925 N.W.2d 563
Wis. Ct. App.2019Background
- In Oct 2014 Kelly Kloss was arrested and, while jailed, made over fifty recorded calls to his wife Cheryl containing threats and instructions to shoot police if they came to their home.
- Based on those calls the State charged Kloss with solicitation under WIS. STAT. § 939.30: one count of solicitation of first-degree reckless injury and one count of solicitation of first-degree recklessly endangering safety.
- Following a bench trial the circuit court convicted Kloss on both solicitation counts.
- Kloss sought postconviction relief asserting (1) solicitation of first-degree reckless injury does not exist under Wisconsin law, (2) insufficient evidence to support the convictions, and (3) the two solicitation convictions are multiplicitous because one is a lesser included offense of the other.
- The court of appeals reviewed statutory interpretation and multiplicity de novo, upheld the existence of the soliciting/reckless-injury crime and the sufficiency of evidence for that conviction, but found the two solicitation convictions multiplicitous.
- Remedy: the court reversed the conviction for the lesser offense (soliciting/endangering-safety) and remanded for resentencing on the remaining soliciting/reckless-injury conviction because the prior sentencing structure was affected.
Issues
| Issue | Plaintiff's Argument (Kloss) | Defendant's Argument (State) | Held |
|---|---|---|---|
| Does solicitation of first-degree reckless injury exist under WI law? | Solicitor cannot intend that reckless conduct cause great bodily harm because reckless results are unpredictable. | Solicitation statute requires intent that a felony be committed; one can intend a felon's result even if outcome uncertain. | Exists: court rejects Kloss and holds solicitation of first-degree reckless injury is a cognizable crime. |
| Was the evidence sufficient to convict of soliciting/reckless-injury? | Calls were monitored and Kloss knew police unlikely to approach, so he lacked intent that Cheryl actually engage in reckless conduct causing injury. | The unlikelihood of opportunity does not negate intent; evidence showed intent if police did approach. | Sufficient: court affirms conviction for soliciting/reckless-injury. |
| Are the two solicitation convictions multiplicitous? | The two solicitations are lesser/greater and thus multiplicitous; one must be reversed. | The State contended they are different crimes because they solicit different underlying felonies and argued they could be based on different calls. | Multiplicitous: court finds soliciting/endangering-safety is a lesser included offense of soliciting/reckless-injury and convictions are multiplicitous. |
| Remedy after multiplicity ruling | Reverse one conviction (Kloss sought reversal of one count) | State did not oppose a remedy argument; previously argued different-fact theory at trial but not on appeal. | Reverse the lesser conviction (soliciting/endangering-safety) and remand for resentencing on the remaining solicitation conviction because the sentence structure was affected. |
Key Cases Cited
- Briggs v. State, 218 Wis.2d 61 (statutory interpretation reviewed de novo)
- Poellinger v. State, 153 Wis.2d 493 (standard for evidentiary sufficiency on appeal)
- Lechner v. State, 217 Wis.2d 392 (multiple punishments inquiry; legislative intent governs)
- Ziegler v. State, 342 Wis.2d 256 (two-pronged multiplicity test adopting Blockburger elements-only analysis)
- Blockburger v. United States, 284 U.S. 299 (elements-only test for multiplicity)
- Weso v. State, 60 Wis.2d 404 (recklessly endangering safety is a lesser included offense of reckless injury)
- Carrington v. State, 134 Wis.2d 260 (lesser-included offense test: "utterly impossible" to commit greater without lesser)
- Stevens v. State, 123 Wis.2d 303 (defendant cannot be convicted of both greater and lesser included offense)
- Gordon v. State, 111 Wis.2d 133 (remedy: reverse lesser included conviction)
- Church v. State, 262 Wis.2d 678 (resentencing required only if reversal disturbs overall sentencing scheme)