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SCOW: Burglary locations are modes, not elements

United States v. Dennis Franklin and Shane Sahm, 2019 WI 64, 6/6/19, answering a question certified by the Seventh Circuit; case activity (including briefs)

For state practitioners, the most interesting thing about Franklin is that it happened at all. Certified questions to the Wisconsin Supreme Court are rare, and a certified question presented in a federal criminal case regarding a matter of state criminal law is unheard of.

As we noted in our previous post on the case, SCOTUS held, in Mathis v. United States, that whether a three-strikes sentencing provision applies in federal felon-in-possession cases can turn on esoteric questions of state law related to prior state convictions.

The question certified in Franklin was whether Wisconsin jurors have to unanimously agree on the location burgled under Wis. Stat. § 943.10(1m) (building, railroad car, ship or vessel, etc.). The state supreme court unanimously held that jurors do not need to unanimously agree on this point. There are three elements to burglary: (1) entry (2) into any of the listed locations (3) with intent to steal or commit a felony. This holding won’t be a surprise to anyone familiar with State v. Derango, the Wisconsin’s leading case on whether statutory alternatives are “elements” (about which jurors must unanimously agree) or “means” of committing a single element (about which jurors need not agree). But it should provide clarity for jury trials and plea hearings in burglary cases, and it also contains a useful and updated summary of Derango’s test for determining whether statutory alternatives are elements or means that can be used with other statutes.

A final point: Justice Abrahamson concurred to express her view that the court should not have altered Derango’s standard in a non-adversarial (certified question) case. This is a reference to the majority’s discussion of Derango’s reliance on legislative history, which the majority said would have to be read consistently with the court’s leading case on using legislative history, State ex rel. Kalal v. Circuit Court for Dane County, It is not apparent that Justice Abrahamson actually disagrees with the majority on this point, but if nothing else, her concurrence is a reminder of the unusual procedural posture of the case at hand.

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