|
COURT OF
APPEALS DECISION DATED AND
RELEASED AUGUST
14, 1996 |
NOTICE |
|
A party may file with the Supreme Court a petition to review an
adverse decision by the Court of Appeals.
See § 808.10 and Rule
809.62, Stats. |
This opinion is subject to further editing. If published, the official version will appear in the bound
volume of the Official Reports. |
No. 96-0750-CR
STATE OF WISCONSIN IN
COURT OF APPEALS
DISTRICT II
STATE
OF WISCONSIN,
Plaintiff-Respondent,
v.
JACQUELINE
J. COLE,
Defendant-Appellant.
APPEAL
from a judgment and an order of the circuit court for Kenosha County: BARBARA A. KLUKA, Judge. Reversed and cause remanded with
directions.
ANDERSON,
P.J. Jacqueline J. Cole appeals from an order
denying her motion to commute her sentence.
Cole was found guilty of two misdemeanor counts of obtaining a
prescription drug by fraud, contrary to § 450.11(7)(a), Stats., and found to be a repeater, pursuant to § 939.62(1)(a), Stats. The trial court sentenced Cole to three years imprisonment, the
maximum sentence under § 939.62. We
conclude that the trial court incorrectly enforced the repeater statutes, and
therefore, reverse the trial court's decision to enhance Cole's sentence.
The
facts in this opinion will be limited to those facts regarding the trial
court's use of the repeater statutes to enhance Cole's sentence. The circuit court of Kenosha county
convicted Cole of one count of obtaining a prescription drug by fraud on July
27, 1995. At sentencing, the court
questioned Cole regarding her prior convictions. The trial judge questioned Cole about her first two convictions
that took place on February 25, 1992, and Cole's attorney responded, “she
[Cole] admits to the previous convictions.”[1] The court questioned Cole directly regarding
her first two convictions and she admitted, “Yeah, yes.” The trial judge then questioned Cole about
her third conviction on June 2, 1993.
Cole responded, “probably.”[2] The trial court accepted these responses as
evidence of three prior convictions.
The court then found her to be a repeater, pursuant to § 939.62, Stats., sentencing Cole to three years
imprisonment. Cole appeals.
Cole
asserts that the trial court erred because the prosecution failed to prove her
prior convictions as required by § 973.12(1), Stats. Cole contends
that the State's burden was not met: an
attorney cannot admit prior convictions for a client, the word “probably” is
not definitive, and the prosecution failed to include a copy of either of the
judgments of conviction in the criminal complaint.
Chapter
939 and § 973.12, Stats.,
provide the law when interpreting a matter such as the one before this
court. The application of a statute to
a particular set of facts is a question of law which we review de novo. DOR v. Sentry Fin. Servs. Corp.,
161 Wis.2d 902, 910, 469 N.W.2d 235, 238 (Ct. App. 1991).
Section
939.62, Stats., provides the
State with the opportunity to enhance sentences of habitual offenders. With that opportunity comes a burden, which
is rather small. The most absolute and
efficient way of proving an actor is a repeater is to include the judgments of
past convictions with the criminal complaint, which may be obtained from the
clerk of courts. This was never done by
the prosecuting attorney. “We have
previously observed that while prosecutors face difficult tasks, properly
pleading and proving repeater allegations are not among them.” State v. Koeppen, 195 Wis.2d
117, 130, 536 N.W.2d 386, 391 (Ct. App. 1995).
Also,
this court has repeatedly stated that attorneys may not admit to prior
convictions on behalf of their clients.
State v. Farr, 119 Wis.2d 651, 659, 350 N.W.2d 640, 645
(1984); Koeppen, 195 Wis.2d at 127, 536 N.W.2d at 390. Because Cole confirmed her attorney's
admission by stating, “yeah, yes,” we conclude that the admission of the first
two convictions was sufficient.
To
determine whether the State proved Cole's third misdemeanor conviction, this
court must look at Cole's response at trial because the State once again did
not include Cole's judgment of conviction in the criminal complaint. When the court questioned Cole regarding
whether she was convicted a third time on June 2, 1993, she responded,
“probably.” This court addressed this
problem in State v. Goldstein, 182 Wis.2d 251, 260, 513 N.W.2d
631, 635 (Ct. App. 1994) (citing State v. Meyer, 258 Wis.
326, 337, 46 N.W.2d 341, 346 (1951)), where we stated that “[t]he state must
carry the burden to make good the charge in the essential particulars.” Here, the State did nothing to remedy the
equivocal response of Cole. The State
failed to establish the third conviction.
Therefore, without
proving this third offense, the State could not meet the three-offense
requirement outlined in § 939.62,
Stats. We conclude that the
State did not meet the burden placed upon it by the repeater statutes.
Accordingly,
we reverse the enhanced sentencing provisions of the judgment and the order
denying postconviction relief. We
commute Cole's sentence to the maximum permitted for the misdemeanor of
obtaining prescription drugs by fraud without imposing the repeater
statutes. We direct the trial court to
enter an amended judgment in accord with this decision.
By the Court.—Judgment
and order reversed and cause remanded with directions.
This
opinion will not be published. See
Rule 809.23(1)(b)4, Stats.