HEFFERNAN, CHIEF JUSTICE.
These cases, on review of separate decisions of the court of appeals, have been consolidated and raise the single issue whether a criminal charging document can be amended to assert a repeater allegation under sec. 973.12(1), Stats., after a defendant has pleaded not guilty to the underlying charges at arraignment.
The material facts and procedural history of each case are undisputed. On April 14, 1987, Stanley E. Martin was charged by criminal complaint with second
Following a preliminary hearing, the state filed an information on May 6, 1987, charging Martin with second degree sexual assault. The information did not contain any repeater allegations. On that same day, Martin was arraigned and pleaded not guilty to the felony charge set forth in the information.
Thereafter the state filed a motion to amend the information in order to allege Martin's repeater status. On July 10, 1987, the court granted the state's motion over the defendant's objection. The court ruled that, pursuant to sec. 971.29, Stats., an information could be amended to include a repeater allegation after arraignment where there is no prejudice to the defendant.
Martin appealed the judgment of conviction, alleging various trial court errors. The court of appeals affirmed the conviction but ordered vacation of the repeater amendment and that part of defendant's sentence affected by repeater enhancement, i.e., six of the sixteen year prison term. In a published opinion, the court of appeals held that sec. 973.12(1), Stats., controlled the more general sec. 971.29 and only permitted the state to amend a charging document in order to add a repeater allegation prior to arraignment and acceptance of a defendant's plea. 156 Wis. 2d at 406-07. Because the repeater amendment was untimely, the court of appeals vacated the repeater enhancement portion of Martin's sentence. Id. at 408.
The relevant facts and posture of the other consolidated case are similar. On January 17, 1989, the state filed a complaint charging Jose L. Robles with aggravated battery and obstructing an officer. The complaint did not contain any repeater allegation. The state knew of Robles' true identity prior to the issuance of the complaint as he was identified on the basis of fingerprints on file with the Racine Police Department.
Thereafter the state filed an information containing the aggravated battery and obstructing charges. The information also failed to allege any repeater status. Robles was arraigned on February 10, 1989, and pleaded not guilty to the charges set forth in the information.
At the completion of the trial on April 20, 1989, the jury found Robles guilty of the charges. Judgment of conviction was entered on May 24, 1989, at which time Judge Skow sentenced Robles as a repeater to a combined total of six years for the two crimes.
Robles appealed the judgment of conviction on several grounds. In a published opinion, the court of appeals affirmed the conviction but, based on the Martin decision, vacated the repeater enhancement portion of Robles' sentence because the information was not amended in a timely fashion. 157 Wis. 2d at 63-4.
The state petitioned for review of both the Martin and Robles decisions, and we granted the petitions and ordered the two cases consolidated.
The single issue raised on appeal in both cases is whether an information can be amended under sec. 973.12(1), Stats., to assert a repeater allegation after a defendant has pleaded not guilty to the underlying charges at arraignment.
The state argues that sec. 973.12(1), Stats., is ambiguous and should be construed to allow trial courts to exercise discretion on whether to permit repeater amendments after a defendant is arraigned. The state asserts that such a result should be reached by construing the statute in either of two ways.
First, the state contends that sec. 973.12(1), Stats., only establishes the time frame when a prosecutor can in its unilateral discretion and without leave of court add a repeater allegation to a charging document, i.e., "any time before or at arraignment, and before acceptance of any plea." The state asserts that sec. 973.12(1) does not expressly preclude a trial court from allowing a repeater amendment after arraignment and plea-acceptance and that the statute could reasonably be interpreted to permit such an amendment with leave of court where the defendant cannot show that he or she is thereby prejudiced.
The state urges us to harmonize sec. 973.12(1) with sec. 971.29, Stats., which we construed in Whitaker v. State, 83 Wis.2d 368, 265 N.W.2d 575 (1978), to generally allow post-arraignment amendments where there is no prejudice to a defendant. It is argued that there might be various situations where the state would not timely allege prior convictions and where such trial court discretion would be necessary or beneficial, e.g., where the defendant has used an alias or the prosecutor has simply been inattentive.
While the state has set forth some rather ingenious arguments, we are not persuaded that sec. 973.12(1), Stats., can be interpreted to permit repeater amendments where defendants already have been arraigned and have pleaded not guilty to informations not alleging any repeater status.
Before addressing the state's first proffered interpretation of sec. 973.12(1), Stats., we note that the purpose of statutory construction is to ascertain and give effect to the intent of the legislature. County of Columbia v. Bylewski, 94 Wis.2d 153, 164, 288 N.W.2d 129 (1980). In determining legislative intent, however, first resort must be to the language of the statute itself. State v. Derenne, 102 Wis.2d 38, 45, 306 N.W.2d 12 (1981). "If the meaning of the statute is clear and unambiguous on
Our initial task, therefore, is to determine whether the plain language of sec. 973.12(1), Stats., is ambiguous and could reasonably admit to the state's first proffered construction. In relevant part, sec. 973.12(1) provides:
While the first sentence clearly establishes a time frame when a prosecutor "may" in his or her discretion put a repeater allegation in a charging document, we would agree with the state that this sentence standing alone does not expressly address or prohibit repeater amendments after arraignment and plea-acceptance. That the second sentence grants a court discretion to delay plea-acceptance until a prosecutor has investigated a defendant's criminal history, however, certainly suggests that the arraignment and plea-acceptance time
While not addressed by the parties, it should also be noted that the third sentence only provides for the triggering of repeater enhancement when "such prior convictions" are admitted by the defendant or proven by the state. "Such prior convictions" would most reasonably refer to those convictions discussed in the first sentence which are alleged in a charging document prior to the arraignment and plea-acceptance deadline.
In Whitaker, 83 Wis.2d 368, supra, however, we did construe sec. 971.29, Stats., to permit the amendment of an information after arraignment and before trial, provided the defendant's rights were not prejudiced, although the statute did not directly address this time frame. Id. at 371-74. We rejected the application of the rule of expressio unius est exclusio alterius because such a maxim of statutory construction "must rest on the premise that the legislature considered all the alternative times an amendment of the information might be made and that all alternatives were rejected by the legislature except the ones set forth." Id. at 374.
As Martin and Robles point out, sec. 971.29, Stats., which generally governs the amendment of criminal charging documents, was ambiguous in that the statute expressly permitted amendments "prior to arraignment," "[a]t the trial," and "[a]fter verdict" but failed to address the time period between arraignment and trial. The statute clearly left a "gap," therefore, and our conclusion in Whitaker that the legislature intended to permit amendments with leave of court during this time
Section 973.12(1), Stats., on the other hand, which specifically governs repeater amendments, neither contains any "gaps" nor expressly sets forth that a prosecutor may amend a criminal charging document prior to arraignment and plea-acceptance "without leave of the court" so as to suggest that an amendment could be made at a later time "with leave of the court." In fact, the ability of a prosecutor to seek an investigatory time extension under the second sentence of sec. 973.12(1) reasonably suggests that the court's ability to exercise discretion has been limited to only that time period prior to plea acceptance.
It would strongly appear, therefore, that the plain language of sec. 973.12(1), Stats., establishes a statutory rule: A prosecutor needs to allege a defendant's repeater status in the appropriate charging document prior to arraignment and plea. But because the statute does not directly address the post-arraignment and plea-acceptance time period, such a conclusion would essentially require the application of the rule of expressio unius est exclusio alterius, which in turn calls for a more thorough examination of legislative intent by looking outside the four corners of the statute. Although we conclude that sec. 973.12(1) is unambiguous as to whether a repeater amendment can be made after arraignment and plea acceptance, we examine the statutory language "in relation to its context, subject matter, scope, history, and object intended to be accomplished." Terry v. Mongin Ins. Agency, 105 Wis.2d 575, 584, 314 N.W.2d 349
The evolution of Wisconsin's criminal repeater statute has been marked by some rather significant changes which shed light on the issue at hand. It is clear that for the greater part of the last 113 years, a defendant's criminal sentence was subject to repeater enhancement although a repeater allegation was not set forth in the charging document prior to conviction.
The general repeater statute was originally enacted in 1878 and permitted sentencing enhancement only where the defendant's prior convictions were "alleged in the indictment, information or complaint, and proved or admitted on the trial.
The legislature changed the repeater provisions again in 1949 and set forth that a defendant's repeater status "may be alleged in the complaint, indictment or information or otherwise brought to the attention of the court at any time before execution of sentence has commenced."
The last major amendment of the repeater statute which established the language under consideration in this case occurred in 1965. See Sec. 2, ch. 422, Laws of 1965. The legislature made two very important alterations.
First, there was a deletion of all references to a defendant's ability to demand a jury trial on the issue of whether the prior convictions existed. See sec. 959.12, Stats. 1965. Such a change was actually meant to assist the defendant in that it helped prevent a jury from hearing evidence on the collateral issue of sentence enhancement prior to the determination of guilt. See State ex rel. LaFollette v. Raskin, 34 Wis.2d 607, 623-24, 150 N.W.2d 318 (1967); see also Mulkovich v. State, 73 Wis.2d 464, 467-68, 243 N.W.2d 198 (1976).
Second, and more importantly, there was a deletion of those longstanding provisions which permitted a court to impose a repeater sentence where the prior convictions were first discovered or alleged "at any time before execution of sentence has commenced," "after conviction," or after a "sentence has already been passed but execution thereof has not been commenced." See sec. 959.12(1), Stats. 1963. In its place, the revised statute expressly allowed the prior convictions to be alleged in any "amendments" to the charging documents (i.e., complaint, indictment, or information), so long as they
We conclude that any argued, though nonexistent, ambiguity has been resolved by this examination of the statutory evolution of sec. 973.12, Stats.
It has long been recognized, furthermore, that a prosecutor does not act with unlimited discretion but rather is "answerable to specific directions of the legislature." See State ex rel. Kurkierewicz v. Cannon, 42 Wis.2d 368, 380, 166 N.W.2d 255 (1969); see also State v. Dums, 149 Wis.2d 314, 322, 440 N.W.2d 814 (Ct. App. 1989). While a district attorney generally exercises broad discretion in deciding which charges to bring against a defendant and whether or not to even seek a repeater sentence, the legislature has limited the time frame when such repeater sentencing can be triggered.
The state has asked us to construe sec. 973.12(1), Stats., so as to permit a repeater amendment after arraignment and plea acceptance where there is no prejudice to the defendant. It asserts that defendants such as Martin and Robles who have only pleaded not guilty to charges set out in the information are hardly prejudiced by a pretrial amendment alleging repeater status. Martin and Robles, in turn, contend that their ability to plea bargain or prepare for trial has been substantially affected by the untimely repeater allegation. Moreover, they assert that prejudice is oftentimes difficult to prove and that there is no indication that the legislature intended to allow repeater amendments upon an evidentiary showing of lack of prejudice.
We agree with Martin and Robles that proof of prejudice is an irrelevant consideration under sec. 973.12(1), Stats. The legislature has established a rule. Regardless of the kind of plea entered in response to the charges alleged at arraignment, the defendant's plea will be more meaningful if he or she is aware of the extent of potential punishment which ensues from a conviction of
In both cases before us, the defendants' repeater status clearly was not alleged until after arraignment and pleas of not guilty were entered by the defendants. Under Block, Martin and Robles each had a right to be apprised of possible repeater sentencing at the time they were asked to plead to the charges contained in the information. Because the state failed to allege any prior convictions by that time (and failed to request an investigatory time extension), sec. 973.12(1), Stats., prohibited any imposition of a repeater sentence for the crimes which Martin and Robles were eventually tried and convicted. We believe the legislature has given a prosecutor ample time and opportunity to investigate and allege a defendant's prior convictions.
In construing a statute, a court must give effect to the ordinary and accepted meaning of the language. County of Walworth v. Spalding, 111 Wis.2d 19, 24, 329 N.W.2d 925 (1983). Absent statutory definition, words are to be construed according to their common meaning. State v. Gilbert, 115 Wis.2d 371, 377-78, 340 N.W.2d 511 (1983). It has long been the rule, however, that "technical words and phrases and others that have a peculiar meaning in the law shall be construed according to such meaning." See sec. 990.01(1), Stats.; Sharpe v. Hasey, 134 Wis. 618, 114 N.W. 1118 (1908).
The state argues that the legislature's use of the word, "accept," in sec. 973.12(1), Stats., is ambiguous. In the context of a defendant's plea to criminal charges, one normally associates the word, "accept," with guilty or no contest pleas, because a court has discretion whether or not to officially receive or accept these pleas based, among other things, on the voluntary nature of the plea and defendant's understanding of the charge. See sec. 971.08; Wis. J.I.—Criminal SM-32, 32A. A court is typically not thought of as having discretion to reject (as
While standing alone the concept of "accepting a plea" may create superficial ambiguity, the relevance of such assertion of ambiguity dissipates quickly when the provisions of sec. 973.12(1), Stats., as a whole are examined. The first sentence of sec. 973.12(1) sets forth conjunctive requirements: A defendant's repeater status needs to be alleged in the charging documents "before or at arraignment, and before acceptance of any plea" (emphasis supplied). Accordingly, regardless of how we interpret the latter "plea acceptance" requirement, there can be no repeater enhancement unless the "arraignment" requirement is met. Clearly, an unindicted felony defendant is arraigned by the time a not guilty plea is entered on the charges set forth in the information. See sec. 971.05, Stats.; Eskra v. State, 29 Wis.2d 212, 224-25, 138 N.W.2d 173 (1965). Thus, because the informations charging Martin and Robles did not contain repeater allegations at the time of the defendants' entry of not guilty pleas, the state was thereafter foreclosed from seeking a repeater sentence.
The state points out, however, that the second sentence of sec. 973.12(1), Stats., does not have a conjunctive "arraignment" requirement but allows for an investigatory time extension "before accepting a plea." This second sentence, the state contends, independently permits a prosecutor to add a repeater amendment after entry of a not guilty plea but prior to acceptance of a guilty or no contest plea.
We do not believe these provisions should be construed in such a way. The second sentence of the statute merely permits a time extension prior to plea acceptance which under the first sentence is one of the conjunctive deadlines by which time a repeater allegation must be made. The two sentences must be read together. More importantly, we conclude that the legislature did not intend to exclude not guilty pleas from the ambit of pleas which can be "accepted" under sec. 973.12(1), Stats. The legislature used the words, "any plea."
From a standpoint of facial statutory construction, we note that the legislature in various other statutes has expressly referred to the acceptance of guilty or no contest pleas when it intended to limit the statute's application to those types of pleas. See secs. 23.70(2), 66.119(3), 345.28(5), 345.38, and 971.08. Here, the legislature simply used the terms, "acceptance of any plea" and "accepting a plea." Conversely, it appears that the legislature has used the simple "plea acceptance" phrase in at least one other statute to refer to not guilty as well as guilty and no contest pleas. Sec. 970.03(3) (preliminary examination), for example, states that:
As applied to unindicted felony defendants, sec. 970.03(3), Stats., recognizes the simple rule that there may not be any kind of a plea until an information is filed after a probable cause finding and bindover.
We also believe that the "plea acceptance" terms in sec. 973.12(1), Stats., should be construed to include not guilty pleas based on the legislative history of the statute which we examined earlier. The 1965 amendment clearly resulted in the deletion of those statutory provisions permitting repeater sentencing after conviction. The state's proffered construction of sec. 973.12(1) would permit repeater sentencing of defendants who had pleaded not guilty at any time prior to sentencing. The state is essentially asking that we add to sec. 973.12(1) everything which the legislature deleted in 1965. Our task is to construe the statute, not to rewrite it by judicial fiat. See State v. Richards, 123 Wis.2d 1, 12, 365 N.W.2d 7 (1985).
Because there was no allegation of any repeater status in the information at the time the trial courts entered Martin and Robles' not guilty pleas, we conclude the trial courts erred in subsequently allowing repeater amendments, because, as we point out in footnote 13, these cases are of first impression. We apply the holding of this opinion based on the provisions of sec. 973.12(1), Stats., only to the two cases before us and to any other cases which are presently pending in which the defendants have made the same assertions as have the defendants Martin and Robles as to timeliness of amendment and, of course, to all cases that may arise hereafter. We affirm the decisions of the court of appeals.
By the Court.—Decisions affirmed.
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
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).
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
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
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.
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 informations)
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
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
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.
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.
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.
I am authorized to state that Justices Donald W. Steinmetz and Louis J. Ceci join in this dissenting opinion.
While we do not consider this a definitive statement of legislative intent, it certainly demonstrates an awareness of the problems existing under the old statute.