Background
In August 2019, the State charged Dennis D. Banks with two counts of first-degree sexual assault of a child and one count of felony bail jumping. In September 2020, the State moved to dismiss the complaint so it could refile the charges with persistent repeater enhancers under WIS. STAT. § 939.62(2m). The circuit court granted the motion, and the State refiled the complaint the same day, alleging that Banks was a persistent repeater based on a 2003 conviction for repeated sexual assault of the same child. Trial counsel did not move to dismiss the enhancers in the refiled complaint.
A jury convicted Banks of one count of first-degree sexual assault of a child and bail jumping. At sentencing in August 2022, the State asked the circuit court to take judicial notice of Banks’s prior conviction, providing the case number and county. The court accessed the electronic record maintained by the Dane County Clerk of Court through the Wisconsin Circuit Court Access system or Judicial Dashboard, observed an uncertified electronic copy of the judgment of conviction, and took judicial notice of the prior conviction. Trial counsel did not object. Applying the persistent repeater enhancer, the court sentenced Banks to life imprisonment without the possibility of release on extended supervision.
Banks filed a postconviction motion for resentencing, arguing that the circuit court erred in allowing the enhancer in the refiled complaint, that the State provided insufficient evidence of the prior conviction, and that trial counsel was ineffective for failing to move to dismiss and failing to object. The circuit court denied the motion without holding a Machner hearing. Banks appealed.
The Court’s Holding
The Wisconsin Court of Appeals affirmed. The court first addressed whether the State met its burden under WIS. STAT. § 973.12(1) to prove Banks’s persistent repeater status. The court held that the State may prove a prior conviction through judicial notice of an uncertified electronic copy of a judgment of conviction maintained in the official electronic court record. The court explained that under WIS. STAT. § 902.01(2)(b), a judgment in another case in an electronic court record accessed through the courthouse version of WCCA or the Judicial Dashboard is a fact capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned. The court distinguished State v. Bonds, which held that a CCAP report from the public-access website was insufficient, noting that Bonds involved a summary report, not an actual copy of the judgment, and that the technology and official record status have evolved since 2006.
The court further held that the State provided the necessary information under WIS. STAT. § 902.01(4) by supplying the county and case number, enabling the court to locate and observe the electronic judgment. The court concluded that the electronic copy satisfied § 973.12(1) because it contained the date and crime of the prior conviction, and the circuit court’s detailed narration on the record verified the existence and date of the conviction.
Regarding ineffective assistance of counsel, the court held that the circuit court properly denied Banks’s motion without a Machner hearing. The court concluded that trial counsel’s failure to move to dismiss the enhancer was not deficient performance because the motion would have lacked merit under State v. Larsen, which permits the State to dismiss and refile charges with repeater enhancers after arraignment. The court also concluded that Banks was not prejudiced by counsel’s failure to object to judicial notice because the State could have obtained a certified copy of the judgment, and the outcome would have been the same.
Key Takeaways
- A circuit court may take judicial notice of an uncertified electronic copy of a judgment of conviction in the official electronic court record to prove a prior conviction for persistent repeater status under WIS. STAT. § 973.12(1).
- The State satisfies the “necessary information” requirement of WIS. STAT. § 902.01(4) by providing the county and case number, enabling the court to access the electronic record through the courthouse WCCA or Judicial Dashboard.
- Trial counsel’s failure to move to dismiss a persistent repeater enhancer in a refiled complaint is not ineffective assistance when the State properly dismissed and refiled the complaint under State v. Larsen.
- A defendant is not prejudiced by counsel’s failure to object to judicial notice of an electronic judgment when the State could have obtained a certified copy and the outcome would have been identical.
Why It Matters
This decision clarifies that Wisconsin courts may rely on modern electronic court records to prove prior convictions for sentencing enhancers, adapting evidentiary rules to the digital age. It distinguishes between unreliable summary reports and actual electronic copies of judgments maintained by clerks of court, providing guidance for prosecutors and defense counsel on what constitutes sufficient proof under WIS. STAT. § 973.12(1).
The ruling also reinforces the procedural framework for persistent repeater enhancers, confirming that the State may dismiss and refile charges with enhancers after arraignment without violating WIS. STAT. § 973.12(1). Defense attorneys should note that objections to the mode of proof may be futile when the State can readily obtain certified copies, and that challenges to the underlying accuracy of the electronic record must be raised with specificity.