State v. Liebnitz

ANN WALSH BRADLEY, J.

¶ 25. (dissenting). The problem with the majority opinion is that in lowering the standard to address the actions of this defendant, it lowers the standard for us all. The majority's new standard apparently is that if the complaint containing allegations of prior convictions is read to the defendant at the initial appearance, then that is good enough to establish six months later at the plea hearing a direct and specific admission by the defendant to those allegations. Because the majority lowers the standard so low that it is essentially devoid of limitation, I dissent.

¶ 26. The majority, apparently mindful of its race to the bottom, makes a glaring omission. It fails to. acknowledge that in State v. Rachwal, 159 Wis. 2d 494, 513, 465 N.W.2d 490 (1991), this court previously lowered the standard and addressed the "absolute bare minimum." Now the majority once again lowers the standard. The majority's critical omission can perhaps be best understood as a recognition that today's deci*289sion results in an unwarranted erosion of the statutory requirement that a defendant cannot be sentenced as a repeat offender unless the State proves the prior convictions or they are admitted by the defendant.1

¶ 27. In State v. Farr, the court stated that an "admission may not [under § 973.12] be inferred nor made by defendant's attorney, but rather, must be a direct and specific admission by the defendant." 119 Wis. 2d 651, 659, 350 N.W.2d 640 (1984). Moreover, a defendant's silence could not constitute an admission of his prior conviction, unless it was affirmatively proved by the State. Id. at 660.

¶ 28. The court redefined the Farr requirement in Rachwal and found that according to the particular circumstances of that case, a plea of no contest produced a specific and direct admission to a repeater status in satisfaction of Wis. Stat. § 973.12.159 Wis. 2d at 512-13. The Rachwal court, recognizing that it was lowering the statutory requirement, made clear that the particular circumstances verge upon the "absolute bare minimum necessary for a valid admission." Id. at 513.

¶ 29. By finding a direct and specific admission in this case, the majority dismissés the limitations of *290the Rachwal decision. Rachwal made several references to the sufficient and detailed plea colloquy, in which the circuit court referenced the repeater charges and alerted the defendant to the increased penalties flowing from those charges. The Rachwal court incorporated the colloquy into the defendant's understanding of the allegations he was facing and found that the "no contest plea, viewed in the context of the record discussion constituted an affirmative admission of the allegations contained in the complaint." Id. at 508.

¶ 30. The majority endeavors to tailor the facts of the present case to address the limitation imposed by Rachwal that a direct and specific admission cannot be found without "questioning. . .so as to ascertain the defendant's understanding of the meaning and potential consequences of such a plea." 159 Wis. 2d at 512. The majority notes that at the plea hearing, Liebnitz's attorney stated his belief that Liebnitz understood the meaning and consequences of his plea. Majority at 281. Its attempt, however, falls short of the mark.

¶ 31. The questioning during Liebnitz's colloquy did not remotely approach the level of questioning by the circuit court in Rachwal. Furthermore, reliance on defense counsel to articulate Liebnitz's admission undermines the Farr mandate that a defendant's admission cannot be made by his attorney. 119 Wis. 2d at 659.

¶ 32. We must measure a defendant's understanding of the nature of his charge at the time the plea is entered. State v. Bangert, 131 Wis. 2d 246, 269, 389 N.W.2d 12 (1986). See also State v. Bartelt, 112 Wis. 2d 467, 474 n.2, 334 N.W.2d 91 (1983) ("Because the fact that a defendant was told sometime earlier of his rights is not necessarily determinative of whether he under*291stood those rights at a later time."). There is no evidence to suggest that at the time of the plea hearing Liebnitz understood the significance of his repeat offender charge.

¶ 33. Yet the majority concludes that based on the "totality of the record," Liebnitz fully understood the nature of the repeater charge at the time he entered his plea. A review of the record cited in the majority opinion, however, underscores the frail foundation of the majority's conclusion.

¶ 34. The majority concedes, as it must, that at the plea hearing the judge neither asked Liebnitz if he was actually a repeat offender nor advised Liebnitz of the maximum penalties he would be facing as a repeat offender by entering his plea. Majority op. at 282. The majority also concedes, as it must, that at the plea hearing the State did not offer any proof to establish Liebnitz's status as a repeat offender. Majority op. at 282.

¶ 35. Likewise, the majority acknowledges that neither the written statement of the plea agreement nor the plea questionnaire and waiver of rights form specifically stated that Liebnitz was a repeat offender. Majority op. at 281. Although the majority references the record of the sentencing hearing that immediately followed the plea hearing, it concedes that neither Liebnitz nor his counsel admitted that Liebnitz was a repeat offender at the sentencing hearing. Majority op. at 282.

¶ 36. The majority's true focus is not on the "totality of the record," but on Liebnitz's initial appearance, which took place six months prior to the plea hearing and during which the court read him the allegations contained in the complaint. In an attempt to fill the void in the record at the critical time of the plea *292hearing and the void during the six-month interval, the majority spends nearly one-quarter of its opinion quoting at length from the transcript of the initial appearance.

¶ 37. The majority opinion apparently stands for the proposition that even though six months have passed, a reading of the complaint at the time of the initial appearance will suffice for the conclusion that at the time of the plea hearing Liebnitz had entered a direct and specific admission of his prior convictions. Because such a conclusion lowers the standard to the bottom and renders the legislative mandate meaningless, I dissent.

¶ 38. I am authorized to state that CHIEF JUSTICE SHIRLEY S. ABRAHAMSON joins this dissent.

Wisconsin Stat. §973.12 (1991-92) provides in relevant part:

(1) Whenever a person charged with a crime will be a repeater as defined in s. 939.62 if convicted, any prior convictions may be alleged in the complaint, indictment or information or amendments so alleging at any time before or at arraignment, and before acceptance of any plea... .If such prior convictions are admitted by the defendant or proved by the state, he shall be subject to sentence under s. 939.62 unless he establishes that he was pardoned on grounds of innocence for any crime necessary to constitute him a repeater....

(Emphasis added.)