Bottom line: Two prior domestic abuse convictions from the same incident count as convictions on “2 or more separate occasions” under the domestic abuse repeater statute, so the number of convictions matters, not whether they arose from separate events.
Domestic abuse repeater enhancer and the meaning of “separate occasions”
The domestic abuse repeater statute, Wis. Stat. sec. 939.621, allows courts to increase the maximum term of imprisonment by up to two years when a defendant qualifies as a domestic abuse repeater. It also changes a misdemeanor to a felony. To qualify, a defendant must have been “convicted on 2 or more separate occasions” of qualifying domestic abuse offenses within the preceding ten years. In State v. Brian Tyrone Ricketts, Jr., 2026 WI App 4, the Court of Appeals addressed the domestic abuse repeater enhancer and what that phrase actually means. The court reversed a Brown County circuit court order that had struck the enhancer from the charges against Ricketts.
Two prior convictions from a single domestic abuse incident in Outagamie County
The State charged Ricketts with misdemeanor battery and disorderly conduct. Both charges carried a domestic abuse surcharge, a general repeater enhancer under Wis. Stat. sec. 939.62, and a domestic abuse repeater enhancer under Wis. Stat. sec. 939.621. As the basis for the domestic abuse repeater enhancer, the State pointed to Ricketts’ prior convictions in Outagamie County Case No. 2021CF974.
On May 26, 2022, Ricketts had been convicted in that case of both battery with a domestic abuse modifier and disorderly conduct with a domestic abuse modifier. Both convictions carried the domestic abuse surcharge. But both convictions arose from a single incident that occurred on September 5, 2021. Ricketts moved to strike the domestic abuse repeater enhancer, arguing that two convictions from one incident did not satisfy the statute’s requirement of convictions on “2 or more separate occasions.”
The circuit court agreed with Ricketts. Relying on State v. Rector, 2023 WI 41, a case interpreting a similar phrase in the sex offender registration statute, the court concluded that “separate occasions” meant separate dates of offense. Because both prior convictions stemmed from a single event on a single date, the court struck the enhancer.
Court of Appeals applies the general repeater statute framework
The State appealed, arguing that the phrase “was convicted on 2 or more separate occasions” should be interpreted the same way the Wisconsin Supreme Court interpreted the phrase “was convicted of a misdemeanor on 3 separate occasions” in the general repeater statute. The supreme court addressed that language in State v. Wittrock, 119 Wis. 2d 664 (1984), and State v. Hopkins, 168 Wis. 2d 802 (1992).
In Wittrock, the supreme court found the term “occasion” ambiguous. After reviewing legislative history, the court concluded the legislature cared about the quantity of prior crimes, not when the convictions occurred. In Hopkins, the court went further. It held that each conviction for a misdemeanor constitutes a separate occasion, even when multiple convictions arise from a single course of conduct on the same date.
The Court of Appeals agreed the domestic abuse repeater enhancer language is ambiguous. It then applied several canons of statutory construction. The court found that the domestic abuse repeater statute and the general repeater statute are closely related. They sit in the same chapter, the same subchapter, and directly next to each other. They share a similar structure and use similar terms. Prior case law already treated the general repeater statute as instructive when interpreting the domestic abuse repeater statute. See State v. Hill, 2016 WI App 29.
Why Rector did not control the domestic abuse repeater analysis
The circuit court had relied on Rector, where the supreme court interpreted “separate occasions” in the sex offender registration statute, Wis. Stat. sec. 301.45(5)(b)1., to mean something more than the number of convictions. The Court of Appeals explained why that reliance was misplaced.
First, the sex offender registration statute is not closely related to the domestic abuse repeater statute. The two statutes reside in different chapters, govern different subject matter, and do not reference each other. Their structure and surrounding language differ. Second, the legislature itself rejected Rector‘s interpretation. Less than a year after Rector was decided, the legislature amended the sex offender registration statute to require lifetime registration whenever a person has two or more qualifying convictions, regardless of whether they arose from the same proceeding or complaint. See 2023 Wis. Act 254. The legislature even made this change retroactive to September 2, 2017.
Ricketts also cited Wooden v. United States, 595 U.S. 360 (2022), a U.S. Supreme Court case interpreting the federal Armed Career Criminal Act. The court found Wooden unpersuasive because the federal statute uses different language, is completely unrelated to the domestic abuse repeater statute, and has a different legislative history.
What this ruling means for defendants facing the domestic abuse repeater enhancer
The Court of Appeals held that for purposes of the domestic abuse repeater enhancer, a defendant “was convicted on 2 or more separate occasions” whenever the defendant has two qualifying domestic abuse convictions within the ten-year lookback period. It does not matter whether those convictions arose from the same incident, shared the same offense date, or were entered during the same court appearance. Because Ricketts had two qualifying convictions, the court reversed the order striking the enhancer and remanded for further proceedings.
This decision carries real consequences. The domestic abuse repeater enhancer adds up to two years to the maximum sentence and converts misdemeanors into felonies. That means a defendant facing misdemeanor battery charges with this enhancer could face felony penalties, a preliminary hearing, and an arraignment.
Contact Van Severen Law Office
If you face domestic violence charges in Wisconsin, or if a domestic abuse repeater enhancer has been added to your case, the criminal defense attorneys at Van Severen Law Office, S.C. handle cases involving battery, disorderly conduct, and domestic abuse allegations throughout the state. Our attorneys regularly handle cases where penalty enhancers increase the severity of the charges and the potential consequences. Call (414) 270-0202 for a free consultation.