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COURT OF APPEALS DECISION DATED AND RELEASED March 27, 1996 |
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. 95-3013-CR
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT II
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
MICHAEL VINES,
Defendant-Appellant.
APPEAL from a judgment
and an order of the circuit court for Kenosha County: BARBARA A. KLUKA and ROBERT V. BAKER, Judges. Affirmed.
BROWN, J. Michael
Vines challenges the habitual criminality enhancer of his sentence. He maintains that the State did not meet its
burden of proof with regard to his prior convictions. Because we conclude that the record sufficiently establishes his
admission to past crimes and periods of confinement, we uphold his sentence.
The facts are
settled. On December 7, 1994, the State
charged Vines with disorderly conduct.
The complaint also alleged that Vines was subject to an additional
sanction as a repeat offender. See § 939.62,
Stats.
By the following
February, Vines and the State reached a plea agreement. Through his attorney, Vines informed the
trial court[1] that he
would plea no contest to the disorderly conduct charge and admit to the
repeater allegation. At that hearing,
the trial court began a colloquy and eventually accepted Vines's no contest
plea.
The trial court also
inquired into Vines's past criminal charges.
The exchange between Vines and the trial court went as follows:
THE COURT: I'm going to ask you about these underlying offenses and whether
this information is correct. Were you
convicted on February 28, 1989 of three charges of misdemeanor retail theft
here in Kenosha County?
[VINES]:
Yes, I was.
¼.
THE COURT: And is the other information in the complaint concerning your
imprisonment, your release on February 27, 1990; your re-incarceration on
December 7, 1990, your release on April 14, 1990; and your re-imprisonment on
October 1, 1992 until you were paroled on April 30, 1993; is that all correct?
[VINES]:
Yes.
THE COURT: Okay. I will accept your
no contest plea. Find that it's entered
freely, voluntarily and intelligently with the advice of competent
counsel. Find there's a factual basis
in the complaint for acceptance of your plea, as well as for the underlying
prior convictions which are acknowledged here on the record, and adjudge you
guilty of violating Sections 947.01 and 939.62 of the Statutes.
On
appeal, and in an unsuccessful postverdict motion,[2]
Vines claims that the record excerpted above “failed to establish the habitual
criminal allegations in the complaint with reasonable certainty.” (Emphasis added.) Whether the undisputed record satisfies the mandates of
§ 973.12, Stats., (the
repeater sentencing rules) presents a question of law which we review de
novo. State v. Theriault,
187 Wis.2d 125, 131, 522 N.W.2d 254, 257 (Ct. App. 1994).
In substance, Vines
argues that certain errors in the trial court's statements left him uncertain
about whether his convictions would fit into the five-year lookback period
within § 939.62, Stats. Since his February 1989 crimes were outside
of this five-year window, how his subsequent periods of confinement figured
into the analysis was crucial to the validity of the repeater enhancer.
Building his claim, Vines also points to
three problems with the colloquy which he claims raise a doubt over whether the
State proved these convictions.
Although the trial court tried to verify that Vines was released on
February 27, 1990, it did not specifically recite when he was originally
incarcerated. Second, the trial court
misstated that Vines was released from his second period of confinement on
April 14, “1990” not “1992.”
(Emphasis added.) Third, Vines
asserts that the trial court's interchangeable use of the terms “imprisonment,”
“re-incarceration” and “re-imprisonment” confused him over whether all three
constituted “the service of criminal sentences.” (Emphasis added.) Additionally, he cites State v. Zimmerman, 185
Wis.2d 549, 558, 518 N.W.2d 303, 306 (Ct. App. 1994), where we cautioned that
“common sense readings” are not a substitute for exacting proof in these
circumstances.
We nonetheless reject
Vines's challenge to the sufficiency of the record. Here, we face a defendant who admitted to his prior
convictions. Although the trial court
misstated some dates and made other technical errors, the colloquy reveals that
it was ultimately concerned with whether Vines was willing to admit to the
allegations made in the complaint.
Contrary to his suggestion, this is not a case that raises a question
about the quality of the State's proof.
Rather, the record leaves no doubt that Vines agreed to admit to these
crimes as part of his plea.
Moreover, the statute
that governs the sentencing of alleged repeaters makes clear that the
defendant's admission to prior crimes is a distinct way of establishing
repeater status. See id.
(“In the alternative, the trial court may obtain a direct and specific
admission from the defendant.”). Thus,
those decisions, including Zimmerman, which demand scrutiny of
the State's proof are simply not applicable when the defendant admits to past
crimes. See id. at 557,
518 N.W.2d at 306; see also Theriault, 187 Wis.2d at 132, 522
N.W.2d at 257 (“[A]t the plea hearing Theriault left no doubt that he was
disputing the State's allegation that he was a habitual criminal.”).
Accordingly, we only
need to gauge whether the record shows that Vines admitted to these
crimes. See State v. Rachwal,
159 Wis.2d 494, 509, 465 N.W.2d 490, 496 (1991) (concluding that the record
showed a “direct and specific admission.”).
And when we look at the record in this light, at best it shows that the
trial court's technical errors required Vines to do some quick arithmetic to
verify that his earlier convictions were going to count against him. Nonetheless, we are satisfied with the
quality of his admission to these past crimes.
We can comfortably conclude that when Vines voiced his agreement with
the trial court's recitation, he knew why and how his past convictions were
going to negatively impact his sentence.
By the Court.—Judgment
and order affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)4, Stats.