State v. Warbelton

• Decision Date: 20 February 2008
• Docket Number: No. 2007AP105-CR.,2007AP105-CR.
• Citation: 747 N.W.2d 717,2008 WI App 42
• Court: Wisconsin Court of Appeals
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. Jeffrey A. WARBELTON, Defendant-Appellant.<SMALL><SUP>&#x2020;</SUP></SMALL>

747 N.W.2d 717

2008 WI App 42

STATE of Wisconsin, Plaintiff-Respondent, v. Jeffrey A. WARBELTON, Defendant-Appellant.^†

No. 2007AP105-CR.

Court of Appeals of Wisconsin.

Submitted on Briefs November 15, 2007.

Opinion Filed February 20, 2008.

On behalf of the defendant-appellant, the cause was submitted on the briefs of Paul G. LaZotte, Assistant State Public Defender of Madison.

On behalf of the plaintiff-respondent, the cause was submitted on the brief of David J. Becker, Assistant Attorney General, and J.B. Van Hollen, Attorney General.

Before BROWN, C.J., ANDERSON, P.J., and SNYDER, J.

¶ 1 ANDERSON, P.J

Should a jury be allowed to hear evidence that a defendant has stipulated to having a previous conviction for a violent crime and should it be instructed to make a finding on that matter when the defendant is on trial for a charge of stalking, "while having a previous conviction for a violent crime" (as defined in WIS. STAT. § 939.632(1)(e)1. (2001-02))¹ in violation of WIS. STAT. § 940.32(2) and (2m)(a)? Under the facts of this case, the trial court answered "yes" to both questions. Jeffrey A. Warbelton contends that we should vacate all convictions before us because evidence that he had a previous conviction for a violent crime was improperly admitted and because the jury should not have been instructed to decide whether Warbelton had such a previous conviction. We do not agree and affirm the trial court. Warbelton's prior criminal history is an aggravating factor, not a penalty enhancer, and therefore it is an element of the crime; further, under the facts of this case, it was not error for the trial court to admit the evidence at trial, nor was it error to instruct the jury to make a finding on that matter.

¶ 2 The facts are not in dispute. In November 2005, Warbelton had a three-day jury trial on twelve criminal charges filed in three Winnebago county cases: Case Nos.2004CF634, 2005CF462 and 2004CF227. The trial court dismissed the five crimes charged in Case Nos. 2004CF634 and 2005CF462 after the jury found Warbelton not guilty. In Case No.2004CF227, the State filed an amended information that charged Warbelton with a total of seven crimes, each as a repeater.² In this case, he was convicted of six of the seven counts. At issue is his conviction for the count of stalking, "with a previous conviction for a violent crime," in violation of WIS. STAT. § 940.32(2) and (2m)(a).

¶ 3 Before trial and before the jury was brought into the courtroom, the trial court and the parties discussed whether Warbelton planned to stipulate to the fact that he had "a previous conviction for a violent crime" within the meaning of WIS. STAT. § 940.32(2m)(a). Regarding this matter, Warbelton's defense counsel stated:

We would not only stipulate to that but we would waive our right to a jury trial on that particular issue. I believe the nature of that element is more in the nature of a penalty enhancer rather than in what's typically a jury determination. We would be willing to stipulate not only to the prior acts but it's our position we would waive the jury trial on that particular issue.

¶ 4 The trial court then asked Warbelton whether he wanted to waive a jury trial on the question of whether he had a previous conviction for a violent crime. Warbelton confirmed that he did. The trial court then stated: "The court will find that the defendant is waiving his right to a jury trial with respect to the issue of — the additional element of establishing conviction of a violent crime, and therefore, I'll accept the waiver and will not try that issue."

¶ 5 The State took issue with the trial court's initial ruling:

Judge, one issue is that I believe the State needs to consent to a waiver of the jury trial.... So I believe that the consent of the State would be required to have a waiver of a jury trial on that issue as well, and at this point in time the State's not willing to waive the right to jury trial on that issue.

¶ 6 Warbelton's defense counsel then argued that the issue of whether Warbelton had a previous conviction for a violent crime was not a question for the jury to answer: "I think, though, the nature of this particular provision of the statute is more in the nature of the repeater statute which permits enhanced penalties upon proof of a conviction rather than this being an element of the offense...."

¶ 7 Changing its initial ruling, the trial court ultimately accepted the State's position: "Obviously, the State doesn't consent and therefore, I guess we'll have the jury decide that." After this ruling, both parties stipulated that Warbelton had "a previous conviction for a violent crime." Warbelton's defense counsel stated: "Your Honor, I'd agree, subject to our objections of the whole idea of Mr. Warbelton having a prior conviction [for a violent crime] being presented to the jury as an element of the offense, that that would be the appropriate way to do it. We would consent to that."

¶ 8 Given the trial court ruling, evidence was admitted of the parties' stipulation that Warbelton had a previous conviction for a violent crime. In addition, by way of a verdict question, the jury was instructed to decide whether Warbelton had a previous conviction for a violent crime. The jury found that he did.

¶ 9 On September 12, 2006, Warbelton filed a motion for postconviction relief. In that motion, he asked the trial court to vacate his six convictions. As grounds for doing so, Warbelton argued that the court erred when it admitted evidence that he had a previous conviction for a violent crime, and when it instructed the jury to decide whether he had a previous conviction for a violent crime.

¶ 10 After considering the parties' written arguments the trial court denied Warbelton's motion for postconviction relief.

¶ 11 Warbelton appeals. On appeal, Warbelton reasserts that the trial court erred in admitting evidence of his previous conviction for a violent crime. He insists that the elements of the substantive crime are set forth in WIS. STAT. § 940.32(2) and that subsec. (2m)(a) is a penalty enhancer. Based on his contention that his previous conviction for a violent crime is a penalty enhancer and not a substantive element of the crime, he argues it was error to allow the evidence to go to the jury.

¶ 12 In the alternative, Warbelton argues that if his previous conviction for a violent crime was a substantive element, the evidence of such should not have been submitted to the jury. He cites to State v. Alexander, 214 Wis.2d 628, 571 N.W.2d 662 (1997), in support of his argument.

¶ 13 Statutory interpretation begins with the statute's text; we give the text its common, ordinary, and accepted meaning, except that we give technical or specially defined words their technical or special definitions. State ex rel. Kalal v. Circuit Court for Dane County, 2004 WI 58, ¶ 45, 271 Wis.2d 633, 681 N.W.2d 110. We interpret statutory language in the context within which it is used, "not in isolation but as part of a whole; in relation to the language of surrounding or closely related statutes; and reasonably, to avoid absurd or unreasonable results." Id., ¶ 46. In construing a statute, we are to give deference to the policy choices made by the legislature in enacting the law. Id., ¶ 44. We also consider the scope, context and structure of the statute itself. Id., ¶¶ 46, 48. If this process of analysis yields a plain meaning, then there is no ambiguity and we apply that plain meaning. Id., ¶ 46.

¶ 14 WISCONSIN STAT. § 940.32, as amended by 2001 Wis. Act 109, provides in relevant part:

Stalking.

....

(2) Whoever meets all of the following criteria is guilty of a Class I felony:

(a) The actor intentionally engages in a course of conduct directed at a specific person that would cause a reasonable person under the same circumstances to fear bodily injury to or the death of himself or herself or a member of his or her family or household.

(b) The actor intends that at least one of the acts that constitute the course of conduct will place the specific person in reasonable fear of bodily injury to or the death of himself or herself or a member of his or her family or household.

(c) The actor's acts induce fear in the specific person of bodily injury to or the death of himself or herself or a member of his or her family or household.

....

(2m) Whoever violates sub. (2) is guilty of a Class H felony if any of the following applies:

(a) The actor has a previous conviction for a violent crime, as defined in § 939.632(1)(e)1., or a previous conviction under this section or s. 947.013(1r), (1t), (1v), or (1x).

(b) The actor has a previous conviction for a crime, the victim of that crime is the victim of the present violation of sub. (2), and the present violation occurs within 7 years after the prior conviction.

(c) The actor intentionally gains access or causes another person to gain access to a record in electronic format that contains personally identifiable information regarding the victim in order to facilitate the violation.

(d) The person violates s. 968.31(1) or 968.34(1) in order to facilitate the violation.

(e) The victim is under the age of 18 years at the time of the violation.

(3) Whoever violates sub. (2) is guilty of a Class F felony if any of the following applies:

....

(c) The actor uses a dangerous weapon in carrying out any of the acts listed in sub. (1)(a)1. to 9.

¶ 15 First, we reject Warbelton's argument that his prior conviction is not an element of the stalking offense of which he was convicted, i.e., the Class H felony set out in WIS. STAT. § 940.32(2m)(a). We are not persuaded by Warbelton's claim that his prior conviction "is akin to the penalty enhancers for being a `repeater' or `persistent repeater' under WIS. STAT. § 939.62."³ He likens § 940.32(2m)(a) to § 939.62, which addresses increased penalties for habitual criminality, and asserts that the otherwise-available maximum sentence...