State v. Bonds

N. PATRICK CROOKS, J.

¶ 111. {concurring in part, dissenting in part). I join that portion of the majority opinion that concludes that Bonds was not prejudiced by the State's (State of Wisconsin) postcon-viction amendment adding the felony conviction. Majority op., ¶ 31. I write separately because I strongly disagree with the majority's determination that the State's use of a CCAP report offered to establish that Bonds had a felony conviction did not constitute prima facie evidence of that conviction. The CCAP report was sufficient to make a prima facie case that Bonds had *397such a conviction and was an habitual criminal. I also disagree with the majority's conclusion that Bonds did not, in effect, stipulate to the mode of proof utilized by the State — the CCAP report — since the record establishes that Bonds and his attorney conceded, for repeater purposes, the prior felony conviction of Bonds. The State clearly met its burden of proof beyond a reasonable doubt here. In addition, the concession by Bonds, in the colloquy with the circuit court judge, that he had a felony forgery conviction amounted to an admission in regard to that qualifying conviction. By refusing to accept the State's use of the CCAP record, the majority opinion undermines the confidence that the public now rightfully has in the accuracy of CCAP records. For the reasons stated herein, I respectfully dissent from Section II - D of the majority opinion.

HH

¶ 112. The Consolidated Court Automation Program (CCAP) was created in 1987 in an effort to provide automation in Wisconsin circuit courts. CCAP develops, implements, and maintains court automated information systems for the Wisconsin Court System. The Wisconsin Court System has explained:

CCAP represents a major undertaking by the Director of State Courts' Office, under the direction of the Wisconsin Supreme Court, to automate the labor-intensive and paper-based processes in the county trial courts. It brings state-of-the-art computer technology and software to Wisconsin's circuit courts by developing hardware and software and providing training and technical support. ... CCAP is a state-initiated and funded program that supports joint state/county responsibility for the court system.

*398¶ 113. In the 1999 "State of the Judiciary Address," the Chief Justice of the Wisconsin Supreme Court hailed the fact that CCAP was "widely accepted across the state and is a model for other states." The correctness of that statements is, I believe, beyond dispute. This court has been justifiably proud of CCAP The Consolidated Court Automation Program has been, and continues to be, a top priority for the Wisconsin Court System. Currently, CCAP employs 64 people, and in 2003-05, its budget was $20,802,000.1

¶ 114. The most public "face" of CCAP is the Internet-based Wisconsin Circuit Court Access (WCCA) program, which provides access to circuit court information for the public. First implemented in 1999, WCCA was

[c]reated in response to an increasing number of requests for court records from district attorneys, sheriffs' departments, and other court business partners. Title companies, abstractors, members of the media and the general public have also benefited from WCCA. Many have come to rely on WCCA as their primary means of accessing circuit court data.

Wisconsin Circuit Court Access Oversight Committee, Final Report, March 2006, page 1. "Maintaining public court records on the internet provides advantages to the public, to justice system agencies and to the courts." Id.

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

[e]rrors on the Wisconsin Circuit Court Access (WCCA) Internet Site result from an error in the underlying court record in the county responsible for the case. Errors are corrected when the case record is changed or updated by the court official responsible, usually the clérk of circuit court or circuit court judge

The WCCA website explains:

CCAP does not modify data contained on WCCA in any way. All the data in the CCAP database is entered in the individual counties where the case files are located. If you believe any of the data contained in this database is inaccurate, please contact the circuit court where the original record was created and filed.

http://wcca.wicourts.gov/faqnonav.xslysessionid= ACFFACB55745A61712A03EFF70983E47.render 12# Faqll (last visited June 24, 2006).

II

¶ 116. Wisconsin Stat. § 973.12(1) provides in relevant part: "An official report of the F.B.I. or any other governmental agency of the United States or of this or any other state shall be prima facie evidence of any conviction or sentence therein reported." Wis. Stat. *400§ 973.12(1) (2003-04).2 This statutory language plainly states that an official government report serves as prima facie evidence of a conviction. The majority has failed to articulate a satisfactory rationale for refusing to treat a CCAP record as an official government report.

¶ 117. In State v. Farr, this court considered whether a presentence report that contained reference to a defendant's prior record met the status of an official report pursuant to Wis. Stat. § 973.12(1). State v. Farr, 119 Wis. 2d 651, 652, 350 N.W.2d 640 (1984). In construing the phrase "official report," this court explained:

To be an official report under sec. 973.12(1), Stats., on which rebanee may be placed, the report must contain relevant information regarding the issue of repeater status and must specifically include the date of conviction for the previous offense. ... such official report must contain critically relevant facts to be acceptable for applying the repeater statute.

Id. at 658. Because the presentence report at issue in Farr "showed that the defendant had five prior felony convictions," but "did not provide the dates of conviction," this court determined it "could not be relied on for the penalty enhancement." Id. at 657-58.

¶ 118. In State v. Caldwell, the court of appeals applied Farr to uphold the sufficiency of a presentence report to constitute prima facie proof of the defendant's repeater status. State v. Caldwell, 154 Wis. 2d 683, 695, 454 N.W.2d 13 (Ct. App. 1990). As the presentence report contained specific information on the date of conviction of Caldwell’s previous offense, the court held "the state proved repeater status by virtue of Caldwell's *401presentence report." Id. at 693 (citing Farr, 119 Wis. 2d at 658). Similarly, in State v. Goldstein, the court of appeals cited Caldwell for the position that "a presen-tence report can qualify as an official report within the meaning of § 973.12(1), Stats., if the report includes the date of conviction for the prior offense." State v. Goldstein, 182 Wis. 2d 251, 257, 513 N.W.2d 631 (Ct. App. 1994)(citation omitted). The court of appeals then determined that the presentence report in that case satisfied the proof requirements of Wis. Stat. § 973.12(1). Id. at 259.

¶ 119. In 2002 this court, again, had the opportunity to consider "how prior convictions are 'proved by the state' under Wis. Stat. § 973.12(1) (1999-2000) for sentence enhancement." State v. Saunders, 2002 WI 107, ¶ 2, 255 Wis. 2d 589, 649 N.W.2d 263 (footnote omitted). The Saunders court considered whether an uncertified copy of a prior judgment of conviction may be an acceptable means of proving that a defendant is an habitual criminal under Wis. Stat. § 939.62. Id., ¶ 3.

¶ 120. The Saunders court concluded "that the rules of evidence do not apply to documentary evidence the state uses to prove the existence of prior convictions for repeater purposes," and that an uncertified copy of a judgment satisfied the statute. Id., ¶¶ 52, 70. Doing so, it explained that "[t]he plain language of Wis. Stat. § 973.12(1) . . . does not demand that prior convictions be proved through any specific method, such as the use of a certified copy of a judgment of conviction." Id., ¶ 26. In Saunders, this court did nothing to cast any doubt on either of the earlier court of appeals' decisions that considered the proof requirements of Wis. Stat. § 973.12(1). Id.

¶ 121. The majority purports to apply the tests set forth by this court in Farr and Saunders to reject *402classifying a CCAP record as an official report, despite the fact that the decisions in those cases strongly support the recognition of a CCAP record as an official government report that constitutes prima facie evidence of prior convictions. See majority op., ¶ 42. First, reports from CCAP are reports of the Wisconsin circuit courts, and as such, they are clearly official reports. They are no less "official" because they may be accessed electronically. Second, CCAP reports meet the test set forth in Farr, as they "contain relevant information regarding the issue of repeater status and ... specifically include the date of conviction for the previous offense." Farr, 119 Wis. 2d at 658.

¶ 122. The majority makes much of the fact that CCAP users are presented with a disclaimer that provides, in part," 'CCAP provides no warranties insuring the accuracy of the information contained in records available on WCCA. .. Majority op., ¶ 7 (citation omitted). The majority then concludes that, in light of the disclaimer, "a CCAP report, by its own terms, is of questionable accuracy." Id., ¶ 46.

¶ 123. The fact that CCAP records, available through WCCA, are preceded by a disclaimer does not indicate they are of "questionable accuracy." Certainly the CCAP report meets the Saunders test of being "at least as reliable as a summary of the conviction in an official government report." Saunders, 255 Wis. 2d 589, ¶ 28. As Saunders pointed out, even a certified copy of a judgment can contain errors.

If an uncertified copy [of a judgment of conviction] contains inaccurate information about the prior conviction, the defendant should object to the accuracy of the document. ...
After all, a defendant is always permitted to contest *403the authenticity or, more likely, the accuracy of even a certified copy of a judgment of conviction. Human beings complete these forms and, although we would hope that typographical errors within these important documents are rare, errors may nonetheless exist. ... Put simply, judicial personnel are not infallible. Accordingly, even a certified copy of a document establishing a prior conviction may be rebutted, just as an inaccuracy in a presentence investigation report may be challenged.

Id., ¶¶ 29-30 (footnote omitted)(emphasis in original). There is no rational basis for this court to consider an uncertified copy of a judgment of conviction, or a presentence report, to be an "official government report" and yet to disallow a CCAP report — a report of the Wisconsin circuit court system — from that classification.

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

¶ 125. Yet, as noted above, any report may contain inaccuracies, just as any report may be challenged for accuracy. As Saunders explained:

It would be an odd result if we were to preclude the state from offering an uncertified copy of a prior judgment of conviction when the defendant makes no objection to the submission of the document. It is commonly understood that when evidence is submitted *404at trial, much less for sentencing, a defendant who remains silent generally waives any objection to the submission of that evidence.

Saunders, 255 Wis. 2d 589, ¶ 31 (footnote omitted). Saunders also addressed the issue of a stipulation to the mode of proof, as this court held that when the state provides an official report that constitutes "prima facie proof of a conviction pursuant to the requirements of Wis. Stat. § 973.12(1), a defendant's failure to object [to an inaccurate representation in that proof] operates as a stipulation to the mode of proof that the State has chosen to use. . . ." Majority op., ¶ 44 (citing Saunders, 255 Wis. 2d 589, ¶ 63).

¶ 126. In the initial complaint in this case, the State cited three criminal misdemeanor offenses supporting its habitual criminality allegation. The misdemeanors included criminal damage to property, disorderly conduct, and battery. The only time Bonds was convicted of forgery, a felony, was in 1998.

¶ 127. Counsel for Bonds objected to the amendment of the complaint to substitute the felony conviction for the three misdemeanor convictions. However, counsel did not object to the accuracy of the fact of the felony conviction, to the use of a CCAP record, nor to CCAP's record of the date of conviction. In fact, counsel for Bonds referenced his own use of CCAP to verify dates of conviction and sentencing. Counsel's objection was to the substitution of the felony for the misdemeanor offenses, which counsel suggested to the court created a defect in the complaint.

MR. FUGLE (Counsel for Bonds): Your Honor, I believe that the State's motion to essentially amend the complaint at this time is too late. I believe that the reason the State wishes the Court to rely upon the *405felony conviction is they aren't able to prove the convictions they have alleged within the body of the complaint.
The conviction dates for those were in April, April 15, 1998. In the complaint they are alleged as being date of conviction of August 20, 1999. Those are dates which, upon my review of the Wisconsin Circuit Court access program the date that Mr. Bonds was in fact sentenced on withheld sentence after a probation violation. However, I think the complaint is in fact defective.
I think the State cannot, at this late juncture move to amend the complaint when it has found some other conviction that may in fact be relevant and therefore we are asking that the Court not only find the state has not met the burden in terms of proving this beyond a reasonable doubt, but also that they in fact have nothing to prove as the complaint, as it alleges habitual criminality is defective.

¶ 128. The circuit court rejected the argument that the State's complaint was defective, explaining that there was no statutory requirement that the complaint list the particular crimes upon which a repeater charge would be based. The State had fulfilled the statute's mandates, since it had successfully put Bonds on notice that he was being charged as a repeat offender. The State also satisfied the requirement of Wis. Stat. § 939.62 that the defendant be convicted of a felony, or three misdemeanors, during the five-year period immediately preceding the commission of the crime for which Bonds was being sentenced.

¶ 129. Bonds did dispute that the new offense fell within the five-year period within which he may be charged as an habitual criminal. However, the dispute was not over the fact of any criminal convictions, or *406even the dates of those convictions. Rather, Bonds disputed the fact that the court tolled the ten months he was incarcerated from the five-year period.

¶ 130. In fact, during the sentencing hearing Bonds, himself, made reference to his felony forgery conviction. "THE COURT: They revoked you for absconding. MR. BONDS: I got found guilty for absconding, failure to see my parole officer. And I got revoked for remainder of my sentence on the forgery case." (Emphasis added.) In fact, the circuit court expressly asked Bonds if it had misstated the facts.

THE COURT: . . . You are in prison now because of your behavior, because of the forgery, because of your prior record. ...
The time you are serving right now is because of you.
MR BONDS: Well, Your Honor, I know I'm in this situation here. What I say won't really matter to the Court.
THE COURT: What I'm saying is not true? Tell me.
MR. BONDS: I know my predicament, my past. What I went through. I know the type of person I am.
The district attorney, no one in here knows what type of person I am but me. I'm not a bad person. I'm not. I don't go out and rob, steal, do none of that. I don't have to do none of that. Sending me to prison is just wasting tax payers money.
THE COURT: You don't have a conviction for robbery?
MR. BONDS: In '91.1 was 17 years old.
THE COURT: You said you don't rob people.
*407MR. BONDS: I was a juvenile. It wasn't actually a robbery. I was party to a crime, ET.A.C.
THE COURT: You were convicted of battery?
MR. BONDS: In the past, yes, I have.

It is evident from the record here that Bonds was given ample opportunity to challenge the accuracy of the State's proof concerning his felony conviction. In fact, not only did he fail to object to the accuracy of the CCAP record, he specifically referred to his felony conviction for forgery.

¶ 131. Counsel for Bonds did not deny the accuracy of the felony conviction either, but rather he in effect conceded it, as did Bonds. At the sentencing hearing, his attorney stated: "[w]e are asking that the court consider less than the maximum sentence. I think if the Court feels that prison time is necessary, that 12 months would be sufficient." (Emphasis added.) Yet the crime for which Bonds was convicted in this case was a Class A misdemeanor, which carries a maximum jail sentence of nine months. It was only the habitual offender enhancer, under Wis. Stat. § 939.62, that allowed the court to increase the nine-month sentence to not more than two years. Clearly, the attorney for Bonds acknowledged the felony forgery conviction and was not challenging the CCAP report or its accuracy.

¶ 132. The CCAP record was an official report. As an official report, the CCAP record constituted prima facie evidence. Bonds' concession concerning the felony forgery conviction amounted to an admission in regard to that qualifying conviction, and also, in effect, was a stipulation to the mode of proof utilized by the State. The concession by counsel for Bonds amounted to such a stipulation as well. As the majority correctly reasons, *408when the State has made a prima facie showing of repeater status, the proof is then sufficient. See majority op., ¶ 51. In order to challenge proof that is sufficient, the majority recognizes that a defendant must object at sentencing, or he or she will have no basis for contending that the evidence was not sufficient on appeal. See id. Put another way, when the state has provided prima facie proof of a qualifying prior conviction or convictions, in the absence of a challenge to the accuracy of that evidence, and where there are stipulations such as we have here, the state will have satisfied its burden to prove the prior conviction or convictions beyond a reasonable doubt. See Saunders, 255 Wis. 2d. 589, ¶ 63.

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

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

Total expenditures on the Consolidated Court Automation Program (CCAP) since its inception amount to $116,048,078. Certainly, not all of these funds have been expended on the Wisconsin Circuit Court Access (WCCA) program website, since CCAP is responsible for meeting all of the information technology needs of the Wisconsin Court System. Its mission includes "maintaining] reliable ... data...." http://wicmmts.gov/about/ organization/offices/ccap.htm (last visited June 24, 2006).

All subsequent references to the Wisconsin Statutes refer to the 2003-04 version unless otherwise indicated.