State v. Martin
| Decision Date | 24 June 1991 |
| Docket Number | 89-1769-CR,Nos. 89-1459-C,s. 89-1459-C |
| Citation | 162 Wis.2d 883,470 N.W.2d 900 |
| Parties | STATE of Wisconsin, Plaintiff-Respondent-Cross-Petitioner, v. Stanley E. MARTIN, Jr., Defendant-Appellant. STATE of Wisconsin, Plaintiff-Respondent-Petitioner, v. Jose L. ROBLES, Defendant-Appellant. |
| Court | Wisconsin Supreme Court |
James M. Freimuth, Asst. Atty. Gen., argued, Donald J. Hanaway, Atty. Gen., on the briefs, for plaintiff-respondent-petitioner and cross-petitioner.
Marla J. Stephens, Asst. State Public Defender, argued, Mark Lukoff, First Asst. State Public Defender, on brief, for defendant-appellant.
These cases, on review of separate decisions of the court of appeals, have been consolidated and raise the single issue whether a criminal charging document can be amended to assert a repeater allegation under sec. 973.12(1), Stats., after a defendant has pleaded not guilty to the underlying charges at arraignment. 1 In each case the court of appeals held that the repeater amendment could not be made after the entry of a not guilty plea. 2 We agree that the repeater amendments were untimely and affirm both decisions.
The material facts and procedural history of each case are undisputed. On April 14, 1987, Stanley E. Martin was charged by criminal complaint with second degree sexual assault. The complaint did not contain any allegation of habitual offender, "repeater," status pursuant to sec. 939.62, Stats. At Martin's initial appearance on April 24, 1987, the assistant district attorney did inform the court, however, of Martin's two prior felony convictions, the sentences he received for those convictions, and that there was a hold on him for a parole violation.
Following a preliminary hearing, the state filed an information on May 6, 1987, charging Martin with second degree sexual assault. The information did not contain any repeater allegations. On that same day, Martin was arraigned and pleaded not guilty to the felony charge set forth in the information.
Thereafter the state filed a motion to amend the information in order to allege Martin's repeater status. On July 10, 1987, the court granted the state's motion over the defendant's objection. The court ruled that, pursuant to sec. 971.29, Stats., an information could be amended to include a repeater allegation after arraignment where there is no prejudice to the defendant. 3
On November 17, 1988, following a four-day trial, a jury found Martin guilty of one count of second degree sexual assault. Judgment of conviction was entered on November 21, 1988, at which time Milwaukee County Circuit Court Judge John F. Foley sentenced defendant as a repeat offender under sec. 939.62 to a prison term of sixteen years.
Martin appealed the judgment of conviction, alleging various trial court errors. The court of appeals affirmed the conviction but ordered vacation of the repeater amendment and that part of defendant's sentence affected by repeater enhancement, i.e., six of the sixteen year prison term. In a published opinion, the court of appeals held that sec. 973.12(1), Stats., controlled the more general sec. 971.29 and only permitted the state to amend a charging document in order to add a repeater allegation prior to arraignment and acceptance of a defendant's plea. 156 Wis.2d at 406-07, 456 N.W.2d 892. Because the repeater amendment was untimely, the court of appeals vacated the repeater enhancement portion of Martin's sentence. Id. at 408, 456 N.W.2d 892.
The relevant facts and posture of the other consolidated case are similar. On January 17, 1989, the state filed a complaint charging Jose L. Robles with aggravated battery and obstructing an officer. The complaint did not contain any repeater allegation. The state knew of Robles' true identity prior to the issuance of the compaint as he was identified on the basis of fingerprints on file with the Racine Police Department.
Thereafter the state filed an information containing the aggravated battery and obstructing charges. The information also failed to allege any repeater status. Robles was arraigned on February 10, 1989, and pleaded not guilty to the charges set forth in the information.
On the first day of trial, April 18, 1989, the state filed a motion to amend the information alleging habitual criminality history. The state claimed it had problems locating "all three of the misdemeanor prior cards" pertaining to Robles. Over the defendant's objection, Racine County Circuit Court Judge Jon B. Skow reluctantly permitted the amendment. The court reasoned that a denial of the motion would "inappropriately punish the State for perhaps inattention in case preparation" and that Robles' ability to defend would not be affected because he obviously was aware of his own criminal record.
At the completion of the trial on April 20, 1989, the jury found Robles guilty of the charges. Judgment of conviction was entered on May 24, 1989, at which time Judge Skow sentenced Robles as a repeater to a combined total of six years for the two crimes.
Robles appealed the judgment of conviction on several grounds. In a published opinion, the court of appeals affirmed the conviction but, based on the Martin decision, vacated the repeater enhancement portion of Robles' sentence because the information was not amended in a timely fashion. 157 Wis.2d at 63-64, 458 N.W.2d 818.
The state petitioned for review of both the Martin and Robles decisions, and we granted the petitions and ordered the two cases consolidated.
The single issue raised on appeal in both cases is whether an information can be amended under sec. 973.12(1), Stats., to assert a repeater allegation after a defendant has pleaded not guilty to the underlying charges at arraignment. 4 The resolution of this issue depends on the interpretation of a statute, a question of law to be decided by this court without deference to the lower courts. State v. Eichman, 155 Wis.2d 552, 560, 456 N.W.2d 143 (1990).
The state argues that sec. 973.12(1), Stats., is ambiguous and should be construed to allow trial courts to exercise discretion on whether to permit repeater amendments after a defendant is arraigned. The state asserts that such a result should be reached by construing the statute in either of two ways.
First, the state contends that sec. 973.12(1), Stats., only establishes the time frame when a prosecutor can in its unilateral discretion and without leave of court add a repeater allegation to a charging document, i.e., "any time before or at arraignment, and before acceptance of any plea." The state asserts that sec. 973.12(1) does not expressly preclude a trial court from allowing a repeater amendment after arraignment and plea-acceptance and that the statute could reasonably be interpreted to permit such an amendment with leave of court where the defendant cannot show that he or she is thereby prejudiced.
The state urges us to harmonize sec. 973.12(1) with sec. 971.29, Stats., which we construed in Whitaker v. State, 83 Wis.2d 368, 265 N.W.2d 575 (1978), to generally allow post-arraignment amendments where there is no prejudice to a defendant. It is argued that there might be various situations where the state would not timely allege prior convictions and where such trial court discretion would be necessary or beneficial, e.g., where the defendant has used an alias or the prosecutor has simply been inattentive.
Second, the state contends, although admittedly as somewhat of a fallbackposition that the phrases, "acceptance of any plea" and "accepting a plea," in sec. 973.12(1), Stats., are ambiguous and should be given their technical or peculiar legal meaning and not refer to the one plea which is not "accepted" but only "entered"--a not guilty plea. The state points to legislative history and refers to our decision in Block v. State, 41 Wis.2d 205, 211, 163 N.W.2d 196 (1968), where we noted that the pertinent statutory amendment to sec. 973.12(1) "eliminated the possibility of a plea of guilty and a subsequent charge of being a repeater." Because the second sentence of sec. 973.12(1) expressly allows a court to grant a district attorney "a reasonable time to investigate possible prior convictions before accepting a plea," the state asserts that the statute directly authorizes a repeater amendment after the entry of a not guilty plea as long as it is added prior to an acceptance of a guilty or no contest plea.
While the state has set forth some rather ingenious arguments, we are not persuaded that sec. 973.12(1), Stats., can be interpreted to permit repeater amendments where defendants already have been arraigned and have pleaded not guilty to informations not alleging any repeater status.
Before addressing the state's first proffered interpretation of sec. 973.12(1), Stats., we note that the purpose of statutory construction is to ascertain and give effect to the intent of the legislature. County of Columbia v. Bylewski, 94 Wis.2d 153, 164, 288 N.W.2d 129 (1980). In determining legislative intent, however, first resort must be to the language of the statute itself. State v. Derenne, 102 Wis.2d 38, 45, 306 N.W.2d 12 (1981). State v. Denter, 121 Wis.2d 118, 123, 357 N.W.2d 555 (1984). "A statute should be construed so that no word or clause shall be rendered surplusage and every word if possible should be given effect." Donaldson v. State, 93 Wis.2d 306, 315, 286 N.W.2d 817 (1980).
Our initial task, therefore, is to determine whether the plain language of sec. 973.12(1), Stats., is ambiguous and could reasonably admit to the state's first proffered construction. In relevant part, sec. 973.12(1) provides:
973.12...
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