By: Derek Hawkins//September 23, 2015//
Criminal
WI Court of Appeals – District III
Officials: Stark, P.J., Hruz and Seidl, JJ.
Domestic Abuse Repeater – Court Error
2014AP2888-CR State of Wisconsin v. Lonel L. Johnson, Jr.
Johnson challenges the application of the domestic abuse repeater enhancer to his sentence. He contends that, because the domestic abuse repeater enhancer increased the maximum penalty for the charged offense, the jury was required to find beyond a reasonable doubt that his underlying conduct qualified as an act of domestic abuse. The State concedes a jury determination of whether Johnson’s conduct constituted domestic abuse was required, pursuant to Apprendi v. New Jersey, 530 U.S. 466 (2000). Nevertheless, the State argues the circuit court’s failure to submit the domestic abuse issue to the jury was harmless error. In the alternative, the State argues Johnson forfeited his Apprendi argument by failing to object during the jury instruction and verdict conference. We agree with Johnson and the State that a jury determination of whether Johnson’s conduct constituted domestic abuse was required under Apprendi. We further conclude the error in failing to submit that issue to the jury was not harmless. Finally, we conclude Johnson did not forfeit his Apprendi argument by failing to object during the jury instruction and verdict conference, and, even if he did, we nevertheless exercise our discretion to address the error. We therefore reverse the judgment of conviction and the order denying postconviction relief, and we remand for resentencing without consideration of the domestic abuse repeater enhancer.
Decision
Reversed and Remanded