State v. Jacobsen, 842 N.W.2d 365

Jacobsen appeals a judgment of conviction on three theft in a business setting counts and an order denying postconviction plea withdrawal.
She was charged with eight offenses based on 289 thefts from CBC over about six years.
Jacobsen argued trial counsel was ineffective for not challenging duplicity or multiplicity and for not moving to dismiss the complaint on those grounds.
The circuit court denied postconviction relief; Jacobsen pleaded no contest to Counts 1, 2, and 5; other counts were dismissed or read in at sentencing.
The court held the charges were not duplicitous or multiplicitous and affirmed the judgment and postconviction denial.
The court concluded the State had discretion to group related thefts by year and to prosecute them as separate counts.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Are the charges duplicitous?	Jacobsen: charges improperly join multiple offenses in one count.	State: charges are not duplicitous under Copening/Miller; grouping is permissible.	Not duplicitous; proper under law.
Are the charges multiplicitous?	Jacobsen: separate counts for each theft are required; not multiplicity.	State: counts are not the same in fact; multiple offenses permitted; legislature allowed cumulative punishments.	Not multiplicitous; multiple charges proper and punishments appropriate.
Did the State have discretion to charge multiple offenses based on groups of thefts rather than all at once or individually?	Jacobsen: State cannot pick and choose groupings; could have charged as one or 289 separate counts.	State: statute § 971.36(3)(a) authorizes charging related thefts as a single crime or as multiple offenses; discretion lies with the State.	State properly exercised charging discretion.
Was there ineffective assistance of counsel in failing to challenge duplicity/multiplicity or move to dismiss?	Jacobsen: trial attorney failed to challenge duplicity/multiplicity or seek dismissal.	State: counsel's failure would have been meritless; no ineffective assistance.	No ineffective assistance; plea withdrawal denied.

State v. Copening, 103 Wis. 2d 564 (Ct. App. 1981) (establishes duplicitous charges; continuous offenses may be single counts)
State v. Miller, 257 Wis. 2d 124 (2002 WL (Ct. App. 2002)) (continuous offenses doctrine; prosecutorial charging discretion)
Wis. Stat. § 971.36(3)(a), — (—) (statutory discretion to prosecute as single or multiple offenses)
State v. Lomagro, 113 Wis. 2d 582 (1983) (limits on duplicity and charging decisions)
State v. Grayson, 172 Wis. 2d 156 (1992) (allowance of multiple counts to deter and proportionate punishment)
State v. Eaglefeathers, 316 Wis. 2d 152 (2009) (two-part multiplicity analysis; not identical in fact triggers presumption)
State v. Warren, 229 Wis. 2d 172 (Ct. App. 1999) (breaks in time between offenses affect 'same in fact' analysis)
State v. Stevens, 123 Wis. 2d 303 (1985) (definitions of 'in fact' differences for multiplicity)
State v. Grayson, 172 Wis. 2d 156 (1992) (reiterated reasoning on multiple charges for long-running conduct)
State v. Spraggin, 71 Wis. 2d 604 (1976) (distinguishes duplicitous consolidation when acts are not continuous)
State v. George, 69 Wis. 2d 92 (1975) (distinguishes continuous vs. separate offenses in different contexts)
United States v. Carter, 804 F.2d 508 (9th Cir. 1986) (subdivision of continuous offenses for charging purposes)
United States v. Newman, 701 F. Supp. 184 (D. Nev. 1988) (aggregation and subdivision of related acts allowed for charging)