State v. Lisner, 2015AP929–CR.
| Decision Date | 11 August 2016 |
| Docket Number | No. 2015AP929–CR.,2015AP929–CR. |
| Citation | 886 N.W.2d 592 (Table),371 Wis.2d 759 |
| Parties | STATE of Wisconsin, Plaintiff–Respondent, v. Brandon J. LISNER, Defendant–Appellant. |
| Court | Wisconsin Court of Appeals |
Brandon Lisner appeals an order denying a motion to vacate his sentence and an order denying his motion for reconsideration. Lisner contends that the repeater portion of his sentence should be vacated because the State did not prove the prior conviction forming the basis of his repeater status, and he did not admit to the prior conviction. For the reasons discussed below, we conclude that Lisner admitted to the prior conviction and, therefore, we affirm.
¶ 2 Lisner was initially charged with one count of arson, as a repeater. In an amended information, Lisner was subsequently charged with one count of arson and two counts of first-degree reckless endangerment, each as a repeater as a result of a prior felony conviction. Pursuant to a plea agreement, Lisner pled no contest to two counts of first-degree recklessly endangering the safety of another, class F felonies, each of which carried a maximum sentence of twelve and one-half years. See WIS. STAT. § 941.30(1)
(2009–10), and WIS. STAT. § 939.50(3)(f) (2009–10). One of those counts included a repeater enhancer, which increased the maximum sentence on that count by six years. See WIS. STAT. §§ 939.62(1)(c) (2009–10) and 973.12(1) (2009–10). On that count, Lisner was sentenced to an eighteen and one-half year sentence, consisting of thirteen and one-half years of initial confinement and five years' extended supervision. See WIS. STAT. § 973.01 (2009–10) ( bifurcated sentence).
¶ 3 Following sentencing, Lisner moved the circuit court to vacate that portion of his sentence attributable to his status as a repeater, on the ground that the State failed to prove, and he did not admit to, the prior conviction forming the basis for the repeater enhancer. The circuit court denied Lisner's motion, as well as Lisner's subsequent motion for reconsideration. Lisner appeals.
¶ 4 Lisner contends that the circuit court erred in denying his motion to vacate that portion of his sentence that is attributable to his status as a repeater. “To sentence a defendant as a repeater, WIS. STAT. § 973.12(1)
[ (1991–92) ] requires the State to prove, or the defendant admit, any prior convictions that form the basis of the defendant's repeater status.” State v. Liebnitz, 231 Wis.2d 272, 275, 603 N.W.2d 208 (1999). Lisner argues that the State did not prove, and he did not admit to, the prior conviction that forms the basis for his repeater status. For the reasons explained below, we conclude that Hill admitted to the prior conviction underlying his repeater charge.
¶ 5 A defendant's admission of a prior conviction may not “be inferred ... 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 (1984)
, and it is not enough for the defendant to merely admit that he or she is a “repeater.” State v. Watson, 2002 WI App 247, ¶ 5, 257 Wis.2d 679, 653 N.W.2d 520. However, cases addressing a defendant's admission to a prior conviction that forms the basis for a repeater charge establish that “a defendant's plea to a charge containing the repeater enhancer may constitute an admission to the prior convictions necessary to apply that enhancer.” State v. Hill, 2016 WI App 29, ¶ 13, 368 Wis.2d 243, 878 N.W.2d 709.
¶ 6 Lisner argues that his plea here did not constitute such an admission, but his argument is based on an incorrect reading of the two cases on which he relies, State v. Rachwal, 159 Wis.2d 494, 465 N.W.2d 490 (1991)
, and State v. Liebnitz, 231 Wis.2d 272, 603 N.W.2d 208 (1999). As we explain, in both those cases our supreme court concluded that a defendant's no contest plea constituted an admission to a prior conviction supporting a repeater charge based on the totality of the circumstances in the record before the court. See
Rachwal, 159 Wis.2d at 512, 465 N.W.2d 490 ; Liebnitz, 231 Wis.2d at 288, 603 N.W.2d 208. As we explain, we reach a similar conclusion here.1
, our supreme court concluded that the defendant's no contest plea constituted an admission to the prior convictions underlying the repeater enhancer in that case, where the defendant was fully and expressly informed that his no contest plea would subject him to the penalties to which his prior convictions and consequent repeater status rendered him liable. In Rachwal, the complaint specifically alleged that the defendant had been convicted of four prior misdemeanor charges, and the complaint included the dates of the prior convictions and the nature of the offenses. Id. at 500–01, 465 N.W.2d 490. During the plea colloquy, the defendant did not specifically acknowledge the prior convictions underlying the repeater enhancer in that case. Id. at 502–03, 465 N.W.2d 490. However, the circuit court drew the defendant's attention to the repeater provision of the complaint and advised the defendant of the increased penalty he faced as a result of the repeater enhancer. Id. at 502–03, 465 N.W.2d 490. The defendant affirmed that he understood the consequences of entering a plea to a charge containing a penalty enhancer. Id. The supreme court presumed that the defendant chose to enter a no contest plea “because he honestly knew the allegations as to his prior convictions to be true and because he considered it futile to require proof by the prosecution.” Id. at 511, 465 N.W.2d 490. The court explained that under these circumstances, “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.” Id. at 509, 465 N.W.2d 490.
¶ 8 Our supreme court reached a similar decision in Liebnitz. In Liebnitz, the complaint charged the defendant with five counts, each as a repeater. Liebnitz, 231 Wis.2d at 285–86, 603 N.W.2d 208
. The complaint set forth the nature of the previous convictions, including the date of conviction, and the number of years added to a possible term of imprisonment for each count as a result of the defendant's repeater status. Id. At the defendant's initial appearance, the circuit court read aloud the charges against the defendant, including the repeater allegation, and the court confirmed as to each charge that the defendant understood the penalty enhancement resulting from the repeater enhancer. Id. at 277–80, 286, 603 N.W.2d 208. During the plea colloquy for the defendant's no contest plea, the circuit court ascertained that the defendant understood the nature of the charges against him, and that the defendant understood the Request to Enter a Plea and Waiver of Rights form, on which the defendant acknowledged that a factual basis for his plea was established by the complaint and preliminary exam. Id. at 282, 286, 603 N.W.2d 208. The circuit court did not advise the defendant of the maximum penalties faced by entering his pleas, nor did the court confirm with the defendant that he had been convicted of the crimes set forth as the repeater offenses. Id. at 282, 284, 603 N.W.2d 208. However, the court did confirm with the defendant that he had chosen not to contest the allegations in the complaint. Id. at 286, 603 N.W.2d 208.
¶ 9 The supreme court explained that a guilty or no contest plea admits all material facts alleged in the charging documents, and that in the case before it, “the criminal complaint clearly set forth the repeater charge attached to each count ... and [the defendant] specifically stated on the record that he would not contest any allegation in the complaint.” Id. at 286–87, 603 N.W.2d 208
. The court concluded that the record demonstrated that the defendant “was fully aware of the repeater charge and its consequences” and that, based on the totality of the record, Liebnitz's plea to the information constituted an admission of his prior convictions supporting the repeater provision. Id. at 284–85, 288, 603 N.W.2d 208.
¶ 10 As in Rachwal and Liebnitz, we conclude that the totality of the record here demonstrates that Lisner was “fully aware” of the repeater allegation and its consequences when he entered his no contest plea, and therefore, his plea constituted an admission to his prior conviction. See id. at 285, 603 N.W.2d 208
.
¶ 11 The complaint and the amended information alleged that Lisner had committed the crime of arson as a repeater. Both the complaint and the amended Information contained the following language:
because the Defendant is a repeater, having been convicted of a Felony within the last 5 years, to wit: Oneida County Case No.2009–CF–63, which conviction remain of record and unreversed, the maximum term of imprisonment for the underlying crime may be increased by not more than 2 years if the prior convictions were for misdemeanors and not more than 6 years if the prior conviction was for a felony.
¶ 12 As pointed out by Lisner, the complaint and information do not specify the date of conviction. However, the omission of the conviction date is not fatal to a determination that Lisner understood the repeater allegation and admitted by virtue of his plea that he qualifies as a repeater.
¶ 13 In the present case, the charging documents specified the case number of the conviction on which the State relied to support the repeater enhancer. The State also attached to the complaint the CCAP record of the offense, which specified the case number and the offense for which Lisner had been found guilty, information that was already contained in the charging document. The numbers preceding the case-type designation indicate the year when the criminal complaint is issued, which, in this case, is 2009–CF–63. This number means that the prior conviction arose from a criminal case filed in 2009, which clearly falls within the five-year period required for that conviction to...
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