State v. Wield, 02-2242-CR.

Decision Date30 July 2003
Docket NumberNo. 02-2242-CR.,02-2242-CR.
Citation266 Wis.2d 872,2003 WI App 179,668 N.W.2d 823
PartiesSTATE of Wisconsin, Plaintiff-Respondent, v. Donald R. WIELD, Defendant-Appellant.
CourtWisconsin Court of Appeals

On behalf of the defendant-appellant, the cause was submitted on the briefs of Donald T. Lang, assistant state public defender.

On behalf of the plaintiff-respondent, the cause was submitted on the brief of Peggy A. Lautenschlager, attorney general, and Sandra L. Nowack, assistant attorney general.

Before Nettesheim, P.J., Anderson and Snyder, JJ.


Donald R. Wield appeals his life sentence without possibility of parole pursuant to the "persistent repeater" statute or "two strikes" law, WIS. STAT. § 939.62(2m)(a)1m, (b)2 and (c) (2001-02),2 after a conviction of first-degree sexual assault of a child contrary to WIS. STAT. § 948.02(1). Wield additionally appeals the trial court's decision that the "two strikes" law is constitutional under both the United States and Wisconsin Constitutions.

¶ 2. Wield first argues that the trial court's application of the "persistent repeater" penalty is erroneously based upon his prior convictions of first-degree child sexual assault for offenses committed in 1977 and 1978. Wield contends that those convictions were based on a former statute which is not comparable to WIS. STAT. § 948.02(1), the statute under which he is currently convicted. We reject Wield's argument. We conclude that the former statute is sufficiently comparable to the current statute to support the application of the persistent repeater statute.

¶ 3. We also reject Wield's challenge to the constitutionality of the "two strikes" law based upon our supreme court's recent decision in State v. Radke, 2003 WI 7, 259 Wis. 2d 13, 657 N.W.2d 66.

¶ 4. We therefore affirm the sentencing provisions of the judgment of conviction.


¶ 5. The State filed a criminal complaint on November 30, 2000, charging Wield with one count of first-degree sexual assault of a child contrary to WIS. STAT. § 948.02(1).3 The complaint alleged that on November 18, 2000, Deputy Andrew Colborn, an officer with the Manitowoc County Sheriff's Department, was contacted by an adult on behalf of Matthew D.F., d.o.b. July 27, 1990. Based on this contact, Colborn interviewed Matthew, who related the following events. While Wield was babysitting for him, Wield touched him inappropriately and exposed his genitals to him. Matthew also stated that Wield was the stepfather of his friend. Matthew showed Colborn an e-mail written by Wield stating his "love for boys" and that any sex between him and boys would be mutual.

¶ 6. At the preliminary hearing, Matthew testified to the events alleged in the complaint.4 He identified Wield as the person who babysat for him. He stated that he had spent the night at Wield's home and at one point he and Wield were sitting on a couch watching television. Wield invited Matthew to move over near him and proceeded to cover Matthew with a blanket. Wield unzipped his pants and placed Matthew's hand on his privates. At that point, Matthew was able to see Wield's privates. Wield then held Matthew behind the back and told Matthew to pull his pants down. He then proceeded to "fiddle" with Matthew's privates and told him to "get it stiff." Wield's stepson then returned to the room and Wield stopped the activity. Based on Matthew's testimony, Wield was bound over for trial.

¶ 7. The State filed an information repeating the sexual assault charge alleged in the complaint. The information further alleged that Wield had previously been convicted of "first degree sexual assault and first degree sexual assault as a repeater . . . on October 8, 1982." As such, the information alleged that Wield was a "persistent repeater" and was subject, upon conviction, to a mandatory sentence of life imprisonment without the possibility of parole or extended supervision. ¶ 8. Wield filed a motion challenging the constitutionality of WIS. STAT. § 939.62(2m)(c). Later, Wield filed an additional motion seeking dismissal of the repeater portion of the information on grounds that the prior crimes were not "comparable" as required by § 939.62(2m)(a)1m.b. Specifically, Wield's motion contended that the statute did not apply "because neither of the prior convictions referred to in the Information meets the definition of a `Serious child sex offense' set forth in [§] 939.62(2m)(a)1m."

¶ 9. Following a motion hearing, the trial court entered a written decision deferring a ruling on Wield's motion contending that the prior crimes were not comparable to the charged offense. Instead, the court determined that the State had until sentencing to prove beyond a reasonable doubt that Wield's prior offenses would constitute a felony under WIS. STAT. § 939.62(2m)(a)1m. However, the court rejected Wield's constitutional challenge on the merits, ruling that the application of § 939.62(2m)(c) did not violate the Wisconsin Constitution or the United States Constitution.

¶ 10. Thereafter, Wield entered pleas of guilty and not guilty by reason of mental disease or defect.5

¶ 11. A jury trial was held on Wield's special plea of not guilty by reason of mental disease or defect. The jury answered "yes" to Wield having a mental disease but "no" to Wield lacking substantial capacity either to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of law.

¶ 12. Prior to sentencing, the parties submitted briefs on the pending question of whether the prior offenses were comparable to the present offense. The trial court addressed these arguments at the sentencing hearing, ruling that the former statutes under which Wield had been previously convicted were comparable to the current WIS. STAT. § 948.02(1), that the prior convictions would constitute a felony under WIS. STAT. § 939.62(2m)(a)1m.b, and therefore Wield was a persistent repeater pursuant to § 939.62(2m)(c). The court sentenced Wield to life imprisonment without possibility of release to extended supervision. Wield appeals the sentencing provisions of the judgment of conviction.


Comparable Offenses


¶ 13. Wield challenges the trial courts application of WIS. STAT. § 939.62(2m)(c) to his sentence. Specifically, Wield contends that his prior offenses are not comparable within the meaning of § 939.62(2m)(a)1m.b. and therefore cannot constitute prior predicate felonies which would allow for an enhanced sentence. This issue involves the interpretation of the former and current child sexual assault statutes, an exercise presenting a question of law that we review de novo. See State v. Campbell, 2002 WI App 20, ¶ 4, 250 Wis. 2d 238, 241, 642 N.W.2d 230, review denied, 2002 WI 48, 252 Wis. 2d 150, 644 N.W.2d 686 (Wis. Apr. 22, 2002) (No. 01-0758-CR).

¶ 14. Pursuant to WIS. STAT. § 939.62(2m)(a)1m, (b)2 and (c), Wisconsin's "two strikes" law, a court is required to sentence a persistent repeat offender of a serious child sex offense to life imprisonment without the possibility of parole. A person is a persistent repeat offender if he or she "has been convicted of a serious child sex offense on at least one occasion at any time preceding the date of violation of the serious child sex offense for which he or she presently is being sentenced under ch. 973, which conviction remains of record and unreversed." Sec. 939.62(2m)(b)2. In addition to child sex offenses under current statutes, a "serious child sex offense" also includes "[a] crime at any time under federal law or the law of any other state or, prior to July 16, 1998, under the law of this state that is comparable to a crime specified in subd. 1m.a." Sec. 939.62(2m)(a)1m.b.

¶ 15. Wield's current conviction is for first-degree sexual assault contrary to WIS. STAT. § 948.02(1), which is a serious child sex offense under WIS. STAT. § 939.62(2m)(a)1m.a. Section 948.02(1) makes it a Class B felony to have "sexual contact or sexual intercourse with a person who has not attained the age of 13 years." For purposes of this statute, the term "sexual contact" is defined as:

Intentional touching by the complainant or defendant, either directly or through clothing by the use of any body part or object, of the complainant's or defendant's intimate parts if that intentional touching is either for the purpose of sexually degrading or sexually humiliating the complainant or sexually arousing or gratifying the defendant.

Sec. 948.01(5)(a).

¶ 16. Wield's previous convictions of first-degree sexual assault were under a statute which penalized sexual contact with "a person 12 years of age or younger," WIS. STAT. § 940.225(1)(d) (1977), and defined "sexual contact" as follows:

any intentional touching of the intimate parts, clothed or unclothed, of a person to the intimate parts, clothed or unclothed, of another, or the intentional touching by hand, mouth or object of the intimate parts, clothed or unclothed, of another, if that intentional touching can reasonably be construed as being for the purpose of sexual arousal or gratification ....

Sec. 940.225(5)(b) (1977) (emphasis added).

¶ 17. Wield argues that the language of WIS. STAT. § 940.225(5)(b) (1977) is not comparable to WIS. STAT. § 948.01(5)(a) because the phrase "reasonably be construed" was eliminated in the current statute. Although both statutes are denominated "first degree sexual assault of a child," Wield contends that they are substantively different. Specifically, Wield argues that under the former statute, the State was not required to prove that the defendant actually engaged in the contact "for the purpose" of becoming sexually aroused or gratified but rather only needed to show that the contact could "reasonably be construed" as being for that purpose. Stated differently, Wield argues the language in the 1977 statute employed an objective scienter element, allowing a jury to find a person...

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