State v. Theriault
| Decision Date | 17 August 1994 |
| Docket Number | No. 93-3443-CR,93-3443-CR |
| Citation | 187 Wis.2d 125,522 N.W.2d 254 |
| Court | Wisconsin Court of Appeals |
| Parties | STATE of Wisconsin, Plaintiff-Respondent, v. Jeffrey Lee THERIAULT, Defendant-Appellant. |
Before ANDERSON, P.J., and BROWN and NETTESHEIM, JJ.
This case again requires us to consider the obligation on the State when it alleges that a defendant is a habitual criminal. We conclude that when the State is put on notice that a defendant does not admit to the habitual criminality allegation, it must provide proof beyond a reasonable doubt of the defendant's repeater status. We also hold that the notation of a judgment of dismissal on the judgment of convictions fulfills the elementary requirement that every case must have written documentation of the disposition of each count charged.
Jeffrey Lee Theriault was facing multiple felony and misdemeanor counts arising out of the daylight burglary of a residence in Walworth County when he entered into a plea agreement with the State. The parties' agreement was that Theriault would plead guilty or no contest to one count of armed burglary, § 943.10(1)(a) and (2)(a), S TATS., one count of operating a motor vehicle without the owner's consent (OMVWOC), § 943.23(3), S TATS., and one count of resisting an officer, § 946.41(1), S TATS. In exchange for the plea, the State would dismiss ten other counts that would not be considered read-ins, the parties would jointly request a presentence investigation (PSI), and the parties would be free to argue the length of any sentence.
The information also alleged that "invoking the provisions of Sec. 939.62(1)(c), Wis.Stats., the defendant is a repeater in that he was convicted of the felony crime of Felon Possessing a Firearm on March 20, 1987, and the penalty is enhanced." In anticipation of a plea hearing, Theriault completed a guilty plea questionnaire with the assistance of his attorney. In the questionnaire, Theriault admitted that there was a factual basis for the three crimes he was pleading to. The questionnaire did not contain any admission as to Theriault's prior convictions or repeater status.
At the plea hearing, the trial court asked Theriault questions directed at the plea questionnaire and his general background. The trial court asked if Theriault understood the maximum penalty for each count:
At this stage, the prosecutor stated that he would make a certified copy of Theriault's last judgment of conviction from Jefferson County available to the author of the PSI. The prosecutor no doubt anticipated that the author could file the certified judgment of conviction at the court's request.
Theriault's trial counsel then told the trial court, "And secondly, with the comments [Theriault] made regarding the penalties, what they are pursuant to statute I understand there may be some other allegation but it may be somebody else's burden of proof."
The PSI cataloged a lengthy criminal record dating back to 1972. The PSI also described a sentence imposed in Jefferson County in 1986; however, it did not set forth specific information as to the date of conviction, date of incarceration or date of release from custody. The trial court found that the PSI was inadequate, stating
At sentencing the trial court imposed a twenty-five year sentence on the armed burglary charge concurrent to any time being served by Theriault; consecutive prison time was imposed on the other two counts but stayed and Theriault was placed on ten years of probation consecutive to the prison term for armed burglary. The judgment of convictions also contained a notation that ten enumerated counts were dismissed.
Theriault filed a motion for relief under RULE 809.30, STATS., seeking a reduction of the enhanced penalties on the grounds that the repeater portions of the sentence were not authorized by law because he had not admitted to the prior conviction and the State had failed to prove the prior conviction. He also sought to have the judgment of convictions amended by striking the notations as to the ten dismissed counts.
The trial court denied the motion as to the enhanced penalties by order dated December 9, 1993, finding that at the plea hearing Theriault was fully aware of what was alleged in the complaint and the potential penalties and that at sentencing Theriault admitted to the prior conviction. The court characterized as an admission a statement in which Theriault accepted responsibility for his past behavior and "the crimes that I'm accused of here today," along with Theriault's admission, "I do admit to having done the crimes that I'm accused of." The trial court also denied Theriault's motion to amend the judgment of convictions in a separate order dated December 15, 1993, finding that the notations served as the required legal judgment of dismissal.
The first issue is whether the penalty enhancer imposed was void as a matter of law. To answer this question, we must apply §§ 939.62 and 973.12, S TATS., to an undisputed set of facts. See State v. Zimmerman, 185 Wis.2d 549, 554, 518 N.W.2d 303, 304 (Ct.App.1994). This is a question of law that we review de novo and we do not owe any deference to the decision of the trial court. See id.
On appeal, Theriault contends that the State failed to carry the burden in proving that he was a habitual criminal subject to the enhanced penalties. The State does not respond directly to Theriault's argument; rather, relying on State v. Rachwal, 159 Wis.2d 494, 465 N.W.2d 490 (1991), the State frames the issue as whether Theriault's no contest plea constitutes an admission of his repeater status.
We have recently rejected the State's argument that a guilty plea always constitutes an admission to a repeater allegation that relieves the State of its burden of proving the underlying conviction. In Zimmerman, we pointed out that the Rachwal court "expressly recognized that a guilty plea may not constitute an admission if the judge fails to conduct the proper questioning so as to ascertain the meaning and potential consequences of such a plea." Zimmerman, 185 Wis.2d...
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