Issues (composed by On Point)
(1) Was Steinhardt’s right to be free from double jeopardy violated when she was convicted of both party to the crime of First Degree Child Sexual Assault in violation of § 948.02(1)(e) and Failure to Protect a Child from Sexual Assault in violation of § 948.02(3)?
(2) Did Steinhardt forfeit her right to raise the double jeopardy issue by pleading no contest to the charges?
(3) Did Steinhardt’s postconviction motion, which alleged trial counsel was ineffective for failing to advise her about the double jeopardy issue, sufficiently allege that she was prejudiced by trial counsel’s failure?
This case will clarify the rule articulated in State v. Kelty, 2006 WI 101, 294 Wis. 2d 62, 716 N.W.2d 886, governing the review of double jeopardy challenges in cases where the defendant entered a guilty or no contest plea. As a general rule, of course, a plea forfeits all nonjurisdictional challenges to a conviction; as explained here, however, a claim the defendant has been convicted of multiplicitous charges in violation of the double jeopardy clause is basically a jurisdictional issue, so the claim survives the plea—though only if it can be resolved on the record as it existed at the time the defendant pled. Kelty, ¶38.
Steinhardt’s charges arose out of an incident in which she acceded to the demands of her husband that she arrange for him to have a sexual encounter with her daughter. The state conceded that under § 939.66(2p) Steinhardt couldn’t be convicted for violating both §§ 948.02(1)(e) and 948.02(3) for the same act, so the double jeopardy (or multiplicity) question boils down to a “unit-of-prosecution” issue—that is, whether Steinhardt engaged in a single, continuous course of conduct or a series of two or more distinct acts. “Resolution of a unit-of-prosecution challenge is likely to be more fact dependent than other types of double jeopardy challenge, and thus, less susceptible to successful attack on appeal, since a guilty plea relinquishes a defendant’s right to fact-finding into disputed or uncertain facts.” Kelty, ¶17 n.9. The court of appeals concluded the facts in this case were too sparse to answer the multiplicity question and that, under Kelty, Steinhardt had forfeited her multiplicity argument. A decision in this case will clarify how extensive the record must be to get a court to review of the merits of a fact-dependent double jeopardy challenge made after the defendant enters a plea.
Kelty recognized that a defendant whose plea has forfeited a challenge to multiplicitous charges could make the alternative argument that the plea was induced by ineffective assistance of counsel. Id., ¶43. So Steinhardt made an ineffective claim, too. It appears there’s no issue about deficient performance because trial counsel didn’t see the multiplicity issue and so had no strategic reason to advise his client to plead to both charges despite the multiplicity claim. But the court of appeals held her assertion of prejudice—that she wouldn’t have entered a plea to multiplicitious charges had her attorney advised her they were multiplicitous—was conclusory under State v. Bentley, 201 Wis. 2d 303, 548 N.W.2d 50 (1996). The court rejected her claim that there’s little more to say under the circumstances, as it’s obvious a defendant wouldn’t plead to a charge that should have been dismissed as multiplicitous and thereby needlessly expose herself to more punishment. (Steinhardt did indeed get consecutive sentences on the two charges). Thus, this case will also provide an opportunity for the court to recognize that in some cases Bentley‘s pleading rules can’t be rigidly applied.
Finally, if the court gets past the guilty-plea forfeiture and Bentley pleading doctrines and reaches the merits of her challenge, the decision could develop the law regarding whether conduct forming the basis for a child sexual assault charge constitutes the same conduct for purposes of a failure-to-protect charge. There’s no case law on that issue specifically, though there is case law holding that multiple sexual touchings don’t always support multiple charges if there was an insufficient change in activity or insufficient passage of time. See State v. Hirsch, 140 Wis. 2d 468, 474-75, 410 N.W.2d 638 (Ct. App. 1987); State v. Church, 223 Wis. 2d 641, 658, 589 N.W.2d 638 (Ct. App. 1998).