May 27, 2009 – Application of Wisconsin’s “three strikes” penalty enhancer requires close attention to the chronology of a defendant’s previous offenses, according to the Wisconsin Supreme Court.

In State v. Long, 2009 WI 36, the justices unanimously held that the circuit court had misapplied Wis. Stat. § 939.62(2m) when it increased Michael Scott Long’s sentence for second-degree sexual assault and false imprisonment to life imprisonment without parole.

Long did not argue in his appeal that the persistent repeater statute had been misread at his sentencing, and so he risked waiving the issue. But the court said achieving clarity on this statute was too important to deem the question waived.

October 2004 sexual assault

In this case, Long had entered a hotel on Oct. 24, 2004, where he encountered a female desk clerk. Long told the clerk that he was wearing white spandex shorts because he had lost a bet, and he asked if it was revealing. She testified that she thought he was joking. When Long asked her to join him in the breakfast room, she did. At that point, Long asked the woman to rate his penis and asked her to hug him so that she could tell him how his penis felt.

The clerk testified that she “didn’t know what to do” and that she “just stood there” because “she was too afraid to leave at that point.” She also testified, “I said no and I started to back away.” On cross-examination, the woman was uncertain whether she affirmatively told Long he could not hug her. But she testified that Long put his arms around her and forcefully hugged her three to four times so that his penis touched her buttocks and inner thigh through their clothing.

Previous convictions

At sentencing, the circuit court considered Long’s two Minnesota convictions as the basis for applying the persistent repeater statute. A conviction for first-degree burglary was entered Dec. 18, 2003 and a conviction for fourth-degree criminal sexual conduct was entered Jan. 7, 2004.

Wis. Stat. § 939.62(2m) operates when a defendant has been convicted of a serious felony on two or more separate occasions at any time preceding the instant felony. The statute specifies that of the previous convictions, at least one must have been entered before the date of violation underlying the other conviction.

The state argued that this statute simply requires that at least one of the previous convictions precede the present conviction. But the justices said that the state’s interpretation ignores the plain meaning of the statute’s stipulated chronology.

Looking at the dates of Long’s previous felonies, the court found that the offense leading to the criminal sexual conduct conviction occurred on March 23, 2003, and the offense behind the burglary conviction occurred on March 26, 2003. Neither of Long’s previous convictions occurred before the date of violation of the other felony for which he was previously convicted, the court concluded. As such, they do not satisfy the requirements of Wis. Stat. § 939.62(2m).

“The proper interpretation of the persistent repeater statute is an issue of great importance in Wisconsin law,” the court stated. “In this case, the circuit court, the State, and the defense attorneys misinterpreted the persistent repeater statute, and the court mistakenly sentenced Long to life imprisonment without the possibility of parole.”

Insufficient evidence claim

The court vacated the sentence and remanded the case for resentencing. However, the justices rejected Long’s assertions that the state provided insufficient evidence to convict him of sexual assault and false imprisonment.

Second-degree sexual assault requires proof that the defendant had sexual contact with the victim, that the victim did not consent, and that the contact was by use or threat of force or violence.   Long argued that a hug is not equivalent to force, but the court said that “force has been used when the victim is compelled to submit.” The court concluded “force” could be established by the victim’s testimony that Long grabbed and hugged her so tightly and forcibly that she was too afraid to cry out.

The crime of false imprisonment consists of the defendant’s intentional restraint or confinement of the victim and the defendant’s knowledge that the act is not sanctioned by any lawful authority or the victim’s consent. Long contended that the statute contemplates “confinement” to be actions such as locking someone in a room or a car, not a hug. The court disagreed, holding that “confinement” is “the restraint by one person of the physical liberty of another.”

Long argued that the state did not show the clerk’s lack of consent because she could not recall whether she affirmatively told Long that he could not hug her. “A failure to say no or to resist does not constitute consent,” the court replied.

Because the false imprisonment statute does not define “consent,” the court borrowed the meaning given to the word in the sexual assault statute. Accordingly, “consent” is found in “words or overt actions by a person who is competent to give informed consent indicating a freely given agreement to have sexual contact.”

Unresolved questions

The court raised, but did not answer, several complicated questions presented by Long’s case.

If the state seeks to amend its complaint to substitute other prior convictions as the basis for a persistent repeater allegation, the justices said the circuit court will have to determine whether that is permissible after a jury trial. Prior convictions are factual determinations that the jury makes. The circuit court will have to determine an appropriate test for such a post-trial amendment, the justices said.

Should the circuit court allow the prosecutor to amend the complaint, the justices said the court will have to determine which documents are necessary to establish the fact of the prior convictions. “When an offender is sentenced as a persistent repeater, proof of a prior conviction directly affects a liberty interest, and proof beyond a reasonable doubt is essential,” the court said.

The court remarked that it has previously rejected as insufficient an internet report generated by the Wisconsin Consolidated Court Automation Programs (CCAP). An appropriate record must contain relevant information regarding the issue of repeater statute and must specifically include the date of conviction for the previous offense, the court said.

Lastly, the court said that finding appropriate analogues in Wisconsin law to Long’s out-of-state convictions raises “difficult constitutional issues” under Apprendi v. New Jersey, 530 U.S. 466 (2000).  In Apprendi, the U.S. Supreme Court held that every fact that increases the penalty for a crime beyond the statutory maximum sentence must be submitted to a jury and proven beyond a reasonable doubt.

“However, when the court is required to compare an out-of-state conviction to the Wisconsin criminal code, the court might be required to assess not only the fact of a prior conviction but also the facts and conduct underlying the conviction,” the justices remarked. “Whether a judge is permitted to make these assessments could implicate Apprendi.”

The justices added, “The constitutional complexities are further heightened when the court must review a complaint charging multiple crimes yet the defendant pleaded guilty to only one. The court must determine the factual basis for the plea, and whether that factual basis would support a conviction for a serious felony in Wisconsin beyond a reasonable doubt.”