State v. Wittrock

Decision Date28 June 1984
Docket Number83-2185 and 83-2186,Nos. 83-2184,s. 83-2184
Citation350 N.W.2d 647,119 Wis.2d 664
PartiesSTATE of Wisconsin, Plaintiff-Respondent, v. Richard K. WITTROCK, Defendant-Appellant.
CourtWisconsin Supreme Court

Michael Dwyer and Legal Assistance to Institutionalized Persons Program, Madison, on briefs, for defendant-appellant.

Stephen W. Kleinmaier, Asst. Atty. Gen., with whom on the brief was Bronson C. La Follette, Atty. Gen., for plaintiff-respondent.

CECI, Justice.

This appeal involves the trial court's sentencing of the defendant as a repeater, pursuant to section 939.62, Stats. The circuit court for Wood county, Honorable Fred A. Fink, Circuit Judge, sentenced Richard K. Wittrock as a repeater on April 21, 1981, following the defendant's guilty pleas to four misdemeanor charges, based upon a showing by the state that the defendant had previously been convicted of three misdemeanors within the statutorily prescribed five-year period preceding the commission of the offenses for which Wittrock was sentenced on April 21, 1981. The defendant subsequently petitioned this court for bypass of the court of appeals, pursuant to section 808.05, and the petition was granted by this court on March 9, 1984. 117 Wis.2d 790, 349 N.W.2d 88. Because we find that the trial court correctly sentenced the defendant as a repeater based upon his prior misdemeanor convictions, we affirm the circuit court.

The facts in this case are undisputed. On April 21, 1981, the defendant entered guilty pleas in the following three cases: Case No. 4419, involving a battery committed on December 13, 1980, contrary to section 940.19(1), Stats.1979-80; Case No. 11,836, involving a November 26, 1980, disorderly conduct charge, in violation of section 947.01; and a third case, No. 11,837, involving criminal damage to property occurring on November 23, 1980, and contrary to section 943.01(1), and a December 13, 1980, disorderly conduct charge. The court found the defendant to be a "repeater" pursuant to section 939.62, and consequently sentenced the defendant to two years each at Waupun in Case No. 11,836 and Case No. 11,837, to be served concurrently, and to two years at Waupun in Case No. 4419, to run consecutively to the sentence imposed in Case No. 11,836. 1 The judge's determination of the defendant's repeater status was based upon a showing by the state that the defendant had been previously convicted of two counts of disorderly conduct on February 10 or 11, 1980, and one count of disorderly conduct on September 10 or 11, 1977. The record is blatantly lacking concerning the prior convictions. However, during argument of the motion for postconviction relief, the defendant's counsel conceded that the two misdemeanors for which the defendant was sentenced in February of 1980, were committed on separate dates.

We are faced, then, with one issue upon appeal. It is whether the language "convicted of a misdemeanor on 3 separate occasions," as utilized in section 939.62(2), Stats., requires three separate court appearances in order to qualify as a repeater. We hold that it does not.

Section 939.62, Stats., entitled "Increased penalty for habitual criminality," provides in part,

"(2) The actor is a repeater if he was convicted of a felony during the 5-year period immediately preceding the commission of the crime for which he presently is being sentenced, or if he was convicted of a misdemeanor on 3 separate occasions during that same period, which convictions remain of record and unreversed. It is immaterial that sentence was stayed, withheld or suspended, or that he was pardoned, unless such pardon was granted on the ground of innocence. In computing the preceding 5-year period, time which the actor spent in actual confinement serving a criminal sentence shall be excluded."

The defendant has argued that the unambiguous, plain meaning of the statute requires that one be convicted of three misdemeanors in three separate court appearances in order to attain the status of a repeater. Alternatively, the defendant argues that should the court find the term "occasion" to be ambiguous, the rules of statutory construction, in particular, the canon of strict construction of criminal statutes, requires that the court construe "occasion" to mean a court appearance. State v. Morris, 108 Wis.2d 282, 289, 322 N.W.2d 264 (1982), and State v. Wilson, 77 Wis.2d 15, 28, 252 N.W.2d 64 (1977). Therefore, the defendant asserts that since his prior convictions occurred in only two separate court appearances, or on two separate occasions, the trial court erroneously imposed the enhanced sentences on the defendant, because he did not qualify as a repeater.

The state, on the other hand, has taken the position that the above language should be interpreted to mean that a defendant achieves repeater status once he or she has been convicted of three misdemeanors within the five-year period, regardless of the number of court appearances. The state argues that the term "occasion" unambiguously refers to separate offenses. Therefore, the state maintains that the defendant in this case clearly qualifies as a repeater, because he was previously convicted of three separate offenses of disorderly conduct.

The trial court, in its order denying the defendant's motion for postconviction relief on October 27, 1983, utilized the following language:

"[T]he court finds that defendant was properly sentenced as an habitual offender because he was convicted of misdemeanors committed on three separate occasions in the five years before his present convictions, as required by Wis.Stat. § 939.62 (1979-80)." (Emphasis added.)

Therefore, the trial court concluded that the language refers to the fact that the three misdemeanors must be committed by the defendant on different dates.

Initially, we would like to stress what is not at issue in this case. As we noted above, the three prior misdemeanors involved in this appeal occurred on different dates and prior to the four offenses for which the defendant was sentenced on April 21, 1981. See, State v. Banks, 105 Wis.2d 32, 45, 313 N.W.2d 67 (1981), and State v. Midell, 40 Wis.2d 516, 527, 162 N.W.2d 54 (1968). Therefore, we must determine whether this qualifies a defendant as a repeater under section 939.62(2), Stats., in spite of the fact that the actual convictions occurred in only two separate court appearances. This case does not involve a situation where the defendant has been convicted of two or more misdemeanors arising out of a single continuing course of conduct or transaction. Therefore, we will confine ourselves to the facts of this case and, for purposes of this appeal, we will not address the issue of whether or not a single transaction giving rise to two or more misdemeanor convictions may serve to qualify one for repeater status. 2

The dispute in this case, then, arises from the legislature's use of the term "occasion" in section 939.62(2). 3 The interpretation of a statute is a question of law, which appellate courts may review without deference to the trial court's reasoning. Central Nat. Bank of Wausau v. Dustin, 107 Wis.2d 614, 617, 321 N.W.2d 321 (Ct.App.1982). This court has often stated that the threshold question to be addressed by this court when construing a statute is whether the statutory term is ambiguous. State v. Engler, 80 Wis.2d 402, 406, 259 N.W.2d 97 (1977). A statutory term is deemed ambiguous if reasonable persons could disagree as to its meaning. Kollasch v. Adamany, 104 Wis.2d 552, 561, 313 N.W.2d 47 (1981). However, whenever a case such as this reaches the court, it naturally follows that the parties will obviously disagree as to the term's meaning. The court, then, will look to the language of the statute itself to determine whether well-informed persons should become confused as to a term's meaning. Aero Auto Parts, Inc. v. Dept. of Transp., 78 Wis.2d 235, 238-39, 253 N.W.2d 896 (1977).

Primary recourse is to statutory language itself. When this court looks at the language utilized in section 939.62(2), Stats., the statute must be interpreted on the basis of the plain meaning of its terms. State v. Derenne, 102 Wis.2d 38, 45, 306 N.W.2d 12 (1981). Nontechnical words utilized in the statutes are to be given their ordinary and accepted meaning when not specifically defined and that meaning may be ascertained from a recognized dictionary. State ex rel. First Nat. Bank & Trust v. Skow, 91 Wis.2d 773, 781, 284 N.W.2d 74 (1979), citing Falkner v. Northern States Power Co., 75 Wis.2d 116, 123, 248 N.W.2d 885 (1977).

We observe that the term "occasion" is not specifically defined in section 939.62. Webster's New Collegiate Dictionary 794 (1977) defines "occasion" as "happening, incident" or "a time at which something happens." This meaning provides little insight into whether the legislature intended occasion to mean the "incident" at which the misdemeanor occurred or, in other words, the commission of the crime, or whether it was intended to relate to the "incident" of the conviction, in other words, the court appearance. Also, the location of the term "occasion" in the statute provides little insight into what the legislature intended by the use of the term. As we noted above, a defendant qualifies as a repeater if he or she "was convicted of a misdemeanor on three separate occasions." Once again, it is not clear whether occasion refers to the time of conviction or time of the crime's commission.

We conclude that an ambiguity exists within the statute, since the term "occasion" may be interpreted in two different ways by well-informed persons. In Matter of Athans, 107 Wis.2d 331, 335, 320 N.W.2d 30 (Ct.App.1982). As we noted in Wis. Environmental Decade v. Public Service Comm., 81 Wis.2d 344, 350, 260 N.W.2d 712 (1978), when such an ambiguity is found,

"... it is permissible to look to the legislative intent, which is to be found in the language of ...

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