisoned for not less than 90 days nor more than 18 months under the section of the Wisconsin Statutes. Do you understand these possible penalties?

MR. LIEBNITZ: Yes.

THE COURT: Further in connection with Count 5, it further indicates that pursuant to a section of the Wisconsin Statutes, you are a repeater in that you were convicted of felonies being the delivery of a controlled substance, that is the delivery of a controlled substance, on March 27, 1989 and possession with intent to deliver a controlled substance as a subsequent offender contrary to the section of the statutes and that on October 17, 1989, and therefore by virtue of your repeater status under the section of the Wisconsin statutes, the above penalty is enhanced by six years so that the maximum possible imprisonment is for a term not to exceed 7 years 6 months. Do you understand the nature and the enhancement of the increased penalty?

MR. LIEBNITZ: Yes, sir.

¶ 7. An arraignment was held on October 16, 1992. The information was served, filed, and defense counsel acknowledged receipt of a copy of that document. The information individually listed each count, and its related repeater charge, being brought against Liebnitz. Liebnitz entered a plea of not guilty.

¶ 8. Subsequently, the parties reached a plea agreement. The written plea agreement, filed with the circuit court on February 8, 1993, set forth a sentencing recommendation that provided for consecutive, enhanced sentences on counts one through three (four years on each count) and consecutive, statutory maximum sentences on counts four and five (18 months on each count). On February 26, 1993, Liebnitz completed a Request to Enter Plea and Waiver of Rights form and filed it with the court. On the form, Liebnitz acknowledged that he understood that the possible maximum penalties that he faced upon his conviction were eight years each for counts one, two and...