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COURT OF APPEALS DECISION DATED AND RELEASED January 29, 1997 |
NOTICE |
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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. 95-2403
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT II
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
THOMAS W. REIMANN,
Defendant-Appellant.
APPEAL from an order of
the circuit court for Racine County:
DENNIS J. BARRY, Judge. Affirmed.
Before Brown, Nettesheim
and Anderson, JJ.
PER
CURIAM. Thomas W. Reimann appeals pro se from an order denying
his motion to vacate the repeater portion of his sentence. Because we discern no error at sentencing,
we affirm.
In January 1990, Reimann
agreed to plead no contest to theft as a repeater and obtaining possession of a
controlled substance by fraud as a repeater.
Reimann failed to appear for sentencing in March 1990 and was ultimately
sentenced in September 1990 to eight years on the drug count and two years
consecutive on the theft count.
Reimann's sentence and conviction were affirmed by this court, State
v. Reimann, No. 91-1021-CR (Wis. Ct. App. Dec. 18, 1991), on the ground
that Reimann proceeded to sentencing after the State increased its sentence
recommendation as a result of Reimann's failure to appear at the March 1990
sentencing hearing. Subsequently,
Reimann filed several other motions challenging his conviction and sentence,
all of which were denied by the trial court.
In December 1994,
Reimann brought a pro se motion to vacate the repeater portion of his sentence,
claiming that the State did not prove a prior conviction with the degree of
certainty required by § 973.12(1), Stats.,
1989-90. Section 973.12(1) states that
a defendant may be sentenced as a repeater if he or she admits the prior
conviction or if the conviction is proved by the State.[1] A defendant is a repeater if convicted of a
felony during the five years immediately preceding commission of the crime for
which the defendant is being sentenced, excluding time spent in actual
confinement on a criminal sentence. Section
939.62(2), Stats., 1989‑90.
At the August 1995
hearing on his motion, Reimann argued that the habitual criminal allegation was
not properly explored at sentencing once the State increased its sentence
recommendation in light of Reimann's failure to appear at his initial
sentencing hearing. The State responded
that the September 1989 criminal complaint alleged an April 1986 burglary
conviction.[2] The State also referred the court to that
portion of the September 1990 sentencing hearing at which Reimann responded to
the court's inquiry regarding this conviction.
At the sentencing hearing, the court reviewed Reimann's prior criminal
conduct as set forth in the presentence investigation report and specifically
referred to an April 1986 Elkhorn burglary conviction. Reimann interrupted the court to clarify
that he was convicted as party to the crime.
The trial court found that the record at the plea hearing and sentencing
was sufficient to constitute Reimann's admission to the 1986 criminal
conviction which formed the basis for his 1990 sentence as a habitual
offender. Reimann appeals.
On appeal, Reimann
argues that the repeater portion of his 1990 sentence should be vacated because
his 1986 conviction was neither proved nor admitted. Whether penalty enhancers are void presents a question of law
which we review independently of the trial court. State v. Koeppen, 195 Wis.2d 117, 126, 536 N.W.2d
386, 389-90 (Ct. App. 1995).[3] As stated earlier, prior convictions for
purposes of an enhanced sentence due to habitual criminality can be established
by a defendant's admission. See
§ 973.12(1), Stats.,
1989-90; see also State v. Farr, 119 Wis.2d 651, 659-60,
350 N.W.2d 640, 645 (1984).
At the plea hearing,
Reimann acknowledged on numerous occasions that he understood that he was
subject to sentencing as a habitual offender.
At sentencing he corrected the trial court's reference to the 1986
Elkhorn burglary conviction by pointing out that he was convicted as party to
the crime. On this record, we determine
that the requirements of an admission by the defendant under § 973.12(1), Stats., were satisfied, and we find no
basis for vitiating the repeater portion of Reimann's sentence. It is also clear that Reimann was a repeater
because his 1986 burglary conviction occurred within five years of the August
1989 offenses which yielded the challenged sentences.
We turn to Reimann's
second appellate argument that the "renegotiated plea" arising from
the State's new sentence recommendation required another colloquy to advise him
that the repeater enhancements remained a possibility. Reimann cites no persuasive authority for
this proposition. The charges to which
Reimann pled were unchanged between the time the court accepted his no contest
plea and the time he was sentenced. The
only difference was that the State increased its sentence recommendation based
upon Reimann having fled the jurisdiction rather than appear at his initial
sentencing hearing. It is clear on this
record that Reimann was at all times aware of the possibility of a habitual
offender enhancement on his sentence.
Finally, we address an
issue raised by Reimann in his reply brief.
He asks us to construe his brief as a petition under State v.
Knight, 168 Wis.2d 509, 484 N.W.2d 540 (1992), or to otherwise
liberally construe his pleadings to grant him relief on his underlying
contention that the repeater portion of his sentence was inappropriately
imposed. We decline to do so for two
reasons. First, we decline to construe
a reply brief as a petition for a writ of habeas corpus under Knight. Under Knight, a claim of
ineffective assistance of appellate counsel is raised by a petition for a writ
of habeas corpus in the appellate court.
See id. at 512-13, 484 N.W.2d at 541. Second, the underlying premise of Reimann's
claim of ineffective assistance of appellate counsel—that the repeater portion
of his sentence is void—has now been determined by this court to lack merit.
By the Court.—Order
affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)5, Stats.
[1] Section 973.12(1), Stats., 1989-90, provides in relevant
part:
Whenever a person charged with a crime will be a repeater as defined in s. 939.62 if convicted, any prior convictions may be alleged in the complaint, indictment or information or amendments so alleging at any time before or at arraignment, and before acceptance of any plea. ... If such prior convictions are admitted by the defendant or proved by the state, he shall be subject to sentence under s. 939.62 unless he establishes that he was pardoned on grounds of innocence for any crime necessary to constitute him by repeater ....