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COURT OF APPEALS
DECISION
DATED AND RELEASED
                                                                                      NOTICE
May 8, 1997
A  party  may  file  with  the  Supreme  Court  a                                     This opinion is subject to further editing. If
petition  to  review  an  adverse  decision  by  the                                  published, the official version will appear in
Court of Appeals.   See § 808.10 and RULE 809.62,                                     the bound volume of the Official Reports.
STATS.
No. 96-2321-CR
STATE OF WISCONSIN                                                                    IN COURT OF APPEALS
                                                                                      DISTRICT IV
STATE OF WISCONSIN,
PLAINTIFF-RESPONDENT,
V.
WILLIE MCCOY,
DEFENDANT-APPELLANT.
APPEAL from a judgment of the circuit court for La Crosse County:
RAMONA A. GONZALEZ, Judge.   Affirmed in part; reversed in part and cause
remanded.
Before Eich, C.J., Vergeront and Roggensack, JJ.
EICH, C.J.    Willie McCoy appeals from a judgment convicting him
of conspiring to deliver crack cocaine in excess of 100 grams within 1000 feet of a




NO. 96-2321-CR
school (party to the crime), in violation of §§ 161.41(1)(cm)5, 161.49(1),(2)(a),1
and  939.05(1),  STATS.    McCoy’s sentence  was subject to enhancement under
§ 161.48, STATS., because he was a repeat drug-law offender, and also under
§ 161.49 because, as indicated,  the offense occurred within 1000 feet of a school.
On   appeal,   McCoy   argues   that:                                                   (1)   the   State   improperly
“aggregated” several separate incidents of delivery of smaller amounts of cocaine
into a single count of conspiring to deliver more than 100 grams; (2) the trial court
erroneously instructed the jury with respect to the existence of a conspiracy; and
(3) the court erred in the manner in which it applied the sentence enhancers.
We conclude that McCoy waived any objection to the  100-gram
charge by failing to raise the issue in the trial court, and we reject his claim of
instructional error.   We also conclude, however, that the court improperly applied
one of the penalty-enhancement statutes.   We therefore affirm in part and reverse
in part, and remand to the trial court for further proceedings.
The facts are not in dispute.    Beginning in the summer of  1994,
McCoy allowed several people, including Emma Basada, Juan Cathey and Juan’s
uncle, Oliver Cathey (known as O.J.), to distribute crack cocaine from his house in
La Crosse, which was located approximately 700 feet from an elementary school.
Juan Cathey and Basada made at least ten trips to La Crosse between June and
November 1994, each time bringing an ounce (approximately twenty-eight grams)
of cocaine, which they had purchased in Milwaukee for $800, and selling it in La
                                                                                                                                                                                                                                                      1 All references to chapter  161, STATS., are to  1993-94, STATS.    Chapter  161 was
                                                                                                                                                    renumbered in part and repealed in part by 1995 Act 448, §§ 243 to 266, effective July 9, 1996.
                                                                                        The  provisions  we  discuss  in  this  opinion  are  now                                                                                                                                                                                             §§   961.41 (1)   (cm)5,   961.48(2),  and
961.49(1)                                                                               (2)(a), STATS.
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NO. 96-2321-CR
Crosse for approximately $4600.   Juan Cathey and Basada and, on occasion, O.J.
Cathey sold approximately half the cocaine from McCoy’s house and the other
half elsewhere. McCoy was “paid” with cocaine for his role as a “middleman,”
which involved lining up purchasers and collecting money.   Juan Cathey testified
that there was an  “understanding” that he and Basada could distribute cocaine
from McCoy’s house; each time they left for Milwaukee to make a purchase, he
would tell McCoy when they would return.
The  jury  convicted  McCoy  of  the  charged  offense  and  he  was
sentenced  to  fifteen  years  in  prison,  the  first  six  years  to  be  served  without
eligibility for parole.
I.   Aggregation of Charges: Waiver
Citing State v. Spraggin, 71 Wis.2d 604, 613, 239 N.W.2d 297, 305
(1976)                                                                                        (quotations  and  quoted  sources  omitted),  where  the  supreme  court
recognized that  “[r]eceiving  … different articles of stolen property at different
times and on separate and unconnected occasions, … cannot be prosecuted as one
crime                                                                                         ….,”  McCoy  argues  first  that  the  delivery  charges  were  improperly
aggregated to total 100 grams because each transaction was a separate unrelated
incident.    The  State  argues  waiver:  that  McCoy  is  attempting  to  raise  the
aggregation issue for the first time on appeal, which he may not do.   See State v.
Dietzen, 164 Wis.2d 205, 212, 474 N.W.2d 753, 755,                                            (Ct. App. 1991) (failure to
raise an argument in the trial court waives any objection on appeal).
Conceding that he did not object to the charge with particularity,
McCoy claims that the following remark his attorney made at the instruction
conference  should  be  considered  sufficient  to  preserve  the  claimed  error  for
appeal:
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NO. 96-2321-CR
[I]t still doesn’t make any sense.   It’s just complexity, Your
Honor, and I don’t see any reason for it except to say that
my client is the root of all evil and brought all the cocaine
into La Crosse, and the reason that it’s all here is because
of Willie McCoy ….
Whatever the import of such a general remark, McCoy’s counsel
went on to expressly state that he had no objection to the trial court reading WIS
J I-CRIMINAL 6001, which instructs the jury to consider whether the amount of
cocaine involved was  “more than  100 grams.”    At the close of the instruction
conference, counsel informed the court that he “had the opportunity to review the
verdict  form”—which  contains  the                                                                         “100  grams”  question—and,  when  asked
whether he had any objection, replied: “None, Your Honor.”   The jury was thus
asked, without objection by McCoy, to answer the question, and the supreme court
has held that, in such circumstances, we lack authority to review the instruction
and verdict.   State v. Schumacher, 144 Wis.2d 388, 402, 408-09, 424 N.W.2d 672,
677, 679-80 (1988).2
We conclude, therefore, that McCoy waived any argument that the
100-gram charge resulted from an improper aggregation of several lesser offenses.
2 We retain the authority, of course, to reverse and order a new trial in the interest of justice
under § 752.35, STATS., if, as a result of the unobjected-to error, (1) the real controversy has not been
tried, or (2) it is probable that justice has for any reason miscarried.  Vollmer v. Luety, 156 Wis.2d 1,
16, 456 N.W.2d 797, 804 (1990).  McCoy advances neither argument on this appeal.
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NO. 96-2321-CR
II.  Jury Instruction: Conspiracy
McCoy also objects to the trial court’s conspiracy instruction insofar
as it includes O.J. as a principal.3   He maintains that the evidence was insufficient
to support instructing the jury on a  single  conspiracy involving Juan  Cathey,
Basada and O.J. Cathey.   When considering a challenge to the evidence supporting
an instruction, we view the supporting evidence in the light most favorable to the
party requesting it, which here is the State.   State v. Gaudesi, 112 Wis.2d 213,
223,                                                                                                  332  N.W.2d  302,  306  (1983).    The  question  is  whether  a  reasonable
3 The State raises a waiver argument here as well, claiming that McCoy failed to object to
O.J. Cathey’s inclusion in the instruction.   The record indicates, however, that when counsel and
the court were discussing, among other things, whether there was sufficient evidence linking
Basada, Juan Cathey and O.J. Cathey in a single conspiracy, and McCoy’s attorney was asked
whether he had any objection to adding O.J. Cathey’s name to the instruction, counsel stated:
“That we would object to, of course.”   We think that is sufficient to reach the merits of McCoy’s
objection on appeal.
On appeal, however, McCoy argues that: (1) the court violated McCoy’s “right to a fair
trial”  by                                                                                            “fail[ing]  to  affirmatively  instruct  the  jury  to  separately  identify  the  scope  and
participants of each conspiracy when the evidence demonstrates multiple conspiracies”; and (2)
use of the connector “and/or” made the instruction “unintelligible” and lacking in unanimity.   In
essence, his argument is that the court should have instructed the jury on multiple conspiracies.
But, as the State points out, McCoy did not request such an instruction: when the trial judge asked
the parties whether they had proposed instructions they wished to submit, McCoy’s counsel
answered, “No, Your Honor”—and we agree that because McCoy did not object to the instruction
on these grounds below and did not request a multiple conspiracy instruction, these additional
arguments should not be considered.   Section 805.13(3), STATS.; Wingad v. John Deere & Co.,
187 Wis.2d 441, 455, 523 N.W.2d 274, 280 (Ct. App. 1994) (argument different from the one
offered when objection was made in trial court will not be considered on appeal); see also State v.
Speese, 191 Wis.2d 205, 226, 528 N.W.2d 63, 71 (Ct. App. 1995) (failure to object to standard
jury instruction on unanimity constitutes waiver of any argument on unanimity), rev’d on other
grounds, 199 Wis.2d 597, 545 N.W.2d 510 (1996).
Moreover, even if McCoy had properly raised this issue, we agree with the State that
under the facts of the present case, the failure to give a multiple conspiracy instruction was
harmless error.   Berger   v. United States, 295 U.S. 78, 81, 82-83 (1935) (error is not material
when indictment charged one conspiracy and evidence shows two as long as the defendant’s
substantial rights are not affected—the jury is not confused and defendant is protected against
another prosecution for the same offense); Bergeron v. State, 85 Wis.2d 595, 605, 271 N.W.2d
386, 389 (1978).
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NO. 96-2321-CR
construction of the evidence would allow the jury to find the fact suggested by the
instruction.   State v. Coleman, 206 Wis.2d 198, 212-13, 556 N.W.2d 701, 706-07
(1996).
McCoy claims  that  because  O.J.  Cathey distributed  some  of  his
cocaine  separately  from  that  of  Juan  Cathey  and  Basada,  there  could  be  no
common objective, and thus no conspiracy, among the three of them.   He says, in
effect, that there really were two or more conspiracies, and the court was required
to frame its instructions to ensure that the jury could “separately identify the scope
and the participants of each conspiracy so as not to impute the acts or parties of …
one [conspiracy] to any other.”4   And because the court did not do this, but instead
presented the case to the jury on a single-conspiracy theory, he claims his right to
a fair trial was violated.
We disagree.   A conspiracy exists when the parties (1) knowingly
join and  participate in  “a single overriding scheme”;  (2)  intend  to aid in the
realization  of  an  illegal  objective;  and                                                             (3)  seek  a  common  end  through  the
comprehensive plan.   Section 939.31, STATS.; Bergeron v. State, 85 Wis.2d 595,
606-07, 271 N.W.2d 386, 389 (1978). 5   We believe there was evidence in this case
from which the jury could properly find that a single conspiracy existed—one to
which O.J. Cathey was a party.   There was testimony, for example, that when Juan
4 McCoy’s argument on this point is problematic because, as indicated, see supra note 3,
he  never  objected  to  the  trial  court’s  instruction  on  the  ground  that  there  were  multiple
conspiracies, not a single conspiracy.   Nor did he request the court to instruct the jury on the
existence of a multiple conspiracy.
5 In Bergeron the court said, “‘While the conspiracy may have a small group of core
conspirators, other parties who knowingly participate with these core conspirators and others to
achieve a common goal may be members of an overall conspiracy.’”  Bergeron, 85 Wis.2d at 607
n.6, 271 N.W.2d at 390 (quoting United States v. Varelli, 407 F.2d   735, 742 (7th Cir. 1969), cert.
denied, 405 U.S. 1040 (1972)).
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NO. 96-2321-CR
Cathey told O.J. Cathey, his uncle, about the opportunities available for profiting
from drug sales in La Crosse, O.J. Cathey began showing up at McCoy’s to also
distribute the cocaine.   Juan Cathey and O.J. Cathey were together at McCoy’s
residence at the same time on at least one occasion, and users were continuously
coming to the house asking for cocaine, at least once while O.J. Cathey was
present.   Viewing this evidence in the light most favorable to the State’s position,
we believe a jury could reasonably conclude that O.J. Cathey had joined with Juan
Cathey, Basada and McCoy to accomplish a common goal of distributing cocaine
from McCoy’s house and that each had an interest in the overall success of the
operation.
Even if Juan Cathey, Basada and O.J. Cathey did not sell to the same
people  at  the  same  time,  or  share  in  the  same  proceeds—or  even  if  they
occasionally disagreed—the cocaine they distributed at McCoy’s house created a
steady supply of potential customers from which they all profited.   We agree with
the State that “each ... was aware of the other’s distribution of cocaine through
McCoy[’s] residence and [each] benefited from it.”   We see no error in adding
O.J. Cathey’s name to the conspiracy instruction.6
6  Even  if  we  were  to  find  error  in  adding  O.J.  Cathey’s  name  to  the  conspiracy
instruction, the error would be harmless because the record contains sufficient evidence from
which the jury could conclude that Juan Cathey, Basada and McCoy conspired to deliver over
100 grams of cocaine.   Juan testified, for example, that he and Basada made ten trips from
Milwaukee to La Crosse during the late summer and fall of 1994, bringing “approximately … 28
grams” each time and selling roughly half of it at McCoy’s house.   Half of 280 grams is 140
grams, well in excess of the 100 grams charged in the complaint.   Basada confirmed that they
made ten trips and sold the cocaine at McCoy’s house and at another person’s house.
Finally, McCoy complains of the trial court’s use of the term “and/or” in identifying the
parties in its discussion of the elements of conspiracy.   For example, the instruction read in part:
“That Juan Cathey and/or Emma Basada and/or Oliver J. Cathey delivered a substance …. that
Juan  Cathey  and/or  Emma  Basada  and/or  Oliver  J.  Cathey  knew  …  was  …  a  controlled
substance.”   He argues that use of the term rendered the instruction “hopelessly unintelligible”
and violated his right to a unanimous verdict.  He states:
(continued)
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NO. 96-2321-CR
III.   Sentence Enhancement
McCoy next challenges the manner in which the trial court applied
the applicable penalty enhancers to  his sentence.7    It is a  matter  of  statutory
interpretation and application—a question of law which we review de novo.   State
v. Sostre, 198 Wis.2d 409, 414, 542 N.W.2d 774, 776 (1996).   The primary goal of
statutory construction is to ascertain the legislature’s intent, and the first step in the
process is to look to the plain language of the statute.   Id.   And where the import
of that language is clear and unambiguous, we simply apply the statute to the facts
of the case.   Cary v. City of Madison, 203 Wis.2d 261, 264-65, 551 N.W.2d 596,
597 (Ct. App. 1996)
The  judge’s  multiple  use  of                                                                          “and/or”  permitted  the  jury  to
convict [McCoy] of conspiracy to deliver cocaine if he joined
only  with  Oliver                                                                                       …  when  only  Juan  …  and/or  Emma  …
delivered cocaine.   They could also convict if he joined only
with Juan … and/or Emma … when only Oliver … delivered
cocaine.                                                                                                 There  are  nine  different  permutations  whereby
[McCoy] could join with only one of the three (3) named co-
conspirators  and  only  one  of  the  three                                                             (3)  co-conspirators
delivered cocaine.”
As a result, McCoy says, “it is impossible to be certain … which combinations this jury,
or any reasonable jury[,] might have found,” and his conviction must be reversed for “lack of
unanimity.”   There is no dispute in the record, however, that Juan Cathey, Basada and O.J.
Cathey each delivered cocaine, and the jury was properly instructed that its verdict must be
unanimous.   Indeed, the jurors were polled and expressed their agreement with the verdict after it
was returned.
7 The State argues that McCoy also waived this issue because he did not properly bring it
before the trial court.   While McCoy did not seek a sentence modification pursuant to § 973.19,
STATS., see State v. Meyer,  150 Wis.2d  603,  604,  442 N.W.2d  483,  484  (Ct. App.  1989)
(defendant claiming the trial court erroneously exercised its sentencing discretion must move the
court for modification under § 973.19 as a prerequisite to challenging the sentence on appeal), the
issue here is whether application of the repeater provisions to McCoy’s sentence is incorrect as a
matter of law, not whether the trial court erred in exercising its sentencing discretion. Therefore, a
sentence modification request was not a prerequisite to McCoy’s challenge on appeal.   State v.
Wilks, 165 Wis.2d 102, 107, n.6, 477 N.W.2d 632, 635 (Ct. App. 1991).
8




NO. 96-2321-CR
McCoy was convicted of violating § 161.41(1)(cm)5, STATS., which
carries  a  minimum  penalty  of  ten  years  and  a  maximum  of  thirty  years’
imprisonment.    Section  161.41(1)(cm)  is  subject  to  a  “repeater”  or  “habitual
criminality” enhancer set forth in  §  161.48(2), STATS., which provides, among
other things:
If any person is convicted of a 2nd or subsequent offense
under this chapter that is specified in s. 161.41(1)(cm), ...
any applicable minimum and maximum fines and minimum
and    maximum    periods    of    imprisonment    under
s. 161.41(1)(cm), ... are doubled.
(Emphasis added.)   The offense is also subject to enhancement if it occurs near a
school.   Section 161.49, STATS., states:
(1)   If any person violates s. 161.41(1)(cm), ... by
distributing ... a controlled substance ... within 1,000 feet of
any private or public school premises ..., the maximum term
of imprisonment prescribed by law for that crime may be
increased by 5 years.
(2)(a)                                                                                   ...  if  any person  violates  s.            161.41(1)  by
distributing ... a controlled substance ... within 1,000 feet of
any  ...  school  premises                                                               ...,  the  court  shall  sentence  the
person  to  at  least                                                                    3  years  in  prison,  but  otherwise  the
penalties for the crime apply....   The person is not eligible
for parole until he or she has served at least 3 years [of the
sentence] ….
(Emphasis added.)
The trial court first applied the  §  161.49(1), STATS., school-zone
enhancer by adding five years to the thirty-year maximum for the underlying
offense, as authorized by subsection (1) to arrive at a maximum sentence of thirty-
five years, and invoked the provision in subsection (2)(a), which provides for a
parole ineligibility period of at least three years.   Then, applying the “doubling”
provisions of the repeater enhancement statute, § 161.48(2), the court increased
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NO. 96-2321-CR
the ten-year minimum sentence to twenty years;8 similarly, the thirty-five-year
maximum increased to seventy years.   Finally, the court doubled the §161.49(2)(a)
parole ineligibility period from three to six years.
McCoy does not dispute the court’s calculation of  the minimum
sentence.   He claims, however, that it was error to (1) add the five-year school-
zone enhancer to the underlying sentence prior to applying the doubling provisions
of the repeater enhancer, and (2) also double the parole ineligibility period.   He
says  this  amounts  to  an  “impermissible  enhancement  upon  an  enhancement.”
According to McCoy, the “correct calculation” is to “separately add” the repeater
and school-zone enhancers to the underlying § 161.41(1) penalties with the result
that “a conviction for delivery of 100 grams … results in a minimum sentence of
20 years, a maximum of 65 years, and at least three … years … non-eligibility for
parole.”
We first consider the trial court’s enhancement of the underlying
sentence by the school-zone five-year add-on prior to invoking the  “doubling”
provisions of the repeater enhancer.   We begin by noting our agreement with the
State’s  assertion  that  there  are  two  separate  classes  of  sentence  enhancement
statutes.   One comprises those statutes that concern themselves with aggravating
factors surrounding the underlying crime itself—such as committing a crime while
concealing one’s identity, or while armed with a dangerous weapon, or, as in this
case, by committing an offense that is deemed particularly injurious to children in
a  school  zone.    While  enhancers  of  this  type  are  not  themselves  substantive
offenses,  they  do  operate  to  create  an  offense  when  they  are  charged  in
8 The court decided to deviate from the 20-year minimum.   Making the requisite finding
that the public would not be harmed by such a deviation, it sentenced McCoy to fifteen years.
10




NO. 96-2321-CR
conjunction  with  an  underlying  crime—such  as  committing  a  burglary  while
armed with a dangerous weapon; in that situation, the “enhancing” facts must be
proved in order to sustain the conviction.   State v. Villarreal, 153 Wis.2d 323,
329, 450 N.W.2d 519, 522 (Ct. App. 1989).
The other class of statutes, which concerns the habitual criminality
or “repeater” enhancer, is entirely different.   It is neither based upon nor related to
the factual circumstances surrounding the underlying crime.   It is premised solely
upon  the  defendant’s  previous  adjudications  of  guilt,  and  it  operates  only  to
increase the penalty range for the underlying crime.    Unlike the  “aggravating
circumstance” enhancer, one’s status as a repeat offender does not change the
essential nature of the underlying offense, nor does it add an element to the crime,
the existence of which must be found by the jury.   The defendant’s repeater status
is simply a factor affecting the length of his or her sentence.    Villarreal,  153
Wis.2d at 327, 450 N.W.2d at 521; State v. McAllister, 107 Wis.2d 532, 537, 319
N.W.2d 865, 868 (1982).
With these considerations in mind, we conclude first that the trial
court  did  not  err  in  adding  the  five-year                                           §  161.49(1),  STATS.,  school-zone
enhancer to McCoy’s maximum sentence before doubling the sentence pursuant to
§ 161.48(2), STATS.   In State v. Pernell, 165 Wis.2d 651, 478 N.W.2d 297 (Ct.
App.                                                                                       1991),  the  defendant  was  charged  with,  among  other  things,  three
misdemeanors, each carrying a maximum jail sentence of nine months.    Each
charge  was  subject  to  enhancement  under  two  separate  statutes  based  on
allegations that  (1) he was a repeater  (based on a prior felony conviction) and
(2) he had committed the offenses while armed.   Section  939.63(1)(a), STATS.,
provides  that  when  a  defendant  commits  a  misdemeanor  while  armed,  the
maximum term of imprisonment may be increased by not more than six months.
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NO. 96-2321-CR
Section  939.62(1), STATS., the general repeater statute applicable to non-drug-
related offenses, states that if the defendant is a repeater:
(a) A maximum term of one year or less may be increased
to not more than 3 years.
(b) A maximum term of more than one year but not more
than 10 years may be increased by … not more than 6 years
if the prior conviction was for a felony….
The defendant in Pernell was convicted of the three misdemeanors.
At sentencing, the trial court first imposed the statutory maximum penalty of nine
months in jail for each count.   It then added six months to each sentence under the
“while-armed” statute, increasing each sentence to fifteen months.   Then, because
the sentences exceeded one year, the court utilized § 939.62(1)(b), STATS., to add
an additional six years to each one.   Pernell, 165 Wis.2d at 654-55, 478 N.W.2d at
299.   The defendant appealed, arguing that the trial court erroneously exercised its
discretion in the manner in which it applied the two enhancers.   We rejected the
argument and affirmed the trial court’s decision, concluding:
Because the maximum sentence on each … misdemeanor
charge was nine months, enhanced to fifteen months for the
additional fact of being armed, the trial court did not abuse
its sentencing discretion in applying the six-year habitual
criminality enhancer based on the [prior felony] conviction.
The  trial  court  harmonized  the  plain  meaning  of  both
sentence enhancing statutes.
Id. at 660, 478 N.W.2d at 301.
We consider Pernell persuasive here.   The drug-offender repeater
statute serves the same purpose as the general repeater statute we considered in
Pernell, see State v. Ray, 166 Wis.2d 855, 872, 481 N.W.2d 288, 295 (Ct. App.
1992),  and  the  school-zone  enhancer  is  the  equivalent  of  the                   “while-armed”
enhancer—it  becomes  an  element  of  the  underlying  crime  which  must  be
12




NO. 96-2321-CR
determined by the jury in order to take effect.9   We conclude that the trial court did
not  err  in  applying  the  five-year  school-zone  enhancer  before  invoking  the
“repeater” doubling provisions of  §  161.48(2), STATS., in fashioning McCoy’s
sentence.
McCoy  also  challenges  the  trial  court’s  doubling  of  the  parole-
ineligibility period specified in § 161.49(2)(a), STATS.   As we noted above, the
statute provides that when the distribution of certain controlled substances—or
their possession with intent to deliver—occurs within 1000 feet of a school, the
defendant “is not eligible for parole until he or she has served at least 3 years” of
the sentence imposed for the underlying offense.
The State concedes that the trial court’s authority to “double” the
parole-ineligibility  provisions  of                                                       §                                           161.49(2)   (a),  STATS.,  must  be  found  in
§ 161.48(2), STATS., if it is to be found at all.   Section 161.48(2) states plainly and
unambiguously that if  the defendant is a repeater the court may double  “any
applicable minimum and maximum periods of imprisonment” specified for the
underlying  crime.     Neither                                                             § 161.48(2)  nor                            §           161.41 (1)                           (cm)5,  STATS.—the
“applicable” statute setting the minimum and maximum periods of imprisonment
for possession of cocaine with intent to deliver—refers to parole eligibility or
ineligibility in any manner or form.    We conclude, therefore, that by applying
§ 161.48(2) to automatically double the three-year parole ineligibility provisions
of § 161.49(2)(a), the trial court erred as a matter of law.
9 The trial court in this case instructed the jury that:
The information alleges not only that cocaine was delivered but
also that it was delivered while within                                                    1,000  feet of school
premises.   It you find the defendant guilty, you must answer the
following question.                                                                        “Was cocaine delivered while within 1,000
feet of school premises?”
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NO. 96-2321-CR
As to the remedy, the trial court stated in sentencing McCoy that a
significant  prison  term  was                                                                     “necessary”  for  a  variety  of  reasons.    When  it
sentenced McCoy to five years less than the presumptive minimum, see supra note
8, the court stressed that he would be serving at least the first six years without
eligibility for parole:
Now, that’s [going to] give you six years to try and
get your act together so that you can come out and be a
good father to [your] children, and I sincerely hope that that
sends a message to everybody out there that you just can’t
have a free house for people to come and do this kind of
activity.   We will not tolerate it in this community .…
It thus appears that, in sentencing McCoy, the trial court considered
it important that he would not be eligible for parole for at least six years.   Because
we are unable to tell whether, and if so to what degree, the underlying purposes of
the court’s sentence might be frustrated by our conclusion that its determination of
the minimum parole ineligibility period was error, we remand to the trial court.
The  court  may,  in  the  exercise  of  its  discretion,  either  correct  the  error  by
amending that portion of the sentence to reflect a minimum parole-ineligibility
period of not less than three years, or reconsider the sentence as a whole.10   Further
proceedings shall be consistent with this opinion.
10 We are mindful that, in State v. Zimmerman, 185 Wis.2d 549, 559, 518 N.W.2d 303,
306 (Ct. App. 1994), we held that where the State failed to prove the prior conviction and the
defendant had not admitted its existence, the trial court’s application of the repeater enhancer
resulted in imposition of a maximum penalty “in excess of that permitted by law,” and commuted
the defendant’s sentence to the legally authorized maximum.   There is, however, a statute so
stating—§ 973.13, STATS.—and there is no comparable statute applicable to the factual situation
before us on this appeal.
Finally, we note that, as the supreme court recognized in Grobarchik v. State,  102
Wis.2d 461, 470, 307 N.W.2d 170, 175 (1981), resentencing should be available “to correct a
sentence which is not in accord with the law.”
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NO. 96-2321-CR
By the Court.-Judgment affirmed in part; reversed in part and cause
remanded.
Not recommended for publication in the official reports.
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NO. 96-2321-CR
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