928 N.W.2d 545
Wis.2019Background
- Defendants Dennis Franklin and Shane Sahm pleaded guilty to federal firearms-possession offenses under 18 U.S.C. § 922(g)(1). Their sentences were enhanced under the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e), based on prior Wisconsin burglary convictions.
- The Seventh Circuit initially held the Wisconsin burglary statute's separate location subsections each constituted distinct elements (separate crimes), qualifying as ACCA predicates; after rehearing it certified the state-law question to the Wisconsin Supreme Court.
- The certified question: do the location subsections in Wis. Stat. § 943.10(1m)(a)–(f) set out alternative elements (requiring jury unanimity on which location) or alternative means of committing a single element (no unanimity on the specific location required)?
- The Wisconsin Supreme Court applied its four-factor Derango test (statutory text; legislative history/context; nature of conduct; appropriateness of multiple punishments) to determine legislative intent.
- The court concluded the subsections list alternative means of satisfying the ‘‘place’’ element of burglary, not separate elements; thus unanimity on the particular locational subsection is not required.
- The court remanded to the Seventh Circuit for sentencing consideration under the ACCA in light of this interpretation.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Wis. Stat. § 943.10(1m)(a)–(f) lists alternative elements (distinct crimes) or alternative means (modes) of one burglary element | The government: subsections are alternative elements—distinct locational elements that must be treated as separate crimes for categorical/ACCA purposes | Defendants: the subsections are alternative means of proving the single ‘‘place’’ element; jury unanimity on the specific subsection is unnecessary | Held: subsections are alternative means of committing the burglary’s location element; unanimity on which subsection is not required |
Key Cases Cited
- Taylor v. United States, 495 U.S. 575 (adopted the "generic" definition of burglary for ACCA analyses)
- Mathis v. United States, 136 S. Ct. 2243 (explained difference between alternative elements and alternative means in categorization analysis)
- State v. Derango, 236 Wis. 2d 721 (2000) (articulated four-factor test to determine whether a statute creates multiple offenses or one offense with multiple modes)
- State ex rel. Kalal v. Circuit Court for Dane Cty., 271 Wis. 2d 633 (2004) (framework for statutory interpretation and limited use of legislative history)
- State v. Pinder, 384 Wis. 2d 416 (2018) (confirmed locational alternatives in § 943.10 are factual modes)