State v. Rachwal

Decision Date23 January 1991
Docket NumberNo. 89-1198-CR,89-1198-CR
Citation159 Wis.2d 494,465 N.W.2d 490
PartiesSTATE of Wisconsin, Plaintiff-Respondent-Cross Petitioner, v. Sterling RACHWAL, Defendant-Appellant-Petitioner.
CourtWisconsin Supreme Court

Steven D. Phillips, Asst. State Public Defender, for defendant-appellant-petitioner.

David J. Becker, Asst. Atty. Gen. (argued), Donald J. Hanaway, Atty. Gen. (on brief), for plaintiff-respondent-cross petitioner.


There are two issues in this case. The first issue is whether a plea of no contest to a charge in a criminal complaint embodying a sec. 973.12(1), Stats., "repeater provision" alleging a prior conviction constitutes an admission by the defendant under the statute of such prior conviction for purposes of sentence enhancement pursuant to sec. 939.62. The circuit court for Outagamie County, the Joseph M. Troy, Judge, ruled that such a plea does constitute such an admission.

The second issue is whether, when two criminal actions are joined on motion of the defendant, does the admission of the repeater status alleged in one charge apply also as an admission with respect to the same repeater status alleged in the other charge. The trial court answered in the affirmative. The court of appeals, in an unpublished opinion, reversed and remanded the case for resentencing on the conviction on the charge originating in Outagamie county. 154 Wis.2d 523, 454 N.W.2d 809. We reverse the court of appeals.

* * * * * *

The defendant, Sterling Rachwal, was charged in Outagamie county with a felony offense for alleged intentional mistreatment of an animal resulting in the death of the animal, contrary to secs. 948.02 and 948.18(1), Stats.1985-86 (now ch. 951). The information included a sec. 973.12(1), 1 charge pursuant to sec. 939.62. 2 There is no issue as to whether the "prior convictions" of which sec. 973.12(1) speaks were specifically and accurately set forth within the "repeater provision." The defendant pleaded not guilty to the charge and waived his right to trial by jury. He was found guilty after a bench trial and was convicted accordingly.

Prior to sentencing, the defendant filed what he denominated as an "Application for Consolidation from Waupaca County," pursuant to sec. 971.09, Stats. 3 In his "application," the defendant admitted his guilt as to a misdemeanor charge pending in Waupaca county and "made application to the District Attorney of Waupaca County and to the District Attorney of Outagamie County ... to be charged with the [misdemeanor], committed in Waupaca County, so that he may plead guilty and be sentenced therefore in Outagamie County."

The Waupaca county complaint contained essentially the same sec. 973.12(1), Stats., "repeater provision" found in the Outagamie county information, setting forth the factual predicate for sec. 939.62 sentence enhancement. As is the case with respect to the Outagamie county information, there is no issue as to whether the "repeater provision" set forth the alleged prior convictions specifically and accurately in the Waupaca county complaint.

The complaint's "repeater provision" specifically alleged that the defendant had been convicted on four misdemeanor charges within the five-year period immediately preceding the commission of the alleged offense on which the complaint was based. Again, these were the very same allegations made in the Outagamie county "repeater provision." The complaint alleged:

Further, invoking the provisions of sec. 939.62(1)(a) Wisconsin Statutes, the defendant was previously duly convicted of the following offenses in Waupaca County Circuit Court: Convicted of three counts of the misdemeanor crime of mistreating animals, contrary to sec. 948.02 and sec. 948.18(1), Wisconsin Statutes on September 8, 1983, 4 and of one count of the misdemeanor crime of mistreating an animal, contrary to sec. 948.02 and sec. 948.18(1), Wisconsin Statutes on July 26, 1984, which convictions remain of record and unreversed and, therefore, upon conviction of the charged offense and proof of repeater, may be fined not more than $10,000 or imprisoned not more than 3 years, or both.

Considering the defendant's sec. 971.09, Stats., "application for consolidation," the Outagamie county circuit court judge determined that the charge originating in Waupaca county had been properly and effectively combined with the Outagamie county proceeding under the statute for purposes of common disposition and judgment. In reaching this determination, the judge asked the defendant whether he understood that he had "then pending at this time a charge which was charged in Waupaca County but which you and your attorneys have agreed should be handled here in Outagamie County in this courtroom." The defendant responded, "yes." Having determined that a sec. 971.09 consolidation had taken place, the judge proceeded to question the defendant as to what plea the defendant wished to enter in response to the charge originating in Waupaca county.

The defendant's application for consolidation does not fit directly within the language of sec. 971.09, Stats. The statute requires a plea of guilty to both the primary case and the case being consolidated. In the instant case, the defendant did not plead guilty to the Outagamie county charge. He was found guilty by the court on that charge. However, this case provides a logical extension of the legislative language of sec. 971.09, in that having been found guilty of the Outagamie county charge, the defendant be allowed to petition for consolidation of the Waupaca charge. The plea in the Outagamie county case had already been resolved from a not guilty plea to a guilty finding. The parties did not argue the limiting language of sec. 971.09 to guilty pleas on each charge. The consolidation was done at the request of the defendant and for his convenience after the guilty finding in the case in Outagamie county.

The trial judge expressly drew the defendant's attention to the factual allegations contained in the "repeater provision," according to which the defendant was subject to sentence enhancement if convicted. For instructive purposes, the trial judge specifically referred the defendant to the particularly clear statement of the "repeater provision" originally set forth with the misdemeanor charge initiated in Waupaca county, which charge now was contained within the sec. 971.09, Stats., consolidated proceeding. He advised the defendant that in light of the alleged prior convictions, he faced, for example, up to an additional three years in prison on the misdemeanor charge alone, if convicted of that charge. The judge stated to the defendant:

It is charged as a misdemeanor which means that for the offense alone there would be normally up to a nine-month jail sentence and a $10,000 fine or both. But the complaint and charge against you includes allegations that you have previously been convicted sufficiently so that this would be considered a repeater type of an offense which would increase the penalties up to a maximum of zero to three years in prison, from no fine but up to $10,000 in fine or both. Those are the possible penalties that you would face if you would enter a plea to this charge. Do you understand that?

The defendant answered, "Yes."

The court proceeded to ascertain that there had been no plea agreement with the state. The judge informed the defendant of the specific constitutional rights he would be waiving by submitting a plea in conformity with sec. 971.09, Stats., and he ascertained the defendant's understanding of the nature of those rights. The judge then asked the defendant for his plea to the misdemeanor charge. The defendant pleaded no contest or nolo contendere. The court again ascertained the defendant's understanding of the nature of the charge and the fact that, in light of the repeater allegations, any penalties incurred in the action might be enhanced as a result of being found guilty. Determining the defendant was entering his no contest plea freely, voluntarily and intelligently in these matters, 5 the court accepted the plea and found the defendant guilty as charged. The trial judge could have demanded that a guilty plea to the Waupaca county charge be entered to statutorily complete the provisions of sec. 971.09. 6 While in the course of taking the defendant's plea the court drew the defendant's attention specifically to the repeater provision, the judge did not directly ask the defendant whether the specified prior convictions existed; nor did the defendant specifically acknowledge the prior convictions. The state offered no proof of any prior conviction of the defendant.

The court proceeded to sentencing on both the felony charge originating in Outagamie county, of which the defendant had been found guilty and convicted, and the misdemeanor charge originating in Waupaca, to which the defendant had pled no contest. The court imposed consecutive, maximum sentences on each of the convictions, fully utilizing the repeater enhancement authorized by sec. 939.62, Stats., on both.

The defendant appealed the sentences arguing that pursuant to sec. 973.12(1), Stats., the evidence of the alleged prior convictions was insufficient to support the sentence enhancements under sec. 939.62. Regarding the sentence on the charge that originated in Outagamie county, the court of appeals agreed with the defendant, holding that the evidence was not sufficient to support the enhanced sentence. The court determined that there had been no proof by the state and no admission by the defendant of the prior convictions alleged in the Outagamie county information. However, the court of appeals upheld the sentence on the charge originating in Waupaca county. Noting that the defendant pleaded no contest to the charge in Waupaca county, the court of appeals found what it called a "constructive admission," determining that such a plea "admits matters...

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