State v. Martin

CALLOW, WILLIAM G., J.

(dissenting). The majority opinion correctly notes that sec. 973.12(1), Stats., does not expressly address or prohibit repeater amendments after arraignment. and plea-acceptance (majority op. at 896). Although the majority opinion *908concludes that sec. 973.12(1) is unambiguous, it nonetheless examines the statutory language in order to demonstrate that the legislative history makes clear what this "unambiguous" statute purportedly conveys: that a repeater charge cannot be added after any plea (majority op. at 897).

I endorse the majority's decision to examine the legislative intent behind sec. 973.12(1), Stats., but for a different reason. I believe sec. 973.12(1) is ambiguous in that it neither allows nor prohibits the state from adding a repeater enhancement after arraignment and plea-acceptance. As such, it is capable of being understood by reasonably well-informed persons in two or more different senses. State v. Denter, 121 Wis. 2d 118, 123, 357 N.W.2d 555 (1984).1 Additionally, I disagree with the majority's interpretation and application of this ambiguous statute.

The majority improperly concludes after examining the statutory evolution of sec. 973.12, Stats., that this statute should be interpreted to prohibit repeater enhancements after arraignment and plea acceptance (majority op. at 900). Applying the rules of statutory construction to this ambiguous statute compels the conclusion that the legislature did not intend to preclude the State from amending its complaint or information against the defendant to include a repeater enhancement after arraignment and plea-acceptance with approval of the court. Accordingly, I dissent.

First, the language of the statute itself indicates that the legislature intended that the court accept such an amendment before arraignment, at which time it accepts a plea of guilty or no contest, or the defendant enters a *909plea of not guilty. See State v. Derenne, 102 Wis. 2d 38, 45, 306 N.W.2d 12 (1981) (In construing a statute, the first recourse is to the language of the statute itself.). When the legislature amended sec. 959.12(1), Stats. (1965) (currently sec. 973.12(1), Stats. 1989-90), it removed language that allowed the State to bring prior convictions to the attention of the court at any time prior to sentencing. 1965 Wis. Laws 422 sec. 2. It also added the current second sentence,2 giving the court discretion to grant the State reasonable time to investigate possible prior convictions before accepting a plea. The legislature did not state that the court lost its discretion to consider prior convictions after arraignment. This second sentence clearly limits the court's discretion in granting the district attorney additional reasonable time to investigate prior convictions after accepting a plea. Whether this sentence also limits the district attorney's ability to add a repeater enhancement to the complaint or information after plea-acceptance is a question not before this court because, under the facts of this case, the court had not "accepted a plea."

The court does not accept a plea of "not guilty." The criminal defendant may plead: (a) guilty, (b) not guilty, (c) no contest, or (d) not guilty by reason of mental disease or defect. Section 971.06, Stats. The court may accept or refuse to accept pleas of guilty or no contest. Section 971.08, Stats. Pleas of not guilty are not accepted, but rather are entered and the case is set for trial, and the court can take no further adjudicatory action against the defendant at this stage of the proceedings. See generally sec. 971.10, Stats, (discussing the defendant's right to a speedy trial). In other words, even *910if the court is precluded from considering prior convictions after accepting a guilty or no contest plea, it is not precluded in this case, because here the court has not yet "accepted" a plea.3

While the majority dismisses this interpretation as ingenious but unpersuasive (majority op. at 893), I find that it is consistent with the plain meaning of the statutory language, with the legislature's intent to avoid prejudicing the defendant, and with our prior case law. We stated, in Block: "This amendment [1965 Wis. Laws 422] eliminated the possibility of a plea of guilty and a subsequent charge of being a repeater. Due process required an accused to know the range of his punishment at the time of his plea of guilty." Block v. State, 41 Wis. 2d 205, 211, 163 N.W.2d 196 (1968). This language reflects my understanding of the legislature's concern in amending sec. 959.12(1), Stats. (1965): to prevent the State from unfairly and prejudicially tacking on a repeater enhancement after the defendant's plea of guilty or no contest has been accepted.4 In advising the court that he or she will not contest the charge, the defendant affirms that he or she has considered the consequences of such a plea, *911including the potential punishment. Section 971.08(l)(a), Stats. I agree that if the defendant has submitted himself or herself to the court for the imposition of a penalty, it would be grossly unfair to subject the defendant to a possible increased sentence as a repeater.

In this case, however, no such prejudice exists. If the defendant enters a plea of not guilty in light of the potential punishment for the crime originally charged, clearly he or she will not be encouraged to plead guilty when the potential sentence is heavier as a result of a repeater enhancement. The defendants argue that if the State is permitted to add a repeater enhancement after a not guilty plea is entered, other defendants could be coerced into pleading guilty initially by the threat that the district attorney may later add a repeater enhancement.

This argument is unpersuasive, as the purpose of plea negotiations generally is to persuade the defendant to forego his right to plead not guilty. Bordenkircher v. Hayes, 434 U.S. 357, 364 (1978) ("It follows that, by tolerating and encouraging the negotiation of pleas, this Court has necessarily accepted as constitutionally legitimate the simple reality that the prosecutor's interest at the bargaining table is to persuade the defendant to forgo his right to plead not guilty."). The situation where the district attorney agrees to dismiss one of two charges in return for a plea of guilty on the other is indistinguishable from the situation that the defendants envision. In both situations, the defendants are fully aware of their options at the time they enter a plea, and they are not prejudiced.

Second, the majority's construction of sec. 973.12(1), Stats., pits its operation directly against that of sec. 971.29(1), Stats. Section 971.29(1) deals with the same subject (amendment of complaints and informa-*912tions) as sec. 973.12(1), and should be interpreted in pari materia with sec. 973.12(1). See State v. Amato, 126 Wis. 2d 212, 216, 376 N.W.2d 75 (Ct. App. 1985). While these sections are not in the same chapter, when one statute deals with a subject in general terms, and another deals with the same subject in a more detailed way, the two should be harmonized if possible. See 2A Sands, Sutherland Statutory Construction, sec. 51.05 (4th ed. 1984 rev.). Additionally, in In Interest of B.M., we quoted with approval: "Harmony and consistency are positive values in a legal system by reason of serving the interests of impartiality and minimizing arbitrariness. The practice of construing statutes by reference to other statutes is based upon the sound public policy of advancing those values. 2A Sands, Sutherland on Statutes and Statutory Construction, sec. 53.01 (4th ed. 1973)." B.M., 101 Wis. 2d 12, 19, 303 N.W.2d 601 (1981). Sutherland also states: "In fact, courts have been said to be under a duty to construe statutes harmoniously where that can reasonably be done." 2A Sands, supra, sec. 53.01 (4th ed. 1984 rev.). These sections can reasonably be harmonized in accordance with legislative intent by applying a similar analysis to sec. 973.12(1), Stats., as we applied to sec. 971.29(1), Stats.

In Whitaker, we interpreted sec. 971.29(1), Stats., to allow the amendment of an information after arraignment: (1) with leave of the court, and (2) so long as there was no prejudice to the defendant. Whitaker v. State, 83 Wis. 2d 368, 373, 265 N.W.2d 575 (1978). In Whitaker, we did not prohibit the State from amending the charging document to include a greater offense (which would entail a greater penalty), as long as the rights of the defendant were not prejudiced. Id. Section 973.12(1), Stats., is harmonious with Whitaker's interpretation of sec. 971.29(1) if it prohibits a unilateral amendment by *913the district attorney after arraignment and after plea-acceptance. This section does not preclude such an amendment after arraignment, with the leave of the court. To conclude otherwise, as the majority does, puts sec. 973.12(1) in direct conflict with our interpretation of sec. 971.29(1).

The majority concludes that the additional language "without leave of the court" in sec. 971.29(1), Stats., suggests that under sec. 971.29(1) an amendment could later be made "with leave of the court." (Majority op. at 896.) The absence of such language in sec. 973.12(1), Stats., therefore, supports a different conclusion, according to the majority, that a repeater enhancement cannot be added after arraignment and plea-acceptance, even with the leave of the court. This conclusion is not entirely lacking in merit, particularly in light of the fact that the legislature could have amended sec. 973.12(1) to include the language "without leave of the court" as in sec. 971.29(1). However, I do not find the absence of this language in sec. 973.12(1) to be determinative of its interpretation in light of the preceding discussion. Additionally, just as the legislature could have added this language to sec. 973.12(1), it could also have amended sec. 973.12(1), in light of Whitaker, to prohibit repeater enhancements after arraignment and plea-acceptance under any circumstances, and remove all ambiguity in this section.

The majority also concludes that the issue of prejudice to the defendant is irrelevant (majority op. at 902). On the contrary, just as this court found the question of prejudice to be relevant to a logical interpretation of sec. 971.29(1), Stats., in Whitaker, 83 Wis. 2d at 373, it is also relevant here. If the district attorney amends the complaint or information prior to arraignment and plea-acceptance, there is no possible prejudice to the *914defendant, and hence no need to obtain leave of the court.

Third, further support for this interpretation is found in the legislative history behind 1965 Wis. Laws 422. Executive Secretary Hillemann observed before the judicial council prior to the amendment of sec. 959.12(1) in 1965: "Judge Steffes moved approval of s. 959.12(1), as amended, which eliminates the possibility of sandbagging a defendant by charging him as a repeater after conviction or plea in the immediate charge." The danger that Executive Secretary Hillemann foresaw and the legislature addressed was the almost certain prejudice that would arise if the district attorney sandbagged the defendant by holding back on a repeater enhancement until after the defendant was convicted or pled guilty or no contest.

Fourth, this interpretation preserves the discretion of the circuit court to consider prior convictions in sentencing.5 The circuit court is not obligated to increase sentencing based upon prior convictions. Rather, " [sentencing by using the process of the repeater statute is completely discretionary on the part of the trial court after the defendant is convicted of an offense and found to be a repeater." State v. Harris, 119 Wis. 2d 612, 617-18, 350 N.W.2d 633 (1984). The majority's conclusion ties the hands of the circuit courts with respect to prior convictions if a repeater enhancement is not *915included in the complaint or information prior to arraignment and plea-acceptance. I believe that the circuit court should have the option of considering repeater enhancements in light of the strong public interest in preventing criminal activities.

Fifth, this interpretation is consistent with the legislature's intent to provide defendants with an expeditious trial. The legislature has expressly mandated that criminal proceedings both before and during trial be handled promptly. For example, preliminary hearings must be commenced within twenty days (ten days if the defendant is in custody and the bail is fixed in excess of $500). Section 970.03(2), Stats. The district attorney must file an information in a felony case within thirty days after the preliminary examination or waiver thereof. Section 971.01(2), Stats. A misdemeanor trial must be commenced within sixty days from the defendant's initial appearance, and felony trials must begin within ninety days from the date trial is demanded in writing or on the record. Section 971.10(1), Stats. Motions before trial must be served and filed within ten days after arraignment in a felony action unless the court otherwise permits. Section 971.31(5)(a), Stats.

It is clear that the legislature intended that criminal cases be processed expeditiously. The majority's conclusion today is unworkable because it frustrates this intent. It encourages the State to routinely request additional time before arraignment to investigate possible prior convictions. Many cases will be delayed needlessly; cases in which the likelihood of a repeater enhancement may be slim. My conclusion, in contrast, avoids such a delay, and does not adversely affect the defendant, because if prejudice to the defendant is shown, the charging document may not be amended after arraignment.

*916It is appropriate for the court to consider public policy considerations when interpreting a statute. 2A Sands, supra, sec. 56.01 (4th ed. 1984 rev.). We have stated that the consequences of alternative interpretations are appropriate factors to consider in construing a statute. State ex rel. Werlein v. Elamore, 33 Wis. 2d 288, 293, 147 N.W.2d 252 (1967). There are strong public policy considerations to support my interpretation.

In addition to the public's interest in expeditious trials, as described above, it is also in the interest of the public to allow the court, in its discretion, to consider repeater enhancements after arraignment, when there is no prejudice to the defendant. The habitual criminality statute, sec. 939.62, Stats., serves several purposes. It is punitive in that it increases punishment for those persons who do not learn their lesson or profit by the lesser punishment given for prior violations. Block, 41 Wis. 2d at 213. If the offender is in custody, the offender's predisposition to criminal activity is throttled. Section 939.62 is also preventative in that it serves as a warning to first offenders. State v. Midell, 40 Wis. 2d 516, 527, 162 N.W.2d 54 (1968). Both of these purposes serve the public interest by discouraging criminal activity. The alternative interpretation by the majority does not further this public interest, because it permits defendants to avoid the consequences of their repeated offenses by entering a plea immediately.

I recognize that there is also a public policy consideration in requiring the State to present its case early on. However, under my interpretation of sec. 973.12(1), Stats., the court would have the discretion to refuse to grant leave to amend the complaint or information if the request to amend is made after arraignment, and the amendment would prejudice the defendant.

*917I would also hold that the circuit courts did not abuse their discretion in permitting the amendments in these cases, as the changes were not prejudicial to the defendants.

I am authorized to state that Justices Donald W. Steinmetz and Louis J. Ceci join in this dissenting opinion.

This principle is well demonstrated by the fact that the majority justices and the dissenting justices disagree on the interpretation of sec. 973.12(1), Stats.

"The court may, upon motion of the district attorney, grant a reasonable time to investigate possible prior convictions before accepting a plea."

Because there was no "plea-acceptance" in this case, as in any case where the defendants plead not guilty, the requirement to add a repeater enhancement before plea-acceptance is moot. Consequently, the issue in this case is whether the State can add a repeater enhancement with leave of the court, after arraignment, when a not guilty plea has been entered.

I do not conclude, as the majority suggests (majority op. at 901 n.13) that this language in Block alone leads to the conclusion that the legislature intended only to eliminate the possibility of a plea of guilty and a subsequent repeater charge. Rather, this language reflects the legislature's intent to accomplish that goal. I find no such direct language to support the majority's conclusion that the legislature also intended that no such repeater enhancements be made after the defendant enters a plea of not guilty.

Felony sentencing is a function of the court, not the jury. Section 973.011, Stats. The jury is not entitled to knowledge of prior convictions for sentencing purposes, because prior convictions are generally not relevant to the issue of guilt. See Block, 41 Wis. 2d at 212; sec. 904.04(2), Stats. The defendant, therefore, cannot be prejudiced by the effect that a repeater enhancement may have on a jury's determination of his or her guilt, because the jury is not made aware of such an amendment.