State v. Powell

• Decision Date: 08 February 2012
• Docket Number: No. 2011AP1263–CR.,2011AP1263–CR.
• Parties: STATE of Wisconsin, Plaintiff–Respondent, v. Charles J. POWELL, Defendant–Appellant.
• Court: Wisconsin Court of Appeals

340 Wis.2d 498
812 N.W.2d 540
2012 WI App 40

STATE of Wisconsin, Plaintiff–Respondent,
v.
Charles J. POWELL, Defendant–Appellant.

No. 2011AP1263–CR.

Court of Appeals of Wisconsin.

Feb. 8, 2012.

Appeal from a judgment and an order of the circuit court for Racine County: Faye M. Flancher, Judge. Judgment modified and as modified, affirmed; order affirmed and cause remanded with directions.
Before NEUBAUER, P.J., REILLY and GUNDRUM, JJ.¶ 1PER CURIAM.

Charles Powell appeals a judgment of conviction and an order denying his postconviction motion. He contends that because the criminal information and judgment reference the wrong statutory paragraph, his conviction for felon in possession of a firearm should be vacated and the charge dismissed. He also claims that the sentencing court erroneously exercised its discretion in sentencing him to consecutive terms on crimes that involved the same act. We reject his claims. We modify the judgment of conviction and direct that on remand the judgment be corrected to reflect the correct statutory paragraph; we affirm the judgment as modified and affirm the order denying postconviction relief.

¶ 2 Powell was charged with eight crimes after he entered, without permission, the home of his former housemate and the mother of his child and armed himself with a gun found in the home. He held the gun to the victim's head and threatened to kill her. When he pulled the trigger, the gun did not fire because there was no bullet in the chamber. The victim said Powell loaded the gun. Powell forced the victim out to her car and when the victim was able to prevent Powell from entering the car, Powell ran off with the victim's keys and gun. Pursuant to a plea agreement, Powell entered a no-contest plea to four charges: possession of a firearm by a felon, pointing a firearm at another (a misdemeanor), theft, and false imprisonment.¹ The other charges, including a charge for attempted intentional homicide, were dismissed as read-ins at sentencing.

¶ 3 Powell's first appellate issue relates to his conviction of possession of a firearm by a felon. The criminal complaint charged this as a violation of Wis. Stat. § 941.29(2)(a) (2009–10),² which provides that a person is guilty of a felony if he or she possesses a firearm subsequent to being convicted of a felony. The complaint recited that Powell had previously been “adjudicated delinquent of felony first-degree recklessly endangering safety.” The criminal information also charged Powell with a violation of § 941.29(2)(a). At the plea hearing it was confirmed that Powell's underlying record for the felon-in-possession charge was a felony delinquency adjudication when Powell was twelve years old. Powell personally confirmed the prior felony delinquency adjudication. The judgment of conviction indicates that Powell violated § 941.29(2)(a).

¶ 4 In reality, Powell violated Wis. Stat. § 941.29(2)(b), which provides that a person is guilty of a felony if he or she possesses a firearm subsequent to being adjudicated delinquent for an act that if committed by an adult would be a felony. See also§ 941.29(1)(bm). Powell points out that because his underlying record supporting the felon-in-possession charge was a juvenile delinquency adjudication, the proper statutory reference for the crime must be to paragraph (b), not (a). His postconviction motion sought to withdraw his guilty plea. He argues that he entered a no-contest plea to a crime he did not commit because he was not previously convicted of a felony.

¶ 5 No objection was made to the information's citation to the wrong statutory paragraph. Wisconsin Stat. § 971.31(2) provides that “defenses and objections based on defects in the institution of the proceedings, insufficiency of the complaint, information or indictment ... shall be raised before trial by motion or be deemed waived.” Wisconsin Stat. § 971.26 provides that “[n]o indictment, information, complaint or warrant shall be invalid, nor shall the ... judgment or other proceedings be...