STATE v. WIMMER

CANE, P.J.

David Wimmer appeals a judgment of conviction finding him to be a repeat offender under sec. 939.62, Stats., for the purpose of sentencing on a misdemeanor battery charge.1 Wimmer argues that in two of the underlying convictions upon which the court relied, he had merely pled guilty and had not been sentenced. Sentencing and the entry of a judgment of conviction, as he sees it, are a precondition to being "convicted." The trial court disagreed, finding that a defendant is convicted for the purposes of sec. 939.62 once he has entered a guilty plea and that plea has been accepted. This court affirms the trial court's decision.

On August 23, 1988, Wimmer entered a guilty plea to two counts of battery and one count of resisting arrest. The court accepted the plea and set a later date for sentencing. Early the next morning, following a night of drinking, Wimmer beat up his live-in girlfriend. She had also been the victim in one of the batteries to which he had pled guilty the previous day. Wimmer was charged with one count of misdemeanor battery under sec. 940.19(1), Stats. Because of his prior misdemeanor convictions, including the August 23 finding of guilt, Wimmer was charged, convicted, and sentenced as a repeat offender pursuant to sec. 939.62.

[1, 2]

The only question raised in this appeal is whether the August 23 proceeding constituted a conviction under sec. 939.62. The interpretation of a statute presents a question of law that we review de novo. State v. Wittrock, 119 Wis.2d 664, 669, 350 N.W.2d 647, 650 (1984). Where the facts are undisputed, a question of law is presented, which we examine without deference to the trial court. State v. Williams, 104 Wis.2d 15, 21-22, 310 N.W.2d 601, 604-05 (1981).

[3-5]

The first issue is whether the use of the term "conviction" in sec. 939.62 renders that statute ambiguous and open to interpretation by this court.2 See Wittrock, 119 Wis. 2d at 669, 350 N.W.2d at 650. A statute is ambiguous if reasonable people could disagree as to its meaning. Id. Whether a statute is ambiguous is a question of law. Warren v. Link Farms, Inc., 123 Wis.2d 485, 488, 368 N.W.2d 688, 690 (Ct. App. 1985). If a statute is ambiguous, we may examine the scope, history, context, subject matter and object to be accomplished to determine legislative intent. West Allis Sch. Dist. v. DILHR, 116 Wis.2d 410, 419, 342 N.W.2d 415, 420-21 (1984).

The word "conviction" is capable of conveying two meanings. As our supreme court has stated:

Davis v. State, 134 Wis. 632, 638, 115 N.W. 150, 153 (1908) (quoting Commonwealth v. Gorham, 99 Mass. 420, 422 (1868)). The distinction Davis drew between the possible meanings of the word "conviction" was more recently cited in Spiller v. State, 49 Wis.2d 372, 378, 182 N.W.2d 242, 245 (1971). After examining several dictionaries, we are convinced that at least two possible definitions still exist; a popular meaning indicating a finding of guilt and a more technical legal meaning referring to the entire procedural process resulting in a judgment and sentence.3

[6]

Although we conclude that based on the language of the statute an ambiguity exists, several factors weigh in favor of accepting the state's argument that the finding of guilt on August 23 constituted a conviction. One is that nontechnical words in the statutes are to be given their ordinary and accepted meaning when not specifically defined by the legislature. Wittrock, 119 Wis. 2d at 670, 350 N.W.2d at 651. Both definitions are "ordinary and accepted"; however, the more common usage of "conviction" is to refer to a finding of guilt. The second reason is that prior interpretation of this term by courts of this state favor that definition. In Remington v. Judd, 186 Wis. 338, 341, 202 N.W. 679, 680 (1925), our supreme court stated:

This language from Remington was cited with approval in Spiller, 49 Wis. 2d at 378, 182 N.W.2d at 245. The attorney general goes as far as stating, "For the purpose of penal statutes, a conviction means an adjudication of guilt by the court, upon the defendant's admission or plea or upon the verdict." 29 Op. Att'y Gen. 299, 302 (1940). We need not make that sort of blanket pronouncement, but we do note Wisconsin courts have generally applied that definition. Therefore, we are also inclined to apply what might be termed the "common" meaning. However, enough of an ambiguity exists that we must proceed beyond the language of the statute itself.

[7, 8]

Wimmer argues that because an ambiguity exists, the statute, being penal in nature, must be strictly construed. We agree that sec. 939.62 is a penal statute, and therefore we would tend to give it a narrower meaning. However, as this court has stated:

State v. O'Neil, 141 Wis.2d 535, 540, 416 N.W.2d 77, 79-80 (Ct. App. 1987) (citation omitted).

Wimmer reasons that the purpose of the statute is to provide harsher sanctions for those who have not learned from past punishment. He refers us to the following language from Faull v. State, 178 Wis. 66, 72, 189 N.W. 274, 276 (1922):

Wimmer contends that sentencing him as a repeater is contrary to this stated purpose as he has not yet had the benefits of criminal punishment for previous crimes that form the basis for his status as a repeater.

However, there have consistently been other reasons articulated for the existence of the repeater statute:

Howard v. State, 139 Wis. 529, 532, 121 N.W. 133, 135 (1909) (quoting Ingalls v. State, 48 Wis. 647, 658, 4 N.W. 785, 794 (1880)). More recently, our courts have also justified the statute on the grounds that it serves as a warning to first offenders. State v. Harris, 119 Wis.2d 612, 619, 350 N.W.2d 633, 637 (1984); State v. Midell, 40 Wis.2d 516, 527, 162 N.W.2d 54, 59 (1968).

By far the most persuasive evidence of the purpose behind sec. 939.62 is the extended discussion of its legislative history in Wittrock. Because of its importance, it is worth quoting at some length:

Wittrock, 119 Wis. 2d at 672-74, 350 N.W.2d at 652-53 (footnote omitted).5

Wittrock clearly shifts the emphasis in the repeater statute from the effect of a previous sentence to the effect of a previous crime. Because of this change in policy, it makes little sense to wait for sentencing before finding that someone has been convicted of a crime. For the purposes of sec. 939.62, the prior sentencing is no longer relevant. Because the emphasis is now on the prior crime, it is logical to find the defendant "convicted" upon a finding of guilt.

Wimmer raises two more arguments against this reading of the statute. The first is that our interpretation is in conflict with the majority view of what constitutes a "conviction" for the purposes of a repeater statute. While we acknowledge that some publications refer to a majority view that a conviction includes sentencing and entry of judgment, our survey of jurisdictions reveals no clear majority trend.6 The jurisdictions appear about equally split with each state interpreting its own repeater statute in line with its specific language and the legislative intent behind it. Nothing in these cases from other jurisdictions persuades us to do otherwise.

[9, 10]

Wimmer also argues that a finding of guilt is not really final in any meaningful sense because a guilty plea can be easily withdrawn prior to sentencing. This court does not believe the standard for withdrawal of a guilty plea prior to sentencing is as minimal as Wimmer represents it to be. The defendant must show a "fair and just reason" for withdrawal of the plea. Libke v. State, 60 Wis.2d 121, 129, 208 N.W.2d 331, 335 (1973). A desire to avoid the sanctions of sec. 939.62 is not "fair and just reason." At some point a line must be drawn, and we hold that once the court has accepted a guilty plea or verdict, the "conviction" becomes sufficiently final to trigger the operation of the repeater statute.

Finally, we note that this decision may have only limited applicability. In the vast majority of cases involving the repeater statute, courts will correctly rely on the date of conviction entered on the written judgment of conviction. It is only when this written document is unavailable or has not yet been prepared that the court will have to refer to other sources to determine whether an individual has been "convicted." See State v. Charette, 51 Wis.2d 531, 535, 187 N.W.2d 203, 205 (1971) ("in the absence of a pronouncement of judgment, conviction occurs upon the finding of guilty by the jury.")

By the Court.—Judgment affirmed.