Section 939.62. Increased penalty for habitual criminality.

 

(1)  If the actor is a repeater, as that term is defined in sub. (2) , and the present conviction is for any crime for which imprisonment may be imposed, except for an escape under s. 946.42 or a failure to report under s. 946.425 , the maximum term of imprisonment prescribed by law for that crime may be increased as follows:

(a) A maximum term of imprisonment of one year or less may be increased to not more than 2 years.

(b) A maximum term of imprisonment of more than one year but not more than 10 years may be increased by not more than 2 years if the prior convictions were for misdemeanors and by not more than 4 years if the prior conviction was for a felony.

(c) A maximum term of imprisonment of more than 10 years may be increased by not more than 2 years if the prior convictions were for misdemeanors and by not more than 6 years if the prior conviction was for a felony.

(2)  The actor is a repeater if the actor was convicted of a felony during the 5-year period immediately preceding the commission of the crime for which the actor presently is being sentenced, or if the actor was convicted of a misdemeanor on 3 separate occasions during that same period, which convictions remain of record and unreversed. It is immaterial that sentence was stayed, withheld or suspended, or that the actor was pardoned, unless such pardon was granted on the ground of innocence. In computing the preceding 5-year period, time which the actor spent in actual confinement serving a criminal sentence shall be excluded.

(2m)  

(a) In this subsection:

1m. “Serious child sex offense" means any of the following:

a. A violation of s. 948.02 , 948.025 , 948.05 , 948.051 , 948.055 , 948.06 , 948.07 , 948.08 , 948.085 , 948.095 or 948.30 or, if the victim was a minor and the convicted person was not the victim's parent, a violation of s. 940.31 .

b. A crime at any time under federal law or the law of any other state or, prior to July 16, 1998, under the law of this state that is comparable to a crime specified in subd. 1m. a.

2m. “Serious felony" means any of the following:

a. Any felony under s. 961.41 (1) , (1m) or (1x) that is a Class A, B, or C felony or, if the felony was committed before February 1, 2003, that is or was punishable by a maximum prison term of 30 years or more.

am. A crime under s. 961.65 .

b. Any felony under s. 940.09 (1) , 1999 stats., s. 943.23 (1m) or (1r) , 1999 stats., s. 948.35 (1) (b) or (c) , 1999 stats., or s. 948.36 , 1999 stats., or s. 940.01 , 940.02 , 940.03 , 940.05 , 940.09 (1c) , 940.16 , 940.19 (5) , 940.195 (5) , 940.21 , 940.225 (1) or (2) , 940.305 , 940.31 , 941.327 (2) (b) 4. , 943.02 , 943.10 (2) , 943.23 (1g) , 943.32 (2) , 946.43 (1m) , 948.02 (1) or (2) , 948.025 , 948.03 (2) (a) or (c) or (5) (a) 1. , 2. , 3. , or 4. , 948.05 , 948.06 , 948.07 , 948.075 , 948.08 , 948.085 , or 948.30 (2) .

c. The solicitation, conspiracy or attempt, under s. 939.30 , 939.31 or 939.32 , to commit a Class A felony.

d. A crime at any time under federal law or the law of any other state or, prior to April 28, 1994, under the law of this state that is comparable to a crime specified in subd. 2m. a. , am. , b. , or c.

(b) The actor is a persistent repeater if one of the following applies:

1. The actor has been convicted of a serious felony on 2 or more separate occasions at any time preceding the serious felony for which he or she presently is being sentenced under ch. 973 , which convictions remain of record and unreversed and, of the 2 or more previous convictions, at least one conviction occurred before the date of violation of at least one of the other felonies for which the actor was previously convicted.

2. The actor has been convicted of a serious child sex offense on at least one occasion at any time preceding the date of violation of the serious child sex offense for which he or she presently is being sentenced under ch. 973 , which conviction remains of record and unreversed.

(bm) For purposes of counting a conviction under par. (b) , it is immaterial that the sentence for the previous conviction was stayed, withheld or suspended, or that the actor was pardoned, unless the pardon was granted on the ground of innocence.

(c) If the actor is a persistent repeater, the term of imprisonment for the felony for which the persistent repeater presently is being sentenced under ch. 973 is life imprisonment without the possibility of parole or extended supervision.

(d) If a prior conviction is being considered as being covered under par. (a) 1m. b. or 2m. d. as comparable to a felony specified under par. (a) 1m. a. or 2m. a. , am. , b. , or c. , the conviction may be counted as a prior conviction under par. (b) only if the court determines, beyond a reasonable doubt, that the violation relating to that conviction would constitute a felony specified under par. (a) 1m. a. or 2m. a. , am. , b. , or c. if committed by an adult in this state.

(3)  In this section “felony" and “misdemeanor" have the following meanings:

(a) In case of crimes committed in this state, the terms do not include motor vehicle offenses under chs. 341 to 349 and offenses handled through proceedings in the court assigned to exercise jurisdiction under chs. 48 and 938 , but otherwise have the meanings designated in s. 939.60 .

(b) In case of crimes committed in other jurisdictions, the terms do not include those crimes which are equivalent to motor vehicle offenses under chs. 341 to 349 or to offenses handled through proceedings in the court assigned to exercise jurisdiction under chs. 48 and 938 . Otherwise, felony means a crime which under the laws of that jurisdiction carries a prescribed maximum penalty of imprisonment in a prison or penitentiary for one year or more. Misdemeanor means a crime which does not carry a prescribed maximum penalty sufficient to constitute it a felony and includes crimes punishable only by a fine.

1977 c. 449 ; 1989 a. 85 ; 1993 a. 289 , 483 , 486 ; 1995 a. 77 , 448 ; 1997 a. 219 , 283 , 295 , 326 ; 1999 a. 32 , 85 , 188 ; 2001 a. 109 ; 2005 a. 14 , 277 ; 2007 a. 116 ; 2013 a. 173 s. 33 ; 2015 a. 197 s. 51 ; 2015 a. 366 . Cross-reference: For procedure, see s. 973.12 . Imposition of a 3-year sentence as a repeater was not cruel and unusual even though the conviction involved the stealing of 2 boxes of candy, which carried a maximum sentence of 6 months. Hanson v. State, 48 Wis. 2d 203 , 179 N.W.2d 909 (1970). A repeater charge must be withheld from the jury's knowledge since it is relevant only to sentencing. Mulkovich v. State, 73 Wis. 2d 464 , 243 N.W.2d 198 (1976). This section authorizes penalty enhancement only when the maximum underlying sentence is imposed. The enhancement portion of a sub-maximum sentence is vacated as an abuse of sentencing discretion. State v. Harris, 119 Wis. 2d 612 , 350 N.W.2d 633 (1984). In sub. (2), “convicted of a misdemeanor on 3 separate occasions" requires 3 separate misdemeanors, not 3 separate court appearances. State v. Wittrock, 119 Wis. 2d 664 , 350 N.W.2d 647 (1984). A court's acceptance of a guilty plea or verdict is sufficient to trigger the operation of this section; completion of sentencing is not a prerequisite. State v. Wimmer, 152 Wis. 2d 654 , 449 N.W.2d 621 (Ct. App. 1989). Felony convictions entered following a waiver from juvenile court are a proper basis for a repeater allegation. State v. Kastner, 156 Wis. 2d 371 , 457 N.W.2d 331 (Ct. App. 1990). Sub. (1) is applicable when concurrent maximum sentences are imposed for multiple offenses. Consecutive sentences are not required. State v. Davis, 165 Wis. 2d 78 , 477 N.W.2d 307 (Ct. App. 1991). For offenses under ch. 161 [now ch. 961], the court may apply s. 961.48 or 939.62, but not both. State v. Ray, 166 Wis. 2d 855 , 481 N.W.2d 288 (Ct. App. 1992). Each conviction for a misdemeanor constitutes a “separate occasion" for purposes of sub. (2). State v. Hopkins, 168 Wis. 2d 802 , 484 N.W.2d 549 (1992). Enhancement of a sentence under this section does not violate double jeopardy. State v. James, 169 Wis. 2d 490 , 485 N.W.2d 436 (Ct. App. 1992). This section does not grant a trial court authority to increase a punitive sanction for contempt of court. State v. Carpenter, 179 Wis. 2d 838 , 508 N.W.2d 69 (Ct. App. 1993). The state is charged with proving a prior conviction and that it lies within the 5-year window of sub. (2). State v. Goldstein, 182 Wis. 2d 251 , 513 N.W.2d 631 (Ct. App. 1994). A guilty plea without a specific admission to repeater allegations is not sufficient to establish the facts necessary to impose the repeater penalty enhancer. State v. Zimmermann, 185 Wis. 2d 549 , 518 N.W.2d 303 (Ct. App. 1994). When a defendant does not admit to habitual criminality, the state must prove the alleged repeater status beyond a reasonable doubt. State v. Theriault, 187 Wis. 2d 125 , 522 N.W.2d 264 (Ct. App. 1994). A commitment under the Sex Crimes Law, ch. 975, is not a sentence under sub. (2). State v. Kruzycki, 192 Wis. 2d 509 , 531 N.W.2d 429 (Ct. App. 1995). Sub. (2m) (b) is constitutional. It does not violate the guaranty against cruel and unusual punishment, the principal of separation of powers, or the guaranty of equal protection. State v. Lindsey, 203 Wis. 2d 423 , 554 N.W.2d 215 (Ct. App. 1996), 95-3392 . A conviction for purposes of sub. (2) occurs when the judgment of conviction under s. 972.13 is entered, not the date that guilt is found. Mikrut v. State, 212 Wis. 2d 859 , 569 N.W.2d 765 (Ct. App. 1997), 96-2703 . Section 973.13 commands that all sentences in excess of that authorized by law be declared void, including the repeater portion of a sentence. Prior postconviction motions that failed to challenge the validity of the sentence do not bar seeking relief from faulty repeater sentences. State v. Flowers, 221 Wis. 2d 20 , 586 N.W.2d 175 (Ct. App. 1998), 97-3682 . Sub. (2m) (b) does not violate constitutional equal protection requirements. State v. Block, 222 Wis. 2d 586 , 587 N.W.2d 914 (Ct. App. 1998), 97-3265 . When the state charged the defendant as a repeater under subs. (1) (c) and (2), then charged the defendant as a repeater under sub. (2m) in the information, it abandoned the earlier charges and could not resurrect them when the latter charge proved to be invalid. State v. Thoms, 228 Wis. 2d 868 , 599 N.W.2d 84 (Ct. App. 1999), 98-3260 . Confinement time spent on various parole holds qualifies as actual confinement serving a criminal sentence thereby extending the 5-year period under sub. (2). State v. Price, 231 Wis. 2d 229 , 604 N.W.2d 898 (Ct. App. 1999), 99-0746 . Jail time served as a condition of probation is time spent in confinement under sub. (2) and is excluded from calculating the statute's time period. State v. Crider, 2000 WI App 84 , 234 Wis. 2d 195 , 610 N.W.2d 198 , 99-1158 . A circuit court may not determine the validity of a prior conviction during an enhanced sentencing proceeding predicated on the prior conviction unless the offender alleges that a violation of the right to a lawyer occurred in the prior conviction. The offender may use whatever means are available to challenge the other conviction in another forum, and if successful, seek to reopen the enhanced sentence. State v. Hahn, 2000 WI 118 , 238 Wis. 2d 889 , 618 N.W.2d 528 , 99-0554 . When two penalty enhancers are applicable to the same crime, the length of the second penalty enhancer is based on the maximum term for the base crime as extended by the first penalty enhancer. State v. Quiroz, 2002 WI App 52 , 251 Wis. 2d 245 , 641 N.W.2d 715 , 01-1549 . For purposes of applying this section, the definition of “crime" in s. 939.12 as “conduct which is prohibited by state law and punishable by fine or imprisonment or both" is applicable to statutes outside of chs. 939 to 948 and 951. State v. Sveum, 2002 WI App 105 , 254 Wis. 2d 868 , 648 N.W.2d 496 , 01-0230 . An uncertified copy of a prior judgment of conviction may be used to prove a convicted defendant's status as a habitual criminal. The rules of evidence do not apply to documents offered during a circuit court's presentence determination of whether a qualifying prior conviction exists. The state has the burden of proof and must offer proof beyond a reasonable doubt of the conviction. State v. Saunders, 2002 WI 107 , 255 Wis. 2d 589 , 649 N.W.2d 263 , 01-0271 . A defendant's admission that an out-of-state crime is a serious felony does not relieve a court of its obligation to make an independent determination on that issue. The trial court's failure to make that finding did not prevent the appellate court from making it. State v. Collins, 2002 WI App 177 , 256 Wis. 2d 697 , 649 N.W.2d 325 , 01-2185 . Sub. (2m) is constitutional. State v. Radke, 2003 WI 7 , 259 Wis. 2d 13 , 657 N.W.2d 66 , 01-1879 . A defendant convicted of a second or subsequent OWI is subject to the penalty enhancements provided for in both ss. 346.65 (2) and 939.62, if the application of each enhancer is based on a separate and distinct prior conviction or convictions. State v. Delaney, 2003 WI 9 , 259 Wis. 2d 77 , 658 N.W.2d 416 , 01-1051 . In determining whether a prior offense was a serious child sex offense under sub. (2m), a court may apply an elements only test but may also conduct a comparable analysis by considering whether the defendant's conduct under the statute governing the prior conviction would constitute a felony under the current statute. State v. Wield, 2003 WI App 179 , 266 Wis. 2d 872 , 668 N.W.2d 823 , 02-2242 . For purposes of computation of the 5-year period under sub. (2), time spent in the least restrictive phase of the intensive sanctions program is time spent in actual confinement serving a criminal sentence that is excluded. The intensive sanctions program operates as a correctional institution, is deemed a confinement classification, and is more restrictive than ordinary probation or parole supervision or extended supervision. State v. Pfeil, 2007 WI App 241 , 306 Wis. 2d 237 , 742 N.W.2d 573 , 06-2771 . A trial court judge, rather than a jury, is allowed to determine the applicability of a defendant's prior conviction for sentence enhancement purposes when the necessary information concerning the prior conviction can be readily determined from an existing judicial record. State v. LaCount, 2008 WI 59 , 310 Wis. 2d 85 , 750 N.W.2d 780 , 06-0672 . Evidence of repeater status may be submitted any time following the jury verdict up until the actual sentencing. State v. Kashney, 2008 WI App 164 , 314 Wis. 2d 623 , 761 N.W.2d 672 , 07-2687 . The application of the persistent repeater statute requires a particular sequence of convictions: 1) the conviction date for the first offense must have preceded the violation date for the second offense, and 2) the conviction date for the second offense must have preceded the violation date for the current Wisconsin offense. State v. Long, 2009 WI 36 , 317 Wis. 2d 92 , 765 N.W.2d 557 , 07-2307 . A defendant may collaterally attack a prior conviction in an enhanced sentence proceeding on the ground that he or she was denied the constitutional right to counsel in the earlier case. The U. S. Supreme Court recognized that the information a defendant must possess to execute a valid waiver of counsel depends on a range of case-specific factors, including the defendant's education or sophistication. The Supreme Court's reference to a defendant's “education or sophistication" suggests that a court may take the defendant's cognitive limitations into account when determining the validity of his or her waiver. State v. Bohlinger, 2013 WI App 39 , 346 Wis. 2d 549 , 828 N.W.2d 900 , 12-1060 .