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Defense win on sufficiency of evidence for conspiracy to deliver THC and on mootness!

State v. August D. Genz, 2016AP2475-CR, District 3, 1/30/18 (not recommended for publication); case activity (including briefs)

A jury convicted Genz of (1) possession with intent to deliver amphetamine and (2) conspiracy to deliver THC. The court imposed concurrent, stayed sentences with 1 year of probation. Genz appealed the 2nd conviction, but he completed his term of probation while the appeal was pending. The State moved to dismiss on grounds of mootness. The court of appeals said, essentially, no way. The appeal was not moot because a felony conviction has collateral consequences. Furthermore, the State did not offer sufficient evidence to prove conspiracy to deliver THC.  Conviction reversed!

“[A] case is moot when a determination is sought upon some matter which, when rendered, cannot have any practical legal effect upon a then existing controversy.” Milwaukee Police Ass’s v. City of Milwaukee, 92 Wis. 2d 175, 183, 285 N.W.2d 133 (1979).  An appeal from a criminal conviction is not moot just because the defendant has completed his sentence. Sibron v. New York, 392 U.S. 40, 56 (1968). The possibility that he could suffer collateral consequences from the conviction defeats a mootness objection. Opinion ¶11 (citing Pollard v. United States, 352 U.S. 354, 358 (1957).

¶12 While under Pollard we need not identify exact collateral consequences that might affect Genz as a result of the conspiracy conviction, the presumption that Genz will suffer collateral consequences under Wisconsin law from an additional felony conviction is warranted. See WISCONSIN STATE PUBLIC DEFENDER, CIVIL CONSEQUENCES OF CONVICTION: THE IMPACT OF CRIMINAL RECORDS UNDER WISCONSIN LAW 25 (2017) . . .  (hereinafter CIVIL CONSEQUENCES). Such potential consequences in this case could include: loss of voting rights until the felony sentence has been served, see WIS. STAT. §§ 6.03(1)(b) and 304.078(3); disqualification from certain types of employment and licensure; exposure to habitual criminal laws if subsequently convicted of the same or a similar crime, see WIS. STAT. § 939.62; and having one’s credibility brought into question based on the number of convictions if called to testify as a witness in a court proceeding, see WIS. STAT. § 906.06. See also CIVIL CONSEQUENCES 7, 18, 25, 26, 28.

Props for the State Public Defender! The State argued that because Genz did not appeal his conviction for possession of amphetamine with intent to deliver, a reversal on the conspiracy conviction would not change his status as a felon. But citing the SPD’s publication above and Sibron, the court of appeals held the number of convictions on person’s record can matter. Opinion ¶13.

As for the sufficiency of the evidence, the court of appeals noted that “a buyer-seller relationship for an amount of a controlled substance consistent with personal use does not support a conspiracy to deliver conviction.” Opinion ¶18 (citing State v. Smith, 189 Wis. 2d 496, 525 N.W.2d 264 (1995). It then held:

¶21 Here, Genz entered into an agreement to buy marijuana in exchange for twenty dollars and two thirty-milligram D-amphetamine pills. Genz argues, and the State does not contest, that this would have been a small amount of marijuana consistent with personal use. As in Smith, there was no claim or evidence that Genz intended to sell, deliver or give the marijuana to a third party.

¶22 The State attempts to distinguish this case from Smith on the basis that Genz agreed to trade D-amphetamine pills, in addition to twenty dollars, for the marijuana. While these facts differ slightly from those in Smith, in which there was no agreement to trade different controlled substances, the issue before this court is still whether there were sufficient facts to convict Genz of conspiracy to manufacture/deliver THC, not any conspiracy or delivery related to D-amphetamine pills. We therefore do not find the State’s attempt to distinguish Smith compelling.



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