STATE OF WISCONSIN

CIRCUIT COURT BRANCH III

BROWN COUNTY

State of Wisconsin, Plaintiff, vs. John Q. Defendant, Defendant. BRIEF IN SUPPORT OF DEFENDANTS MOTION TO DISMISS PENALTY ENHANCER File No. 13CF000

The defendant, John Q. Defendant, submits this brief through counsel in support of his motion to dismiss the penalty enhancers in this action. Procedural Posture On DATE, the State filed a criminal complaint alleging four offenses: disorderly conduct, battery, strangulation and suffocation, and criminal damage to property. All included the domestic abuse repeater penalty enhancer, Wis. Stat. 939.621(1)(b) & (2). On DATE, the defendant waived his right to a preliminary examination and was bound over to Branch III for trial. On DATE, following a one-day jury trial before the Honorable Tammy Jo Hock, Circuit Judge, the defendant was acquitted of strangulation and suffocation, and convicted of the balance of the charges, all misdemeanors. The State moved for judgment on the verdicts. The court so ordered. Following judgment, the State filed certified copies of the judgments of conviction in Other County Circuit Court file no. 09CF000. These judgments reflect four convictions in which the domestic abuse surcharge was assessed. None of these convictions was for a violation of a domestic abuse restraining order or injunction. The court ordered a presentence investigation and scheduled a sentencing hearing for DATE.

Legal Principles Section 939.621 of the Wisconsin Statutes provides a penalty enhancement for individuals who have previously been convicted of domestic abuse offenses.1 Specifically, the statute for the penalty enhancer provides, If a person commits an act of domestic abuse, as defined in s. 968.075(1)(a) and the act constitutes the commission of a crime, the maximum term of imprisonment for that crime may be increased by not more than 2 years if the person is a domestic abuse repeater. Wis. Stat. 939.621(2). There are two definitions2 of domestic abuse repeater, only one of which is applicable to the case at bar, namely, a person who 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). The domestic abuse surcharge is mandatory if [t]he court finds that the conduct constituting the violation . . . involved an act by the adult person against his or her spouse or former spouse, against an adult with whom the adult person resides or formerly resided or against an adult with whom the adult person has created a child. Wis. Stat. 973.055(1)(a) (emphasis added). In the alternative, the court must assess the surcharge if the person is convicted of violating section 813.12(8), violation of a domestic abuse restraining order or injunction. Wis. Stat. 973.055(1)(b). That particular paragraph is inapplicable to this case. Thus, in sum, based on these two portions of the statute, there are two prerequisites to an enhanced sentence as a domestic abuse repeater: first, that the present sentence be for a criminal
This statute originally provided increased penalties for acts of domestic abuse committed within 24, and later 72 hours of arrest. 1987 Wis. Act 346; 1995 Wis. Act 304. In April of 2012, it was significantly expanded to its current language, also providing increased penalties to those who have been assessed the domestic abuse surcharge in previous cases. 2011 Wis. Act 277. 2 See n. 1, supra.
1

act of domestic abuse, and, second, the person has twice been convicted of a crime in which the domestic abuse surcharge was imposed. In this case, it is uncontroverted that the defendant has met the second prerequisite. The Sixth Amendment of the United States Constitution provides for a right to a trial by jury in all criminal prosecutions. This right was incorporated against the states nearly fifty years ago through the Fourteenth Amendment in Duncan v. Louisiana, 391 U.S. 145, 149 (1968). Similarly, Article I, Section 5 of the Wisconsin Constitution guarantees a right to a trial by jury. In Apprendi v. New Jersey, the United States Supreme Court held that, [o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt. 530 U.S. 466, 490 (2000) (emphasis added). Just the week prior to the trial of this case, the Supreme Court reaffirmed the holding of Apprendi and broadened it to cover increases in mandatory minimum sentences, noting that, [w]hen a finding of fact alters the legally prescribed punishment so as to aggravate it, the fact necessarily forms a constituent part of a new offense and must be submitted to the jury. Alleyne v. United States, 570 U.S. ____, No. 11-9335, slip. op. at 14 (June 17, 2013). The holding in Apprendi has also been recognized, though not extensively litigated, by the Wisconsin courts. See, e.g., State v. Harvey, 2002 WI 93, 5, 254 Wis. 2d 442, 647 N.W.2d 189. The distinction between prior convictions and other facts is that the full panoply of rights was already present in the previous prosecution. Indeed, the Supreme Court, in a case foreshadowing Apprendi, noted that, unlike virtually any other consideration used to enlarge the possible penalty for an offense . . . a prior conviction must itself have been established through procedures satisfying the fair notice, reasonable doubt, and jury trial guarantees. Jones v. United

States, 526 U.S. 227, 249 (1999); see also Apprendi, 530 U.S. at 496. These rights are applicable in state prosecutions through the Fourteenth Amendment. Apprendi, 530 U.S. at 476. Argument I. The State has not proved the elements necessary to permit the court to exceed the statutory maximums on the base offenses. Here, the prior convictions with the domestic abuse surcharges have been submitted to the court; however, there has been no finding as to whether the current convictions are acts of domestic abuse. To be sure, the State has provided proof of the prior convictions sufficient under the statute. However, at no time was there submitted to a jury a question whether the offenses charged were acts of domestic abuse as defined in section 968.075(1)(a). This question is precisely the kind of fact which, to increase a sentence beyond the statutory maximum, must be submitted to a jury and proved beyond a reasonable doubt. The Wisconsin Pattern Jury Instructions do not have an instruction for the domestic abuse repeater enhancer based on prior convictions with the domestic abuse assessment. However, the instruction for the alternate factor of committing a new domestic abuse offense within 72 hours of arrest for a domestic abuse offense is illustrative. There, the jury is instructed:
If you find the defendant guilty, you must answer the following question: Was the crime of (identify crime) an act of domestic abuse and did the defendant commit it within 72 hours immediately following an arrest for a domestic abuse incident? Before you may answer the question yes, you must find the following beyond a reasonable doubt: (1) that the defendant was previously arrested for a domestic abuse incidence. (2) that the crime of (identify crime) charged in this case was an act of domestic abuse, and (3) that the defendant committed the crime of (identify crime) during the 72 hours immediately following the previous arrest.

Wis. JI-Criminal 983 (2013). The instruction proceeds to provide a definition of domestic abuse based on section 968.075(1)(a). The question of the existence of the prior convictions required under section 939.621(1)(b) need not be brought before a jury. See Apprendi, 530 U.S. at 490. Questions (1) and (3) deal specifically with section 939.621(1)(a) and are not necessary under section 939.621(1)(b). However, under section 939.621(2), in both methods of applying the domestic abuse repeater enhancer, the current crime must constitute an act of domestic abuse. Because it is a fact that increases the statutory maximum of the offenses, the question of whether the offense was an act of domestic abuse must be submitted to the jury. In this case, such a question was never submitted to the jury. The State failed to request an instruction or special question regarding each offenses status as an act of domestic abuse. Therefore, the State has not met, and cannot meet, its burden in proving the domestic abuse repeater enhancer. As such, the enhancer must be dismissed. II. The penalty enhancer relies on judicially determined facts from prior proceedings and thus is unconstitutional. One of the two requirements to enhance a sentence using the domestic abuse repeater enhancer is that the defendant be convicted on two prior occasions of a crime for which the domestic abuse surcharge was imposed. With the exception of violations of restraining orders or injunctions, the language of section 973.055(1) clearly delegates to the court the determination of whether the domestic abuse surcharge is assessed. The end result is, that after a verdict of guilty, or a plea of guilty or no contest, the only difference between one of the offenses enumerated in 973.055(1)(a)1 with the domestic abuse surcharge and without the domestic abuse surcharge is a finding by the court.

Apprendi makes clear that any additional facts that increase the exposure to confinement must be submitted to a jury. Further language in Jones and Apprendi discusses the distinction between prior convictions and other facts as being that, for prior convictions, the whole panoply of constitution rights was present. In this case, the domestic abuse surcharge is a judicial determination, not submitted by the jury or admitted by the defendant. While the enhancer rests upon prior convictions, which need not be submitted to a jury, its reliance on the domestic abuse surcharge on the prior convictions inserts facts not determined by a jury into the application of the enhancer, in violation of the Sixth Amendment right to a jury trial, incorporated against the states by the Fourteenth Amendment. Here, the State relies on four convictions in which the domestic abuse surcharge was imposed. The language of the surcharge statute requires the court to make a determination whether to impose the surcharge; not the jury.3 Thus, although the State has shown that the prior convictions exist, the domestic abuse surcharge cannot be a fact that allows additional penalty. The language of sections 939.621(1)(b) and 973.055(1)(a) cannot result in an enhancement that passes constitutional muster. Thus, the penalty enhancer must be dismissed. Conclusion The State has not proved, and cannot prove, that the crimes for which the defendant has been convicted were acts of domestic abuse. Additionally, although the State has proved the prior convictions, the fact that a domestic abuse surcharge was imposed cannot be used as a fact that can increase a sentence because it is, per the statute, a judicial determination. Therefore, based on the foregoing, the defendant, John Q. Defendant, respectfully asks the court to dismiss the penalty enhancers in this action as violating his right to a trial by jury, guaranteed by the
3

Because the surcharge is simply that an additional, comparatively small, monetary penalty Apprendi does not demand submission to a jury. When the imposition of the surcharge triggers sentencing enhancement, however, it ceases to be a monetary penalty and instead provides loss of liberty.

Sixth and Fourteenth Amendments to the United State Constitution and Article I, Section 8 of the Wisconsin Constitution.

Dated this __ day of July, 2013. Chad R. Thomas Attorney for the Defendant

______________________________ By: Chad R. Thomas State Bar No. 1086887 P.O. Box 312 Wrightstown, WI 54180 (920) 403-0444 (920) 462-3627 (facsimile) chadrthomas@gmail.com c: John F. Luetscher J. B. Van Hollen