01-0116 State v. Peterson

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“In order to resolve the statute’s ambiguity in the context of this fact situation, we consider the legislative history which the court discussed in Martin. As the court there explained, prior to the last major amendment of the statute in 1965, the trial court could impose a repeater penalty ‘where the prior convictions were first discovered or alleged “at any time before execution of sentence has commenced,” “after conviction,” or after a “sentence has already been passed but execution thereof has not been commenced.”‘ Martin, 162 Wis. 2d at 899 (citation omitted). Thus, the statute in effect prior to the 1965 amendment permitted the trial court to impose a repeater penalty after a defendant had been convicted based on a guilty or no contest plea to charges contained in a charging document that did not contain repeater allegations. … In the 1965 amendment, the legislature deleted the foregoing quoted phrases; and, in place of ‘or otherwise brought to the attention of the court at any time before execution of sentence has commenced,’ the legislature added ‘or amendments [to the complaint, indictment or information] so alleging at any time before or at arraignment, and before acceptance of any plea.’ Laws of 1965, ch. 422, § 2.

“We conclude that one important purpose of deleting the quoted phrases was to avoid the unfairness and surprise that could result when a defendant is convicted based on a guilty or no contest plea without knowing that the penalty might be later enhanced because of his repeater status. There is nothing in the legislative history of which we are aware that indicates that…, the legislature considered a situation where the defendant agreed to add repeater allegations to a charging document as part of a plea agreement, nor is there any indication the legislature intended to preclude this. Moreover, allowing a defendant to agree to amend an information to add repeater allegations as part of an agreement to plead guilty or no contest is consistent with the goal of providing the defendant with all the information about the potential punishment at the time he or she pleads guilty or no contest.”

Judgment and order affirmed.

Recommended for publication in the official reports.

Dist III, Barron County, Eaton, J., Vergeront, J.

Attorneys:

For Appellant: William E. Schmaal, Madison

For Respondent: James C. Babler, Barron; Sally L. Wellman, Madison