‘Repeater’ status determined at time of offense

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If you have an appeal pending on a defendant’s prior offense, and the state is using that conviction as the basis for a repeat offender enhancement, it may not do any good to get the convictions reversed or reduced before sentencing on the new charge.

An Aug. 20 opinion from the Wisconsin Court of Appeals holds that even though the convictions supporting the enhancement were reduced from felonies to misdemeanors before sentencing, they still count as felonies.

Andres Justiniano was charged in 2006 with various counts of bail jumping and disorderly conduct as a repeater under sec. 939.62(2). The repeater enhancements were based on May 2004 felony convictions.

After the charges were filed, but before he was sentenced, the 2004 convictions were reduced to misdemeanors. As a result, Justiniano argued that he was not a repeater under the statute.

But the circuit court disagreed, and in an unpublished opinion by Judge Burnie Bridge, the Court of Appeals affirmed.

The statute provides that a defendant is subject to enhancement if he “was convicted of a felony during the 5-year period immediately preceding the commission of the crime for which [he or she] presently is being sentenced … which convictions remain of record and unreversed.”

The court interpreted this language to mean that a defendant’s status as a repeater is determined at the time he committed the new crime.

“[A]s of the time of the commission of the crime, the offender must have been convicted of a felony within five years and that conviction must have remained on record at that time.”

Justiniano argued that the use of the word “remain” rather than “remained” meant that the conviction must remain on record at the time of sentencing, but the court disagreed, reasoning, “The statute’s use of the word ‘remain’ is consistent with its use of the word ‘commission,’ a present tense alternative to the word committing, in describing the point in time from which an offender’s repeater status is to be determined.”

The court noted State v. Hahn, 2000 WI 118, 238 Wis.2d 889, 618 N.W.2d 528, in which the Supreme Court held that a defendant may challenge the validity of prior convictions and, if successful, may “seek to reopen the enhanced sentence.” Hahn, 2000 WI 118, par. 28.

But here the court limited Hahn’s application to challenges to the “validity” of a prior conviction. In Justiniano’s case, the prior convictions were not invalidated, but “merely amended” from felonies to misdemeanors.

Bridge wrote, “Thus, although the severity of the conviction was reduced, the determination of guilt remained the same.”

Attorney James C. Murray, who represented Justiniano, said he hasn’t decided whether to seek further review in the Supreme Court.

Murray added that he remains perplexed how a defendant could seek a reduction of his sentence after sentencing pursuant to Hahn, but not at sentencing itself.

Analysis
Fortunately, the court’s opinion is ineligible for publication and will not become binding precedent on lower courts. Unfortunately, it can be cited for persuasive authority.

Besides the tortured interpretation of “remain of record and unreversed,” the opinion is also problematic for two other reasons.

First, it is inconsistent with the reasoning of State v. Matke, 2005 WI App 4, 278 Wis.2d 403, 692 N.W.2d 265, which holds that in drunk driving cases, the number of prior convictions is determined at the time of sentencing, not as of the offense date.

Second, it says at one point that repeater status is determined at the time of the offense. But in rejecting Justiniano’s argument based on Hahn, it emphasizes that the conviction was not reversed, but only amended to a misdemeanor. However, if the relevant time frame is the date of offense, rather than sentencing, then it should be wholly irrelevant whether the conviction was later invalidated or “merely reduced.”

Third, sec. 939.62(2) states that it is immaterial if the defendant was pardoned for a prior conviction, unless the pardon was granted on the ground of innocence.

Logically, if a conviction was reduced from a felony to a misdemeanor, because the defendant was only actually guilty of a misdemeanor, then it should be highly material to his repeat offender status at the time of sentencing.

In other words, the relevant inquiry should be WHY the defendant’s conviction was reduced from a felony to a misdemeanor, not WHEN.