State v. Timothy L. Finley, Jr.

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
May 10, 2022
A party may file with the Supreme Court a
Sheila T. Reiff petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.

Appeal No. 2021AP778-CR Cir. Ct. No. 2011CF671

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT III

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

TIMOTHY L. FINLEY, JR.,

DEFENDANT-APPELLANT.

APPEAL from an order of the circuit court for Brown County:
TIMOTHY A. HINKFUSS, Judge. Affirmed.

Before Stark, P.J., Hruz and Gill, JJ.

Per curiam opinions may not be cited in any court of this state as precedent

or authority, except for the limited purposes specified in WIS. STAT. RULE 809.23(3).

¶1 PER CURIAM. Timothy L. Finley, Jr., pro se, appeals from an
order denying his postconviction motion to vacate allegedly excessive sentences.
No. 2021AP778-CR

Finley pled guilty to, and was sentenced for, one count of substantial battery and
one count of strangulation and suffocation, both counts as acts of domestic abuse
and as a repeater. Finley now argues that his sentences on those counts were
excessive because he “never admitted to being a repeater,” nor did he admit that
the prior offenses alleged in the Information, which served as the basis for the
repeater enhancers, occurred within the five-year time period immediately
preceding the commission of the crimes at issue in this case. We reject these
arguments and affirm.

BACKGROUND

¶2 The following facts are undisputed for purposes of this appeal. On
June 27, 2011, the State filed an Information charging Finley with four
crimes: first-degree reckless endangerment, by use of a dangerous
weapon (Count 1); substantial battery (Count 2); strangulation and suffocation
(Count 3); and false imprisonment (Count 4). The charges arose from allegations
that Finley had beaten, strangled, and threatened his live-in girlfriend with a knife
on June 5, 2011.

¶3 Each count in the Information was charged as an act of domestic
abuse under WIS. STAT. § 968.075 (2019-20),1 and as a repeat offender under WIS.
STAT. § 939.62. With respect to the repeater enhancers, the Information alleged as
to each count that Finley had “been convicted of Possession of Cocaine—
Subsequent Offender and Possession of THC—Subsequent Offender, Felonies, on

1
All references to the Wisconsin Statutes are to the 2019-20 version unless otherwise
noted. The relevant statutes have not changed since 2011 in any way that is material to this
appeal.

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No. 2021AP778-CR

September 12, 2008 in Brown County Case No. 08CF41, which conviction(s)
remain of record and unreversed.” Based on those prior convictions, the
Information alleged that under § 939.62(1)(c), the maximum term of imprisonment
on Count 1 could “be increased by not more than 6 years.” The Information
further alleged that under § 939.62(1)(b), the maximum terms of imprisonment on
Counts 2, 3 and 4 could “be increased by not more than 4 years.”

¶4 On June 25, 2012, Finley entered a no-contest plea to Count 1 of the
Information. However, both the circuit court and the Plea Questionnaire/Waiver
of Rights form incorrectly advised Finley of the maximum penalty for that
offense. See State v. Finley, 2016 WI 63, ¶¶28-32, 370 Wis. 2d 402, 882 N.W.2d
761. As a result, our supreme court ultimately determined that Finley should be
permitted to withdraw his no-contest plea. Id., ¶96.

¶5 During a subsequent plea hearing on January 24, 2018, Finley
entered guilty pleas to Counts 2 and 3 of the Information: substantial battery, as a
repeater and as an act of domestic abuse; and strangulation and suffocation, as a
repeater and as an act of domestic abuse. During the plea colloquy, Finley
confirmed, as a general matter, that he had reviewed the elements of the charges
with his attorney and understood the charges to which he was pleading. The
circuit court then reviewed the elements of Counts 2 and 3 with Finley and
expressly addressed the application of the repeater enhancers to those counts.

¶6 Specifically, with respect to Count 2, the circuit court stated: “Now
we have a repeater. And what it says here is that you were convicted of
possession of cocaine; second and subsequent offender and possession of THC,
second and subsequent offender, both felonies, on September 12, 2008 in

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No. 2021AP778-CR

Brown County Case No. 08 CF 41, is that accurate?” Finley responded, “Yes,
Your Honor.” Addressing Count 3, the court then stated:

Then on Count No. 3, strangulation and suffocation
repeater, domestic abuse, the repeater allegation is the
same. And that is you agree you were convicted of
possession of cocaine—excuse me, subsequent offender
and possession of THC, subsequent offender, both felonies,
on September 12, 2008 in Brown County Wisconsin
file 08 CF 41?

Finley again responded, “Yes, Your Honor.”

¶7 The circuit court then stated, “Now, because these are repeaters it
adds four years on Count 2 and 4 years on Count No. 3. Do you understand that?”
Finley responded, “Yes, Your Honor.” The court continued:

I am looking also at [WIS. STAT. §] 939.62, increased
penalty for habitual criminality. And this would be under
Section (1)(b) it reads: That a maximum term of
imprisonment of more than one year but not more than ten
years—that’s what Counts 2 and 3 are—may be increased
by not more than two years if the prior conviction[s] were
for misdemeanors; and by not more than four years if the
prior conviction was for a felony.

In this case they’re felonies. So we have four years. Do
you understand that?

Finley responded, “Yes, I do.” The court subsequently informed Finley of the
maximum penalties that he faced upon conviction for Counts 2 and 3. In doing so,
the court reiterated that Finley was being sentenced as a repeater under
§ 939.62(1)(b), which increased the maximum term of imprisonment for each
count by not more than four years. Finley confirmed that he understood that
information.

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No. 2021AP778-CR

¶8 The circuit court ultimately imposed the maximum sentences on
Counts 2 and 3, to be served consecutively. Together, Finley’s sentences totaled
twelve years and six months of initial confinement, followed by five years of
extended supervision.

¶9 On February 10, 2021, Finley filed a pro se “Notice/Motion for
Court to Vacate Excessive Sentence.” In the motion, Finley alleged that he “did
not give a direct and specific admission to facts necessary to establish the habitual
criminality enhancer and that the State failed to adequately prove the prior
convictions occurred within the 5 year[s] preceding [the] commission of the crime
for which he was being sentenced.” Finley therefore asked the circuit court to
vacate the portions of his sentences that were attributable to the repeater
enhancers.

¶10 The circuit court denied Finley’s motion. The court noted that
Finley had admitted during the plea hearing that “he was convicted of the two
offenses in 08-CF-41.” The court reasoned, “If one does the math, 08-CF-41 and
this file number, 11-CF-671, is within the five-year period. Certainly, the Court
can impute the five-year period based upon the defendant’s admission to
08-CF-41.” The court further concluded that State v. Zimmerman, 185 Wis. 2d
549, 518 N.W.2d 303 (Ct. App. 1994), the principal case on which Finley relied,
was distinguishable. The court also explained that, during the plea hearing, it
“expressly drew [Finley’s] attention to the repeater charge and to the fact that the
penalties [Finley] was facing might be enhanced as a result of [Finley] being
found guilty pursuant to his … plea.” The court therefore stated that this case was
“more similar to” State v. Rachwal, 159 Wis. 2d 494, 465 N.W.2d 490 (1991), in
that there was “no confusion” during the plea hearing and Finley “did[] plead to
the repeater charges.” Finley now appeals.

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No. 2021AP778-CR

DISCUSSION

¶11 “The question of whether penalties based on a defendant’s repeater
status were properly applied involves the application of WIS. STAT. § 973.12(1) to
a set of undisputed facts.” State v. Saunders, 2002 WI 107, ¶15, 255 Wis. 2d 589,
649 N.W.2d 263. This inquiry presents a question of law that we review
independently. Id.

¶12 WISCONSIN STAT. § 939.62(1) allows for an increase in the
maximum term of imprisonment for most crimes for which imprisonment may be
imposed if the defendant is a “repeater.” As relevant here, the statute defines a
“repeater” as a person who “was convicted of a felony during the 5-year period
immediately preceding the commission of the crime for which the actor presently
is being sentenced,” if the conviction “remain[s] of record and unreversed.”
Sec. 939.62(2).

¶13 Before a defendant may be sentenced as a repeater under WIS. STAT.
§ 939.62, the defendant’s “repeater status must be established before the circuit
court.” Saunders, 255 Wis. 2d 589, ¶19. Under WIS. STAT. § 973.12(1), a
defendant may be sentenced as a repeater only if: “(1) the defendant personally
admits to qualifying prior convictions, or (2) the existence of qualifying prior
convictions is proved by the state.” Saunders, 255 Wis. 2d 589, ¶19 (citing
§ 973.12(1)). In this case, it is undisputed that the State did not prove the
existence of any qualifying prior convictions. Instead, the issue is whether Finley
personally admitted to such prior convictions.

¶14 Finley contends that he did not make any such admission. Finley
concedes that the circuit court asked him about the prior convictions set forth in
the Information during the plea colloquy. He asserts, however, that in response to

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No. 2021AP778-CR

the court’s questions, he merely admitted that the Information alleged he had been
convicted of two felony offenses in 2008. He contends he never admitted that the
allegations in the Information regarding his prior convictions were correct. Finley
therefore denies that he made “any direct admission to being a repeater.”

¶15 This argument fails for two reasons. First, when addressing the
repeater allegation with respect to Count 3 during the plea colloquy, the circuit
court asked Finley, “And that is you agree you were convicted of possession of
cocaine—excuse me, subsequent offender and possession of THC, subsequent
offender, both felonies, on September 12, 2008 in Brown County Wisconsin
file 08 CF 41?” (Emphasis added.) Finley responded, “Yes, Your Honor.” Thus,
Finley expressly “agree[d]” during the plea colloquy that he had been “convicted”
of two felony offenses on September 12, 2008. The record therefore belies
Finley’s claim that he merely admitted that the Information alleged he had
committed those offenses.

¶16 Second, it is well established that “a defendant’s plea to a charge
containing the repeater enhancer may constitute an admission to the prior
convictions necessary to apply that enhancer.” State v. Hill, 2016 WI App 29,
¶13, 368 Wis. 2d 243, 878 N.W.2d 709. We consider “the totality of the record”
when determining whether a defendant’s plea constitutes an admission to the
necessary qualifying convictions. See State v. Watson, 2002 WI App 247, ¶6, 257
Wis. 2d 679, 653 N.W.2d 520 (citation omitted).

¶17 Our supreme court’s decision in Rachwal is instructive. There, the
defendant pled no contest to a misdemeanor charge, as a repeater. Rachwal, 159
Wis. 2d at 502-03. The complaint alleged that the defendant had been convicted
of four other misdemeanors within the preceding five years. Id. at 500; see also

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No. 2021AP778-CR

WIS. STAT. § 939.62(2). During the plea colloquy, the circuit court did not
expressly ask the defendant whether the prior convictions existed, nor did the
defendant specifically acknowledge the prior convictions. Rachwal, 159 Wis. 2d
at 504. However, the court drew the defendant’s attention to the repeater
provision in the complaint and advised him of the enhanced penalty that he faced
as a result of that provision. Id. at 502-03. The defendant confirmed that he
understood the enhanced penalty. Id. at 503. Under those circumstances, our
supreme court concluded the defendant had made a “direct and specific”
admission to the prior convictions underlying the repeater allegation. Id. at 509.

¶18 This court subsequently addressed a similar situation in Watson.
There, the defendant pled guilty to substantial battery, as a repeater. Watson, 257
Wis. 2d 679, ¶2. At the plea hearing, the circuit court did not specifically ask the
defendant whether he had been convicted of the prior offense alleged in the
complaint. Id., ¶4. However, the defendant affirmed during the plea colloquy that
he understood he was a “repeater” and therefore faced an enhanced maximum
sentence. Id. In addition, the complaint—which alleged that the defendant had
pled guilty to being a felon in possession of a firearm on a particular date—“put
[the defendant] on notice that the State was seeking a repeater charge and that this
charge was based, at least in part, on the felon in possession allegation.” Id., ¶6.
We concluded “that the plea hearing colloquy, in which the circuit court explained
the effect of [the defendant’s] admission, together with the complaint, which
alleged the nature and date of [the] previous conviction, establishe[d] that [the
defendant] ‘fully understood the nature of the repeater charge.’” Id. (citation
omitted).

¶19 In this case, as in Rachwal and Watson, the Information included the
nature and date of Finley’s prior convictions and put Finley on notice that the State

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No. 2021AP778-CR

was seeking enhanced sentences based on those convictions. The circuit court
also drew Finley’s attention to the repeater allegations during the plea colloquy
and advised him of the enhanced penalties that he faced as a result of the repeater
allegations. Moreover, unlike the circuit courts in Rachwal and Watson, the court
here read Finley the prior convictions alleged in the Information and asked him
whether he “agree[d]” that he had been convicted of those offenses. Finley
responded, “Yes, Your Honor.” The totality of the record therefore shows that
Finley made a direct and specific admission to the prior convictions alleged in the
Information. See Rachwal, 159 Wis. 2d at 509. We agree with the State that “[i]f
the colloquies in Rachwal and Watson were sufficient to sustain the repeater
enhancers, then the colloquy in this case, in which Finley explicitly admitted to his
2008 felony convictions, was undoubtedly sufficient.”

¶20 In support of his argument to the contrary, Finley relies heavily on
our supreme court’s decision in State v. Farr, 119 Wis. 2d 651, 350 N.W.2d 640
(1984). In particular, he cites the Farr court’s statement that a defendant’s
admission to the prior convictions underlying a repeater allegation “may not … be
inferred.” Id. at 659. Based on this statement, Finley contends that Farr and
Rachwal are in conflict as to “what constitutes an admission” for purposes of the
repeater enhancer. Pursuant to the rule of lenity, Finley asserts that we must
resolve this conflict in his favor.

¶21 We reject this argument because there is no conflict between Farr
and Rachwal. Both of those cases require a defendant to make a direct and
specific admission to the offenses underlying a repeater allegation. See Farr, 119
Wis. 2d at 659; Rachwal, 159 Wis. 2d at 509. Applying that test, the Farr and
Rachwal courts merely reached different results based on the two cases’ differing
factual circumstances.

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No. 2021AP778-CR

¶22 In Farr, the defendant had been convicted of burglary following a
jury trial and was then sentenced as a repeater. Farr, 119 Wis. 2d at 654-55.
During the sentencing hearing, the defendant’s attorney did not object when the
circuit court stated that the defendant faced a sixteen-year sentence, which was the
maximum sentence if the repeater enhancer applied. Id. at 658. Counsel also
failed to object to the court’s statement that the defendant’s probation had been
revoked earlier that year. Id. In addition, the defendant stated at sentencing that
he was serving a five-year sentence, but he did not specify when he had been
convicted of that prior offense. Id. at 659. On this record, the supreme court
concluded that neither the defendant nor his attorney “admitted other than by
inferences” that the defendant had been convicted of a felony “within five years
prior to the commission date of the burglary for which the defendant was being
sentenced.” Id.

¶23 Unlike Farr, the defendant in Rachwal entered a no-contest plea to a
charge containing a repeater allegation. Rachwal, 159 Wis. 2d at 502-03. The
Rachwal court concluded that the totality of the circumstances surrounding the
defendant’s no-contest plea showed that he had made a direct and specific
admission to the prior convictions underlying the repeater allegation. Id. at 509.
The Rachwal court expressly stated that Farr was distinguishable because the
defendant in Farr did not “submit a guilty plea” and the State was effectively
“asking the court to infer an admission from silence” in that case. Id. at 508. The
Rachwal court explained: “That is not the situation in this case. Here, the
defendant’s no[-]contest plea, viewed in the context of the record discussion
constituted an affirmative admission of the allegations contained in the
complaint.” Id.

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No. 2021AP778-CR

¶24 Thus, Farr and Rachwal are not in conflict. They merely arose
from distinguishable factual circumstances, which appropriately led the supreme
court to reach a different result in each case. As explained above, the factual
circumstances of this case are analogous to those in Rachwal.2

¶25 Citing Zimmerman, Finley also argues that he did not specifically
admit that the prior convictions alleged in the Information occurred within the
five-year period immediately preceding the date he committed the offenses for
which he was sentenced in this case. Zimmerman is inapposite, however, because
it addressed language in WIS. STAT. § 939.62(2) that is not at issue here.

¶26 Specifically, WIS. STAT. § 939.62(2) provides that when determining
whether a prior offense occurred within the five-year period immediately
preceding the commission of the crime for which the actor is being sentenced,
“time which the actor spent in actual confinement serving a criminal sentence shall

2
Finley also asserts, based on State v. Farr, 119 Wis. 2d 651, 659, 350 N.W.2d 640
(1984), that in order to secure his direct and specific admission to the prior convictions alleged in
the Information, the circuit court was required to ask him the following “specific and direct
question” during the plea colloquy:

Mr. Finley do you admit that you are a repeater, with[]in the
meaning of [WIS. STAT. § 939.62(1)], due to you being
previously convicted on September 12, 2008 in Brown County
for the charges of Possession of Cocaine second and subsequent
offender and Possession of THC, second and subsequent
offender, as felonies in Case no. 08 CF 41 and that they remain
of record and are valid convictions, which were committed
within 5 years preceding the com[m]ission of the crime for
which you are currently be[ing] sentence[d], which was
committed on 6-5-11?

In State v. Rachwal, 159 Wis. 2d 494, 508-09, 465 N.W.2d 490 (1991), our supreme court
expressly rejected the notion that any specific question by the circuit court—such as the one
proposed by Finley—is necessary to secure a defendant’s admission to prior convictions for
purposes of the repeater enhancer.

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No. 2021AP778-CR

be excluded.” In Zimmerman, the defendant was charged with armed robbery on
December 18, 1991. Zimmerman, 185 Wis. 2d at 552. The State later filed an
Information charging the defendant as a repeater based on allegations that he had
been convicted of a prior offense on November 9, 1983, and had been “released”
on March 28, 1991. Id. at 552-53. However, the record did not indicate when the
defendant’s sentence in the prior case had commenced or for how long the
defendant was incarcerated for that offense. Id. at 553. Although the defendant
admitted during the plea hearing that he had been convicted of the prior offense in
1983, he did not specifically admit that the prior conviction occurred less than five
years before he committed his present offense. Id. at 557. Nor had the defendant
admitted “to a period of incarceration that would bring his 1983 conviction within
the five-year statutory period.” Id. Under those circumstances, we determined the
defendant did not give “a direct and specific admission to facts necessary to
establish the repeater penalty enhancer.” Id.

¶27 Unlike Zimmerman, this case does not involve any uncertainty as to
whether the prior convictions alleged in the Information fell within the five-year
period set forth in WIS. STAT. § 939.62(2). By entering guilty pleas to Counts 2
and 3 of the Information, Finley admitted that those offenses occurred on June 5,
2011, as alleged in the Information. See State v. Liebnitz, 231 Wis. 2d 272,
286-87, 603 N.W.2d 208 (1999) (“[I]t is a well-established rule ‘that what is
admitted by a guilty or no[-]contest plea is all the material facts alleged in the
charging document.’” (citation omitted)). As discussed above, Finley also made a
direct and specific admission during the plea colloquy that he had been convicted
of the two prior felony offenses alleged in the Information on September 12, 2008.
September 12, 2008, plainly falls within the five-year period immediately
preceding June 5, 2011. On this record, there can be no dispute that Finley

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No. 2021AP778-CR

admitted having two prior felony convictions that occurred within five years
before the commission of the crimes at issue in this case.3

¶28 Finally, Finley argues that the five-year period in WIS. STAT.
§ 939.62(2) should not be measured from the date he committed the offenses for
which he was sentenced in this case. Instead, he contends the five-year period
should be measured from either: (1) July 12, 2016, the date the supreme court
issued its decision permitting him to withdraw his no-contest plea to Count 1 of
the Information; or (2) September 13, 2016, the date he was “recharged” following
the supreme court’s decision via the filing of an amended Information.

¶29 Contrary to Finley’s assertion, the appellate record does not reflect
that an amended Information was filed on September 13, 2016, or on any other
date. Regardless, Finley’s argument is contrary to the plain language of WIS.
STAT. § 939.62(2), which expressly states that an actor is a repeater if he or she
“was convicted of a felony during the 5-year period immediately preceding the
commission of the crime for which the actor presently is being sentenced.”
(Emphasis added.) Finley does not cite any legal authority in support of his claim
that the five-year period in § 939.62(2) should be measured from a different date.
We need not consider arguments that are unsupported by references to legal

3
For this reason, we also reject Finley’s argument that the circuit court violated his right
to due process when deciding his postconviction motion by “imput[ing],” based on the respective
case numbers, that he had been convicted of a felony offense within the five-year period set forth
in WIS. STAT. § 939.62(2). As explained above, the record clearly shows that Finley made a
direct and specific admission to committing two felony offenses on September 12, 2008. Finley
further admitted—by virtue of his guilty pleas—that the crimes charged in this case occurred on
June 5, 2011. Under these circumstances, the only possible conclusion is that the prior
convictions occurred within the requisite five-year period.

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No. 2021AP778-CR

authority. See State v. Pettit, 171 Wis. 2d 627, 646, 492 N.W.2d 633 (Ct. App.
1992).

¶30 For all of the foregoing reasons, we conclude the totality of the
record plainly shows that Finley made a direct and specific admission that he had
been convicted of a felony offense during the five-year period immediately
preceding the commission of the crimes for which he was sentenced in this case.
We therefore reject Finley’s claim that the circuit court erred by denying his
motion to vacate the portions of his sentences attributable to the repeater
enhancers.

By the Court.—Order affirmed.

This opinion will not be published. See WIS. STAT.
RULE 809.23(1)(b)5.

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