State v. Pham, No. 86-0460-CR

• Court: United States State Supreme Court of Wisconsin
• Writing for the Court: CALLOW
• Citation: 137 Wis.2d 31,403 N.W.2d 35
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. Hoa Duc PHAM a/k/a Lee Pham, Defendant-Appellant.
• Decision Date: 01 April 1987
• Docket Number: No. 86-0460-CR

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403 N.W.2d 35 137 Wis.2d 31 STATE of Wisconsin, Plaintiff-Respondent,
v.
Hoa Duc PHAM a/k/a Lee Pham, Defendant-Appellant. No. 86-0460-CR. Supreme Court of Wisconsin. Submitted on Briefs Jan. 7, 1987.
Opinion filed April 1, 1987.

[137 Wis.2d 32] William J. Tyroler, Asst. State Public Defender, for defendant-appellant.

Mary Batt, Asst. Atty. Gen., Bronson C. La Follette, Atty. Gen., for plaintiff-respondent.

CALLOW, Justice.

This is an appeal from an order of the circuit court for Waukesha county, Judge Mark S. Gempeler, denying a post-conviction motion for resentencing. This appeal was certified by the court of appeals and accepted by this court pursuant to sec. (Rule) 809.61, Stats.

The issue on appeal is whether sec. 972.13, Stats., requires the entry of a judgment of conviction prior to sentencing. Because we conclude that a written judgment of conviction is not a prerequisite to sentencing, we affirm the order of the circuit court.

Pursuant to a plea bargain, Hoa Duc Pham (Pham) on August 12, 1985, pled guilty to two counts of armed/masked robbery. The details of the plea [137 Wis.2d 33] bargain are not before this court on appeal, and therefore we omit them. After a colloquy between

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Judge Gempeler and Pham for the purpose of determining whether Pham understood his plea, Judge Gempeler accepted Pham's plea. Following a stipulation to the facts, the court stated: "Based upon those offers with stipulation from the defense the Court will find the defendant guilty of masked and armed robbery as to Counts 1 and 2 in the information." With the parties approval, the court proceeded to impose sentence. A written judgment of conviction was not entered prior to sentencing.

Pham subsequently filed a post-conviction motion for resentencing on the ground that the court lacked jurisdiction to impose sentence "due to a lack of compliance with sec. 972.13, Stats." According to Pham, sec. 972.13 requires that sentencing be "upon a judgment of conviction." Pham thus argued that the sentence was jurisdictionally void because it was based upon a finding of guilt, not a judgment of conviction. On February 19, 1986, the circuit court summarily denied Pham's post-conviction motion.

Pham filed an appeal to the court of appeals on March 6, 1986. The appeal was certified by the court of appeals to this court and was accepted on October 14, 1986.

We must determine in this case whether sec. 972.13, Stats., ¹ requires that a formal written judgment[137 Wis.2d 34] of conviction be entered prior to sentencing. Our determination of this issue involves the construction of a statute and is thus a question of law. State v. Nordness, 128 Wis.2d 15, 24, 381 N.W.2d 300 (1986). Accordingly, we need not defer to the decisions of the lower courts. Id.

Our purpose in engaging in statutory construction is to ascertain and give effect to the intent of the legislature. DeMars v. LaPour, 123 Wis.2d 366, 370, 366 N.W.2d 891 (1985). In determining legislative intent, we first look to the language of the statute itself. In Interest of P.A.K., 119 Wis.2d 871, 878, 350 N.W.2d 677 (1984). If the language of the statute is ambiguous, we examine the scope, history, context, subject matter, and object of the statute to discern the legislative intent. Id. Furthermore, we must interpret a statute in such a way as to avoid an absurd or unreasonable result. DeMars, 123 Wis.2d at 370, 366 N.W.2d 891.

We agree with the parties that sec. 972.13, Stats., is ambiguous. Section 972.13(2) provides that "upon a judgment of conviction the court shall either impose or withhold sentence." This section, standing alone, appears to require that a judgment of conviction exist [137 Wis.2d 35] before sentencing may be imposed. However, sec. 972.13(3) requires that "[a] judgment of conviction shall...