*1 State of Wisconsin, Plaintiff-Respondent,
v. Christopher Defendant-Appellant.† Cleaves,
Court Appeals No. 93-1521-CR. on Submitted October briefs 1993. Decided December 1993.
(Also 143.) reported in 510 N.W.2d On behalf defendant-appellant, the cause was submitted briefs William J. Tyroler, assistant state public defender.
†Petition review filed. plaintiff-respondent, the cause of the On behalf Doyle, attorney E. of James submitted on brief attorney general, Posner-Weber, assistant G.M. *2 general. Snyder, Brown, and JJ.
Before Nettesheim Christopher Cleaves was convicted BROWN, J. operating a motor vehicle without the two counts of sentenced to four for which was owner's consent prison years to be concur- count, in on each served rently. pay He also ordered to restitution $305 concerning dismissed, that were but read two sentencing. disputes only He restitution $305 in at per- argues He must his order. the record show to the read-ins and since such sonal admission personal here, is absent the restitution admission personal requirement be removed. Because should required, not we affirm. admission is spent night The as Cleaves facts are follows. Chicago apartment and later took her Julia Shell's permission. He auto without drove the to automobile days. operated it over the of two Kenosha and course charged operating this, For he was with two counts of (counts 2). 1 without the owner's consent and Cleaves charged entering was also with the locked vehicle of (count 3) theft of from Melissa Peters glove and $915 allegedly belonged to box, Justine which Rufus 4). (count plea hearing, guilty pled
At a later to charges. operating the counts and without consent He continued to maintain his innocence of counts 3 and that he to However, 4. Cleaves indicated wished waive right jury his trial on those counts. The court con- necessary personal colloquy ducted with Cleaves and pleas also received a waiver regarding to a trial on counts 3 right jury Cleaves' and 4. No of error as to assignment raised either colloquy. Then, trial counsel discussed arrange- ments for trial on the After remaining counts. a short recess, the following exchange occurred:
THE COURT: court has been informed Mr. Dooley [defense Bramscher [prose- counsel] Mr. that apparently cutor] resolution has been received as dismissing Counts 3 and except for as to restitution. Is that correct? Correct,
MR. DOOLEY: Your Honor. Okay. THE COURT: what And is the amount of restitution? Well,
MR. DOOLEY: the claimed amount stolen *3 $915, was Your Honor. When the defendant Yeah, sorry. was —I'm 915. When the defendant caught by police was pocket. he had 610 in his I planned alleged to release the to the cash victim tomorrow, there up Mayville when she shows from which would a leave balance the restitution on count, believe, I of 295. THE COURT: 305. wrong
MR. DOOLEY: 305. I had numbers sorry. here. I'm
THE Okay. satisfactory COURT: Is that you, Mr. Bramscher?
MR. My BRAMSCHER: client indicates satisfactory and it is also satisfactory with me. Okay.
THE COURT: Then the will Court order dismissal Counts but for the restitution amount to be paid $305 to Justine Rufus? Correct,
MR. DOOLEY: Your Honor.... you any prior record, Mr. Do THE COURT: have Cleaves? Yes, do, I Your Honor.
MR. CLEAVES: THE Where? COURT: Tomah, Monroe.
MR. CLEAVES: County. long How Okay. THE COURT: Monroe there? ago you were sentenced April. MR. '90 of CLEAVES: sentencing hearing, Attorney Robert Bram- At attacking began by scher, counsel, Cleaves' defense presentence presentence report. He claimed if there on the was written as had been conviction 4, when, fact, theft count the count had been dis- outright and there was "no read-in." The trial missed respond to that there court did not the statement only from that, "no read-in." The trial court said its reading presentence report, of the the court was able to pled distinguish the two car theft Cleaves had guilty glove box theft. There was no further from hearing proceeded. comment counsel spoke mitigating Cleaves himself of the circum- surrounding stances counts 1 and 2. At no time did dispute they counts 3 and or the fact that dispute regarding A were read-in. the restitution *4 prosecutor, came when the who was different from the plea bargain, agreed to the one who claimed that the of amount restitution totaled When Bramscher $910. questioned prosecutor explained amount, that that flying there cost of for was a in a witness and $590 requested airfare for the witness be added to previously ordered. $305 allowed the apparent objection. amendment over Bramscher's postconviction A motion for relief was subse- quently part regarding filed. The of the motion mainly restitution of consisted two claims: that potential transporting costs of a witness should not be part of restitution order and that since Cleaves personally taking money alleged never admitted to jurisdiction 4, in count the court lacked to order restitu- agreed part tion. The trial court with the first of the transportation motion and ordered the costs of to be imposed against as costs Cleaves rather than restitu- rejected remaining tion. The trial court a claim that personal required. admission is argues to a admission read- precedent in offense is a condition to the trial court's authority to order for restitution that read-in. He statutorily required. claims that this is However, no Cleaves cites statute that he believes is in need construction this Rather, court. case cites law dealing procedure with the correct read-in in Wiscon argues procedure sin courts and that the was violated. properly question apply such, As the issue is more a ing the facts to the common law of this state rather applying question than the facts to a statute. This is a of law which we review de novo. See Town of Menasha City v. of Menasha, 170 Wis. 2d 190, 488 N.W.2d (Ct. 1992). App. 104, 108 pro-
Review of the case law shows
our
outgrowth
English
cedure is an
common law. In
(1971),
State,
Austin v.
49 Wis. 2d
a defendant admit they charges account, into and ask that be taken other prosecu- done, sentence this is bars and when explained crime. that of such admitted tion practice form of our has in the followed Wisconsin procedure as follows: described read-in procedure, the defendant
Under our read-in not any charges therefore is plead does not to and of the read-in but such any sentenced are in sen- uncharged offenses considered admitted Thus under the tencing charged him on the offense. run the the defendant does not procedure, concurrent risk of consecutive sentences or even longer is a for only sentences. His risk sentence exceed the charged crime this sentence cannot but maximum. passage 732, 183 at This same
Id. at N.W.2d 58-59. subject explanation by of further from Austin was the Szarkowitz, court in v. 157 Wis. 2d this State (Ct. 1990). App. In Szarkowitz, the court N.W.2d 819 agrees "[i]n Wisconsin, when a defendant to wrote sentencing, being in at the time of he crimes read makes an admission that he committed those crimes." proce- Thus, at 824. our read-in Id. N.W.2d agrees to the dure dictates when a defendant read- he or she that .the occurred. The real in, admits crimes question agreed here, then, is whether Cleaves being crimes read in. hesitancy determining
We have no that Cleaves agreed to the dismissed crimes read in. The subject previous record shows that he had been the proceedings. criminal court We infer can thus unsophisticated in was not the criminal court environ- present prosecutor ment. He was when his attorney agreement He related the on the record. attorney agree- there when his told the court that the satisfactory ment as read-in was to his client to him. He heard the court and counsel discuss the *6 pay amount that he would have to in restitution. While steadfastly committing he had denied counts 3 and 4 up though pleading guilty that to time even to counts '! object procedure. not to did the read-in Not during objection once this entire time did he voice to procedure. object the read-in Since he not did to the crimes in, read he admitted them. requires
Cleaves claims the that law his argument His admission. sole basis for this is Aus- language speaks charges being tin which of read-in uncharged" "admitted offenses which are considered in sentencing. explains, As Szarkowitz however, Cleaves' to "admission" came when he allowed the dismissed crimes to be "read in." authority holding
Szarkowitz is also for our in a different defendant, Szarkowitz, context. The claimed "stipulated" that he never to the amount of restitution. argued stipula- He that the court's failure to obtain a 973.20(13)(c), tion Stats., violated sec. which states give opportunity court "shall the defendant the stipulate to the restitution claimed the victim." Szarkowitz, at Wis. 2d 460 N.W.2d at If 822. stipulate the defendant does not amount, to the may prove by producing preponder- victim the loss a 973.20(14)(a). ance evidence of the amount. See sec. express stipula- In Szarkowitz, there was neither an proof by tion, nor Nonetheless, victim. this court wrote that Szarkowitz was aware the restitution summary presentence in the and did not contest it. The prosecutor sentencing referred to the amount in her argument object to the court. Szarkowitz did not to it. at 822. 748, 460 N.W.2d 2d at
Szarkowitz, 157 Wis. then wrote: 973.20(13)(c) in sec. "stipulate" of the word The use formal written of a imply requirement a not does defendant, as to by the signed stipulation, that, in the hold claimed. We restitution amount of a claimed on objection to amounts any absence summary accompanying restitution court-ordered has a defendant where investigation, presentence report the contents of notice of given been proceed is entitled summary, the trial court not amount that the claimed understanding under sec. restitution and so order dispute, 973.20(13)(c). case, In the instant at 822. 749, 460 N.W.2d
Id. amount of restitution. to the is not objecting was ordered restitution to the fact He objects *7 of the product was not a read-in which from resulting reasoning the same However, admission. to the crimes any objection the absence of In applies. that the defendant assume may the court in, read considered of being for purposes them admits sentencing.1 and order affirmed. Judgment
theBy Court. — I with the NETTESHEIM, (concurring). agree J. to elaborate on I further only write majority opinion. properly sug- footnote which concluding majority's obtain an admission trial court expressly that the gests a read-in charge. the defendant from 1 however, courts clarify record, suggest that trial we To admission to the if there is an in the future ask defendant sentencing consideration. We charge purposes for read-in practice. the better that this is believe charge usually accompanied by A read-in is three (1) acknowledges responsi- conditions: bility the defendant uncharged charge, for the or dismissed read-in (2) agrees may the defendant that the trial court con- charge purposes sentencing sider the read-in for (3) of which the defendant is convicted, and accepts responsibility the defendant for restitution relating charge. suggest to the read-in I Therefore, personal colloquy a trial court's with the defendant additionally Bangert2 under establish that defen- accepts dant understands and all of these conditions, any might apply. or others which procedure post-
This can minimize the number appeals challenging conviction motions and a trial charge. court's use of a And, even where such appeal judicial brought, motion or resolution of the issue will often be facilitated. Bangert, (1986).
2State v. 2d Wis. N.W.2d 12