939.621 Increased penalty for certain domestic abuse offenses.

(1) In this section, “domestic abuse repeater" means either of the following:

(a) A person who commits, during the 72 hours immediately following an arrest for a domestic abuse incident as set forth in s. 968.075 (5), an act of domestic abuse, as defined in s. 968.075 (1) (a) that constitutes the commission of a crime. For the purpose of the definition under this paragraph, the 72-hour period applies whether or not there has been a waiver by the victim under s. 968.075 (5) (c).

(b) A person who, during the 10-year period immediately prior to the commission of the crime for which the person is presently being sentenced if the convictions remain of record and unreversed, was convicted on 2 or more separate occasions of a felony or a misdemeanor for which a court imposed a domestic abuse surcharge under s. 973.055 (1), a felony or a misdemeanor for which a court waived a domestic abuse surcharge pursuant to s. 973.055 (4), or a felony or a misdemeanor that was committed in another state but that, had it been committed in this state, would have subjected the person to a domestic abuse surcharge under s. 973.055 (1) or that is a crime of domestic abuse under the laws of that state. For the purpose of the definition under this paragraph, it is immaterial that sentence was stayed, withheld or suspended, or that the person was pardoned, unless such pardon was granted on the ground of innocence. In computing the preceding 10-year period, time that the person spent in actual confinement serving a criminal sentence shall be excluded.

(2) If a person commits an act of domestic abuse, as defined in s. 968.075 (1) (a) and the act constitutes the commission of a crime, the maximum term of imprisonment for that crime may be increased by not more than 2 years if the person is a domestic abuse repeater. The victim of the domestic abuse crime does not have to be the same as the victim of the domestic abuse incident that resulted in the prior arrest or conviction. The penalty increase under this section changes the status of a misdemeanor to a felony.

History: 1987 a. 346; 1995 a. 304; 2011 a. 277; 2017 a. 188.

When two penalty enhancers are applicable to the same crime, the length of the second penalty enhancer is based on the maximum term for the base crime as extended by the first penalty enhancer. State v. Quiroz, 2002 WI App 52, 251 Wis. 2d 245, 641 N.W.2d 715, 01-1549.

The proof requirements of s. 973.12 (1) apply to domestic abuse repeater allegations. For the domestic abuse repeater enhancer under sub. (1) (b) to apply, the state had to prove beyond a reasonable doubt, or the defendant had to personally admit, that the defendant was convicted on 2 separate occasions within the 10-year period immediately prior to the commission of the disorderly conduct of an offense for which a court either imposed a domestic abuse surcharge under s. 973.055 (1) or waived a domestic abuse surcharge under s. 973.055 (4). State v. Hill, 2016 WI App 29, 368 Wis. 2d 243, 878 N.W.2d 709, 15-0374.

Although Consolidated Court Automation Programs (CCAP) records do not constitute prima facie proof of prior convictions for purposes of s. 973.12 (1), nothing prevents the court from relying on those records to determine whether the defendant understood the domestic abuse repeater allegation in the charging documents and therefore admitted, by virtue of the defendant's no contest plea, that the defendant qualified as a domestic abuse repeater. State v. Hill, 2016 WI App 29, 368 Wis. 2d 243, 878 N.W.2d 709, 15-0374.