State v. Steven M. Nelson, 2021AP843-845, 4/4/23, District 3 (not recommended for publication); case activity (including briefs)

Nelson pleaded guilty to possessing meth as a repeater. He was eligible for the repeater enhancement because, on November 15, 2017, he’d been convicted of being a felon in possession of a firearm in Barron County Case No. 2017CF307. The information in this case noted the Barron County prior, but erroneously said it was another conviction for possessing meth. Postconviction and on appeal, Nelson submitted that the repeater enhancer is invalid because he didn’t receive notice of what the prior conviction was alleged to be.

The notice Nelson argues he lacked is the notice mandated by Wis. Stat. § 973.12(1); Nelson doesn’t argue he lacked notice in the constitutional due-process sense. The statute requires the state to identify the priors that support the repeater allegation “in the complaint, indictment or information or amendments so alleging at any time before or at arraignment, and before acceptance of any plea.”

The court of appeals holds Nelson had adequate notice. The complaint in this case contained the same error in its charging language–the paragraph at the top of the typical complaint. But the body of the complaint correctly recited that the prior conviction was for possessing a firearm, not meth. All the other details–county, case number, and date of conviction–were correct in both the complaint and the information. The court notes that the statute permits a repeater allegation in the information or the complaint, citing State v. Trammel, 141 Wis. 2d 74, 413 N.W.2d 657 (Ct. App. 1987). (¶18 n.8). It adds:

The circumstances of this case are similar to those in Stynes. In Stynes, our supreme court considered whether the State satisfied the notice requirement in WIS. STAT. § 973.12(1) when the repeater allegation in the complaint misstated the date of the convictions by one calendar day. Stynes, 262 Wis. 2d 335, ¶¶1-2, 10. The court acknowledged that the date of conviction “is essential” to a repeater allegation, but it concluded that the incorrect date “did not render the repeater allegation ineffective.” Id., ¶¶21, 30. The court recognized that the complaint provided the defendant “with a description of the offenses, the county where the convictions occurred, the case number, and a date of the convictions that was off by one calendar day.” Id., ¶32. Under those circumstances, the court determined that “the complaint provided [the defendant] with the information necessary to identify which of his prior convictions would be used to establish his repeater status.” Id.


The court also rejects Nelson’s argument that State v. Wilks, 165 Wis. 2d 102, 111, 477
N.W.2d 632 (Ct. App. 1991), should govern. In Wilks, the defendant pleaded no contest to a charge with a repeater enhancer, but his attorney informed the court that the conviction the state alleged did not exist. The court gave the state time after the plea to check out the lawyer’s claim, and the state found it to be true–but then offered a different prior. The court sentenced the defendant as a repeater.

This case is different than Wilks, says the court of appeals, because Nelson didn’t plead to a repeater allegation for a conviction that “did not exist”; he pleaded to a conviction that did exist, but about which the information contained an inaccurate statement. (¶22).