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State v. Hill

Court of Appeals of Wisconsin

March 1, 2016

STATE OF WISCONSIN, PLAINTIFF-RESPONDENT,
v.
GAVIN S. HILL, DEFENDANT-APPELLANT

         Submitted on Briefs December 15, 2015

         Editorial Note:

         This opinion is subject to further editing and modification. The final version will be published in bound volume of the official reports.

          APPEAL from a judgment and an order of the circuit court for Vilas County: NEAL A. NIELSEN III, Judge. Cir. Ct. No. 2013CF120.

         On behalf of the defendant-appellant, the cause was submitted on the briefs of Sara Kelton Brelie, assistant state public defender of Madison.

         On behalf of the plaintiff-respondent, the cause was submitted on the briefs of Sara Lynn Schaeffer, assistant attorney general, and Brad D. Schimel, attorney general.

         Before Stark, P.J., Hruz and Seidl, JJ.

          OPINION

         STARK, P.J.

         Gavin Hill appeals a judgment convicting him of disorderly conduct--domestic abuse, as a repeater and a domestic abuse repeater, and an order denying his motion for postconviction relief. Hill raises two arguments on appeal. First, he argues the record in this case does not support the application of the domestic abuse repeater enhancer. Second, he argues that, as applied to him, the mandatory imposition of a $250 DNA surcharge, pursuant to Wis. Stat. § 973.046(1r)(a),[1] violates the ex post facto clauses of the United States and Wisconsin Constitutions. We reject these arguments and affirm.

         BACKGROUND

         On July 19, 2013, Hill was charged with two counts: disorderly conduct--domestic abuse, as a repeater and a domestic abuse repeater; and criminal damage to property, as a repeater. A person qualifies as a repeater if he or she " was convicted of a felony during the 5-year period immediately preceding the commission of the crime for which the actor presently is being sentenced, or if the actor was convicted of a misdemeanor on 3 separate occasions during that same period, which convictions remain of record and unreversed." Wis. Stat. § 939.62(2). As relevant to this case, a person qualifies as a domestic abuse repeater if he or she

was convicted, on 2 separate occasions, of a felony or a misdemeanor for which a court imposed a domestic abuse surcharge under s. 973.055(1) or waived a domestic abuse surcharge pursuant to s. 973.055(4), during the 10-year period immediately prior to the commission of the crime for which the person presently is being sentenced, if the convictions remain of record and unreversed.

Wis. Stat. § 939.621(1)(b).[2] Both the ordinary repeater and domestic abuse repeater enhancers permit an increase in the defendant's maximum term of imprisonment. See § § 939.62(1), 939.621(2). In addition, the domestic abuse repeater enhancer " changes the status of a misdemeanor to a felony." Sec. 939.621(2).

         Regarding the ordinary repeater enhancer, the complaint alleged Hill had been convicted of three misdemeanors within the previous five years in Shawano County case Nos. 2011CM454 and 2009CM1195, and Brown County case No. 2008CT1859. Regarding the domestic abuse repeater enhancer, the complaint alleged Hill had been convicted on two separate occasions during the previous ten years of offenses for which a court either imposed or waived a domestic abuse surcharge. The complaint did not specify which prior offenses the State believed met that standard. However, attached to the complaint were CCAP[3] reports regarding five cases--the three specifically mentioned in the complaint as applying to the ordinary repeater enhancer and two others. Four of the CCAP reports reflected that Hill had been convicted of offenses with the domestic abuse modifier. See Wis. Stat. § 968.075(1)(a).

         An Information was filed on August 22, 2013. It contained the same allegations regarding the repeater and domestic abuse repeater enhancers as the complaint, but did not include any attachments.

         On April 9, 2014, Hill pled no contest to the disorderly conduct charge, as set forth in the Information. There was no negotiated plea agreement, and both sides were free to argue at sentencing.[4] The circuit court accepted Hill's plea and ordered a presentence investigation (PSI), which recommended a four-year sentence, consisting of thirty months' initial confinement and eighteen months' extended supervision.[5] Hill submitted an alternative PSI, which recommended an imposed and stayed sentence of eighteen months' initial confinement and eighteen months' extended supervision, with three years' probation and six months' conditional jail time. The circuit court ultimately sentenced Hill to two years' initial confinement and fifteen months' extended supervision. It also ordered him to pay a $250 DNA surcharge, pursuant to Wis. Stat. § 973.046(1r)(a).

         Hill moved for postconviction relief, asking the circuit court to vacate the domestic abuse repeater enhancer and commute his sentence to the maximum allowed by law without that enhancer. He argued the State had failed to prove, and he had not admitted, that he was convicted of two offenses within the previous ten years for which a court imposed or waived a domestic abuse surcharge. Hill also asked the court to vacate the DNA surcharge, arguing Wis. Stat. § 973.046(1r)(a), which made the imposition of a DNA surcharge mandatory for every felony conviction, was an unconstitutional ex post facto law as applied to him. The circuit court denied Hill's postconviction motion, and this appeal follows.

         DISCUSSION

         I. Domestic abuse repeater enhancer

         On appeal, Hill renews his argument that the record does not support application of the domestic abuse repeater enhancer. " When we review the application of a statute to a set of facts to determine whether a penalty enhancer is valid, we are presented with a question of law that we review independently ...." State v. Bonds, 2006 WI 83, ¶ 12, 292 Wis.2d 344, 717 N.W.2d 133');">717 N.W.2d 133.

         Wisconsin Stat. § 973.12(1) sets forth the statutory requirements for alleging and applying the ordinary repeater enhancer. See Bonds, 292 Wis.2d 344, ¶ 14. Under the statute, qualifying prior convictions must either be admitted by the defendant or proved by the State beyond a reasonable doubt. See § 973.12(1); State v. Kashney, 2008 WI App 164, ¶ 8, 314 Wis.2d 623, 761 N.W.2d 672.

         We agree with the parties that this standard also applies to the domestic abuse repeater enhancer. The text of Wis. Stat. § 973.12(1) refers only to Wis. Stat. § 939.62, the statute governing the ordinary repeater enhancer. However, we have previously held, based on " due process concerns," that the proof requirements of § 973.12(1) apply to the enhanced penalty provisions of the Uniform Controlled Substance Act. SeeState v. Coolidge, 173 Wis.2d 783, 792-93, 496 N.W.2d 701 (Ct.App. 1993), abrogated on other grounds byState v. Tiepelman, 2006 WI 66, ¶ 31, 291 Wis.2d 179, 717 N.W.2d 1. Conversely, our supreme court has concluded the proof requirements of § 973.12(1) do not apply when the State attempts to prove prior OWI convictions for sentence enhancement purposes under Wis. Stat. § 346.65(2). SeeState v. Wideman, 206 Wis.2d 91, 94-95, 556 N.W.2d 737 (1996). In reaching that conclusion, the Wideman court relied in large part on the fact that Wis. Stat. § 939.62(3)(a), which defines the term " repeater" for purposes of § 973.12(1), expressly excludes " motor vehicle offenses under chs. 341 to 349" from the definition ...


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