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COURT OF APPEALS
NOTICE
DECISION
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.
March 20, 2012
A party may file with the Supreme Court a
Diane M. Fremgen                                                                                                                                      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.
                                                                                                                                                      Cir. Ct. No.   2002CF6925
Appeal No.                                                                           2011AP319-CR
STATE OF WISCONSIN                                                                                                                                    IN COURT OF APPEALS
                                                                                                                                                      DISTRICT I
STATE OF WISCONSIN,
PLAINTIFF-RESPONDENT,
V.
DANIEL D. KING,
DEFENDANT-APPELLANT.
APPEAL from an order of the circuit court for Milwaukee County:
KEVIN E. MARTENS, Judge.   Affirmed.
Before Curley, P.J., Fine and Kessler, JJ.
¶1                                                                                   PER CURIAM.      Daniel D. King, pro se, appeals from an order
denying his motion for sentence modification.   King was sentenced to thirty-five
years’ imprisonment for armed robbery.   He argues that he is entitled to have his
sentence commuted to fifteen years, the maximum time allowed for a conviction




No.   2011AP319-CR
of simple robbery, because the jury’s verdict read that he was guilty of robbery
and not armed robbery.   We affirm because King did not object to the form of the
verdict and he was not prejudiced by the scrivener’s error in the verdict.
¶2                                                                                                   In  2003,  King  was charged as a party to the crime  with eleven
crimes:   robbery, three counts of sexual assault, and substantial battery of one
female victim; and kidnapping, three counts of sexual assault, substantial battery,
and armed robbery of  a second female victim, Chandra T.    A jury trial was
conducted on all the charges.    The jury found King guilty of both counts of
substantial battery and count eleven of the information, the armed robbery of
Chandra T.   The verdict form as to count eleven provided:                                           “We the jury, duly
empaneled and sworn, find the defendant, Daniel D. King, guilty of robbery, as a
party to a crime, of Chandra T[.], as charged in Count 11 of the Information.”
King’s conviction of the crimes against Chandra T. was affirmed on appeal.1
¶3                                                                                                   Five years after his appeal, King filed a pro se motion for sentence
modification  indicating  that he  sought relief  pursuant to  WIS.  STAT.  § 973.13
(2009-10).2   Section  973.13 provides:                                                              “In any case where the court imposes a
1  See State v. King, 2005 WI App 224, 287 Wis. 2d 756, 706 N.W.2d 181.   Before his
appeal, King’s conviction of substantial battery as to the first victim was vacated and he was
granted a new trial on that charge.
2  All references to the Wisconsin Statutes are to the 2009-10 version unless otherwise
noted.
The State argues that because King had a prior direct appeal, his claim is barred by rule in
WIS. STAT.  § 974.06, as interpreted in State v. Escalona-Naranjo, 185 Wis. 2d 168, 185, 517
N.W.2d 157 (1994) (all grounds for relief must be raised in a defendant’s original, supplemental
or amended motion).   A motion under WIS. STAT. § 973.13 is not trumped by the procedural bar.
See State v. Flowers, 221 Wis. 2d 20, 22-23, 586 N.W.2d 175 (1998).   Because of our resolution
of the appeal on other grounds, we decline to address the State’s contention that King’s motion
for sentence modification really raises a due process violation and is truly a second motion under
§ 974.06, not a motion under § 973.13.
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No.   2011AP319-CR
maximum penalty in excess of that authorized by law, such excess shall be void
and the sentence shall be valid only to the extent of the maximum term authorized
by statute and shall stand commuted without further proceedings.”   King asserted
that because the jury verdict read that he was guilty of only robbery, and not
armed robbery, he was entitled to have his sentence commuted to the maximum
time allowed for robbery.   The circuit court found that as to count eleven, the
verdict form inadvertently omitted the word “armed” before “robbery” and that
there was no question that the jury actually convicted King of armed robbery.   It
concluded that King was properly sentenced for armed robbery and denied King’s
motion for sentence modification.
¶4                                                                                       On appeal King does not challenge the circuit court’s finding that a
scrivener’s error was made on the verdict form.   Thus, King’s claim is that a mere
defect in the verdict form affects the sentence.    WISCONSIN STAT.  § 805.13(3)
provides that the failure to object to the form of the verdict at the instruction and
verdict conference “constitutes a waiver of any error in the proposed instructions
or verdict.”   Section 805.13(3) is made applicable to criminal proceedings under
WIS. STAT. § 972.11(1).   State v. Paulson, 106 Wis. 2d 96, 101-02, 315 N.W.2d
350 (1982).   By virtue of his failure to object, King forfeited his claim based on
the scrivener’s error which omitted the word  “armed” before  “robbery” on the
verdict for count eleven.   See Hoff v. Wedin, 170 Wis. 2d 443, 454, 489 N.W.2d
646 (Ct. App. 1992).
¶5                                                                                       King’s  claim  fails  for  the  additional  reason  that  he  was  not
prejudiced by the omitted word in the verdict.   A defect in the form of the verdict
is a trial error subject to a harmless error analysis.   See State v. Hansbrough, 2011
WI App 79, ¶17, 334 Wis. 2d 237, 799 N.W.2d 887.   Additionally, WIS. STAT.
§ 971.26  provides in  part:                                                             “No  …  judgment or  other  proceedings  [shall]  be
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No.   2011AP319-CR
affected by reason of any defect or imperfection in matters of form which do not
prejudice  the  defendant.”    See  State  v.  Coolidge,  173  Wis. 2d  783,  792,  496
N.W.2d 701 (Ct. App. 1993), modified on other grounds by State v. Tiepelman,
2006 WI  66,  291 Wis. 2d  179,  717 N.W.2d  1  (recognizing that defendant was
actually sentenced under a statute different from that stated in the judgment of
conviction; scrivener’s error is of no consequence where there is no prejudice to
the defendant).
¶6                                                                                        At  the  commencement  of  the  trial  the  prospective  jurors  were
informed that King was charged with the armed robbery of Chandra T.    The
testimony  at  trial  was  that  King’s  accomplice  used  a  box  cutter  razor  on
Chandra T., causing her to bleed, and that the razor was found in the accomplice’s
wallet.   The information was read to the jury just before final instructions and
count eleven of the information charged that King, “as a party to a crime, with
intent to steal by the use or threat of use of a dangerous weapon, did take property
from the person of Chandra T[.]….”   The jury was instructed on armed robbery
with  respect to  the  crimes against  Chandra  T.    The  jury was  given a  set  of
instructions during deliberations.   In closing argument the prosecutor outlined how
the evidence satisfied the elements of armed robbery.   No defense argument was
made that King could be found guilty only of robbery against Chandra T.   The
verdict form itself referenced count eleven of the information, which charged
armed robbery.
¶7                                                                                        There is no possibility that the jury in fact adjudged King guilty of
just robbery.    The evidence supports the armed robbery conviction.    The jury
would have found King guilty even if the verdict form had labeled the crime as
armed  robbery.    See  Hansbrough,  334  Wis. 2d  237,  ¶23  (the  mistake  in  not
providing a not guilty verdict form was harmless when  “beyond a reasonable
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No.   2011AP319-CR
doubt” a rational jury would have found the defendant guilty even if it had been
provided  the  proper  verdict  forms).    Thus,  King  was  not  prejudiced  by  the
omission  in  the  verdict  of  the  word  “armed.”    We  affirm the  circuit  court’s
determination  that King  was  properly convicted of  armed  robbery and is not
entitled to have his sentence commuted.
By the Court.—Order affirmed.
                                                                                          This  opinion  will  not  be  published.     See  WIS.  STAT.  RULE
809.23(1)                                                                                 (b)5.
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