State v. Wimmer

• Decision Date: 17 October 1989
• Docket Number: No. 89-0648,89-0648
• Citation: State v. Wimmer, 449 N.W.2d 621, 152 Wis.2d 654 (Wis. App. 1989)
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. David R. WIMMER, Defendant-Appellant. dCR.
• Court: Wisconsin Court of Appeals

Page 621

449 N.W.2d 621

152 Wis.2d 654

STATE of Wisconsin, Plaintiff-Respondent, v. David R. WIMMER, Defendant-Appellant. ^d No. 89-0648 CR.

Court of Appeals of Wisconsin.

Submitted on Briefs Aug. 9, 1989.

Opinion Released Oct. 17, 1989.

Opinion Filed Oct. 17, 1989.

Steven P. Weiss, Asst. State Public Defender, Madison, on brief, for defendant-appellant.

Lawrence J. Lasee, Asst. Dist. Atty., Green Bay, on brief, for plaintiff-respondent.

Before CANE, P.J., and LaROCQUE and MYSE, JJ.

CANE, Presiding Judge.

David Wimmer appeals a judgment of conviction finding him to be a repeat offender under sec. 939.62, Stats., for the purpose of sentencing on a misdemeanor battery charge. ¹ Wimmer argues that in two of the underlying convictions upon which the court relied, he had merely pled guilty and had not been sentenced. Sentencing and the entry of a judgment of conviction, as he sees it, are a precondition to being "convicted." The trial court disagreed, finding that a defendant is convicted for the purposes of sec. 939.62 once he has entered a guilty plea and that plea has been accepted. This court affirms the trial court's decision.

On August 23, 1988, Wimmer entered a guilty plea to two counts of battery and one count of resisting arrest. The court accepted the plea and set a later date for sentencing. Early the next morning, following a night of drinking, Wimmer beat up his live-in girlfriend. She had also been the victim in one of the batteries to which he had pled guilty the previous day. Wimmer was charged with one count of misdemeanor battery under sec. 940.19(1), Stats. Because of his prior misdemeanor convictions, including the August 23 finding of guilt, Wimmer was charged, convicted, and sentenced as a repeat offender pursuant to sec. 939.62.

The only question raised in this appeal is whether the August 23 proceeding constituted a conviction under sec. 939.62. The interpretation of a statute presents a question of law that we review de novo. State v. Wittrock, 119 Wis.2d 664, 669, 350 N.W.2d 647, 650 (1984). Where the facts are undisputed, a question of law is presented, which we examine without deference to the trial court. State v. Williams, 104 Wis.2d 15, 21-22, 310 N.W.2d 601, 604-05 (1981).

The first issue is whether the use of the term "conviction" in sec. 939.62 renders that statute ambiguous and open to interpretation by this court. ² See Wittrock, 119 Wis.2d at 669, 350 N.W.2d at 650. A statute is ambiguous if reasonable people could disagree as to its meaning. Id. Whether a statute is ambiguous is a question of law. Warren v. Link Farms, Inc., 123 Wis.2d 485, 488, 368 N.W.2d 688, 690 (Ct.App.1985). If a statute is ambiguous, we may examine the scope, history, context, subject matter and object to be accomplished to determine legislative intent. West Allis Sch. Dist. v. DILHR, 116 Wis.2d 410, 419, 342 N.W.2d 415, 420-21 (1984).

The word "conviction" is capable of conveying two meanings. As our supreme court has stated:

The term "conviction" is used in common language, and sometimes in the statutes, in two different senses. "In its most common use it signifies the finding of the jury that the person is guilty, but it is frequently used as implying a judgment and sentence of the court upon a verdict or confession of guilt."

Davis v. State, 134 Wis. 632, 638, 115 N.W. 150, 153 (1908) (quoting Commonwealth v. Gorham, 99 Mass. 420, 422 (1868)). The distinction Davis drew between the possible meanings of the word "conviction" was more recently cited in Spiller v. State, 49 Wis.2d 372, 378, 182 N.W.2d 242, 245 (1971). After examining several dictionaries, we are convinced that at least two possible definitions still exist; a popular meaning indicating a finding of guilt and a more technical legal meaning referring to the entire procedural process resulting in a judgment and sentence. ³

Although we conclude that based on the language of the statute an ambiguity exists, several factors weigh in favor of accepting the state's argument that the finding of guilt on August 23 constituted a conviction. One is that nontechnical words in the statutes are to be given their ordinary and accepted meaning when not specifically defined by the legislature. Wittrock, 119 Wis.2d at 670, 350 N.W.2d at 651. Both definitions are "ordinary and accepted"; however, the more common usage of "conviction" is to refer to a finding of guilt. The second reason is that prior interpretation of this term by courts of this state favor that definition. In Remington v. Judd, 186 Wis. 338, 341, 202 N.W. 679, 680 (1925), our supreme court stated The word "conviction," as here found in the statute, means that the criminal proceedings must have reached the stage of a judicial determination that the person charged with the offense was guilty, and nothing short of that meets the statutory requirement.

This language from Remington was cited with approval in Spiller, 49 Wis.2d at 378, 182 N.W.2d at 245. The attorney general goes as far as stating, "For the purpose of penal statutes, a conviction means an adjudication of guilt by the court, upon the defendant's admission or plea or upon the verdict." 29 Op.Att'y Gen. 299, 302 (1940). We need not make that sort of blanket pronouncement, but we do note Wisconsin courts have generally applied that definition. Therefore, we are also inclined to apply what might be termed the "common" meaning. However, enough of an ambiguity exists that we must proceed beyond the language of the statute itself.

Wimmer argues that because an ambiguity exists, the statute, being penal in nature, must be strictly construed. We agree that sec. 939.62 is a penal statute, and therefore we would tend to give it a narrower meaning. However, as this court has stated:

We are not unmindful of the rule, but it comes attended with qualifications and other rules of no less importance. For instance, the rules of strict construction does not mean that only the narrowest possible construction must be adopted in disregard of the statute's purpose. A statute should be construed to give effect to its leading idea and should be brought into harmony with its purpose.

State v. O'Neil, 141 Wis.2d 535, 540, 416 N.W.2d 77, 79-80 (Ct.App.1987) (citation omitted).

Wimmer reasons that the purpose of the statute is to provide harsher sanctions for those who have not learned from past punishment. He refers us to the following language from Faull v. State, 178 Wis. 66, 72, 189 N.W. 274, 276 (1922):

[R]epeater statutes ... are intended to apply to persistent violators who, experience has shown, do not respond to the restraining influence of criminal punishment. Reformation of the offender is a dominant purpose of criminal punishment, and until the offender has suffered the penalty of the law he is not within the spirit and purpose of statutory provisions intended for persistent and habitual violators. ⁴

Wimmer contends that sentencing him as a repeater is contrary to this stated purpose as he has not yet had the benefits of criminal punishment for previous crimes that form the basis for his status as a repeater.

However, there have consistently been other reasons articulated for the existence of the repeater statute:

"The increased severity of the punishment for the subsequent offense is not a punishment of the person for the first offense a second time, but a severer punishment for the second offense, because the commission of the second offense is evidence of the incorrigible and dangerous character of the accused, which calls for and demands a severer punishment than should be inflicted upon the person guilty of a first crime."

Howard v. State, 139 Wis. 529, 532, 121 N.W. 133, 135 (1909) (quoting Ingalls v. State, 48 Wis. 647, 658, 4 N.W. 785, 794 (1880)). More recently, our courts have also justified the statute on the grounds that it serves as a warning to first offenders. State v. Harris, 119 Wis.2d 612, 619, 350 N.W.2d 633, 637 (1984); State v. Midell, 40 Wis.2d 516, 527, 162 N.W.2d 54, 59 (1968).

By far the most persuasive evidence of the purpose behind sec. 939.62 is the extended discussion of its legislative history in Wittrock. Because of its importance, it is worth quoting at some length:

Platz noted that some of the changes in the repeater statute were made to cure deficiencies in the old statute. 1950 Wis.L.Rev. at 237. For example, to be eligible for repeater status under the old statute, one must have been sentenced to imprisonment. Therefore, if a defendant were placed on probation and the sentence withheld, the defendant would not qualify as a repeater. To cure this sort of discrimination between similarly situated defendants, the revised statute focused upon the previous conviction. Id. at 237-38. As Platz noted,

"(1) Previous conviction of a felony or three misdemeanors determines a convict's status as a repeater, regardless of what the previous sentence may have been." Id. at 241. (Emphasis in the original.)

The 1949 committee comment utilized similar language.

"The present habitual criminal sections are archaic. The changes made by this revision are radical and are self-evident. Emphasis is shifted from the prior sentence (and the nature of the institution to which sentenced) to the prior crime. (3)(a) is like present 359.14 except that 3 prior convictions of misdemeanors are required instead of one...." Wis.Stat.Ann. section 939.62 (West 1982). (Emphasis added.)

We believe that both Platz's comments and those of the advisory committee indicate that the revised repeater statute shifted focus away from the prior sentence and toward the prior crime. In the case of misdemeanors, Platz refers to "three misdemeanors," and the committee refers to "3 prior convictions of misdemeanors." This indicates a concern with the quantity of crimes rather than with the time of conviction. Whenever a misdemeanant is convicted of a fourth misdemeanor which was committed subsequent to the convictions of three...