State v. Bonds

Wisconsin, State Plaintiff-Respondent,

v. Jamale A. Bonds, Defendant-Appellant-Petitioner.

Supreme Court argument April Oral No. 2005AP948-CR. June

Decided 2006 WI 83 (Also 133.) reported in 717 N.W.2d C.J., concurs. AbRAHamson, Jh., J.J., join. Bhadley and ButleR, part. Chooks, J., part, dissents concurs J.J., join. and Phosser, Wilcox defendant-appellant-petitioner, For the there were argument by Felsmann, briefs Diana M. oral and Jeremy public Perri, C. assistant state defenders. plaintiff-respondent, argued by

For the the cause was attorney general, O'Neil, Aaron R. assistant with whom Peggy Lautenschlager, attorney on the brief was A. general.

¶ 1. PATIENCE DRAKE ROGGENSACK, J. We post-conviction review the State's amendment to a complaint battery criminal in violation of Wis. Stat. 940.19(1) (2003-04),1 as the amendment affects the allegation basis for the that Jamale Bonds is an ha- regard criminality, bitual criminal. In to habitual complaint alleged three misdemeanor convictions. The body date of the convictions was misstated in the complaint, copies judgments of the but certified of the the’copy complaint of conviction were attached to given pled guilty that was to Bonds. Bonds and was by jury. sentencing, convicted At he did not admit the allegation criminality. of habitual The State then changed allegation the factual basis for its that Bonds sought prove prior felony was a forgery conviction. The State submitted a Consolidated (CCAP) Programs report proof Court Automation as objected amending that conviction. Bonds the basis sought prove criminality on which the State habitual proof and also asserted that the the State had submit- prove criminality ted was insufficient to habitual be- yond permitted a reasonable doubt. The circuit court accepted the amendment, the CCAP as sufficient 1All further references to the Wisconsin are to Statutes 2003-04 version unless otherwise noted. criminality, a Bonds as and sentenced

proof of habitual to do so. repeater. it was error claims Bonds that with court conclude of the 2. Four members post-conviction proof, amendment the State's sufficient criminality proving would have habitual for of the basis (1) complaint permissible reasons: for two been requirements and of 973.12 of Wis. Stat. satisfied being he was process had notice that Bonds because due charged potential and of the criminal an habitual as pled; and he faced before he sentence maximum (2) making intelligent prejudiced Bonds was not prior plea to a different State's shift as result allegation.2 for its factual basis as the conviction majority also con- of the court However, a different report as evidence of a CCAP the State's use cludes that prima facie not constitute does Bonds's conviction of proof Bonds did not waive and that conviction of that object CCAP right use of the the State's his report.3 appeals Accordingly, is decision court of the circuit remanded to matter is and the reversed portion Bonds's sen- enhancer vacate the court to tence.

I. BACKGROUND undisputed. Jamale facts are relevant 3. The battery charged crimi an habitual as with Bonds Crooks, T. Prosser Wilcox, David Patrick E N. Justices Jon majority permitting form the Roggensack Drake and Patience in the allegation of the factual amendment post-conviction an habitual Bonds was alleged the State upon which complaint criminal. Ann and Justices Abrahamson Shirley S. Justice Chief Butler, Louis B. Roggensack and Drake Bradley, Patience

Walsh concluding that a CCAP majority for form the Jr. convic Bonds's proof facie prima to constitute sufficient felony. tion §§

nal, in violation of Wis. Stat. 940.19 and 939.62. In complaint, alleged the criminal the State three misdemeanor convictions as the basis for the habitual allegation: criminality

[T]he defendant repeater is a defined in as Wisconsin 939.62, Statutes Section in that the defendant was (three misdemeanors) convicted of... during the five year period immediately preceding the commission of conviction(s) charged the crime in this complaint, which remain[] record and If unreversed. this is found to be case, the the maximum imprisonment term of for this crime be increased to not years, more than 2 exclusive of other penalties charged enhanced herein. (Milwaukee Complaint County July Criminal Cir. Ct. 29,2003). The three misdemeanor convictions were individually by: described committed, offense county statute that contravened, was of conviction and the case number for each matter. The date of the body complaint; convictions was misstated in the of the copies judgments however, certified of the of conviction copy complaint were attached to the that was given to Bonds. pled guilty,

¶ 4. Bonds trial, went to and was jury. sentencing, convicted At the State recom- mended that Bonds be sentenced to the maximum term battery criminality with an habitual enhancer: 18 months initial confinement and six months extended supervision. support sentencing request, of its criminality finding State asked that the habitual felony forgery based on a 1998 conviction lieu of the alleged misdemeanor convictions that were in the com- plaint. Bonds did not admit to a conviction so the presented a CCAP that indicated he was felony forgery day convicted of one after the misde- complaint. meanor convictions set out in the The sen- communication following tencing transcript provides about prosecutor and the sentencing judge between criminality for habitual the amendment of the basis calculations that in the and the alleged complaint was on Bonds's status: bore I of all the circuit court copies MR. RESAR:... have I specifi-

access records. would ask or cally, through either these records through the own admis- defendant's finding that a be made that sion felony defendant was convicted forgery and that conviction took place April on 16th of 1998. day he found THE That is the after COURT: guilty battery charge and bail charge, misdemeanor jumping Right? charges. just, accurate. But I I think

MR. RESAR: That is felony a little cleaner using that the older misde- rely and doesn't on together piece that need to meanor we However, time. we still do confinement rely time. The need to on confinement rely on asking the court to State is charged in that. As the defendant was 29th, So, July we this case on that point. at least 5 months at need years and approximately There is five de- the time the five months between charged the time the fendant was and felony convicted of the defendant was time, excludes that forgery and that any excludes time year period, five in confinement. spent defendant are records from the Milwaukee There to County have been shown Jail which counsel, that the de- which establish custody the Mil- fendant was in the County July Jail waukee between 26th May in 1999 and 8th of 2000. That he serving was a sentence on those cases the court refers to.

So, that know the defendant with we custody nearly months, was in ten far surpassing the five months in order to required would establish criminality habitual enhancer this that, I would case. With ask findings, court make those either through through those documents or the defendant's own admission to the validity of the same. objected

¶ 5. Defense counsel State's amend- ment and asked the court to find that the habitual criminality allegation was defective for two reasons: (1) felony alleged conviction was not the com- (2) plaint; proved felony the State had not beyond conviction doubt. The State re- reasonable sponded required that all that was on the advance criminality allege prior habitual plea enhancer to was to a person that a criminal. The habitual complaint required spe- contended that was not cifically allege which conviction or convictions formed criminality allegation. the basis for the habitual Addi- tionally, reports the State contended that CCAP are proof. sufficient management system provided

¶ 6. CCAP is a case (WCCA). program Wisconsin Circuit Court Access It provides public activity reports online to in access Wisconsin circuit courts for those counties that use employees CCAP court Circuit enter all CCAP data in county located, where case files are and the system. information feeds into the statewide access How- and counties or only is a ever, voluntary program, CCAP case that elect to use CCAP's county divisions within reports. CCAP management system generate all website, which CCAP through 7. The WCCA asks all users of can accessed by public, reports and the following agreement: to read system accept Judgment and Lien WCCA is not the official Lien Judgment The official and Docket is Docket. county's Court Office. located in each Clerk of Circuit database is limited The data available the CCAP by: for currently

1. Some counties use CCAP selected only Probate cases. types. Portage case has data began using it at 2. Counties that are on CCAP independent and made decisions about different times "backloading" pre-CCAP cases. entered in All the data in the CCAP database is located. counties where the case files are the individual hourly updated information is unless CCAP is Case experiencing or tech- performing periodic maintenance problems. nical any you

If believe of the data contained this inaccurate, contact the circuit court please database is and filed. CCAP original record was created where insuring accuracy no warranties provides WCCA, in records available on information contained to, mail via is delivered or that electronic sent WCCA by, recipient. or read its intended accessed you indicate that have read above Please terms, subject to the above agree to the use WCCA of the CCAP database. and understand the limitations (last visited June http://wcca.wicourts.gov/index.xsl 2006).

¶ 8. The circuit court concluded that the criminal complaint gave Bonds notice that the State intended to ask the court to find that he is an habitual criminal alleged it three because misdemeanor convictions. felony The court also concluded that the shift ato grounds finding conviction as the criminality for a of habitual prejudice did not him. The court concluded judicial report that it could take notice of the CCAP felony forgery.4 Bonds's conviction for ¶ 9. The circuit court sentenced Bonds to 18 months of confinement and six months of extended supervision. sentencing, judge explained At that the application supported by enhancer was forgery although Bonds's conviction. He told Bonds that forgery years conviction occurred more than five battery being before the for which Bonds was sen- forgery tenced, the time Bonds was confined for the conviction had to be subtracted from the time between forgery charge the tery. Doing conviction and the current of bat- placed forgery

so conviction within the applicable five-year period according provisions 939.62(2). of Wis. Stat. post-conviction

¶ 10. Bonds filed a motion for pursuant §§ relief to Wis. Stat. 809.30 and 974.02, arguing improperly that the court had determined that requesting he was an habitual criminal and that his changed sentence months, to nine the maximum 940.19(1) penalty battery for a Wis. Stat. conviction. argued Bonds that he had been denied notice of the criminality allegation habitual because State had alleged forgery not conviction as its basis before his

4We note that purposes subtracting for the Bonds's time in confinement from the date of forgery, conviction for the County State submitted Milwaukee Jail records. The use of those records not in dispute. argument

plea. He his that the had also refined beyond proved criminality habitual reasonable by asserting doubt, that the unreli- CCAP prove criminality able and insufficient to habitual sta- motion. tus. circuit court denied his appeals adopted

¶ 11. The court circuit reasoning court's as its own. review the court of We appeals decision.

II. DISCUSSION A. Standard Review application

¶ 12. review the of a statute When we penalty to a set of facts to determine whether a enhancer question presented valid, we are a is with law we independently, previous review without deference to Bingen Bzdusek, court decisions. State ex rel. 2002 v. WI App 210, 8, 193, 894; 257 Wis. 2d 650 N.W.2d see also Koeppen, 117, 126, 2d State v. 195 Wis. 536 N.W.2d (Ct. 1995). App. we determine whether defen When dant has received notice that the State intends seek imprisonment, independently increased we review given that was to determine whether it satisfies notice process. Stynes, ¶65, due v. 262 Wis. WI 665 N.W.2d Criminality Penalty B. Increased for Habitual allows increased 13. Wisconsin Stat. 939.62 imposed repeat penalties on criminals at the time to be pertinent part: sentencing. Section 939.62 states (1) If as that term is defined repeater, the actor is (2), any is for crime present in sub. and the conviction may imposed, except be for an imprisonment for which escape under s. 946.42 or a failure to under s. 946.425, the maximum term of imprisonment pre- may for that crime be as scribed law increased follows:

(a) imprisonment year A maximum term of of one years. or to not more than 2 less increased (2) The actor is a if the actor was convicted felony during 5-year period immediately pre- ceding the commission of the crime for which the actor presently being sentenced, ifor the actor was con- during victed of a misdemeanor on 3 separate occasions period, same which convictions remain of record computing preceding 5-year and unreversed. ... In period, spent time which the actor in actual confine- serving ment a criminal sentence shall be excluded. 14. Wisconsin Stat. 973.12 sets forth the for statutory requirements and alleging applying enhancer. It repeater states, in pertinent part: (1) person charged Whenever a a with crime will be repeater a or a persistent repeater under s. 939.62 if convicted, any applicable prior may convictions be alleged in the complaint, indictment or information or alleging any at amendments so time before or at arraignment, acceptance any and before of The plea. may, upon court attorney, grant motion of the district a investigate possible reasonable time to prior convic- accepting plea. tions before a If convictions state, are admitted proved by the defendant or he subject or she shall be to sentence under s. 939.62 unless he or she that or par- establishes he she was grounds any doned on necessary innocence for crime him or repeater persistent constitute her a or a repeater. An any govern- official of the F.B.I. or agency mental of the United States or any of this or any facie evidence of prima other state shall be convic- reported. Any or therein sentence so tion sentence reported prima fully shall be deemed facie to have been served in actual confinement or to have been served of time as is or is period such shown consistent with report. § proper application of 973.12 is at the center challenge repeater.

Bonds's to his sentence as a parties' positions 1. The improperly that the 15. Bonds contends State complaint changed

amended the it the factual when repeater allegation from three basis of the misdemean- felony forgery supports to a Bonds this ors conviction. (1) following position arguments: with the Wis. Stat. 973.12(1) unambiguously requires that convic- alleged acceptance any plea; at or tions be before (2) Martin, 883, 907, State v. 470 N.W.2d Wis. (1991), allegation held cannot (3) plea; and if able to added after even the State was regarding complaint amend the the basis for the re- allegation peater plea, prejudiced after a Bonds was therefore, not amend here. argues State, hand, 16. The on the other post-plea amend- Stat. does not bar all 973.12 allegations criminality. of habitual The State

ments following arguments: supports position its with the (1) gives permissible complaint if modifications are potential penalty notice of the maximum defendant subjected plead- to which the defendant could he when ing, prejudiced in the defendant would not be such that (2) gave deciding plead; complaint Bonds how to penalty adequate of maximum he faced at the notice 357 (3) prejudiced by plea; Bonds was time of his repeater change factual basis for the in the State's allegation. § Interpretation 973.12 of Wis. Stat. complaint Although was actu- no amended

ally court, Bonds characterized filed in the circuit proving request change basis for habitual to State's criminality untimely amendment of the com- as an requirements plaint. examine the Therefore, order to and how an amendment Stat. 973.12 Wis. criminality complaint in the set out for habitual basis may requirements, begin we with affect the statute's State, 575 2d 265 N.W.2d Whitaker v. (1978), charging docu- discussed amendments to which general. did not concern ments in Id. at 374. Whitaker rather it addressed an initial enhancer, a charge but party the crime of theft that the State robbery, arraignment and amended to after Whitaker's Subsequent plea guilty. amendment, to the of not again arraigned, time on the this Whitaker was plea Id. at information, and a new was taken. amended reaching interpreted 971.295 in Wis. Stat. 370-71. We statutory bar to our conclusion that amending there was no after an information with leave of the court State, v. interpreted The version of the statute Whitaker (1978), to the 265 N.W.2d 575 is identical 83 Wis. provides: § 971.29 2003-04 version. Wisconsin Stat. (1) any complaint may be amended at time A or information arraignment of the court. without leave (2) trial, amendment of the At the the court allow proof complaint, indictment or information to conform to the prejudicial is not to the defendant. After where such amendment pleading verdict the shall be deemed amended conform timely objection proof if no to the relevance the evidence upon raised the trial. arraignment long prejudice so as there was no to the purpose defendant. Id. at 374. We reasoned that the an information is to "inform the defendant of the charges against "[n]otice key- him," and that is the (citing factor." Id. State, at 373 La Fond v. 37 Wis. 2d (1967) (Heffernan, 137, 144, 154 N.W.2d304 J., dissent ing) and the Constitution, I, Wisconsin Art. sec. 7: "In prosecutions enjoy all criminal the accused shall right... to demand the nature and cause of the accu him."). against explained sation We that an amendment prejudicial of an information before trial would not be if right right speedy a defendant's to notice, to a trial, and right prepare present and a defense to the criminal charges Whitaker, were not affected. 83 Wis. 2d at 374. years, In recent we have had occasion to validity post-plea determine the of various amendments relating criminality. guide to habitual Those cases our analysis of whether the State's amendment in this case permissible under Wis. Stat. 973.12 and constitu- process requirements. tional due Martin, we consolidated two cases that challenged raised the same issue. Each defendant criminality plea State's assertion of habitual after a guilty charges arraignment. not preted to the at We inter- 973.12(1) prohibiting

Wis. Stat. as an amend- alleged ment that that the defendant was an habitual (3) Upon allowing complaint an amendment or indict- information, ment or the court direct other amendments thereby necessary may proceed postpone rendered and with or trial. Because the statute refers to complaints both and informa- tions, and only felony because informations are required in cases, reasoning we conclude that of Whitaker and all subsequent case regarding law the amendment of an informa- tion, can analogously applied charging to all documents. and arraigned has been has

criminal where defendant made no to an information that allega- pled guilty Martin, was a repeater. tion that the defendant the legislative history6 We 2d at 900. reviewed statute, coupled language concluded history, made clear that: with that arraign- legislature established the time of [T]he has any point of as after plea acceptance ment and the cut-off longer exposure a can no time defendant face which the crime forth in the repeater enhancement for set at charging pleaded document and the defendant arraignment.

Id. (emphasis in original).

6 Martin, briefly from v. 162 We list our conclusions (1991), history regarding 900 of Wis. 2d N.W.2d § Stat. 973.12: Wis.

(1) Initially, allegation a not considered essen- repeater rather, charged; it was tial to the substantive offense considered "the in order to the punishment essential to information secure provided [repeater for in case of offense and status had a second (citation omitted). alleged in the Id. at to] be information."

(2) investigation in 1919 permitted Revisions to the statute conviction, criminal record after even when a defendant's alleged charging document had not the defendant was re- time, require peater. Id. at 898. At that statute did not arraignment. notice to defendant at Id.

(3) permitted allegation The 1949 to 973.12 revisions any execution of repeater status at time before the sentence. Id.

(4) amended, again In 973.12 was wherein the ability legislature references to a eliminated "all defendant's trial" juiy prior demand a on whether convictions existed. Id. at language a court to 899. It also eliminated allowed make allegation any sentencing; required before it repeater at time repeater allegations arraign- that the initial be made "beforeor at ment, any plea." and before Id. at 899-900. acceptance weighing meaning of the statute against the facts of the cases, consolidated we relied in part reasoning on the decision, State, Block v. (1968), 2d 205, 210,163 N.W.2d196 in which we analyzed the 1965 amendment to the statute:

Being a repeater is not a crime but may enhance the punishment of the crime for which the repeater is allegation convicted. The put recidivism is in the information order to meet the due-process require- ments of a fair trial. When the defendant is asked to plead, he is entitled to know the extent of punish- .his ment of the alleged crime, which he cannot if know he is not then informed that his convictions he used to enhance the punishment.

Martin, (quoting 162 Wis. 2d at 900-01 Block, 41 Wis. Block)). (emphasis 2d at 210 ¶ 21. allegation Martin addressed when the initial criminality of habitual must be Here, made. there is no dispute alleged repeater that Bonds was to be a in the complaint, compliance initial criminal in with Martin. question we must decide is when can an amend proving criminality ment of the initial basis for habitual alleged complaint that was in Subsequent the be made. Martin, post-plea to we have allowed some amendments repeater allegations. of initial Gerard, See State v. 189 (1995); 2d 505, 517-19, 525 N.W.2d 718 see also Stynes, Campbell, ¶¶ 262 Wis. 2d 32, 34; State v. (Ct. 1996). App. 201 Wis. 783, 792, N.W.2d Gerard, In we held that a criminal informa- alleged criminality tion that habitual could be pled guilty amended, after the defendant had not to the charges, but to the start of trial, to correct the years by number of which the defendant's sentence repeater. could be enhanced due to his status aas distinguished Gerard, We the 189 Wis. 2d at 507-09. noting Martin, of that the of that case from those facts relating charges complaint and to Gerard's information correctly alleged repeater and that mere his status length misstating potential error the of scrivener's penalty not due enhancer did affect enhancement sufficiency given to Id. at 512, of notice Gerard. the the rejected argument he that was 517-19. We Gerard's arraignment, prejudiced due to a because at the time subject thought error, three, he that he was clerical years prison in if six, convicted rather than additional underlying one of the counts. Id. at 516-18. on by aspects persuaded factual 23. We were three case that us to conclude Gerard suffered caused (1) prejudice: discovered the error the no Gerard complaint brought and it to the information fully attention, that he was aware court's so yet he failed faced, sentence enhancement he actual (2) plea; did not move to withdraw his Gerard assert by grant prejudiced he that was court's decision (3) amend; motion to Gerard discovered the State's very early stages clerical error at the of the criminal proceedings, nine his Id. at months before trial. 518-19. Stynes, complaint

¶ held we day one misstated the date one of defendant's provided adequate of convictions on convictions notice based, his as it which status included county descriptions offenses, stated the correct occurred, which the convictions and cited case Stynes, 2d numbers for convictions. 262 Wis. the error in "did 32. We determined that the date meaningfully change Stynes's plea the basis" not guilty. Accordingly, Stynes Id., ¶ 34. we held that was prejudiced gave him not because the amendment notice allega- prior repeater of the convictions on which the 362 permitted based, tions therefore, were we Stynes pled. amendment of the date of conviction after Id. Stynes,

¶ 25. we also reviewed the court of appeals Wilks, in decision State v. 2d 102, 165 Wis. 477 (Ct. 1991). App. N.W.2d632 Wilks held where that prior signifi misstatement date of a conviction was enough question cant relying call into whether the State was actually

on a that existed, conviction prejudice error could not be corrected without to a pled Stynes, defendant who had no contest.7 See 262 distinguished ¶¶ Wis. 2d 335, 22-27. We inWilks Stynes Stynes because information misstated the day date of one theof convictions one and there alleged was no confusion about whether the convictions actually Id., existed. Stynes Further, we on relied Gerard's

reasoning years by that of the statement number which the sentence could be enhanced essential repeater allegation statutory ato because there nowas requirement years by which number specified charging sentence could be enhanced be in the impact Id., ¶ document. 30. We summarized the Wilks and as Gerard follows:

Wilks underlying policy identified of the notice 973.12(1) required by satisfy Wis. Stat. is to due process by assuring that the defendant knows the potential extent punishment at the of the time Gerard reiterated that plea. process requires "[d]ue defendant or informed of his her status pleading charges." before 7 day, year incorrectly month and were stated in the complaint county criminal and no of conviction was mentioned. n.3, 106, 477 N.W.2d Wilks, (Ct. State v. 165 Wis. 2d 1991). App. (citations omitted); Fields, see Id., also v. App ¶¶ 7-14, Wis. 2d 638 N.W.2d897 WI (analyzing to conclude that Martin Gerard copy pre-plea a certified of submission of State's prior an amendment convictions constituted defendant's thereby curing information, the information's adequate defects, had notice that because the defendant charged repeater). being he a as Campbell, appeals a the court of held that post-arraignment information, to amendment to an add initially alleged to three as the a fourth misdemeanor repeater enhancer, for the did not violate Wis. Stat. basis Campbell, Campbell argued 201 Wis. at 792. 973.12. prejudiced he was the amendment because there possibility of that one his misdemeanors was a appeal. Therefore, Id. he on at 792-93. would be reversed argued, reversal, in the of the amendment event such potential misdemeanor affected his add fourth only punishment it, two because without there would be prove could not re- valid misdemeanors and the State peater Consequently, argued, Id. he the amend- status. guilty meaningfully changed not the basis his ment plea permitted. not Id. at 793. and should have been appeals responded theory ¶ 28. The court of to this by concluding that even if the were assume that court change Campbell's a reversed conviction would original as a the three misde- status under charges, prejudice did his meanor amendment ability potential punishment he assess maximum appeals explained preju- Id. that the faced. The court Campbell perceived dice described is what he to be the potential effect of the amendment on his chances adverse defending against penalty enhancer, did but that ability potential not affect to evaluate the maximum his to which he could punishment subjected, at either or arraignment plea at Id. hearing.8 on relied Martin Campbell reasoning of and Gerard that sufficiency notice to a defendant maximum he or potential punishment she faces as a of a result enhancer repeater keystone is the to the permissibility of post-arraignment regard- amendments ing at repeater allegations. Id. 791-92. Since Campbell had notice of his maximum potential for the punishment crime the and enhancer at time penalty the of his plea, the amendment did not affect sufficiency notice he had given been or violate Wis. Stat. 973.12. Id. at 792. 30. When considered together, this precedent

establishes the following principles:

(1) allegations repeater purpose status charging in a provide document is to the defendant with sufficient notice of the potential penalty maximum he faces order that the defendant make informed Gerard, Martin, plea. n.6.; 189 Wis. 2d at 512 162 2dWis. Whitaker, 900-01; at 83 2d at Wis.

8 recognize Campbell plea agreement We that also a involved original Campbell's arraignment. Campbell, made after State v. (Ct. 1996). 783, 786-87, 201 2d App. Wis. 549 N.W.2d 501 original arraignment, stood and Campbell mute the court en guilty later, tered not Id. at pleas. 786. Several weeks concurrent with the complaint, Campbell State's amendment of the reached plea agreement pled underlying a in which he no to the contest charges as a repeater. Campbell challenged Id. at 786-87. amendment it was post-arraignment. because made Id. at 792. The court Campbell separately analyzed effect post-arraignment original guilty plea, amendment on his not part Campbell which is the applicable to the issues by Bonds, agreement. on Campbell's plea raised Id. at 792-94.

(2) allegation made repeater If there has been no plea, and the defen- acceptance court's charging document has not after the re-plead dant does amended, permissible not sentence enhancement is been Martin, Gerard, 513-14; Wis. 2d at upon conviction. 902-03; Campbell, at 201 Wis. at 791-92. 2dWis. (3) court, plea and after a has been With leave of sufficient be- accepted, charging documents were regard accepted may be amended with plea fore re- allegations concerning a defendant's to the initial prejudiced long so as the defendant is peater status 335, 34; Stynes, 262 Wis. 2d by the amendment.9 ¶¶ Gerard, 509; Campbell, 201 2d at 2d at 189 Wis.

(4)When allegations amendment post-plea concerning a defendant's status earlier made compromise sufficiency of notice of the does not faces, no maximum sentence defendant potential 31-32; Stynes, occurs. 262 Wis. 2d prejudice ¶¶ Gerard, 516; at Campbell, 2d at 201 Wis. 2d 189 Wis. 793; Wilks, 165 2d at 110. Wis. Prejudice

C. Claim of Bonds's that It is the State's burden to Bonds prove 973.12(1) § Stat. was Wis. prejudiced allegations notice sufficient the through satisfied 9In give potential order to sufficient notice the maximum allegations penalty that a defendant due to of habitual faces criminality, complaint must or specify a date dates convic tion, or of which the the substantive crime crimes defendant was convicted, felony a a and whether each conviction was or misde 335, 65, 15, Stynes, 2003 262 Wis. 2d 665 meanor. State v. WI Gerard, 515-16, 115 189 (citing State v. Wis. 2d N.W.2d (1995)). N.W.2d charging criminality. Stynes, basis for habitual 262 Wis. apply principles Stynes, When we from Campbell Gerard, us, and Wilks to the facts before we prejudiced by conclude Bonds was not the State's post-conviction original allegations amendment of in complaint on which the State based its assertion of criminality. dispute First, habitual there is no repeater. a Second, Bonds's convictions made him dispute alleged no there is that Bonds was to be a repeater § pled, compliance before he in with The 973.12. complaint given pled that was to him before he battery charge incorporated by attached, and reference, copies judgments certified of conviction for three specific misdemeanors. crime com- that was statutory mitted, the section violated, that was the case county matter, number each and the of conviction complaint were all set out for each misdemeanor. prejudice sentencing, Third, Bonds no when suffered at by jury, after he was convicted State amended the felony factual basis to a conviction that was sufficient to satisfy § relying 939.62, Wis. Stat. rather than on the three misdemeanor convictions listed the criminal complaint. prevent The amendment did not Bonds from assessing meaningfully potential penalty maximum 939.62(l)(a), § subjected. to which he could be Under proved by whether the State his status three felony conviction, misdemeanor convictions or one potential penalty Bonds's maximum was the same. This battery is so because conviction under Stat. 940.19(1) is a AClass misdemeanor that has maximum 939.51(3)(a). imprisonment of nine months. Wis. Stat. repeater Therefore, the enhancement, even with Bond's imprisonment battery maximum term of for the convic- years, tion could not be increased more than to two . 367 regardless on misde- State relied three of whether the felony.10 or one meanors by argu- unpersuaded Bonds's also are 32. We pled guilty he not he believed that that he because

ment repeater as the actual dates not be as a would sentenced more occurred than of misdemeanor convictions the battery. Any charged years he with before was five body in the com- of dates listed misstatement by plaint of the certified cured the attachment was given copies judgments to of conviction that were complaint. explained Fields, 249 As Bonds with the providing a defendant with a certified Wis. 2d copy his convictions constitutes an amendment charging in it. to document that cures defects acknowledges he incarcerated for ten Bonds forgery period This of time is months for the conviction. five-year period not ing of time when assess- counted in the requisite fall convictions time- whether within 939.62(2). years. addition, frame of five Wis. Stat. complains "prejudice" that Bonds is adverse repeater allegation. potential on a defense effect Campbell set aside an concludes this is insufficient to allegation it not amendment to because does ability potential maxi- affect a defendant's assess may subjected. Campbell, mum he sentence which agree Campbell. 201 2d at 793. with We Criminality D. Evidence of Habitual 33. The second issue we address is whether sentencing CCAP offered the State at 939.62(l)(a) "A maximum provides: Wisconsin Stat. imprisonment year term of one or less be increased to years." more than prima proof facie sufficient to constitute that Bonds is parties agree an habitual criminal. The that the State prove beyond has the burden to Bonds's status doubt. reasonable arguments parties' 1. The argues ¶ 34. Bonds that the State failed to meet its reports they burden CCAP because are unreliable as do purport accurately not even to official reflect court agreement records. He reminds us that the CCAP user explicitly reports states that CCAP should not be relied accurately representing provided. on as the information argues Furthermore, Bonds that CCAP records do not government report" agency constitute an "official of a prima pursuant that would facie constitute evidence 973.12(1). § language Therefore, of Wis. Stat. even objection part absent an on offered, his to the evidence prove qualifying State did meet its burden to conviction. argues State, hand, 35. The other on the government

CCAP records should be considered official 973.12(1) reports pursuant Wis. Stat. the rea- soning Farr, v. 651, of State Wis. 2d 350 N.W.2d640 (1984), suggested presentence report in which we that a "may" report" constitute "official where it contains the previous date of conviction for the Id. at offense. problems The State contends even if are also there using right report, with a CCAP Bonds his waived challenge proof CCAP as convic- his object specifically tion because he did not to its use at sentencing. need Therefore, we not address whether adequate proof qualifying CCAP are records convic- tion. The relies on decision in State v. our Saun- ders, WI 255 Wis. 649 N.W.2d263. presented

2. Evidence 973.12(1) directs that 36. Wisconsin Stat. any govern- "[a]n report of EB.I. or other official any agency or or of this mental United States any prima convic- facie evidence of other state shall be reported." We discussed the therein tion or sentence meaning language Farr, 119 Wis. 2d at 656-60. of this probation report Farr, a In we concluded that 37. not dates a defendant's did state the of any conjecture whether of them "left to were convictions years." previous Farr, 2d at within the five 119 Wis. report was not an determined that such 657-58. We report type in Wis. official described Stat. 973.12(1). did Id. at 658. We not decide whether report proper presentence probation or that had report, we information could serve as official but explained: 973.12(1), Stats., report on be an official under sec.

To contain placed, report reliance must which regarding repeater issue of relevant information specifically include the date of convic- status must in the previous tion for the offense. ... and, did not contain such information present case therefore, on enhance- penalty could not be relied ment.

Id. statutory Saunders, 38. we reviewed same challenged report," a defendant

term, "official where copy judgment of use an uncertified of a State's criminality. failing prove conviction, habitual We as judgments although copies certified concluded that prima facie of ha- are sufficient to constitute evidence 973.12(1) criminality, require Wis. Stat. does bitual copies prior judgments the State to use certified penalties. conviction as the basis for Saunders, enhanced 255 Wis. 2d 24. explained

¶ 39. We also that before a circuit court may enhance a sentence, a criminal defendant's re- peater explained status must be established. We proved variety status can be awith of evi- Id., ¶ apply dence. If the rules of evidence were to proving prior § 973.12(1), convictions under those rules require copy would that the State use a certified judgment satisfy proof. of conviction to its burden of Id., ¶ apply: However, the rules of evidence do not

Considering many factors, we conclude that proceeding in which the state seeks to prove habitual criminality is, under statutory scheme, Wisconsin's more analogous to sentencing process than to trial and, therefore, should be treated similarly in terms of evidentiary requirements.

Id. just

¶ 40. We also held that because the rules of apply documentary proof evidence do not under Wis. 973.12(1), § Stat. the State is not relieved of its burden proof. prior directly Id., ¶ of 47. Proof of convictions affects the sentence a criminal receive, defendant liberty Accordingly, and therefore, it affects a interest. proof beyond a reasonable doubt is essential to the pursuit punishment State's of additional under Wis. § ¶¶ Id., Stat. 939.62. 47-51.

¶ In 41. discussion, course of our we drew principles prior several from our considerations of the (1) proof prior by of convictions: an admission specific defendant must contain references to the date any period of the conviction incarceration, and of if applying relevant to 939.62, Wis. Stat. and must be (2) copy personally; a certified defendant, made judgment is sufficient to a of conviction evidence of (3) prove prior no had concluded convictions; decision judgment copy using of that an uncertified type as evidence of conviction or another prohibited. Id., ¶¶ 21-28. convictions was copy ¶ that an of a 42. We reasoned uncertified represented judgment being as an of conviction was copy original document, which had of the we authentic previously proof aof con- concluded is sufficient certifying Id., ¶¶ record 24-34. noted that a viction. We authenticity, helps its an uncertified to insure but that copy, copy materially is not different from certified exception stamp. of an official and is identical with the present Id., The same information in both 28. will "[Ljittle gained by distinguishing be- documents. prior judgments tween certified and of con- uncertified Accordingly, Id., ¶ in this context." 28. we viction judgment copy an uncertified of a concluded prove prior can also "to conviction serve convictions Id., noted if an under Wis. Stat. 973.12." 33. We copy information, contains inaccurate uncertified object require court to defendant should move the just take as a action, the State to remedial defendant copy judgment if should do a certified contained Id., ¶ material error. Saunders, we also noted that Saunders objection copy

had use made no of an uncertified judgment. Id., ¶ 62. We concluded that lack his objection significant because it showed Saun- "stipulated proof employed by ders to the mode of expressly Id., However, we that State." concluded " stipulation of the this did not constitute a 'waiver' proof requirement." State's overall Id. following prin- 44. We established the related

ciples regard proof criminality with of habitual at (1) sentencing: prove beyond if the State fails to a repeater, reasonable doubt the defendant ais "then sentencing authority court is without to sentence the (2) repeat id., ¶. defendant as a offender," 49; when the provides report prima an official that constitutes proof pursuant requirements facie of a conviction to the § 973.12(1), object of operates Stat. a defendant's failure to stipulation proof as a to the mode of that the (3) id., ¶ State has use, chosen to 63; a lack of an objection explicitly proof aimed at the mode of offered prove the State does not relieve the State of its burden to criminality beyond habitual doubt, reasonable id. important ques- It is to note that one of the tions we addressed Saunders was whether an uncer- copy judgment tified purported of conviction was it what copy judgment be, i.e., an authentic question markedly Id., ¶ of conviction. 28. That differs question posed by report. from the a CCAP With a CCAP report, question report is whether the is an accurate judgment particular narration of of conviction of a particular particular defendant, crime, for a on a date. Koeppen, 2dWis. at 127. According "Policy

¶ 46. on Disclosure of provided by Public Information Over the Internet" provided Courts, Director of State a CCAP through public-access containing open internet website information, record the WCCA. The Director of State explains: Courts

Because information changes the CCAP database constantly, responsible WCCA is not for subsequent update, modify, entries correct or delete data. responsible notifying WCCA is not prior requesters of modifications, updates, corrections or deletions. http://wcca.wicourts.gov/index.xsl; choose "Public (last 2.g. link, 24, visited June Records on Internet" 2006). report, by terms, a its own is of Therefore, CCAP questionable accuracy. It is not the official record county each are case, as the clerks of court for criminal responsible for those records. Wis. Stat. the officials 59.40(2)(c). report § copy a a And, CCAP is not of the judgment to Yet, actual of conviction. it was offered prove, beyond doubt, Bonds con- a reasonable was felony forgery particular a date. The dis- victed of on report a conditioned causes claimer with which CCAP is accuracy. us to reasonable doubt about its have ¶ CCAP records Our concerns about the use of 973.12(1) requirements satisfy of do to Wis. Stat. quality, provides im- not affect our view that CCAP mensely of valuable, services to the citizens Wisconsin system. and to who work in the Wisconsin court We those agree that the creation of concurrence/dissent, with the facilitated use of court resources and CCAPhas efficient greater by public. access court information Although have Concurrence/Dissent, we decided prima that a record insufficient to establish CCAP is proof criminal, facie is an our that Bonds habitual by design large part decision driven of CCAR proof which proposition factual devised afford beyond a reasonable CCAP was de- doubt. signed management to assist the circuit courts in case greater public functions and to afford access the court system. extraordinarily has successful CCAP been accomplishing purposes. these clearly docu- 48. While Saunders holds that judgment copy ments other than a certified conviction constitute official that would criminality prima proof serve facie under as habitual 973.12(1), only copy an uncertified Wis. Stat. judgment presentence report that lists the crime and a of conviction have been held to be sufficient and the date appellate Saunders, court. 255 Wis. 2d a Wisconsin Goldstein, 2d 33; see also State v. (Ct. 1994); App. Caldwell, State v. 259, 513 N.W.2d631 (Ct. 1990). App. 683, 694-95, 454 N.W.2d13 154 Wis. appeals explained Caldwell, of one of And, as the court presentence report accepting for that the reasons accuracy investigating the assurance of its because the contemplated" complaint's repeater agent "expressly the agent prior allegation convic and the "verified"both date of conviction from sources other than tion and the complaint. Caldwell, 154 Wis. at 694. Accordingly, persuaded are that the rea- 49. we soning analogously applied to a of Saunders cannot be report. are not like CCAP CCAP records uncertified reports copies judgments purport do not in that CCAP photocopies do. records, to the court as to be identical agreement are to which all CCAP users asked provides specifically no war- warns that CCAP adhere reports. ranty accuracy cannot, for the data in its We the contents of a circumstances, under those consider reliability report sufficient to to rise to the level of CCAP prior prima proof a defendant has a facie that establish stipu- qualifying addition, did not Bonds conviction. proof' using "mode of a CCAP as the late to criminality.11 the circuit He asserted before habitual that is incorrect to assert The concurrence/dissent allegation proved because of Bonds's admission repeater Concurrence/Dissent, regard qualifying to a conviction. felony admitted a Although agree we do not that Bonds conviction, a to admit a point out that in order for defendant we criminality, the purposes proving conviction for habitual the date specific contain reference to defendant's admission must v. any of incarceration. State period of the conviction and criminality proved the State had not habitual court that beyond he has continued to do so doubt; a reasonable throughout appellate process. Therefore, we con- solely12 report, by relying that on CCAP clude prove re- other evidence that could Bonds's without peater beyond doubt, a reasonable the State did status prima facie evidence to constitute not offer sufficient Accordingly, proof criminal. that Bonds was habitual prove not meet its burden to habitual the State did criminality.

3. Waiver undisputed It is has proof regard question of with whether burden Bonds is a and we have concluded satisfy solely it relied State did not that burden because report. Therefore, in order for the State to on CCAP repeater, power Bonds we have the to sentence as right have to conclude that Bonds waived his to would challenge criminality the of habitual because evidence object using report he did not to the CCAP as the sole proof in the circuit court. mode of ¶ 51. The contends that we concluded in State objection sufficiency that an to the of the Saunders criminality must made in the evidence of habitual be The no to circuit court or it is waived. State doubt refers following passage: the (Ct.

Zimmerman, 549, 557, 2d 518 303 App. 185 Wis. N.W.2d 1994). Bonds made no statement that could establish the date of felony a prior conviction. 12 report do not exclude the use of a CCAP as a tool to We sentencing at of facilitate .a review with defendant past history defendant's of criminal convictions.

376 if to preclude It would be an odd result we were offering copy an uncertified of a state from the defendant makes no judgment of conviction when objection to the submission of the document. It is commonly understood that when evidence is submitted trial, sentencing, a defendant who at much less generally any objection silent waives remains of that evidence. submission ¶

Saunders, 31. explained above, However, as we misunderstands the reason that we could have State present Saunders, concluded waiver was Saunders. judgment copy offered, a of convic- the evidence proof prima facie of tion, was sufficient to constitute countering criminality. Saunders offered no habitual Saunders, Therefore, record in evidence. on the provide meet did sufficient evidence to its burden proof.13 Here, the CCAP was not sufficient prima proof facie of Bonds's status. constitute making objection specific when evi- Therefore, not prima proof to constitute facie dence that is insufficient presented prior qualifying not a conviction is object sufficiency of the evi- waiver. Bonds did arguing presented, had that the State dence the State explained As we in Saunders: ultimately question the state has becomes whether satisfy sentencing judge beyond enough submitted evidence requisite number of that the defendant has the a reasonable doubt question qualifying prior the court convictions. To answer this totality post-trial presented evidence must look to the conviction, they judgments state, including copies certified or uncertified. 589, Saunders, 255 Wis.

State v. 2002 WI N.W.2d 263. criminality beyond proved a reasonable habitual

not report explained above, a CCAP For the reasons doubt. waiver, holding regard set does not come within our only in Saunders. Because the evidence submitted out objection report, conclude that Bonds's was the CCAP we defeat the State's contention that he is sufficient to objection criminality proving with waived his habitual report. Therefore, a CCAP we conclude that portion of Bonds's sentence must be vacated.

III. CONCLUSION of the court conclude that 54. Four members post-conviction proof, the amend- with sufficient State's proving criminality would ment of basis habitual (1) permissible for two reasons: The com- have been plaint requirements satisfied the of Wis. Stat. 973.12 process and of due because Bonds had notice that he was being charged poten- an criminal and of the as habitual pled; tial maximum sentence he faced before he (2) prejudiced making intelligent Bonds plea shift to a as result State's different repeater allegation. conviction as the factual basis for its majority However, a different of the court also concludes that the State's use of CCAP as evidence prima proof Bonds's conviction does not constitute facie right of that conviction and that Bonds did not waive his object report. to the State's use of the CCAP Accord- ingly, appeals the court of decision is reversed and the matter is remanded to the circuit court to vacate the portion enhancer of Bonds's sentence.

By appeals the Court.—The decision of the court of is reversed and remanded. (concur- ABRAHAMSON, 55. SHIRLEY S. C.J.

ring) agree . I with the reached the court: The result repeater enhancement to the defendant's sentence significant amendment of vacated. The State's must be guilty prohib- allegation repeater a verdict is after the 973.12(1). § ited Wis. Stat. my separately express disagree-

¶ 56. I write 973.12(1) § rewriting the court's of Wis. Stat. ment with charging significant to the docu- to allow amendments guilty after a verdict. ments separately explain ¶ I write that CCAP also not an under Stat. data are official 973.12(1) § are and therefore CCAP data alone insuffi- prima repeater make a facie case of status cient to 973.12(1). § required by Furthermore, CCAP Wis. Stat. beyond prove a are not sufficient for the State to data allegation. repeat reasonable doubt the offense 1— appeals have 58. This court and the court away require- chipping for over a decade at the been 973.12(1) (2003-04)1 prior in Stat. ments Wis. forming enhance- the basis for sentence convictions alleged repeater on must be ment based status complaint, or at information, or indictment before acceptance any plea. arraignment and before say, enough already. I The thrust allege prior offenses that the State must statute is figure pleads. out If the State cannot before the accused 973.12(1) part: in relevant Stat. states Wisconsin charged repeater person be a or a with a crime will Whenever convicted, any applicable persistent if under s. 939.62 alleged complaint, prior indictment or convictions alleging any time before or at information or amendments so at any plea. arraignment, acceptance of and before the 2003-04 Statutes are to All references Wisconsin version. accepted, plea the statute offenses before attorney give a reason- the court to the district

allows investigate prior the court time to offenses before able legislature say plea. can else takes What allegations require that make the pleads? offenses before the accused permitted have the State to 60. Previous cases pleading alleging prior make minor amendments to its support repeat offender sentence convictions slightly arraignment enhancement after and after a plea accepted. Here, the rule has been the court extends time, that the and, of amendments the first declares may pleading significantly amended after the trial be is complete defendant does not admit to the and when the allegations criminality. of habitual present significantly

¶ The case differs from 61. post-State Martin/Robles, v. 162 Wis. 2d (1991), cases, in line of which the court held N.W.2d post-plea that the amendments did not violate State's 973.12(1). § cases, Wis. Stat. In those the court decided though complied statute, with the even State the court must nevertheless determine whether the prejudiced Considering preju amendment the accused. required pleading dice whenever a State's is amended. comply ¶ In the case the State did not 62. instant way! jury trial, After a with the statute. No the State significantly changed repeater allegation from three felony. pattern misdemeanors to one This fact cannot be squeezed into the or statute case law. already

¶ 63. The has accorded the case law flexibility more than sufficient pleading to be able to amend its allege properly sta- defendant's completely not tus. State should be able revise guilt penalty allegation enhancement after the 973.12(1) § complete. phase Stat. the trial is Wisconsin legislature permit an amendment. The has such does A rule is a rule. The rule should be rule. established followed. opinion part three into I divide this statutory history

parts. I the text and First, discuss 973.12(1). § Second, I the case law and discuss Wis. Stat. distinguished explain why can be from cases this case 973.12(1) § interpret permit the State's Stat. Wis. my proposed post-plea Third, I forth amendment. set 973.12(1). applying approach to Stat.

A begin I the text ofthe statute. Wisconsin with 973.12(1) "any applicable convic- states that Stat. alleged complaint, or in the indictment tions alleging any at time or amendments so information any arraignment, acceptance of or at and before before plea." prohibit explicitly does not 66. The statute plea alleging prior a allegation prior convictions after from

State accepted. of Rather, it sets forth when arraignment and the be made: before convictions 973.12(1) § any plea. acceptance Stat. Because Wis. by procedure clearly forth an exclusive not set does interpreted allege prior convictions, it could be which to allege prior other convictions at the to to allow State times. previously con

¶ has, however, 67. This court history support statutory this does not that the cluded reading discussion of After an exhaustive of the statute. 973.12(1), history predecessor Stat. of the to Wis. the 900 Martin/Robles, 883, 470 N.W.2d 162 Wis. State v. statutory changes "[t]he (1991), concluded that the court legislature make clear that the has established the time arraignment any plea acceptance and of as the cut-off point longer after which time a defendant can no face exposure repeater the crime enhancement for set charging pleaded forth in the document and arraignment."2 at defendant plea, case, 68. In the instant alleged misdemeanors three as factual basis for repeater complaint, the defendant's status. In the allege any prior felony conviction State did not as repeater allegation. By factual basis for its the time the (at finally alleged prior felony State sentencing hearing), conviction arraigned, the defendant had been guilty, guilty by plead jury. and been found a rejecting case, In the instant objection felony defendant's to the State's shift to the "[t]he conviction, the court criminal circuit stated complaint give is a notice document to the defendant [cjourt notice ... that the State intends to ask the to find that the defendant is habitual criminal under the law." is, course, This statement not an accurate statement this an statement, law. Were accurate the State merely put complaint would have to forth in that it its repeater intended to seek status under Stat. § 939.62. merely give The State must more do than ultimately bring showing

notice that it will forth a Martin/Robles, 883, 900, State v. 162 Wis. 2d 470 N.W.2d (1991) omitted). (emphasis Martin/Robles, 1965, court explained this permitted any the statute enhancer to a sentence at 1965, time prior to the execution of the sentence. In the statute language was amended to create the current of the relevant Id.; portion 1965; of the statute. see ch. Laws of see also majority op., 19 n.6. ¶

382 sentencing repeater. justifying previous as a offenses give can determine that an accused notice so must State penalty whether the State and determine the increase particular prior prove this convictions. With the can plead the how to to can determine an accused notice Depending present an accused on whether offense.3 prove prior convictions, an can the the State thinks guilty willing enter a less be more or accused negotiated plea. charge present plea or to seek plea. why requires the notice before the statute That is deprived of the chance an accused is this notice Without meaningfully the State's the likelihood of assess ability prove and does not have conviction the plea adequate enter his on which to basis prepare defense.4 his significant clear that the State's 71. It seems jury pleadings is not verdict after

amendment of its 973.12(1). § by Stat. authorized Wis.

B applying examining case law 973.12(1), begin Martin/Robles, in which I with Stat. regarding an amend- two cases court considered this allegation. repeat case, In one to a offender ment 3 335, 262 Wis. 2d 2003 WI Stynes, State v. N.W.2d Bar published defense manual The criminal that affect a long of factors list contains of Wisconsin here. are relevant decision, some of which plea defendant's that he belief the defendant's factor is The most relevant (in this charged he which was the act with actually committed of convicted of case, defendant was whether alleged by the State frame statutory time fenses within Devitt, Wiscon & Patrick J. Michael Tobin complaint). L. 2005). (4th ed. Manual 6.33 sin Criminal Defense arraigned pleaded guilty. defendant was and not After arraignment, granted trial, but before the State was complaint repeater allega- leave to amend the to add a complaint tion.5 In the case, other also did not repeater allegation. contain case, In that the re- allegation peater complaint was added to the on the day began.6 trial, first of but before the trial Martin/Robles, this court concluded that 973.12(1) § permit Stat. does not the addition of an allegation repeat arraignment offender status after acceptance plea originally and of a when none was pleaded by proof the State. The court also stated that 973.12(1).7 § prejudice is irrelevant under The court explained: of prejudice

[P]roof is an irrelevant consideration un- 973.12(1), legislature der sec. Stats. has estab- Regardless a rule. plea lished of the kind of entered in response charges alleged arraignment, to the at defendant's plea meaningful will be more if he or she is potential aware of the extent of punishment which ensues from a conviction the crime.8 Notwithstanding ¶ 74. the fact that the court held 973.12(1) § the State to the text of Wis. Stat. ipost-Martin/Robles suggests Martin/Robles, the case law of the view statute more lenient to the State. In cases pleaded repeater Martin/Robles, after the State status arraignment acceptance plea, before the but sought repeater allegations. later to amend the occasions, 75. On several this court and the appeals permitted post-plea court of have amendments 5 Martin/Robles, 2d at 162 Wis. 888-89. at Id. 890-91. 7Id. at 902-03.

8Id. alleged complaint in a convictions repeat support enhancer as offender sentence 973.12(1). satisfying ease the cases While Wis. Stat. allega- State's amendments to the on the restrictions post-plea amendment is status —a tions 973.12(1) per Stat. se violation of Wis. —the distinguished case, in from the instant can he cases bending in favor backwards over, court keels which the leniency to the State. Gerard, 505, 525 189 Wis. 2d In State v. 76. (1995), complaint the described 718 the N.W.2d penalty erroneously en- the stated convictions but against charges as six the accused one of the hancer for only years three enhancement was the maximum when days pleaded guilty. years. after Nine The accused plea trial, the accused entered, and before was error. on the basis the enhancer moved to strike and moved for leave the error The State conceded error; the motion correct the information to amend the granted. tried, convicted, and The accused was The accused enhancer. the amended with sentenced appealed arguing that the amendments sentence, 973.12(1).9 penalty violated Stat. enhancer Wis. unanimously sentence. affirmed Gerard's This court did not affect that the mistake court concluded The complied sufficiency amendment and that the of notice 973.12G).10 Stat. with Wis. to the issue turned The court Gerard always concluding prejudice a consid-

prejudice, is charging amending regard docu- eration with 9 Gerard, 505, 509-11, 525 N.W.2d v. (1995).

10 Id. at 512-14. Thus, ment.11 even the court when concludes that the by State's amendment § is authorized Wis. Stat. 973.12(1), the court must whether the defen- consider prejudiced. dant was considering prejudice, empha-

¶ 78. this court fully prison accused, sized that the aware of the actual he if convicted, sentence faced failed to move to with- guilty again. plea plead his not draw court preju- therefore concluded that the accused was not by stating diced clerical error in State's the maxi- penalty mum faced the defendant.12 ¶ 79. The instant case unlike Gerard two important respects. First, the amendment in Gerard calculating was a correction of an error in the maxi- resulting mum sentence from the enhancement. The presumably by interpret- State, clerical error or error in ing expo- law, overstated the accused's maximum years sure because the enhancer as six instead of years. three case, In the on hand, instant the other completely changed

State the basis of the sentence dropping origi- enhancer, the three misdemeanors nally upon replacing felony relied and them with a conviction.

¶ Second, case, 81. in the instant the amendment sentencing. verdict; occurred after the it occurred at In considering prejudice, emphasized Gerard, in the court guilty the accused's failure to move to withdraw his not plea sentencing again. plead before so he could The already defendant in the instant case had been tried guilty. plea and found Withdrawal of the is not 11 Id. at 517 n.9.

12Id at 517-18. prejudice I need not reach the issue of alternative here. 973.12(1) I conclude that Wis. Stat. does here because not allow the amendment. Campbell, 783, In v. 201 Wis. 2d State (Ct. 1996), App. alleged the State three

N.W.2d501 repeat offender sen convictions for the misdemeanor guilty pleaA of not was entered. tence enhancement. nego plea The and the then entered into accused State whereby agreed plead no contest tiations the accused exchange charges being charges to certain for other dropped. The amended the information and added part of the enhance a fourth misdemeanor as appeal ment one of the misdemeanors was on because if that conviction and the State wanted to be sure that remained. amended were reversed three convictions plea entered a information was filed and accused objecting information, no contest to the amended stipulating of the four to the facts amendment but convictions. Campbell was words, In other the accused guilty plea, initial not the State

allowed to withdraw his information, and the accused amend the allowed to was plea infor a new to the amended allowed to enter was App Similarly, Fields, in State v. 2001 WI mation. ¶¶ 897, 11-14, 249 636 N.W.2d 2-3, 8, 973.12(1) appeals held that Wis. Stat. court pénalty enhance amended the when the State satisfied accepted. plea of no contest was ment before arraignment amend occurred after the effect, a second ment. requirements though statutory 84. Even Campbell appeals in both met, the court

were always prejudice (adhering rule to Gerard's Fields amending charging regard with consideration 387 document) determine that the accused was went on to prejudiced the amendment.13 not Camp- Although ¶ case and 85. both instant allegation prior conviction, a new bell involve easily distinguished. Campbell addressed two cases are pleaded guilty, not after the accused an amendment replead amend- allowed to after the the accused was case, however, In the instant the defendant does ment. replead. option not have the 973.12(1) 86. This court revisited Wis. Stat. Stynes, 65, 335, 2003 262 2d 665 N.W.2d State v. WI Wis. alleged Stynes, complaint prior 115. In convictions prior The convictions 18, dated March 1998. accused's actually 17, The accused were dated March guilty jury guilty pleaded all not and a found him charges. sentenced, he accused moved to After was enhanced sentence commuted because he was have the provided not notice of the convictions under 973.12(1). court denied the motion. The circuit appeals the circuit court and reduced court of reversed the defendant's sentence to sentence without penalty enhancement.14 Observing day

¶ 87. that the "error of one calendar Stynes" mislead did or confuse and that the errone- did not violate Stat. ous conviction date § Wis. 973.12(1),15 appeals reversed the court of this court "provided and held that the defendant was with the necessary identify information which of his 13 Fields, 13, 292, App State v. 2001 WI 249 Wis. 2d 783, 790-93, 897; 201 549 Campbell, 636 N.W.2d State v. 1996). (Ct. App. N.W.2d Stynes, 262 Wis. 2d 6-9. ¶¶ 15Id., repeater his convictions would be used to establish status."16 Stynes,

¶ made clear that an 88. In this court provided identify with information to accused must be prior he which his convictions would used establish repeater It is clear in the instant case that the status. provided of which of his defendant was not notice be used to establish his convictions would only prior upon because the conviction relied status alleged sentencing hearing. until the the State was not majority opinion ¶ case, 89. In the instant the of the fact that the amendment after the makes much jury prevent from verdict did not the defendant assess- ing potential penalty pleaded his maximum before he the the because the enhanced sentence was same under felony I as it was under the three misdemeanors.17 disagree majority opinion. with determining

¶ 90. Part of an accused's calculus meaningful plead a how to includes assessment subjected penalty maximum to which he or she could be meaningful a as a result of the enhancer and assess- predicate prior prove ment of the State can whether justify Thus, an enhanced sentence. convictions to might relying on the fact that the State accused prove alleged prior at cannot convictions sentenc- alleged ing.18 significantly When the State amends 16 Id., 17Majority op., 18 why in the case the State switched It is unclear instant felony. explanation One at oral from the misdemeanors clerical error in the argument was that the State feared its Clearly, problems. date would cause it misdemeanor conviction than a problems substitution of an offense creates more total of the conviction had been copies clerical error when certified complaint. attached has verdict, the State jury convictions after maximum pen- assessment of the

altered the accused's as a result of subjected he or she could be alty to which enhancement. the penalty Wilks, 91. State v. 477 N.W.2d (Ct. In 1991), differs from the other cases. App.

Wilks, court of did not allow State's appeals Wilks, allegation. of the repeater amendment 1986 conviction as the May forgery State alleged The defendant the accused's status. repeater basis for offense, the the believing no contest pleaded During not convict him as a repeater.19 State could and after the accused sentencing, before adjournment the a no contest the State conceded that plea, entered and 24, 1986, conviction did not exist forgery May 3, 1985 conviction July forgery instead moved to use a inference that both the State and the A reasonable ability place about the State's the defendant had doubts five-year statutory period. the time The misdemeanors within for committed in 1997 with dates of misdemeanors were crimes 15,1998 April varying sentencing as and dates conviction listed 20,1999. 15,1998 criminal August complaint from April alleged that the defendant committed a present in the case battery July on prove

If the defendant doubted that the State could convictions, the defendant the extent of the repeater assessed punishment way. in one If the defendant concluded possible convictions, he the extent of prove State could assessed way. might another Either assessment possible punishment court, the plea. By affect his the time the case came before this and had determined whether the probably State defendant proved State could misdemeanors. have (Ct. Wilks, 102, 110, 477 N.W.2d632 State v. 1991). App. status; as the basis the motion was granted.20 appeals

¶ 92. The court of in Wilks did not allow the State to correct the error. Rather the court of appeals concluding sentence, commuted the enhanced prior did accused not have notice entering acceptance plea prior his con- upon rely.21 viction which the State would The court of appeals interpreted in Wilks "to bar Martin/Robles post-plea repeater meaningfully amendments which change upon the basis which the defendant assessed the possible punishment plea."22 extent at the time of Stynes, distinguished this court Wilks Stynes based on the obvious fact that the error in prior day, a misstatement of the conviction one whereas in there Wilks was no obvious connection alleged between the date of the crime and the date of prior ultimately upon.23 conviction relied ¶ 94. The instant case is more like Wilks than it is Stynes. Stynes, clearly like Unlike which the accused had notice to trial of the convictions to be upon by State, relied the in the accused the instant case sentencing, had no such notice. Prior to there was no 20Id. at 105-06.

21 110, Id. at

22 ("The supreme Id. at 111 court has noted appropriately process underpin portion the due considerations which this repeater 'changing the statute. The state's of the after rules' considerations."). pled Wilks had offends these 23 ("In 335, bar, Stynes, 22-28 the at case ¶¶ however, question intending there is no the State was to Stynes' 17, 1998, refer to convictions that occurred on March existed."). actually convictions that way in to know that for the defendant the instant case allegations rely prior felony would on the State conviction.

¶ in the notice the instant case was Indeed, probably the in Wilks. In less effective than notice Wilks, accused at least aware that the State was was rely forgery going prior though conviction, on a even to year In the of the conviction was erroneous. instant relying case, from on three the State shifted misde- felony. Surely, relying if an unrelated meanors on felony change year cannot from a listed one State felony year, a similar change listed in another the State cannot previously un- from three misdemeanors to a felony. mentioned

¶ defendant in 96. Because the the instant case not informed of the offenses on which the ultimately repeat offender enhancement re- sentence pro- Stynes not lied, dictates that the defendant was satisfy adequate with notice to vided Wis. Stat. 973.12(1) Stynes process. or due makes clear that an right has the notice accused to have of the offenses upon which State relies before the accused enters a plea. explanation majority discussion, Without or abandons this rule. allowing change I it, 97. As see the State

completely allegation for its factual basis during sentencing yet in the instant case "is another example places this on lower burden court liberty depriving person State when his or her than private litigants places it on civil actions."24 The leniency permitted such when should 24Id., (Abrahamson, C.J., concurring) (citing State v. 523, Jennings, 2003 WI 259 Wis. 2d 657 N.W.2d 393 (Abrahamson, C.J., dissenting)).

deprivation person's liberty is at stake. As I stated my concurring opinion Stynes: in

This court's jurisprudence thus upsets prin- a bedrock ciple in our Constitution that because "the accused dining a prosecution criminal at has stake an interest of immense importance" the burden on the State prosecution highest criminal burden required of any litigant margin and the of error allowed is the lowest.25

c again propose bright-line I therefore once adhering rule text the statute and the case law. pleads guilty If an accused contest, or no and the circuit accepts plea, court if the State thereafter wants to pleadings amend the on the enhancement, the circuit court shall allow the amendment and allow replead. pleads guilty, accused to If an accused not may charging accurately amend the document to precisely predicate including recite all convictions, alleged, the offenses of convictions whether the offense felony was a misdemeanor, or and the date of the impaneling jury conviction, of and the charging start of a If trial. the State amends the document, the circuit court shall allow accused to replead. pleads guilty, If an accused the State pleadings not amend its on the sentence enhancement impaneling jury after the and the start of trial. encourage ¶ 99. Such a rule would the State to great charging take care in the documents, would assist determining plea, accuseds in their would reduce use- 25Stynes, C.J., (Abrahamson, Wis. 2d 42¶ concur (1970)). ring) (quoting In Winship, re 397 U.S. 363-64 litigation, re- and would ensure that enhanced less only qualifying peater are on convic- sentences based tions.26 prosecu- appears

¶ sit, I 100. From where it by problems" the "amendment caused tors could avoid allegations practice, by attaching, repeater as standard copies prior judgments of to the of conviction certified charging alleged. repeater when status is

documents ought Similarly, it, make it as I see circuit courts plea practice accept not to a sentence standard on copies prior judgments certified enhancer without on record with the court. conviction agree I sum, 101. do not with the conclusion just opinion majority com- that the State change allegation pletely at convictions sentencing phase of a trial. The State's amendments jury after the verdict that occurred the instant case 973.12(1). § prohibited by I are Wis. Stat. therefore separately. write

HH r—l by agree I with the conclusion reached majority opinion that CCAP data are not an official 973.12(1) § report under Wis. Stat. therefore are prima repeater insufficient to make facie case of 973.12(1). § required by Furthermore, Stat. status prove repeater the State has failed to status under Wis. 973.12(1) my § beyond a reasonable I rest Stat. doubt. analysis opinion Saunders, on this court's State v. 107, 2002 WI 255 Wis. 2d 649 N.W.2d263. (Abráhamson, Stynes, C.J., See 262 Wis. 2d 37¶ concurring). Contrary majority statements in

opinion concurrence/dissent,27 and Justice Crooks's this copy court did not hold in that an Saunders uncertified prior judgment report" of conviction is an "official 973.12(1). § under Wis. Stat. Similarly,

¶ 104. I conclude that CCAP data are 973.12(1). not agree official under Wis. Stat. I majority opinion: with the CCAP data alone are prima insufficient to make a facie case 973.12(1).28 required status as Wis. Stat. report ¶ 105. Saunders held that an official is not only prove the means available a repeater defendant's status.29 While an official prima alone a makes out facie case of status 973.12(1), may under other evidence suffice. If also report, "[t]he the State an chooses not to use official question ultimately becomes whether state the has enough satisfy sentencing submitted evidence to the judge beyond a reasonable doubt that the defendant has requisite qualifying prior the number of convictions. To question totality answer this the court must look the post-trial presented of state, the evidence the includ- ing copies prior judgments they conviction, of certified or uncertified."30

27 majority 41; op., See Justice ¶ Crooks's concurrence/dis sent, 121, 123. ¶¶ 28 majority op., See 49. ¶ 29 Saunders, 107, 26, 34, State v. 2002 255 WI ¶¶ 973.12(1) ("Moreover, portion N.W.2d of s. that speaks government reports constituting prima of official facie supports evidence of that prior convictions inference state other use forms of evidence —ones not entitled to prima proof facie deference —to its requirements meet under subsection.").

30Saunders, 255 Wis. 2d 53. ¶

¶ Thus, Saunders, in the court considered 106. copy judgment conviction, uncertified representation that there was no defense counsel's judgment dispute fact that there as to the record, and the undated but entered into the conviction presentence in the re- information otherwise accurate port. concluded that the The Saunders court therefore presented prove the had sufficient evidence to State repeater allegations beyond a reasonable doubt.31 Bradley Saunders, ¶ dissented 107. Justice joined, opinion I concluded that and, in that judgment was insufficient to uncertified of conviction prove repeater status.32

¶ case, I conclude that 108. In the instant prove the re- CCAP data are insufficient evidence to allegations beyond peater doubt. reasonable I forth, 109. For the reasons set concur. I am authorized state Justices ANN join BUTLER, B. BRADLEY and LOUIS JR. WALSH opinion. this {concurring CROOKS, J. PATRICK N. join

part, dissenting part). portion I opinion majority that not that concludes Bonds was (State Wisconsin) postcon- prejudiced by the State's felony adding Ma- amendment conviction. viction jority op., separately strongly I I because 31. write majority's disagree that with determination report that use of a CCAP offered to establish State's felony prima Bonds had a conviction did constitute report facie evidence of that conviction. The CCAP was prima to make a case that Bonds had sufficient facie 31Id., 59-69. ¶¶ id., J., (Bradley, dissenting). 85-95 See ¶¶ such a conviction and anwas habitual criminal. I also disagree majority's with the conclusion that Bonds did stipulate proof by not, effect, in mode utilized the State —the CCAP the record estab- —since attorney conceded, lishes that Bonds and his for re- peater purposes, prior felony conviction of Bonds. clearly proof beyond The State met its burden of a In addition, reasonable doubt here. the concession colloquy judge, Bonds, in the with the circuit court that felony forgery he had conviction amounted to an regard qualifying By admission conviction. refusing accept the State's use of record, the CCAP majority opinion undermines the confidence that public rightfully accuracy now has in CCAP respectfully records. For the herein, reasons stated I - majority opinion. II dissent from D Section

HH ¶ 112. The Consolidated Court Pro- Automation (CCAP) gram provide created in in an effort to develops, automation Wisconsin circuit courts. CCAP implements, and maintains court automated informa- systems System. tion for the Wisconsin Court System explained: Court Wisconsin has represents major undertaking by CCAP the Director Office, of State Courts' under the direction of the Court, Supreme Wisconsin the labor- automate processes intensive and in the paper-based county trial brings technology courts. It computer state-of-the-art by developing and software to Wisconsin's circuit courts providing training hardware and and software support. technical ... CCAP is a state-initiated and program state/county supports joint funded re- sponsibility system. for the court

397 Judiciary Ad- "State of the the 1999 Supreme Wisconsin dress," Chief Justice of the "widely accepted was the fact that CCAP Court hailed is a model for other states." across the state and beyond I is, believe, of that statements correctness dispute. justifiably proud CCAP has This court been Program been, Automation has The Consolidated Court priority top be, to for Wisconsin and continues Currently, employs people, System. CCAP Court budget $20,802,000.1 2003-05, in its was public "face" CCAP is the 114. The most (WCCA) Access Circuit Court Internet-based Wisconsin program, provides informa- access to circuit court which public. implemented 1999, for WCCA tion First increasing re- to an number of response [c]reated attorneys, from quests for court records district sher- partners. and other court business departments, iffs' abstractors, companies, Title members of media general from public and the have also benefited WCCA. rely primary as Many have come to on WCCA their accessing court data. means of circuit Oversight Committee, Court Access Wisconsin Circuit Report, page "Maintaining public Final March provides advantages on the internet court records justice system agencies public, and to the courts." Id. on expenditures Total the Consolidated Court Automation (CCAP) $116,048,078.

Program inception its amount since Certainly, been on expended not all of these funds have (WCCA) website, program since Wisconsin Circuit Court Access meeting all technol responsible information CCAP ogy System. Court Its mission includes needs Wisconsin "maintaining] http://wicmmts.gov/about/ ... reliable data...." (last 2006). June organization/offices/ccap.htm visited explains

¶ 115. The WCCA website users that "provides public it access to the records the Wisconsin using circuit courts for counties the Consolidated Court (CCAP) Programs Management sys- Automation Case public open tem. These records are view under Open law, Wisconsin's Records 19.31-19.39, sections by Wisconsin Statutes." The records maintained CCAP are the records the circuit courts. The WCCA Over- sight Committee noted that (WCCA)

[e]rrors on the Wisconsin Court Circuit Access Internet Site result from error in underlying court in county responsible record for case. changed Errors are corrected when the case record is or updated responsible, usually court official clérk of court judge circuit or circuit court explains: The WCCAwebsite modify CCAP does not in any data contained on WCCA way. All in the data the CCAP database in is entered individual counties where the case files are located. If you any believe data contained this database is inaccurate, please contact the circuit court where the original record was created filed. http://wcca.wicourts.gov/faqnonav.xslysessionid= ACFFACB55745A61712A03EFF70983E47.render 12# (last 2006). Faqll visited June

II 973.12(1) § provides ¶ 116. Wisconsin Stat. rel- part: report any evant "An official or the F.B.I. other governmental agency of the United or of States this or any prima any other state shall be facie evidence reported." conviction or sentence therein Wis. Stat. 973.12(1) (2003-04).2 statutory language plainly This government serves as an official states that majority prima a conviction. has facie evidence of satisfactory refusing rationale failed to articulate report. government a CCAPrecord as an official to treat Farr, considered In State this court v. presentence report reference that contained whether met an official record the status of to a defendant's report 973.12(1). pursuant Farr, State v. to Wis. Stat. (1984). In 651, 652, 350 N.W.2d 119 Wis. construing report," phrase court ex- "official this the plained: 973.12(1), Stats., report under on

To be an official sec. may report the contain placed, which rebanee be must regarding repeater issue of relevant information specifically the date of convic- status and must include report for the offense. ... official previous tion such be critically acceptable relevant facts to must contain applying repeater for statute. presentence report in Because the at issue

Id. at 658. prior felony had five Farr "showed that the defendant provide convictions," but "did not the dates convic- it relied on for tion," this court determined "could be penalty Id. at 657-58. enhancement." appeals ¶ Caldwell, 118. In the court of State v. sufficiency applied uphold presentence Farr of a to prima report proof facie of the defendant's to constitute Caldwell, 683, 695, State 154 Wis. 2d status. v. (Ct. 1990). App. presentence As the 454 N.W.2d 13 report specific on date of contained information previous offense, held conviction of Caldwell’s court proved repeater by virtue of Caldwell's "the state status 2 subsequent All references to the Wisconsin Statutes refer unless indicated. the 2003-04 version otherwise

400 report." presentence (citing Farr, Id. at 693 119 Wis. 2d 658). Similarly, Goldstein, at v. the court of appeals position presen- cited Caldwell for the that "a report qualify report tence meaning can anas official within the 973.12(1), § Stats., if the includes the prior date of conviction for the offense." State v. Gold (Ct. stein, App. 257, 2d 251, N.W.2d 1994)(citation omitted). appeals The court then deter presentence report mined that the case that § satisfied 973.12(1). proof requirements of Wis. Stat. Id. at 259. again, opportu- 119. court, 2002 this had

nity 'proved by to consider "how are convictions 973.12(1) (1999-2000) the state' under Wis. Stat. for Saunders, sentence enhancement." State v. 2002 WI (footnote 2, 255 Wis. 2d 649 N.W.2d 263 omitted). The Saunders court considered whether an copy prior judgment uncertified of a of conviction acceptable proving means that a defendant is Id., ¶ an habitual criminal under Wis. Stat. 939.62. court Saunders concluded "that the documentary apply rules of evidence do not evidence prove the state uses the existence of convictions repeater purposes," copy that an uncertified judgment Doing Id., ¶¶ so, satisfied statute. 70. explained "[t]he language plain it of Wis. Stat. 973.12(1) prior . . does . not demand that convictions proved through any specific method, as the such use copy judgment of a Id., certified of conviction." nothing any ¶ Saunders, 26. In this court did to cast appeals' doubt on either of the earlier court of decisions proof requirements that considered the of Wis. Stat. 973.12(1). Id. majority purports ¶ apply The 121. the tests reject set forth in Farr this court and Saunders to

401 despite report, classifying an official a CCAP record as strongly in those cases the fact that the decisions recognition support a CCAP record an official of as prima government report facie evi- that constitutes op., majority ¶ 42. First, See dence of convictions. reports reports are of circuit from CCAP the Wisconsin clearly reports. they such, are official courts, They as they may no "official"because be accessed are less electronically. reports Second, the test set CCAP meet they Farr, relevant information in as "contain forth regarding specifi- ... of status and the issue previous cally for the include the date of conviction Farr, 119 Wis. 2d at 658. offense." majority ¶ of fact 122. The makes much pro- presented a disclaimer that CCAP users are with part," insuring provides in no warranties vides, 'CCAP accuracy in the information contained records of (citation Majority op., ¶ on .. available WCCA. omitted). majority light that, then concludes report, by terms, disclaimer, "a CCAP its own is of questionable accuracy." Id., records, 123. The fact that CCAP available preceded by

through a disclaimer does not WCCA, are Certainly they "questionable accuracy." are of indicate being "at CCAP meets the Saunders test summary a least as reliable as of the conviction report." government Saunders, official copy pointed out, a As Saunders even certified judgment can contain errors. judgment conviction] If copy [of an uncertified contains inaccurate information about convic- tion, object accuracy of the the defendant should document. ... always all,

After contest permitted a defendant is or, authenticity likely, more accuracy of even a copy judgment of conviction. Human certified beings and, complete although these forms we would hope that typographical important errors within these rare, may documents are errors nonetheless exist. ... judicial simply, personnel Put are not infallible. Accord- ingly, copy even a certified of a document establishing a rebutted, just inaccuracy conviction be as an in a presentence investigation report may be chal- lenged. (footnote omitted)(emphasis original).

Id., ¶¶ 29-30 There is no rational for basis this court to consider an copy judgment uncertified conviction, a or a presentence report, government to be an "official re- port" yet report report a disallow CCAP —a system Wisconsin circuit court that classifica- —from tion. majority

¶ 124. The seems stunned that the State rely report would ask the circuit court to on a of such "questionable accuracy." "[A] report, CCAP its own questionable accuracy. terms, Yet, is of .. . it was prove, beyond offered to doubt, reasonable that Bonds felony forgery particular was convicted of on a date." Majority op., majority ¶ 46. The then concludes that "[t]he disclaimer with which a CCAP is condi- tioned us causes to have reasonable doubt about its accuracy." Id. any report may Yet, above, as noted con- just any report may challenged

tain inaccuracies, as accuracy. explained: As Saunders preclude It would be an odd result if we were offering copy state from an uncertified judgment of conviction when the defendant makes no objection to the submission the document. It commonly understood that evidence when is submitted who sentencing, a defendant trial, less for

at much any objection to the generally waives remains silent of that evidence. submission omitted). (footnote ¶ 589, 2d Saunders, 255 Wis. stipulation to the the issue also addressed Saunders proof, the state held that when as this court mode of provides "prima facie that constitutes

an official requirements pursuant proof to the of a conviction object [to 973.12(1), failure to a defendant's Wis. Stat. proof] operates representation as in that an inaccurate proof stipulation has that the State the mode of to (citing Majority op., ¶ Saunders, . . ." chosen to use. 63). 255 Wis. complaint case, this In the initial sup- offenses misdemeanor cited three criminal criminality allegation.

porting The misde- its habitual damage property, to disor- criminal meanors included battery. only derly was The time Bonds conduct, and felony, forgery, was convicted objected the amend- for Bonds 127. Counsel felony complaint convic- to substitute ment of the However, convictions. three misdemeanor tion for the accuracy object the fact of the to the did not counsel felony record, nor to of a CCAP conviction, to the use fact, counsel conviction. record of the date of CCAP's verify use of CCAP to referenced his own for Bonds objection sentencing. Counsel's of conviction dates felony for the misde- of the to the substitution suggested court offenses, which counsel meanor complaint. a defect in the created Bonds): (Counsel Honor, I Your MR. FUGLE essentially amend that the State's motion believe too late. I believe at this time is complaint rely upon the State wishes Court reason felony they prove conviction is aren't able to the con- they alleged victions have the body within complaint. April, conviction dates for those were in April complaint they 1998. In the alleged being are as August 20,

date of conviction of 1999. Those are dates which, upon my review of the Wisconsin Circuit Court access program date that Mr. Bonds inwas fact sentenced on probation withheld sentence after a vio- However, lation. I think complaint is in fact defec- tive. cannot,

I think juncture the State at this late move to amend the complaint when it has found some other may conviction that in fact be relevant and therefore asking we are that the only Court not find the state has not met beyond the burden of proving terms this doubt, reasonable but they also that in fact have nothing prove as the complaint, alleges as it habitual criminality is defective. 128. The rejected circuit court the argument

that the State's complaint defective, was explaining there was no statutory requirement list crimes complaint particular which a upon repeater charge would be based. The State had fulfilled mandates, statute's since had it successfully put Bonds on notice that he was being charged as repeat offender. The State also satisfied requirement Wis. Stat. 939.62 that the defendant be convicted of a felony, misdemeanors, or three during five-year period immediately preceding the commission of the crime for which Bonds was sentenced. being 129. Bonds did dispute that the new offense fell within the five-year within which he period charged However, as habitual criminal. the dispute convictions, over the fact of criminal or any Rather, Bonds convictions. dates of those even the tolled the ten months the court fact that disputed five-year period. from the incarcerated he was hearing sentencing fact, during In forgery to his felony made reference Bonds, himself, for revoked ab- They you "THE COURT: conviction. ab- guilty I got MR. BONDS: sconding. for found IAnd got my to see parole sconding, officer. failure the forgery sentence on my remainder revoked added.) ex- fact, the circuit court case." (Emphasis if had misstated the facts. Bonds it asked pressly now because prison . You are THE COURT: . . your behavior, forgery, because of your because record. ... you. serving right now is because you are The time Honor, I'm in Well, I know this Your MR BONDS: say really I matter to here. won't situation What Court. true? Tell saying I'm is not

THE What COURT: me. my past. my predicament, I BONDS: know

MR. I am. through. type person I know the I went What type in here what attorney, no one knows The district I I'm not. person. I'm not a bad I am but me. person I rob, steal, none of that. don't have out do go don't and just wasting Sending prison me to is of that. to do none money. payers tax for have a conviction

THE COURT: You don't robbery? years old. In '91.1 was 17

MR. BONDS: you people. don't rob THE You said COURT: actually juvenile. I a It wasn't a MR. BONDS: was crime, to a ET.A.C. robbery. party I was battery? convicted of THE COURT: You were yes, In the I have. past, MR. BONDS: given here Bonds was from the record that It is evident challenge accuracy ample opportunity to of the concerning felony proof fact, conviction. State's his object accuracy only of the CCAP did he fail to not felony specifically conviction record, he referred to his forgery. for deny the accu- Counsel for Bonds did not felony

racy he in either, but rather conviction sentencing At the it, effect conceded as did Bonds. asking "[w]e hearing, attorney are that the stated: his I think than the maximum sentence. court consider less necessary, prison the Court time if feels added.) (Emphasis Yet the months would be sufficient." a convicted in this case was crime for which Bonds was jail misdemeanor, carries a maximum Class A which only the habitual of nine months. It was sentence al- 939.62, that enhancer, under Wis. Stat. offender sentence to the nine-month lowed the court to increase attorney Clearly, years. more than two not felony forgery acknowledged conviction Bonds accuracy. challenging or its the CCAP was report. As was an official The CCAP record prima report, constituted the CCAP record an official felony concerning concession facie evidence. Bonds' regard forgery to an admission conviction amounted qualifying also, effect, conviction, and to that by proof stipulation the State. utilized to the mode of to such for Bonds amounted counsel The concession majority correctly stipulation reasons, As the as well. prima showing when the State made a has facie proof major- status, the is then sufficient. See ity op., challenge proof ¶ 51. In order to that is suffi- majority recognizes cient, the that a defendant must object sentencing, at or he or she will have no basis for contending that the evidence was not sufficient on appeal. way, See id. Put another when the state has provided prima proof qualifying prior facie of a convic- challenge convictions, tion or in the absence accuracy stipula- evidence, of that there where are here, tions such as we have the state will have satisfied prove its burden to conviction or convictions beyond a Saunders, reasonable doubt. See 255 Wis. 2d. respect-

¶ 133. For herein, the reasons stated I fully dissent.

¶ 134. I am authorized to state that Justices JON join E WILCOX and DAVID T. PROSSER this concurrence/dissent.

Case Details

Case Name: State v. Bonds

Court Name: Wisconsin Supreme Court

Date Published: Jun 30, 2006

Citation: 717 N.W.2d 133

Docket Number: 2005AP948-CR

Court Abbreviation: Wis.