On Point

State v. Ross M. Brandt, 2009 WI App 115
For Brandt: John M. Yackel

Issue/Holding: Although it carries a maximum penalty of 9 months’ imprisonment, hit-and-run causing injury less than serious bodily harm, §§ 346.67(1) and 346.74(5)(b), is a felony.

Obviously, this result is going to make life more difficult for hit-run representation, for the obvious reason: it’s one thing to advise your client to plead out to a misdemeanor, another to plead to a felony. But if nothing else, the holding may well have narrow application, notwithstanding some cause for concern. Which brings us to the question, What makes a crime a felony as opposed to a misdemeanor? Legislative whim, apparently, as exemplified by this case. Thus, § 346.74(5)(e) explicitly labels as a “felony” any violation of § 346.67(1) if either death or bodily injury is a result of the accident. And that’s enough for the court of appeals. The court relegates the potential tension to a footnote, ¶6 n. 3, worth quoting in full:

Wisconsin Stat. § 939.60 provides that “[a] crime punishable by imprisonment in the Wisconsin state prisons is a felony. Every other crime is a misdemeanor.” Wis. Stat. § 973.02 provides, in relevant part, that “if a statute authorizes imprisonment for its violation but does not prescribe the place of imprisonment, a sentence of less than one year shall be to the county jail.” Read together, these statutes indicate that crimes subject to a maximum period of incarceration of less than one year are generally classified as misdemeanors, because they are not punishable by imprisonment in the Wisconsin state prisons.

In other words, Brandt’s argument is: all jail sentences are misdemeanors; a hit-run-injury sentence must be served in jail; therefore, a hit-run-injury is a misdemeanor. The syllogism is impeccable, far as it goes, but it simply doesn’t go far enough. As the court of appeals says in so many words, while it is generally true that a jail sentence makes the crime a misdemeanor, nothing in the statute makes it necessarily so. In this instance the effective presumption of a misdemeanor is overcome by a specific, explicit designation of the offense as a felony, ¶¶6-8. In terms of statutory construction principles, resolution turns on the idea that the specific controls the general:

¶8        However, while Wis. Stat. §§ 939.60 and 973.02 involve the general categorization of crimes as felonies and misdemeanors, Wis. Stat. § 346.74(5)(e) specifically applies to the violations. Any inconsistency is therefore resolved by the principle that when two or more statutes relate to the same subject matter, the more specific statute controls. Machgan, 306 Wis.  2d 752, ¶7. This conflict was not present in McDonald, as the application of § 939.60 and § 973.02 in that case was consistent with the language of § 346.74(5)(e). Because the specific language of § 346.74(5)(e) stating that the offense is a felony controls in this case, the 2001 amendment to § 346.74(5)(b) reducing the maximum punishment to less than one year of imprisonment did not change the offense to a misdemeanor.

Like the conclusion or not, its logic is hard to argue with. Net result, then, is that place (prison) and term (1+ years) of incarceration ordinarily draw the line between felony and misdemeanor, but a very specific legislative designation overrides this general categorization. And that makes the holding narrow: there must be a specific designation before a jail-sentence crime is elevated to felony status. The worrisome part is that, so far as can be seen, nothing precludes the legislature from labeling any offense a felony.

State v. Patrick R. Patterson, 2009 WI App 161
For Patterson: David R. Karpe

Issue/Holding: Based largely on State v. Jimmie Davison, 2003 WI 89 (multiple convictions for battery permissible so long as multiple batteries have been charged), the court holds that § 939.66(2) permits conviction for both §§ 940.02(2)(a) and 948.04(4)(a), ¶¶1-21. The offenses are not the same “in law”—each containing at least one element not in the other—and therefore Patterson bears the burden of overcoming a presumption in favor of cumulative punishment.

¶12      Patterson argues that Wis. Stat. § 939.66(2) shows a clear legislative intent not to allow punishment for both reckless homicide and contributing to the delinquency of a child with death as a consequence. However, this argument, albeit in the context of § 939.66(2m), was rejected in Davison. Davison explained that the statute is ambiguous and the statute’s legislative history does not show a legislative intent to prevent cumulative punishments. Davison, 263 Wis. 2d 145, ¶¶74, 90. Instead, the Davison court concluded that § 939.66(2m) can reasonably be interpreted as allowing two convictions for battery as long as two battery crimes have been charged. See Davison, 263 Wis. 2d 145, ¶¶65-67. The reasons why the Davison court reached these conclusions need not be repeated here. Rather, what matters is that the Davison court effectively rejected the proposition that § 939.66(2) shows a clear legislative intent not to allow punishment for both a charged criminal homicide and a charged less serious type of criminal homicide.

…

¶19      In short, Wis. Stat. § 940.02(2)(a) and Wis. Stat. § 948.40(4)(a) address two different categories of proscribed conduct that differ markedly in their essential nature. That Patterson’s particular conduct happens to fall within a relatively limited area covered by both statutes does not show that the legislature intended only one punishment.

The court merely “assume(s), without deciding, that ‘homicide’ in § 939.66(2) includes contributing to the delinquency of a child with death as a consequence,” ¶11 n. 5.

State v. Jeffrey A. Warbelton, 2009 WI 6, affirming 2008 WI App 42
For Warbelton: Paul G. LaZotte, SPD, Madison Appellate

Issue/Holding: Evidence related to a penalty enhancer (such as a prior conviction in support of habitual criminality) is relevant only to sentence and “must be withheld from the jury’s knowledge,” ¶19, quoting Mulkovich v. State, 73 Wis.  2d 464, 468, 243 N.W.2d 198 (1976).

State v. Charles Lamar, 2009 WI App 133, PFR filed 9/10/09
For Lamar: Donna L. Hintze, SPD, Madison Appellate

Issue/Holding: No presumption of vindictiveness applied to resentencing by a different judge upon guilty pleas re-entered after the original trial court granted Lamar’s postconviction motion to withdraw the initial guilty pleas.

¶17      In Naydihor, our supreme court found that the Pearce presumption did not apply.Id., ¶35. Nor does it apply here. As noted, case law has evolved since Pearce was handed down. Double jeopardy does not apply where a correction to an original invalid sentence results in a sentence increase, State v. Martin, 121 Wis. 2d 670, 677-78, 360 N.W.2d 43 (1985) (citing Bozza v. United States, 330 U.S. 160 (1947)), or where an increased sentence occurs after a retrial, id. at 678 (citing Pearce, 395 U.S. 711). We see no distinction which requires a different result between a new sentencing that takes place after a sentence is vacated and a new guilty plea entered and a sentencing that takes place after a retrial. Consequently, Lamar’s sentence given after his second guilty plea did not violate the prohibition against double jeopardy.

Keep in mind that the Naydihor resentencing was, as here, accomplished by a different judge. Broadly speaking for that matter, where the trial court itself grants relief, a presumption of vindictiveness probably isn’t going to apply to resentencing, State v. Lord L. Sturdivant, 2009 WI App 5, ¶15. Contrast grant of relief by appellate court: e.g., State v. William J. Church, 2003 WI 74, ¶¶53-57. In other words, Lamar’s argument was probably doomed at the outset.The court also notes that “the sentence meted out by the second judge was not more severe than that of the original judge,” ¶18. That observation is a bit jarring, because you’d think it the basis of a narrower decision (one that avoids the question of presumptive vindictiveness, that is, in favor of the idea that Lamar ended up no worse anyway). But the court has a broader message to impart:

¶18      Finally, we are not persuaded that Lamar’s circumstances fall within the double jeopardy penumbra for another reason. Here, the sentence meted out by the second judge was not more severe than that of the original judge. Originally, Lamar was sentenced to twelve years of initial confinement, to be followed by five years of extended supervision. Lamar’s second sentence, occurring one year and approximately three-and-one-half months later, consisted of ten years of incarceration, to be followed by five years of extended supervision. The original combined sentence was seventeen years. The second combined sentence is fifteen years. Although the second sentence was to be served consecutively to the original bail jumping charge, this second sentence was not greater than that given at the first sentencing—a seventeen-year sentence. Further, at his initial sentencing, Lamar got sentence credit on the misdemeanor bail jumping as a habitual criminal charge of 177 days.…

¶20      Although we do not believe Lamar is “worse off” for having one of his convictions overturned, he is not entitled to additional sentence credit. Finally, it is well to remember that Lamar brought this upon himself by seeking to withdraw his plea after receiving a combined sentence of seventeen years because the trial court told him he faced a nineteen-year sentence, when in fact the maximum possible sentence was twenty-one years. For the reasons stated, the judgment and order are affirmed.

What the court doesn’t say is just how Lamar found himself in this predicament. He was charged with 3 counts and pleaded to 2 with the 3^rd dismissed pursuant to plea bargain. CCAP reflects that, when he withdrew one of these counts, “The court further ordered Count 3 REINSTATED in its entirety as the dismissal was pursuant to a plea negotiation. The court further advised all parties that it will take no action as to Count 2 at this time but will take under advisement whether the plea and sentencing in Count 2 should also be vacated.” Not clear why no further action was taken on 2, maybe that was Lamar’s own choice, very possibly vacating 2 would have been counter to his interests, but for whatever reason 2 remained intact. The point is that the potential remedy for “partial” plea withdrawal lies at the heart of the case—and as to which, extraction of overarching principles has become difficult, with recent cases collected here (scroll down to State v. Mark J. Roou, 2007 WI App 193).Final word: file Lamar under, “Risk-assessment Counseling.” Indeed, the court pointedly quotes its prior warning in State v. Daniel C. Tuescher, 226 Wis.2d 465, 595 N.W.2d 443 (Ct. App. 1999) that, with respect to sentence credit, “a defendant could actually be worse off for having one of several convictions reversed.” For that matter, if you don’t inform your client that a motion to vacateany conviction runs the risk of a greater sentence (assuming, of course, an initial sentence under the maximum), then you’re probably asking for trouble.

State v. Michael Scott Long, 2009 WI 36, affirming in part and reversing in part unpublished opinion
For Long: Joseph L. Sommers

Issue/Holding: The “3-strike” persistent repeater enhancement, § 939.62(2m)(d), requires that the two prior strikes occur before the current felony and the 1^st strike’s conviction date precede the 2^nd strike’s violation date. Although Long’s two prior strikes occurred before the current felony, neither of these convictions occurred prior to the other’s violation date and his sentence as a persistent repeater must be vacated. The remedy is resentencing, ¶¶33-45.

On remand, the circuit court may allow the State to amend the complaint and substitute other prior convictions as the basis for persistent repeater enhancement, ¶¶46-54. The supreme court apparently leaves this to trial court discretion under the 2-part test of State v. Jamale A. Bonds, 2006 WI 83 (defendant must have notice charged with enhancer, and must not be “prejudiced in making an intelligent plea as a result of the” post hoc amendment). This is what we like to call a test without any teeth. Notice is a given, and good luck showing prejudice. But then the fun really begins: just how does the judge determine whether a prior conviction, especially if foreign, qualifies as strike? Not really a problem where the priors are Wisconsin-based, as enumerated in § 939.62(2m)(a)1m.a., but foreign convictions, as in Long’s instance, must be “comparable”: how can you tell? In several glancing paragraphs the court recognizes this to be a potentially daunting, constitutionally fraught, exercise, ¶¶56-59, and cites Shepard v. United States, 544 U.S. 13, 26 (2005) and Taylor v. United States, 495 U.S. 575, 601 (1990), for the idea

that a judge’s inquiry into the nature of a previous offense “is limited to the terms of the charging document, the terms of a plea agreement or transcript of colloquy between judge and defendant in which the factual basis for the plea was confirmed by the defendant, or to some comparable judicial record of this information.”

Shepard, it should be noted, is an “opaque work” whose implications are quite unclear. Convicted of federal felon-in-possession, 18 USC § 922(g)(1), and coming under the Armed Career Criminal Act enhancement provision, 18 USC § 924(e) (enhanced sentence if 3 priors for violent felonies or drug offenses), Shepard disputed whether one of his felony priors was “violent,” within the meaning of the Act. The issue therefore became how the nature of the prior conviction might be satisfied. (Caveat: the prior was not necessarily “violent” as defined by the ACCA, given the elements of the offense; if it had been, you’d have a different situation.) The Court previously held that where the prior conviction was obtained after jury trial you can look to “statutory elements, charging documents, and jury instructions” to see if the enhancement requirement is satisfied. But for a plea-based prior such as Shepard’s, the sentencing court may not look at extrajudicial documents such as “police reports or complaint applications,” and instead “is generally limited to examining the statutory definition, charging document, written plea agreement, transcript of plea colloquy, and any explicit factual finding by the trial judge to which the defendant assented.”

Although the Court was engaged in what it termed “an issue of statutory interpretation” of a federal scheme, the Court’s construction was explicitly devised “to avoid serious risks of unconstitutionality,” which is to say Apprendi’s general guarantee of jury resolution of disputed facts enhancing the sentence beyond the statutory maximum. More particularly, the Court perceived that, “While the disputed fact here can be described as a fact about a prior conviction, it is too far removed from the conclusive significance of a prior judicial record, and too much like the findings subject to Jones and Apprendi, to say that [the prior-conviction exception] clearly authorizes a judge to resolve the dispute. … [and] therefore counsels us to limit the scope of judicial factfinding on the dispute[.]” (By “prior conviction exception” is simply meant that repeater-type enhancement may be decided by the judge without jury involvement.) You can see from this just why the decision is “opaque”: either there is or there isn’t a jury trial right to resolve the dispute; limiting the search to truffles doesn’t really solve the problem of who’s on the hunt, does it? With that in mind, Wisconsin caselaw does not appear, at least under the facts, inconsistent with Shepard– State v. Leonard T. Collins, 2002 WI App 177, ¶¶23-24 (may look to facts in charging document); State v. Charles J. Burroughs, 2002 WI App 18, ¶¶25-27 (look to elements, as interpreted by caselaw of that jurisdiction). And now Long, which for better or worse simply recognizes the difficulty of the enterprise without really adding to our understanding of it. The point is that Shepard inhibits a sentencing court from going much if at all beyond such efforts to determine the nature of the foreign prior.

State v. Lord L. Sturdivant, 2009 WI App 5, PFR filed 1/13/09
For Sturdivant: Steven D. Phillips, SPD, Madison Appellate

Issue/Holding:

¶8        Due process “requires that vindictiveness against a defendant for having successfully attacked his first conviction must play no part in the sentence he receives after a new trial.” North Carolina v. Pearce, 395 U.S. 711, 725 (1969), overruled on other grounds, Alabama v. Smith, 490 U.S. 794 (1989). “[W]henever a judge imposes a more severe sentence upon a defendant after a new trial,” the reasons for doing so must be free from a retaliatory motive. See Pearce, 395 U.S. at 726. Because retaliatory motives can be complex and difficult to prove, the Supreme Court has found it necessary to “presume” an improper vindictive motive. See United States v. Goodwin, 457 U.S. 368, 373 (1982). This presumption also applies when a defendant is resentenced following a successful attack on an invalid sentence. See State v. Carter, 208 Wis. 2d 142, 154-55, 560 N.W.2d 256 (1997).

¶9        The underlying concern of all vindictiveness case law is that a defendant could be punished by a resentencing court for exercising postconviction rights to challenge a conviction or a sentence. See State v. Martin, 121 Wis. 2d 670, 687-88, 360 N.W.2d 43 (1985); Grobarchik v. State, 102 Wis. 2d 461, 474, 307 N.W.2d 170 (1981). Vindictiveness is not presumed in all cases where a defendant’s sentence is increased at resentencing. The presumption stands only where “a reasonable likelihood of vindictiveness exists.” See Goodwin, 457 U.S. at 373.

State v. Christopher Baron, 2009 WI 58, affirming 2008 WI App 90
For Baron: Daniel P. Dunn

Issue/Holding: First amendment analysis applies to an identity theft charge alleging that Baron sent emails from Fischer’s account without authorization and with intent to harm his reputation:

¶16      In order to determine if a First Amendment analysis is required, we must first consider whether conduct alone or speech, which includes expressive conduct, is being regulated.See Texas v. Johnson, 491 U.S. 397, 403-04 (1989); State v. Robins, 2002 WI 65, ¶41, 253 Wis.  2d 298, 646 N.W.2d 287. If speech or expressive conduct is being regulated, the First Amendment is implicated.

…

¶21      In the case at hand, Wis. Stat. § 943.201(2) provides in relevant part: “Whoever, for any of the following purposes[, e.g., to harm the reputation of the individual,] intentionally uses . . . any personal identifying information . . . of the individual . . . without the authorization or consent of the individual and by representing that he or she is the individual, . . . is guilty of a Class H felony.”

¶22      We conclude that, as charged and as applied to the facts of this case, Wis. Stat. § 943.201(2)(c) regulates speech in addition to conduct. The statute punishes a person for using another individual’s personal identifying information with the intent to harm that individual’s reputation. ^[10] Under the facts of this case, the statute regulates conduct because it restricts the use of another’s identity and the distribution of reputation-harming materials, but speech is also being regulated because the content of the e-mails is critical in order to evidence Baron’s intent to use personal identifying information to harm Fisher’s reputation. Therefore, this is not a case as in Robins where the conduct was merely initiated, evidenced, or carried out in part by speech. Rather, this is a case where the reputation-harming portion of the charge is evidenced by the content of the speech, i.e., the content of the e-mails.

¶23      Unlike in Robins, where speech was used to show the defendant’s intent to entice a child, speech in this case is not used to show the defendant’s intent to use another individual’s personal identifying information. Absent the e-mails, i.e., speech, which were used with the intent to harm Fisher’s reputation, Baron has not committed an element of the crime as alleged. Therefore, just as communicative elements were being regulated in Johnson and O’Brien, communicative elements are being regulated in this case. Under the statute as charged and applied to the facts of this case, it is the content of the e-mails, i.e., the speech, that evidences the defendant’s intent to use personal identifying information to harm Fisher’s reputation. Thus, here, speech in addition to conduct is being regulated. ^[11]

The court rejects the idea that the prohibited conduct at issue (unauthorized use of ID) is analogous to child enticement. The latter focuses on the act of taking a child to a secluded place, which is to say a single offense supported by alternative possible mental state components. If the analogy held up, then the identity theft charge would similarly be focused on the conduct (misappropriating Fischer’s identity). But it doesn’t hold up, and the charged identity theft by contrast involves conduct (unauthorized use) “coupled with reputation-harming speech.” Unlike enticement, “identity theft can occur in multiple ways,” so that “the prohibited conduct charged includes more than simply the use of Fischer’s identity”—namely, communications intended to harm his reputation. Note that enticement is a single offense, State v. Church, 223 Wis. 2d 641, 589 N.W.2d 638 (Ct. App. 1998); whether identity theft might support multiple charges wasn’t before the court but becomes a plausible outcome in light of the court’s discussion.

Interesting concurrence from Justice Bradley, expressing the idea that the statute regulates only conduct, not speech, ¶¶59-68. Worth mention, because she’s ratifying the thrust of the court of appeals’ analysis, and thus expressing her disagreement with the majority on this point; the supreme court’s affirmance, then, is in effect, “as modified.”