Vol. 73, No. 2, February 2000

Supreme Court Digest

By Prof. Daniel D. Blinka & Prof. Thomas J. Hammer

| Criminal Law | Criminal Procedure |
| Motor Vehicle Law | Real Estate |

Soliciting Prostitution - Extortion

State v. Kittilstad, No. 98-1456-CR (filed 17 Dec. 1999)

The state has charged the defendant with four counts of soliciting prostitution under section 944.32 of the Wisconsin Statutes and one count of extortion under section 943.30(1). This appeal followed his preliminary hearing and the filing of an information.

At the preliminary hearing five Panamanian students whom the defendant sponsored to come to the United States testified that the defendant repeatedly offered to pay them if they would bring women back to his house where the students were staying, have sex with them, and allow the defendant to watch. One student testified that the defendant threatened to throw him out of the defendant's home and interfere with his study program if the student refused his requests. On appeal the defendant argued that this evidence, even if true, cannot establish solicitation of prostitution or extortion under the statutes cited above.

In a unanimous decision authored by Justice Wilcox, the supreme court concluded that the statutes encompass the conduct alleged at the preliminary hearing. Section 944.32 prohibits, among other things, intentionally soliciting any person to practice prostitution. Any student who acquiesced in the defendant's alleged requests would have engaged in prostitution, and this is true whether the women involved in the contemplated sexual activity were aware of the underlying commercial transaction or knew that the solicitor was engaged in solicitation. The court also concluded that the evidence was sufficient to establish that the defendant solicited the students to "practice" prostitution, as section 944.32 requires. To "practice" prostitution means to engage in repeated, ongoing acts of prostitution. In this case the students testified that over the course of many months the defendant repeatedly requested that they commit acts of prostitution.

The court also concluded that the facts alleged under the extortion count constituted a crime under section 943.30(1). The statute prohibits anyone from threatening to injure the person, property, business, profession, calling, or trade of another with the intent to compel the person to do some act against the person's will. The threats to terminate a student's studies if he did not commit acts of prostitution were threats to injure the student's "profession, calling, or trade" within the meaning of the statute. Further, the threats to end financial support may also have been threats to injure the student's "person, property, business, profession, calling, or trade" as those terms are used in the statute.

Habitual Criminality - Proof of Repeater Allegation

State v. Liebnitz, No. 98-2182 (filed 21 Dec. 1999)

The defendant was charged with numerous felony counts as a habitual criminal (repeater) pursuant to section 939.62 of the Wisconsin Statutes. At the initial appearance the judge carefully explained to him the penalties for each of the charged felonies as well as the impact that the habitual criminality allegations could have on his maximum sentence. The parties subsequently entered into a plea agreement under which the defendant agreed to enter a plea of no contest. The agreement included a sentencing recommendation that could only be attained through application of the repeater statute. The judge accepted the plea and imposed the recommended penalty.

On appeal the defendant contended that the years of incarceration attributable to his status as a repeater are void. He argued that section 973.12(1), which requires the state to prove, or the defendant to admit, any prior convictions that form the basis of the repeater status, was not satisfied in his case.

A majority of the supreme court, in a decision authored by Justice Bablitch, disagreed with the defendant's position. It concluded that the record established that the defendant fully understood the nature of the repeater charge. Based upon the totality of the record, the court held that the defendant's plea constituted an admission of repeater status under section 973.12. This is true even though the state did not offer any additional proof at the plea and sentencing phase of the case to establish the defendant's status as a repeater. The facts supporting the repeater allegation were contained in the criminal complaint and recited to the defendant at his initial appearance. Further, at the plea hearing, the court inquired of the defendant as to whether, by his plea, he had chosen not to contest the allegations contained in the complaint, to which the defendant responded in the affirmative.

Justice Bradley filed a dissenting opinion that was joined by Chief Justice Abrahamson.

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