Wisconsin Court of Appeals clarifies prior conviction count for domestic violence sentence enhancer

By Alexandria Staubach
 
A recent decision by the Wisconsin Court of Appeals addresses the state’s ability to count prior convictions in cases where the “domestic abuse repeater” statute applies.
 
The statute is a discretionary sentence enhancer that not only increases the length of a potential sentence but also morphs what would otherwise be misdemeanor conduct into a felony.
 
That the sentence enhancer can turn a misdemeanor into a felony was top of mind for the trial court judge, but it was dismissed as inconsequential at the appellate level.

Hruz

Judge Thomas M. Hruz delivered the opinion of the District 3 appellate panel, joined by Presiding Judge Lisa K. Stark and Judge Gregory B. Gill Jr.
 
Under the statute, a defendant may qualify as a repeat offender if during the preceding 10-year period they are “convicted on 2 or more separate occasions” of a domestic abuse offense. On appeal, the question for the court was whether those two prior convictions could stem from the same set of events or case.
 
The defendant, Brian Tyrone Ricketts Jr., was convicted of two prior acts of domestic abuse, but the convictions arose out of a single incident in 2021. Ricketts argued that the single incident should not qualify him as a repeat offender under the statute.
 
The state argued that the domestic abuse repeater statute applies to two convictions irrespective of how they were accumulated and that the statute should be interpreted in the same manner as the general repeater statute.
 
The Wisconsin Supreme Court has interpreted the general repeater statute to apply “as long as the defendant was convicted of three misdemeanors during the requisite statutory time period, even if the convictions arose out of the same incident and occurred during a single court appearance,” Hruz wrote.

However, a distinction between the general repeater statute and the domestic abuse repeater statute remained because the domestic abuse statute bumps what would otherwise be misdemeanor conduct up to a felony offense.
 
That distinction led Brown County Circuit Judge John P. Zakowski to interpret the domestic abuse statute to require two separate and distinct occurrences of domestic violence in Ricketts’ case. “With the elevation of a misdemeanor to a felony, there is a significant change in the case,” he said.
 
Zakowski relied on Supreme Court precedent related to the sex offender registration statute to conclude that the common, ordinary, and accepted meaning of two or more separate occasions means separate dates of offense. “For example, if a defendant had been involved in only one domestic abuse incident on a particular date and was asked on how many occasions s/he was convicted of a domestic abuse offense, the court would expect the correct answer to be ‘one,’” wrote Zakowski.
 
The problematic word for the appeals court was “occasion,” which it said has “multiple common, ordinary meanings.” The court noted that the word can mean both an incident and a time at which something occurs or an instance of something. This, to the court, made the statute ambiguous.
 
When a statute is ambiguous, the court may look outside the plain meaning of the text and examine legislative history or use other methods of statutory construction.
 
In this case, “the parties have not directed us to any legislative history of the domestic abuse repeater statute that is relevant to the issue presented in this appeal,” wrote Hruz, so the court used other “canons” or principles of statutory construction.
 
The appeals court agreed with the state that the statute should be interpreted consistently with the Wisconsin Supreme Court’s prior considerations of the general repeater statute.
 
Because the statues appear to be related laws dealing with the same topic, population, or class of things, “they should be construed together,” wrote Hruz.
 
In a footnote, Hruz wrote that the statute’s feature of bumping a new conviction from a misdemeanor to a felony is a “minor difference.”
 
The appeals court then concluded that a person qualifies as a domestic abuse repeater “if he or she was convicted of two or more qualifying domestic abuse offenses during the requisite statutory time period, regardless of whether those convictions arose out of the same incident, had the same offense date, or occurred during the same court appearance.”
 
Ricketts’ case was remanded back to the trial court for further proceedings consistent with the appeals court’s ruling. 

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