01-2185 State v. Collins

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“Even if a defendant ‘admits’ that his or her violation is ‘comparable,’ this does not relieve the circuit court of its obligation to make an independent determination. Whether a crime in another state would be a ‘serious felony’ if committed in Wisconsin is a legal, not a factual question.

“Although there are several differences between the Illinois crime of second-degree murder and the Wisconsin crime of second-degree intentional homicide, none of them work to invalidate Collins’s sentence as a persistent repeater. One difference between the Wisconsin and Illinois statutes is that second-degree intentional homicide requires intent to kill while second-degree murder requires only intent to do great bodily harm. But even if the jury in the Illinois case concluded only that Collins had intended to do great bodily harm, this would, at minimum, be considered aggravated battery under Wis. Stat. sec. 940.19(2) (1987-88),9 which is also a ‘serious felony’ under the persistent repeater statute. [Citation].

“Also, second-degree murder in Illinois requires only that the defendant know that there is ‘a strong probability’ of death or great bodily harm while second-degree intentional homicide in Wisconsin requires that the defendant know his or her conduct is ‘practically certain’ to cause the victim’s death. Compare Wis. Stat. sec. 939.23(4) (1987-88) with Ill. Rev. St. 1987 ch. 38 sec. 9-1. But an individual who killed another with the knowledge that there was ‘a strong probability’ that the victim would die could be charged with second-degree reckless homicide under Wis. Stat. sec. 940.06 (1987-88), which is also a ‘serious felony,’ as that statute requires only that the defendant was aware that his or her conduct created an ‘unreasonable and substantial risk of death or great bodily harm.'”

Judgment affirmed.

Recommended for publication in the official reports.

Dist IV, Dane County, Bartell, J., Dykman, J.

Attorneys:

For Appellant: Leonard T. Collins, Waupun; Paul G. LaZotte, Madison

For Respondent: Gretchen L. Hayward, Madison; Sandra L. Nowack, Madison