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State v. Stewart

Court of Appeals of Wisconsin, District I

June 19, 2018

State of Wisconsin, Plaintiff-Respondent,
v.
Theoris Raphel Stewart, Defendant-Appellant.

         Recommended for publication in the official reports.

          APPEALS from judgments and an order of the circuit court for Milwaukee County: Nos. 2014CF3197 2014CF5128, DENNIS R. CIMPL, Judge.

          Before Kessler, P.J., Brennan and Brash, JJ.

          BRENNAN, J.

         ¶1 Theoris Raphel Stewart appeals two judgments of conviction and an order denying his motion for postconviction relief. He seeks to withdraw his guilty plea to two counts of identity theft on the grounds of manifest injustice because he argues that no factual basis exists for his plea.

         ¶2 Stewart had, in a previous case not otherwise relevant to this appeal, pled guilty to two felony counts of failure to pay court-ordered child support and presented forged documents in an attempt to influence his sentence.

         ¶3 The forgeries were discovered after Stewart was sentenced in the child support case, and the State then filed new charges, including the two identity theft charges relevant to this appeal. Stewart did not dispute that he had forged the documents-which appeared to be official documents from two universities and from the United States Department of Veterans Affairs (VA). Nor did he dispute that he had lied to the writer of the presentence investigation report (PSI) about his education and the nature of his military discharge for the purpose of "try[ing] to find a shortcut" to a better outcome in the previous case.

         ¶4 Rather, Stewart argues that his admitted unauthorized use of the forged documents did not constitute a violation of the identity theft statute under which he was charged. See W . S . § 943.203(2) (2015-16). He argues that IS TAT [1] not all of the required elements of the crime are satisfied for the following reasons: (1) he did not represent that he was "acting with the authorization or consent of the entity, " and (2) the use of the identifying information of the two entities was not for the purpose of "obtain[ing] … anything … of value or benefit." See § 943.203(2)(a). Specifically, he argues that there is no evidence that he expressly represented that he had the entities' "authorization or consent, " and that "even assuming [the sentencing court] gave some consideration to the misrepresentations at issue, the sentencing court's determination is not 'anything of value or benefit' as intended by the legislature." We reject Stewart's arguments and affirm.

         BACKGROUND

         ¶5 The identity theft charges at issue in this appeal were among twenty charges filed in Milwaukee County Circuit Court Case Nos. 2014CF3197 and 2014CF5128; all the charges related to the State's ongoing child support enforcement efforts for two of Stewart's children.

         Stewart's conviction and sentencing in Case No. 2011CF2608.

         ¶6 In Milwaukee County Circuit Court Case No. 2011CF2608, Stewart was convicted on a negotiated guilty plea of two felony counts of failure to support a child. At the plea hearing, Stewart told the trial court that he had two bachelor's degrees. Before the case proceeded to sentencing, the trial court ordered a PSI. When Stewart met with the PSI writer, he told her that he had two bachelor's degrees and he provided what appeared to be diplomas from the University of Arizona and Jones International University, along with an email that appeared to be from Jones International University referencing Stewart's degree. Stewart also told the agent that following a bad conduct discharge from the United States Air Force he had successfully appealed and received a general discharge; in support of this claim he provided a letter that was purported to be from the VA stating that Stewart's bad conduct discharge was upgraded to a general discharge effective January 1, 2008.

         ¶7 The documents and representations were made part of the PSI and presented to the sentencing court. Stewart received a sentence of eighteen months' probation, and no conditional jail time was imposed.

         The investigation into the forged documents.

         ¶8 A later investigation by the district attorney's office revealed that the two diplomas, the email related to Stewart's academic record, and the VA letter were forged. Stewart never received degrees from the universities, and his attempt to appeal and upgrade his bad conduct military discharge was unsuccessful.

         The 2014 identity theft charges relevant to this appeal.

         ¶9 Based on the investigation, in July 2014 the State filed a complaint that included the two counts relevant to this appeal.[2] In November 2014 the State also filed a complaint with multiple felony counts for failure to pay court-ordered child support.[3] The two 2014 cases were consolidated and proceeded to a plea hearing together. Pursuant to a plea agreement settling the two cases, Stewart pleaded guilty to eleven counts: the two counts of identity theft that are the focus of this appeal, eight felony counts of failure to support a child, and one misdemeanor count ...


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