State v. Amanuel A. Ayele

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.
November 7, 2019
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. 2019AP432-CR Cir. Ct. No. 2017CM1319

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT IV

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

AMANUEL A. AYELE,

DEFENDANT-APPELLANT.

APPEAL from a judgment and orders of the circuit court for Dane
County: WILLIAM E. HANRAHAN, Judge. Affirmed.

¶1 FITZPATRICK, P.J.1 Amanuel Ayele appeals a judgment of
conviction for battery, contrary to WIS. STAT. § 940.19(1), and orders of the circuit
court denying his motions for postconviction relief and reconsideration. The

1
This appeal is decided by one judge pursuant to WIS. STAT. § 752.31(2)(f) (2017-18).
All references to the Wisconsin Statutes are to the 2017-18 version unless otherwise noted.
No. 2019AP432-CR

judgment of conviction describes count 1 as “[WIS. STAT. §] 973.055(1)2
Domestic Abuse Assessments]”3 and as “Battery.” Postconviction, Ayele
requested that the circuit court enter an amended judgment of conviction that
omits the Domestic Abuse Assessment descriptor because the circuit court agreed
at the plea and sentencing hearing to waive the surcharge that is mandatorily
imposed under § 973.055(1). The circuit court denied Ayele’s motion, and also
denied Ayele’s subsequent motion for reconsideration. I affirm.

BACKGROUND

¶2 There is no dispute concerning the following facts.

2
WISCONSIN STAT. § 973.055 provides:

(1) If a court imposes a sentence on an adult person or
places an adult person on probation, regardless of whether any
fine is imposed, the court shall impose a domestic abuse
surcharge under [WIS. STAT.] ch. 814 of $100 for each offense if:

(a) 1. The court convicts the person of a violation of a
crime specified in [WIS. STAT.] s. … 940.19 … ; and

2. The court finds that the conduct constituting the
violation under subd. 1. involved an act by the adult person
against … an adult with whom the adult person resides ….

….

(4) A court may waive part or all of the domestic abuse
surcharge under this section if it determines that the imposition
of the full surcharge would have a negative impact on the
offender’s family.
3
I will sometimes refer to this description as the “Domestic Abuse Assessment
descriptor.”

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No. 2019AP432-CR

¶3 On July 12, 2017, police officers were dispatched to the apartment of
Aydiko Gembero in response to a 911 call made by Gembero. Gembero reported
to officers that his son, Ayele, lived with him and that Ayele had hit Gembero’s
television multiple times with a metal pipe. Gembero reported that he told Ayele
to stop hitting the television and then Ayele hit Gembero “[t]oo many [times] to
count” with the pipe and kicked Gembero “numerous” times when Gembero fell to
the ground. Gembero reported that he attempted to get his cell phone out of his
pocket in order to call 911, but that Ayele kicked the phone out of Gembero’s
hand. Gembero reported that he was eventually able to flee his apartment to the
apartment complex’s office and call 911.

¶4 Ayele was charged with two counts: (1) misdemeanor battery with
the use of a dangerous weapon, contrary to WIS. STAT. § 940.19(1), with a
domestic abuse surcharge under WIS. STAT. § 973.055; and (2) criminal damage to
property with the use of a dangerous weapon, contrary to WIS. STAT. § 943.01(1),
with a domestic abuse surcharge.

¶5 At a plea hearing, the State advised the circuit court that, in
exchange for Ayele’s plea, the State agreed to dismiss the dangerous weapon
enhancer on the battery charge and to dismiss in its entirety the criminal property
damage charge. The State also informed the court that it agreed to dismiss the
domestic abuse surcharge, which defense counsel described as a penalty
“enhance[r],” on the battery charge.

¶6 In response, the circuit court stated that the domestic abuse
surcharge “isn’t a penalty enhancer.” The court stated that “domestic abuse” is not
a specific crime in Wisconsin, but that WIS. STAT. § 973.055 dictates under what
circumstances an offense is one of domestic abuse and that the statute mandates

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No. 2019AP432-CR

that a financial surcharge be imposed in every such case. Defense counsel
responded as follows: “Well, if that’s the Court’s finding, then we can just move
on.” Ayele then advised the court that he still wished to enter his plea and the
court conducted the necessary colloquy with Ayele to ascertain that his plea was
knowing, intelligent, and voluntary before the court accepted the plea. Pursuant to
the plea agreement, Ayele pleaded guilty to misdemeanor battery, with the
domestic abuse surcharge.

¶7 During sentencing, the following discussion took place between the
circuit court and defense counsel:

[DEFENSE COUNSEL]: And, Your Honor, on the
issue of court costs, would you consider waiving any costs
you can? I’m looking particularly at that domestic abuse
surcharge under (4).

….

THE COURT: Yeah. I’ll waive that surcharge.
That is waivable.

¶8 A judgment of conviction was entered by the circuit court. The
judgment describes count 1 as “[[WIS. STAT. §] 973.055(1) Domestic Abuse
Assessments]” and as “Battery.” Postconviction counsel for Ayele requested by
letter that the circuit court amend the judgment to remove the Domestic Abuse
Assessment descriptor because the circuit court had agreed at sentencing to waive
that surcharge. The court denied counsel’s request. Ayele then filed a motion,
which the court treated as a motion for reconsideration, requesting again that the
judgment be amended to remove the “domestic abuse surcharge” descriptor. The
court denied Ayele’s motion. Ayele appeals.

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No. 2019AP432-CR

DISCUSSION

¶9 Ayele contends that the circuit court erred in denying his post-
judgment motions to amend the judgment to remove the Domestic Abuse
Assessment descriptor.

¶10 The domestic abuse surcharge under WIS. STAT. § 973.055 is
implicated if the circuit court: “convicts the [defendant] of a violation of a crime
specified in … [WIS. STAT. §] 940.19 … and … [t]he court finds that the conduct
constituting the violation [of the offense specified in § 940.19] … involved an act
by the adult person against … an adult with whom the adult person resides.”
Sec. 973.055(1)(a). Ayele pleaded not guilty to battery, contrary to § 940.19(1).
Section 940.19(1) provides that “[w]hoever causes bodily harm to another by an
act done with intent to cause bodily harm to that person … without the consent of
the person so harmed” is guilty of battery. At the plea hearing, Ayele agreed that
the circuit court could look to the allegations in the complaint to support a factual
basis for Ayele’s guilty plea. See State v. Thomas, 2000 WI 13, ¶¶18-20, 232
Wis. 2d 714, 605 N.W.2d 836 (a factual basis is established when counsel agrees
on the record to the facts in the criminal complaint). The complaint alleged that
Ayele resided with Gembero, who is Ayele’s father, and that Ayele struck
Gembero multiple times with a metal pipe and kicked Gembero multiple times
after Gembero fell to the ground. I conclude that these allegations establish that
that Ayele was convicted of a crime under § 940.19 against an adult person with
whom Ayele resided, and that Ayele’s offense implicated the domestic abuse
surcharge under § 973.055.

¶11 On appeal, Ayele does not argue that inclusion of the Domestic
Abuse Assessment descriptor is erroneous because the facts of this case do not

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No. 2019AP432-CR

implicate the domestic abuse surcharge that must be imposed pursuant to WIS.
STAT. § 973.055(1). The surcharge is implicated unless, under § 973.055(4), the
court determines that imposition of the surcharge would have a negative impact on
the offender’s family. See § 973.055(1) and (4); see also State v. Cox, 2018 WI
67, ¶23, 382 Wis. 2d 338, 913 N.W.2d 780. Instead, Ayele argues that the
domestic abuse surcharge under § 973.055 is “nothing more than a monetary
surcharge” and, thus, the circuit court “does not have the authority to include the
phrase ‘domestic abuse assessments’ on the conviction portion of the judgment of
conviction after agreeing to waive the domestic abuse []surcharge.”

¶12 A circuit court has authority to amend a judgment to correct errors.
See State v. Prihoda, 2000 WI 123, ¶17 n.9, 239 Wis. 2d 244, 618 N.W.2d 857;
see also WIS. STAT. § 806.07(1)(a) (a court may relieve a party from a judgment
based on mistake). However, I conclude that the inclusion of the Domestic Abuse
Assessment descriptor is not an error and, therefore, the circuit court did not err in
not amending the judgment.

¶13 At the plea and sentencing hearing, the circuit court rejected the
State’s and Ayele’s proposed agreement that the battery offense not be classified
as an act of domestic abuse subject to the surcharge under WIS. STAT. § 973.055.
The court ruled that the domestic abuse surcharge is not a penalty enhancer but,
instead, a classification of an offense that is necessarily implicated if the facts of
the case meet the criteria set forth in § 973.055(1). Later, the court agreed to
waive, pursuant to § 973.055(4), imposition of the financial aspect of the
surcharge. However, the court did not agree that the domestic abuse surcharge
was not implicated by the facts. The court’s oral pronouncements reflect an intent
that the domestic abuse surcharge be implicated by the battery offense in this case,

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No. 2019AP432-CR

but that Ayele not be burdened by the $100 surcharge that generally accompanies
offenses that implicate § 973.055(1).

¶14 Ayele does not develop an argument or cite this court to any legal
authority supporting the proposition that a judgment of conviction for an offense
that implicates WIS. STAT. § 973.055(1) cannot indicate as much when the court
has waived the $100 surcharge in full pursuant to § 973.055(4).4 This court need
not address arguments that are unsupported by legal arguments or unsupported by
legal authority. See State v. Pettit, 171 Wis. 2d 627, 646-47, 492 N.W.2d 633 (Ct.
App. 1992) (regarding unsupported and undeveloped arguments). Accordingly, I
reject Ayele’s argument that the circuit court erred in denying his motion to
modify the judgment.

¶15 However, even if Ayele is correct that the Domestic Abuse
Assessment descriptor is erroneous, Ayele does not explain what the practical
consequence of this error is or how he is harmed by that error. Ayele studiously
avoids mentioning any adverse consequences of the circuit court’s decision other
than an alleged mistake in verbiage in the judgment itself. Accordingly, I decline
to consider the asserted error further. See Id. So, even if the circuit court erred
(and I do not conclude it did), the error was harmless.

4
Ayele asserts that, by referencing the domestic abuse surcharge on the judgment of
conviction, the circuit court has “in effect[] creat[ed] a crime of domestic abuse” where the
legislature has not created any such crime. I reject this argument. The judgment’s description of
count 1 as “[[WIS. STAT. §] 973.055(1) Domestic Abuse Assessment]” does not create criminal
penalties and, thus, does not create a crime of domestic abuse. Instead, the Domestic Abuse
Assessment descriptor indicates that the charged crime, battery, implicates § 973.055(1) because
the underlying conduct was also an act of domestic abuse.

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No. 2019AP432-CR

¶16 Finally, I observe that there may be a clerical error in the judgment
and in the circuit court’s Assessment Report describing the assessments against
Ayele. The judgment and Assessment Report appear to indicate that a $100
domestic abuse surcharge was assessed against Ayele. However, the court waived
that surcharge in its entirety at sentencing, and the parties do not contend that such
a surcharge was, in fact, assessed. Upon remittitur, I suggest that the circuit court
consider this potential error and, if appropriate, correct this scrivener’s error in the
judgment or order the clerk of the circuit court to make the correction. See
Prihoda, 239 Wis. 2d 244, ¶¶26-27 (clerk of the circuit court does not have
authority to correct a clerical error in the sentence portion of the judgment; an
unambiguous oral pronouncement controls over a written judgment of conviction).

CONCLUSION

¶17 For the foregoing reasons, the judgment and orders of the circuit
court are affirmed.

By the Court.—Judgment and orders affirmed.

This opinion will not be published. See WIS. STAT.
RULE 809.23(1)(b)4.

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