On Point

State v. Michael Lock, 2013 WI App 80; case activity

Multiplicity — conviction for conspiracy and for completed crime under  § 939.72(2)

Lock was convicted of conspiracy to solicit prostitutes and conspiracy to pander between 1998 and 2003. Based on conduct in four specific months in 2002, he was also convicted of four counts of soliciting prostitutes as a party to the crime and four counts of pandering as party to the crime. (¶¶1, 36). He challenged the conspiracy convictions under § 939.72(2), which prohibits conviction for both “conspiracy and … as party to a [completed] crime which is the objective of the conspiracy[.]”

Concluding that § 939.72(2) is consistent with the multiplicity standard from State v. Derango, 2000 WI 89, ¶¶28-29, 236 Wis. 2d 721, 613 N.W.2d 833, the court of appeals analyzes whether the offenses are identical in fact and law. (¶¶33-34). Relying on the charging documents and the evidence presented at trial regarding acts of pandering and/or solicitation that occurred outside the four specified months in 2002, the court holds the conspiracy was far broader and covered much more conduct than the eight completed offenses; therefore, the conspiracy and completed crimes are not identical in law or fact and Lock can be convicted of both. (¶¶36-38, citing Derango, 236 Wis. 2d 721,¶30 ).

As noted here, State v. Moffett, 2000 WI 130, ¶12, 239 Wis. 2d 629, 619 N.W.2d 918, held § 939.72(2) didn’t preclude a person from being charged for both the conspiracy and completed crime, but it didn’t address whether the defendant could be convicted of both. The court of appeals now reads § 939.72(2) to apply “only where the objective of the conspiracy is limited to the specific [completed] crime.” (¶31). Apparently, then, an ongoing conspiracy with the objective of committing more than one criminal act opens up the prospect of multiple convictions for both conspiracy and completed crimes.

Though it purports to rely on the plain language of § 939.72(2), the court departs in subtle ways from that language. In particular, while the statute refers to “a crime which is the objective of the conspiracy,” the court refers to the objective of the conspiracy and the “objective” of the completed crime. But while conspiracy must have a crime for an object, § 939.31, the completed crime needs no such object: It is self-sufficient, defined by its elements. Saying it has its own objective suggests it is different from, and not part of, the objective of the conspiracy. More striking, the court characterizes the objective of the conspiracy as “maintain[ing] and operat[ing] a prostitution ring….” (¶36). True, at a high level of generality. But there’s no crime of “maintaining and operating a prostitution ring”; rather, the crime or crimes that are the object of the conspiracy must be the specific statutorily defined offenses of pandering or soliciting. By operating at such a high level of generality the court’s analysis becomes untethered from the language of both §§ 939.31 and 939.72(2).

In support of its holding the court (¶38 n.7) cites State v. Hardison, 492 A.2d 1009 (N.J. 1985), which interprets a differently worded statute (N.J.S. 2C:1-8a(2)) precluding conviction of more than one offense if “one offense consists only of a conspiracy or other form of preparation to commit the other.” Based on the drafting commentary of that statute, Hardison concluded this limitation “is confined to the situation in which the completed offense was the sole criminal objective of the conspiracy” and does not apply when the conspiracy also had the objective to commit other offenses. Id. at 1013. The court of appeals doesn’t analyze the New Jersey language, simply calling it “similar”; nor does it discuss the intent behind § 939.72(2), enacted in the 1955 criminal code revision to abrogate the common law rule that a defendant could be convicted of both conspiracy and the completed crime that was the objective. Does the different language or the drafters’ intent matter here? The court doesn’t say, leaving a reader feeling its analysis is (as the court describes Lock’s argument (¶29)) underdeveloped.

Speedy trial

While this case was pending Lock was also being prosecuted in federal court. During a 14-month period while he was tried and then awaiting sentencing in federal court, the federal authorities would not permit him to be transferred to state custody for proceedings in this case. (¶¶14-19). While the delay was presumptively prejudicial, State v. Green, 75 Wis. 2d 631, 636, 250 N.W.2d 305 (1977), it did not deny Lock his constitutional right to a speedy trial:

¶24      The record here shows that the reason for the delay in this case was the federal authorities’ decision not to honor the writ of habeas corpus ad prosequendum issued by the state court.  While Lock does not dispute that fact, he attributes the federal authorities’ actions to the State, arguing that the State and federal authorities were working together to investigate and convict Lock, that as part of that alliance the State and federal authorities made a strategic decision to bring the cases all at once, and therefore, that the State had control over when the federal government brought its case against Lock.  We disagree.

¶25      Lock presents no evidence of this alleged joint strategy.  Such allegations are pure speculation.  He cites to absolutely no evidence in the record demonstrating that the State and federal authorities conspired to delay his trial.  The record simply does not support Lock’s speculation that the State was responsible for the delay caused by Lock’s fourteen months in federal custody.

In addition, Lock was not actually prejudiced by the delay because his pretrial incarceration was due to the two life sentences he was serving for state homicide convictions. Nor is there evidence to support Lock’s claim that the delay either allowed the state to pressure Lock’s co-defendants into cooperating or contributed in any way to his co-defendants’ decisions to testify against him. (¶26).

Prosecutorial misconduct; failure to disclose a state’s witness would receive credit for his testimony

Hankins, a state’s witness, told the jury he had not been promised any consideration for his testimony, though he also said he wanted such consideration. Hankins later moved for sentence modification, and the state supported his request based on his testimony against Lock. (¶¶42-44). The failure to inform the defense Hankins would receive credit for his testimony was not prosecutorial misconduct:

¶45      First, Hankins’ motives for testifying were before the jury.  He testified that he hoped he would get concessions for his testimony. Lock was free to explore that motive for Hankins’ testimony on cross-examination.

¶46      Second, there is no evidence to support Lock’s unfounded accusation that the State knew that it would grant Hankins concessions for his testimony against Lock.  Lock’s assertions in that regard are pure speculation.

Polk County DHS v. Boe H., 2012AP2612, District 3, 5/7/13; court of appeals decision (1-judge, ineligible for publication); case activity

While the circuit court lacked authority to specify that a person committed to outpatient treatment remain in a group home as a condition of the commitment order (¶14), the county department had the authority to place the person in a group home because that placement does not change the nature of his treatment from “outpatient” to “inpatient”:

¶16      Wisconsin Stat. § 51.01(17) defines “treatment” as “those psychological, educational, social, chemical, medical or somatic techniques designed to bring about rehabilitation of a mentally ill … person.”  “Outpatient” and “inpatient” are not defined in § 51.01.  However, Webster’s Third New International Dictionary 1603 (unabr. 1993), defines “outpatient” as “a patient who is not an inmate of a hospital but receives diagnosis or treatment in a clinic or dispensary connected with the hospital – distinguished from inpatient.”  “Inpatient” is defined as “a patient in a hospital or infirmary who receives lodging and food as well as treatment – distinguished from outpatient.”  Id. at 1167.  Based on these definitions, the difference between outpatient and inpatient turns on whether the patient receives treatment in a hospital setting.  See id. at 1167, 1603.

¶17      We conclude Boe is not receiving inpatient treatment in the group home and he continues to be treated on an outpatient basis. Boe’s group home is a community-based residential facility, not a hospital or inpatient facility.  See Wis. Stat. §§ 51.01(9), (10)…. Because the group home is not a hospital or inpatient facility, any services offered at the group home do not constitute inpatient treatment.  Further, the outpatient treatment Boe receives from off-site providers is not changed to inpatient treatment by virtue of his residence in the group home.

Nor does placement in the group home amount only to “habilitation,” which is not authorized by § 51.20, Milwaukee Cnty. Combined Cmty. Servs. Bd. v. Athans, 107 Wis. 2d 331, 336-37, 320 N.W.2d 30 (Ct. App. 1982), because it serves to rehabilitate: “The purpose of Boe’s placement in the group home is to stabilize him on his medication so that he may be further transitioned back into the community” and it “ameliorates his delusions through further medical stabilization, allows him to receive psychiatric treatment on an outpatient basis, and gives him the freedom to interact in the community.” (¶19).

Finally, the fact Boe is committed as an outpatient only to the “care” of the department, and not its “care and custody,” § 51.20(13)(a)3., doesn’t prohibit the placement because it does not amount to “custody”:

¶21      Although the Department lacks “custody” of Boe and therefore cannot place him in an inpatient facility, see Wis. Stat. § 51.20(13)(a), the Department’s community-based placement is a far cry from an involuntary hospital admission.  At the group home, Boe retains the freedom to do what he wishes.  Although he needs permission to leave and must follow the home’s rules, Boe’s case manager testified at the extension hearing that Boe is allowed to come and go from the group home and does in fact leave for visits with his family. …

The court is clearly deferring to the judgment of the treatment providers as to which programs and placements best advance outpatient treatment, but what are the limits, if any, to that deference? For example, while Boe’s placement is “a far cry” from a hospital admission, does that mean a placement in a facility that is more restrictive than Boe’s could constitute unauthorized inpatient placement or “custody”? If so, at what point does the placement change from outpatient to inpatient or to “custody”? Would it matter, for instance, that the placement was meant, like Boe’s, to “transition” him to the community, but the patient’s been there for years and the transition never happens? Or is the court drawing a bright line in ¶¶16-17 and saying that only a hospital placement amounts to inpatient placement or “custody,” so that virtually any other placement is authorized? The decision isn’t clear on these issues, though in defense of the court, neither is § 51.20. These questions will have to be litigated case-by-case based on the particular facts of the placement.

State v. Larry D. Wright, 2012AP1175-CR, District 1, 5/7/13; court of appeals decision (not recommended for publication); case activity

The trial court did not erroneously exercise its discretion in instructing the jury by giving Wis. J.I.-Criminal 172 (evidence of defendant’s conduct showing consciousness of guilt), as it was supported by evidence that Wright bribed the complaining witness to write two letters recanting her allegations. (She testified at trial the recantations were untrue). (¶¶13-16). “Under these circumstances, the jury could reasonably consider Wright’s actions as his consciousness of guilt.  The instruction properly stated the law and was supported by the victim’s testimony.  Giving the jury Wis JI—Criminal 172 was not erroneous.” (¶17).

Nor did the trial court err in denying Wright’s request for Wis. J.I.-Criminal 330, regarding a witness’s character for untruthfulness. While one state’s witness testified the complainant was “a known liar,” the trial court ruled that testimony lacked proper foundation; moreover, the issue of the complainant’s credibility was explicitly put before the jury through the general instruction on witness credibility and defense counsel’s closing argument, which emphasized the defense theory that the complainant was lying. (¶¶18-25).

Appellate practice note: This case involved charges of child sexual assault and child enticement. The court notes Wright’s briefs refer to the victim by her first and last name. (¶2 n.1). The court also notes that “Rule 809.19(1)(g)(2011-12) prohibits the use of a victim’s full name in cases with confidential records.” (Id.) This isn’t such a case. Nonetheless: “Although appellants are not statutorily prohibited from identifying juvenile victims of sensitive crimes by their first names and last initials, it is our own internal policy to protect the identity of juvenile assault victims by only identifying them by their initials where possible.  We urge appellants do the same.” (Id. (emphasis added)).

State v. Edward Devon Smart, 2012AP1178-CR, District 1, 5/7/13; court of appeals decision (not recommended for publication); case activity

Smart is not entitled to plea withdrawal based on co-actor’s testimony that he coerced Smart to commit the crime because the coercion evidence could have been presented using other witnesses known to defendant before he entered his plea:

¶7        Smart argues that Rushing’s testimony is new because he did not know Rushing would testify that he forced Smart to rob the victims.  We disagree.  A post-conviction statement by a co-actor exculpating a defendant is not newly discovered evidence if:  (1) the defendant was aware of the potential testimony before trial, and (2) the co-actor did not testify at the defendant’s trial as a result of the co-actor’s right against self-incrimination.  State v. Jackson, 188 Wis. 2d 187, 201, 525 N.W.2d 739, 745 (Ct. App. 1994).  Here, Smart had to be aware of Rushing’s potential testimony because, according to Rushing’s testimony, Smart was there to see it, as were the “two other guys” Rushing said were with Smart.  Smart’s choice not to call Rushing either because he did not think Rushing would testify about the coercion or because Rushing would not testify based on his right not to incriminate himself does not change things.  Smart could have called the “two other guys” to get before the jury what he now claims is newly discovered evidence. There is nothing in the Record to show that Smart attempted to get either Rushing or the “two other guys” to testify on his behalf.  Accordingly, he has also failed to satisfy the second “newly discovered evidence” factor:  that “the defendant was not negligent in seeking evidence.”  Further, Rushing has already been convicted of the crime.  Thus, he lacks credibility as a matter of law.  See id., 188 Wis. 2d at 200 n.5, 525 N.W.2d at 744 n.5 (“‘Once sentence is imposed … there is very little to deter [a co-actor] from untruthfully swearing out an affidavit in which he purports to shoulder the entire blame.’”) (quoted source omitted).

State v. Lamont L. Travis, 2013 WI 38, affirming published court of appeals decision, 2012 WI App 46, 340 Wis. 2d 639, 813 N.W.2d 702; case activity

¶9   The question of law presented to this court is whether a circuit court’s imposition of a sentence using inaccurate information that the defendant was subject to a mandatory minimum five-year period of confinement is structural error or subject to the application of harmless error analysis…. If the latter, the question is whether the error in the present case was harmless.

¶10  We conclude that imposing a sentence under the erroneous belief that the defendant was subject to a five-year mandatory minimum period of confinement is an error subject to a harmless error analysis.  The error is not a structural error, as the court of appeals stated.  We further conclude that the error in the present case was not a harmless error.  We affirm the decision of the court of appeals, but on different grounds, and remand the matter for resentencing.

From the beginning of the case through sentencing, everyone–prosecutor, defense counsel, judge–mistakenly believed Travis was subject to a mandatory minimum penalty of five years of confinement. (¶¶6, 12-13, 26). The error was spotted by Travis’s sharp-eyed postconviction lawyer, who moved for resentencing under State v. Tiepelman, 2006 WI 66, 291 Wis. 2d 179, 717 N.W.2d 1, arguing the circuit court relied on the inaccurate belief there was a mandatory minimum in sentencing Travis. (¶¶6, 19). The prosecutor conceded the charging documents cited the wrong statute and that the minimum did not apply; the circuit court agreed, but concluded the error was harmless and rejected Travis’s argument that the inaccuracy so fundamentally affected the structure of the entire proceeding that it should be considered per se prejudicial. (¶¶2, 7, 40). The court of appeals reversed and ordered resentencing, concluding the error was structural. 340 Wis. 2d 639, ¶¶21-24.

The supreme court agrees Travis is entitled to resentencing, but rejects the court of appeals’ structural error conclusion. Structural errors “seriously affect the fairness, integrity or public reputation of judicial proceedings and are so fundamental that they are considered per se prejudicial.” (¶54, quoting State v. Ford, 2007 WI 138, ¶42, 306 Wis. 2d 1, 742 N.W.2d 61). Few errors meet that standard. (¶56). Travis analogized the error in his case to the structural errors in State v. Shirley E., 2006 WI 129, 298 Wis. 2d 1, 724 N.W.2d 623 (denial of counsel); State v. Goodson, 2009 WI App 107, 320 Wis. 2d 166, 771 N.W.2d 385 (biased tribunal); and Sullivan v. Louisiana, 508 U.S. 275, 281-82 (1993) (deprivation of right to verdict beyond a reasonable doubt), but the supreme court concludes that inaccurate information at sentencing does not resemble those cases and so declines to extend the limited class of structural errors to the unusual situation in this case. (¶¶52-65).

The court also concludes the error in this case was not harmless. (¶86). The sentencing court repeatedly reminded itself and the parties about the mandatory minimum period of confinement. (¶¶74, 76). It also believed it was required to impose at least a five-year period of confinement; indeed, if the court believed the minimum penalty was mandatory but had not taken it into consideration, it was arguably in error. (¶¶78-79). Moreover, everyone’s mistaken belief about the minimum penalty skewed the sentence recommendations they made to the court. (¶¶81-82). Thus, “the error about the mandatory minimum period of confinement permeated the entire sentencing procedure,” (¶85), and Travis is entitled to resentencing.

Few errors are classified as structural, so the rejection of the court of appeals’ holding is not too surprising. Perhaps more important is the court’s Tiepelman analysis, under which the court determines, first, whether there was inaccurate information (basically undisputed at this point, with one exception noted below) and, second, whether the sentencing court relied on the inaccurate information; if those facts are established, the state has to prove the error was harmless. (¶¶21-23). Here are the conclusions that might be useful for analyzing (and making arguments in) other cases:

First, the court’s discussion of the reliance prong emphasizes the language of Tiepelman: “explicit attention” and “specific consideration” of the information showing it “formed part of the basis for the sentence.” (¶28). Here, the circuit court’s reference to the inaccurate penalty information was “explicit and repetitive.” (¶32). The lack of “magic words” connecting the inaccurate information to the sentence imposed isn’t dispositive (“For a reviewing court to conclude there was actual reliance by the circuit court, a circuit court need not have stated, ‘Because of the existence of this [inaccurate information], you are sentenced to X years of imprisonment.'”) (¶30). And the fact that other information might have justified the sentence is irrelevant when the court has relied on inaccurate information as part of the basis of the sentence. (¶47).

Next, the court’s harmless error analysis discounts the circuit court’s postconviction ruling that the sentence would have been the same even without the inaccurate information. A reviewing court is not bound by the circuit court’s retrospective review, so the focus must be on the sentencing transcript, not the circuit court’s assertions during the postconviction hearing or speculation about what a circuit court would do upon resentencing. (¶¶73, 77). Also, that Travis was sentenced to more than the minimum sentence is not determinative of harmless error: It is not the actual sentence that determines the constitutionality of the sentencing procedure, but whether the sentence “is based on a foundation of such materially inaccurate information that the proceedings are lacking in due process.” (¶84).

A final note: Justice Roggensack dissents, concluding Travis was subject to the minimum penalty. (¶¶91-115). The state made the very same argument in the court of appeals (despite the DA’s concession at the postconviction hearing), but the court of appeals rejected it. (¶3; see also 2012 WI App 46, ¶¶15-19, and here). The state didn’t renew the argument in its petition for review, so (as noted here) it was not before the supreme court, and the court of appeals’ rejection of the claim should retain its precedential value.

County of Fond Du Lac v. Nathan M. Kohlwey, 2013AP101-FT, District 2, May 1, 2013; (not recommended for publication); case activity.

This appeal may take the prize for the skimpiest briefs–the appellant’s is 6 pages and the respondent’s is 3.  This post is even shorter.

After receiving a 911 call about a driver who had fallen asleep in a truck at a stop sign, sheriff’s deputies stopped a different car, lacking license plates, late at night in the same area.  They asked the occupants for their driver licenses, noticed a strong order of alcohol, and started asking questions.  Turns out the passenger of this car had been the sleepyhead in the truck.  He failed field sobriety tests and was charged with operating a motor vehicle with a prohibited alcohol content in violation of § 346.63(1).  He moved to suppress the evidence gained from the stop but lost.  The court of appeals held that:

¶7 [P]assengers do have standing to challenge traffic stops as unreasonable seizures—driver and passenger alike are seized when a car is pulled over.  (Citing State v. Guzy, 139 Wis. 2d 663, 674-75, 407 N.W.2d 548 (1987).

¶¶11-12  [T]he deputies had specific articulable facts to support their reasonable suspicion that a crime had been committed . . .The officers could reasonably suspect that a crime had been committed because they had received a late-night citizen’s report of a male possible drunk driver on a sparsely populated rural dead-end road, detected intoxicants emanating from the vehicle, learned that Kohlwey drove a vehicle that matched the description of the drunk-driver report, determined that Kohlwey was the driver of the reported vehicle, and observed visible signs of intoxication and detected the odor of intoxicants coming from Kohlwey.

State v. Nely B. Robles, 2013 WI App 76; case activity.

Issue:  When accepting a guilty plea is the circuit court required to specify whether the defendant is pleading to a felony or a misdemeanor?

Robles sought to withdraw her guilty plea on the grounds that the circuit court’s failure to specify the designation of the charged crime violated Wis. Stats.  § 971.08(1)(a)’s requirement that she be informed of the “nature of the charge.”  The court of appeals rejected this argument for essentially two reasons.

First, Wisconsin cases  “inform us that our supreme court recognizes the term ‘nature of the charge’ as referring to the elements of the charged offense or, more precisely, the elements of the offense in relation to the facts associated with that charge.”  Id., ¶10. See, State v. Bangert, 131 Wis. 2d 246, 267-68, 389 N.W.2d 12 (1986); State v. Brown, 2006 WI 100, ¶¶ 5, 46, 293 Wis. 2d 594, 716 N.W.2d 906; and State v. Howell, 2007 WI 75, ¶¶43, 51, 54, 301 Wis. 2d 350, 734 N.W.2d 48.

Second, the same line of cases says that the circuit court may inform the defendant of the “nature of the charge” by reading from the appropriate jury instruction or applicable statute.  The vast majority of jury instructions do not include the word “felony” or “misdemeanor.”  Robles, ¶11.  Ergo, courts needn’t use those magic words.

Bottom line:  “[T]he ‘felony’ or ‘misdemeanor’ designation of a charge is not part of the ‘nature of the charge.’ Accordingly, a circuit court accepting a plea is not required to specifically inform the defendant of the applicable designation.”  Id., ¶13.