STATE OF WISCONSIN, Plaintiff-Respondent, v. CARL LEE MCADORY, Defendant-Appellant-Petitioner.
No. 2023AP645-CR
Supreme Court of Wisconsin
Decided July 1, 2025
2025 WI 30
REVIEW of
¶1 REBECCA FRANK DALLET, J. A jury found Carl Lee McAdory guilty of both operating a motor vehicle while under the influence of a controlled substance as an eighth offense (OWI), and operating a motor vehicle with a detectable amount of a restricted controlled substance in his blood as an eighth offense (RCS).1 See
¶2 At sentencing, and on the State‘s motion, the circuit court dismissed the RCS charge and guilty verdict and sentenced McAdory only on the OWI pursuant to
¶3 McAdory‘s conviction for OWI was later reversed, however, and the case was remanded to the circuit court “for a new trial” on the OWI charge. See State v. McAdory, 2021 WI App 89, ¶2, 400 Wis. 2d 215, 968 N.W.2d 770 (McAdory I). Rather than hold a new trial on remand, the circuit court instead granted a motion by the State to reinstate the previously dismissed RCS charge and guilty verdict.
¶4 We must decide whether the circuit court was permitted to do so. Despite McAdory‘s many arguments to the contrary, we conclude that it was. We therefore affirm the court of appeals’ decision.
I
¶5 After a traffic stop in January 2016, McAdory was charged with both OWI and RCS pursuant to
¶6 On appeal, the court of appeals overturned the OWI conviction on grounds unrelated to the RCS charge and guilty verdict.4 See McAdory I, 400 Wis. 2d 215, ¶2. Accordingly the court of appeals’ opinion stated that it “reverse[d] and remand[ed] for a new trial on” the OWI offense. Id. The mandate line at the close of the opinion said “By the Court.—Judgment reversed and cause remanded.” Id., ¶71. The State did not seek review of that decision.
¶7 The State did not seek to retry McAdory on remand. Instead, it asked the circuit court to reinstate the previously dismissed RCS charge and guilty verdict, enter a judgment of conviction, and dismiss the OWI charge. The circuit court agreed and proceeded to sentencing on the RCS charge and guilty verdict alone, granting McAdory sentence credit for the time he had already served on the invalidated OWI conviction.
¶8 McAdory challenged the circuit court‘s reinstatement of the RCS charge and guilty verdict first in post-conviction proceedings and later in the court of appeals. Although his arguments evolved somewhat over that time, McAdory made the following four claims before the court of appeals: (1) that circuit courts lack the authority under
II
¶10 Before this court, McAdory essentially reiterates the arguments he raised in the court of appeals. First, he contends that the circuit courts lack the authority under
¶11 We hold that
A
¶12 We begin with McAdory‘s assertion that circuit courts lack authority under
A person may be charged with and a prosecutor may proceed upon a complaint based upon a violation of any combination of par. (a), (am), or (b) [of
§ 346.63(1) ] for acts arising out of the same incident or occurrence. If the person is charged with violating any combination of par. (a), (am), or (b), the offenses shall be joined. If the person is found guilty of any combination of par. (a), (am), or (b) for acts arising out of the same incident or occurrence, there shall be a single conviction for purposesof sentencing and for purposes of counting convictions under [WIS. STAT. §§] 343.30(1q) and343.305 . Paragraphs (a), (am), and (b) each require proof of a fact for conviction which the others do not require.
To summarize, this paragraph provides that an individual may be charged in a single complaint with any combination of OWI, RCS, or PAC arising from the same incident. See id. When that happens, the offenses are joined for trial, and if the individual is convicted of one or more of those offenses, “there shall be a single conviction for purposes of sentencing and for purposes of counting convictions” under
¶13 Importantly for our purposes, however,
¶14 The first gap in
¶15 In its briefing before us, the State argues that Bastian‘s dismissal procedure is inconsistent with the language of
¶16 We agree with McAdory. Even if we were to conclude, as the State urges, that Bastian is wrongly decided, that conclusion would have no bearing on any of McAdory‘s claims. After all, those claims all concern the propriety of reinstating the already-dismissed RCS charge and guilty verdict under
¶18 We disagree. In essence, McAdory argues that because
¶19 We conclude that
B
¶20 McAdory‘s second argument—that the State forfeited its right to seek reinstatement of the RCS charge and guilty verdict by failing to bring a cross-appeal or brief it in McAdory I—fares no better.
¶21 Forfeiture is, at its most basic level, “‘the failure to make the timely assertion of a right . . . .‘” State v. Ndina, 2009 WI 21, ¶29, 315 Wis. 2d 653, 761 N.W.2d 612 (quoting United States v. Olano, 507 U.S. 725, 733 (1993)). According to McAdory, the State failed to assert in a timely manner its right to seek reinstatement of the previously dismissed RCS charge and guilty verdict by not raising that possibility through either a cross-appeal or in its briefing in McAdory I.
¶22 Addressing the cross-appeal argument first, when a criminal defendant “appeals or prosecutes a writ of error, the state may move to review rulings of which it complains, as provided” in the general cross-appeals statute,
¶23 We conclude that the State was not required to—and indeed was not permitted to—file a cross-appeal from the dismissal of the RCS charge and guilty verdict. That is because the dismissal occurred at the State‘s request, and therefore it was not “adverse to the [S]tate.” See
¶24 The State likewise did not forfeit any argument for reinstatement by failing to raise that argument in its briefing in McAdory I. Respondents may raise in their briefing before the court of appeals “error[s] which, if corrected, would sustain the judgment” without filing a cross appeal. See State v. Alles, 106 Wis. 2d 368, 390, 316 N.W.2d 378 (1982). But McAdory I concerned only the judgment of conviction for the OWI charge. See generally McAdory I, 400 Wis. 2d 215, ¶2. OWI and RCS are different offenses. See
C
¶25 McAdory additionally argues that reinstating the RCS charge and guilty verdict violated the court of appeals’ mandate in McAdory I and, consequently, that the circuit court lacked competency on remand to do anything except hold a second trial on the OWI charge. We disagree.
¶26 On remand, circuit courts may not take actions “that conflict with the expressed or implied mandate of the appellate
¶27 McAdory argues that because the court of appeals’ opinion in McAdory I reversed the judgment of conviction on the OWI charge and “remand[ed] for a new trial on” that charge, the circuit court had only one option on remand: to hold a new trial on the OWI charge. See McAdory I, 400 Wis. 2d 215, ¶2. He further argues that
¶28 The court of appeals, however, considered these arguments and rejected them. See McAdory II, 412 Wis. 2d 112, ¶¶23–24. As that opinion explains, the decision in McAdory I “had nothing to say regarding any motions that either side might file after remittitur. We certainly did not direct that the circuit court was obligated to schedule a trial on the OWI count even if, as would come to pass, the State moved to dismiss that count.” Id. at ¶24. The court of appeals therefore concluded that reinstating the RCS charge and guilty verdict on the State‘s motion did not violate the mandate in McAdory I. See id. We see no reason to disturb this conclusion given that the court of appeals is more than capable of interpreting its own mandates and is indeed better situated for that task than we are. Accordingly, we agree with the court of appeals’ determination that its mandate in McAdory I did not prohibit the circuit court from reinstating the RCS charge and guilty verdict and dismissing the OWI charge, and that the circuit court thus had competency to do so.
D
¶29 Finally, we are unpersuaded by McAdory‘s arguments that reinstating the RCS charge and guilty verdict violated his right to be free from double jeopardy. The Fifth Amendment provides that “[n]o person shall be . . . subject for the same offence to be twice put in jeopardy of life or limb . . . .”
¶30 The United States Supreme Court has described the Double Jeopardy Clause as containing three distinct protections: (1) “against a second prosecution for the same offense after acquittal;” (2) “against a second prosecution for the same offense after conviction,” and (3) “against multiple punishments for the same offense.” North Carolina v. Pearce, 395 U.S. 711, 717 (1969).
¶32 The problem with McAdory‘s first argument is that he was not prosecuted twice for RCS. Instead, the circuit court reinstated the jury‘s guilty verdict on the RCS charge from his first and only prosecution for that charge stemming from the January 2016 traffic stop. As many other courts have concluded, “[t]he Double Jeopardy Clause does not bar reinstatement of a conviction on a charge for which a jury returned a guilty verdict.”8 It is therefore irrelevant that once the RCS charge and guilty verdict were dismissed, McAdory “expect[ed]” that he would never be punished for it.9 Although the Double Jeopardy Clause certainly protects the defendants’ interest in finality, it does so only through its specific prohibitions, like the one on successive prosecutions after conviction. See Brown v. Ohio, 432 U.S. 161, 165 (1977). Because reinstating the RCS charge and guilty verdict did not result in a second prosecution for RCS after conviction, it did not violate the Double Jeopardy Clause.
¶33 McAdory‘s second and third arguments also miss the mark. McAdory was not prosecuted or tried twice for the OWI offense after the RCS charge and guilty verdict were reinstated. Rather, the OWI charge was dismissed at the State‘s request,
¶34 As for multiplicity, McAdory‘s argument is underdeveloped at best and is contrary to the facts, which—as McAdory‘s counsel conceded at oral argument—demonstrate that he did in fact receive sentence credit for the time he served on the OWI conviction.10 See Sw. Airlines Co. v. DOR, 2021 WI 54, ¶32 n.10, 397 Wis. 2d 431, 960 N.W.2d 384 (“[W]e generally do not address underdeveloped arguments.“). Accordingly, we need not address this argument further.
III
¶35 In conclusion, we hold that the circuit court was permitted to reinstate the previously dismissed RCS charge and guilty verdict on remand after McAdory‘s companion conviction for OWI was overturned on appeal. The circuit court had implicit authority under
By the Court.—The decision of the court of appeals is affirmed.
STATE v. MCADORY
JUSTICE ZIEGLER, concurring in the judgment
ANNETTE KINGSLAND ZIEGLER, J., with whom REBECCA GRASSL BRADLEY, J., joins, concurring in the judgment.
¶36 Like the majority, I would affirm the court of appeals. But I come to this conclusion for reasons quite different than those advanced by the majority. Unlike the majority, which employs a thoroughly purposivist analysis, I would address what
¶37 One point must be made regarding the majority, however. The majority argues that this court cannot, or at least should not, overrule this court‘s decision in Bohacheff because no party before this court asked us to overrule that decision. The majority‘s argument rings hollow.
¶38 First, the majority‘s supposed commitment to the party presentation principle goes only so far. The argument the majority ultimately embraces in this case—that
¶39 Second, virtually every justice in the majority has voted to overrule a decision
¶40 Bohacheff‘s “only virtue is that we decided it.” Kimble v. Marvel Ent., LLC, 576 U.S. 446, 470 (2015) (Alito, J., dissenting). Bohacheff is an indefensible decision of this court, as evidenced by the majority‘s refusal to defend it and decision to dodge addressing it. This court should confront Bohacheff and overrule the decision.
¶41 The following is the opinion I believe should have been written by this court.
* * *
¶42 This is a review of a published decision of the court of appeals, State v. McAdory, 2024 WI App 29, 412 Wis. 2d 112, 8 N.W.3d 101 (McAdory II), that affirmed the circuit court‘s denial of Carl Lee McAdory‘s motion for postconviction relief.
¶43 Following a traffic stop on January 5, 2016, the State filed charges against McAdory for operating a vehicle while under the influence of a controlled substance as an eighth offense,
¶44 In so doing, the State and circuit court were following this court‘s decision in State v. Bohacheff, 114 Wis. 2d 402, 338 N.W.2d 466 (1983), and the court of appeals’ decision in Town of Menasha v. Bastian, 178 Wis. 2d 191, 503 N.W.2d 382 (Ct. App. 1993). Together, the two cases stand for the proposition that when a defendant is tried and found guilty for multiple offenses under
¶45 After the circuit court entered the judgment of conviction, McAdory appealed.
¶46 Before this court, McAdory makes the following arguments. The circuit court lacked authority to reinstate the RCS charge and guilty verdict. The State forfeited its ability to request the reinstatement of the RCS charge and guilty verdict during McAdory‘s initial appeal in McAdory I by failing to file a cross-appeal or raise the issue in its brief before the court of appeals in McAdory I. The circuit court lacked competency to reinstate the charge and guilty verdict. The circuit court‘s decision to reinstate the RCS charge and guilty verdict violated the court of appeals’ mandate in McAdory I and McAdory‘s right to be free from double jeopardy.
¶47 We disagree. We find no error in the circuit court‘s decision to reinstate the RCS charge and guilty verdict. Under a proper reading of
¶48 The State did not forfeit its ability to request the reinstatement of the RCS charge and guilty verdict by failing to file a cross-appeal or raise the issue in its brief before the court of appeals in McAdory I. The State was not required to cross-appeal the judgment dismissing the RCS charge and guilty verdict because it was the State itself that requested the circuit court to dismiss the charge and guilty verdict. See
I. BACKGROUND2
¶49 As relevant to today‘s decision, McAdory was charged with operating a
¶50 Following the trial and guilty verdicts, a sentencing hearing was held on October 25, 2019. At the hearing, the State moved to have the RCS charge and guilty verdict dismissed as “duplicative.” There was no objection. The circuit court then dismissed the charge and guilty verdict: “Very well. Then on the State‘s motion the [c]ourt will, in fact, dismiss [the RCS charge and guilty verdict]. That was on my radar[] as well. But thank you for that.” The court then sentenced McAdory and entered the judgment.
¶51 McAdory appealed, challenging his OWI conviction. McAdory I, 400 Wis. 2d 215. McAdory made two arguments in his initial appeal. “First, he argue[d] that the evidence at trial was insufficient to sustain the conviction.” Id., ¶2. Second, McAdory claimed his due process rights had been violated because the State was effectively relieved of its burden to prove McAdory was under the influence of cocaine and marijuana while driving. Id. The court of appeals rejected his first argument, concluding there was sufficient evidence to convict McAdory of the offense. Id., ¶¶21–37. But the court of appeals vacated the judgment of conviction for the OWI offense, holding that there was a reasonable likelihood that the State was effectively relieved of its burden to prove that McAdory was under the influence of cocaine and marijuana while driving.5 Id., ¶¶48–70. In light of the court‘s decision, it remanded the matter for a new trial on the OWI charge. Id., ¶¶4 n.5, 71. The court‘s mandate line read, “By the Court.—Judgment reversed and cause remanded.” See id., ¶71. The State did not petition this court for review.
¶52 After the court of appeals’ decision in McAdory I, the State did not seek to hold another trial for the OWI charge. Instead, the State filed a motion with the circuit court, requesting the court to reinstate the RCS charge and guilty verdict that had previously been dismissed. The circuit court granted the motion. The circuit court held a second sentencing hearing, where the court sentenced McAdory for the RCS charge. McAdory received sentence credit based on his OWI conviction, which the court of appeals vacated. The State then moved to have the OWI charge dismissed, and the court dismissed the charge. The circuit court entered the judgment.
¶53 Following the circuit court‘s decision to reinstate the RCS charge and guilty verdict and dismiss the OWI charge, McAdory filed a motion for postconviction relief. He argued that the circuit court lacked authority to reinstate the RCS charge and guilty verdict following
¶54 The court of appeals affirmed. McAdory II, 412 Wis. 2d 112, ¶5. First, the court determined that the circuit court had authority to reinstate the RCS charge and guilty verdict due to the implicit authority granted by
¶55 Second, the court of appeals held that nothing in its prior decision in McAdory I precluded the circuit court from reinstating the RCS charge and guilty verdict. Id., ¶¶23–25. Third, the court of appeals determined that the State did not forfeit its ability to motion for the reinstatement of the RCS charge and guilty verdict by failing to cross-appeal or raise the issue in its brief in McAdory I. Id., ¶¶32–37. Finally, the court of appeals held that the reinstatement did not violate the Double Jeopardy Clause. Id., ¶¶38–46.
¶56 McAdory petitioned this court for review, which we granted on October 7, 2024.
II. STANDARD OF REVIEW
¶57 This case presents a question of statutory interpretation. “‘Interpretation of a statute is a question of law that we review de novo[.]‘” Saint John‘s Comtys., Inc. v. City of Milwaukee, 2022 WI 69, ¶14, 404 Wis. 2d 605, 982 N.W.2d 78 (quoting Est. of Miller v. Storey, 2017 WI 99, ¶25, 378 Wis. 2d 358, 903 N.W.2d 759). “[S]tatutory interpretation ‘begins with the language of the statute. If the meaning of the statute is plain, we ordinarily stop the inquiry.’ Statutory language is given its common, ordinary, and accepted meaning, except that technical or specially-defined words or phrases are given their technical or special definitional meaning.” State ex rel. Kalal v. Cir. Ct. for Dane Cnty., 2004 WI 58, ¶45, 271 Wis. 2d 633, 681 N.W.2d 110 (citations omitted) (quoting Seider v. O‘Connell, 2000 WI 76, ¶43, 236 Wis. 2d 211, 612 N.W.2d 659). “[S]tatutory language is interpreted in the context in which it is used; not in isolation but as part of a whole; in relation to the language of surrounding or closely-related statutes; and reasonably, to avoid absurd or unreasonable results.” Id., ¶46. Additionally, “[s]tatutory language is read where possible to give reasonable effect to every word, in order to avoid surplusage.” Id.
¶58 This case also calls for the reconsideration of a precedent of this court, Bohacheff, 114 Wis. 2d 402, as well as a decision of the court of appeals, Bastian, 178 Wis. 2d 191. When determining whether to overturn a prior decision of this court, stare decisis—the principle that instructs this court to stand by its prior decisions—must weigh heavily as a consideration.
¶59 “While respecting court of appeals precedent is an important consideration, it is not determinative.” State v. Lira, 2021 WI 81, ¶45, 399 Wis. 2d 419, 966 N.W.2d 605. “[W]e are not bound by court of appeals decisions. As the state‘s highest court, we interpret legal questions independently.” State v. Yakich, 2022 WI 8, ¶31, 400 Wis. 2d 549, 970 N.W.2d 12 (citation omitted); BRYAN A. GARNER ET AL., THE LAW OF JUDICIAL PRECEDENT 42–43 (2016). Accordingly, this court may overrule decisions of the court of appeals “without any special justification.” Evers v. Marklein, 2024 WI 31, ¶25, 412 Wis. 2d 525, 8 N.W.3d 395 (citations omitted); Lira, 399 Wis. 2d 419, ¶45 (“This court has never applied the five factors commonly used in a decision to overturn supreme court caselaw to override an interpretation derived solely from the court of appeals.” (citing Bartholomew v. Wis. Patients Comp. Fund & Compcare Health Servs. Ins. Corp., 2006 WI 91, ¶33, 293 Wis. 2d 38, 717 N.W.2d 216)).
¶60 McAdory argues that his right to be free from double jeopardy has been violated. “‘The issue of whether a person‘s right to be free from double jeopardy has been violated presents a question of law that we review de novo.‘” State v. Killian, 2023 WI 52, ¶19, 408 Wis. 2d 92, 991 N.W.2d 387 (quoting State v. Trawitzki, 2001 WI 77, ¶19, 244 Wis. 2d 523, 628 N.W.2d 801).
III. ANALYSIS
A. Wis. Stat. § 346.63(1)
¶61 Before this court, McAdory argues the circuit court erred by reinstating the RCS charge and guilty verdict. According to McAdory, the circuit court lacked authority to do so. On the other side, the State argues that under the plain text of
¶62
[u]nder the influence of an intoxicant, a controlled substance, a controlled substance analog or any combination of an intoxicant, a controlled substance and a controlled substance analog, under the influence of any other drug to a degree which renders him or her incapable of safely driving, or under the combined influence of an intoxicant and any other drug to a degree which renders him or her incapable of safely driving[.6]
Third, under
¶63 This case hinges on language found in
¶64 A straightforward reading of
¶65 This interpretation is reinforced by other statutes. As a background rule,
¶66 Further, the legislature has enacted a statute governing when charges under
The legislature intends to encourage the vigorous prosecution of offenses concerning the operation of motor vehicles by persons under the influence of an intoxicant, a controlled substance, a controlled substance analog or any combination of an intoxicant, controlled substance and controlled substance analog, under the influence of any other drug to a degree which renders him or her incapable of safely driving, or under the combined influence of an intoxicant and any other drug to a degree which renders him or her incapable of safely driving or having a prohibited alcohol concentration, as defined in
[WIS. STAT. §] 340.01(46m) , offenses concerning the operation of motor vehicles by persons with a detectable amount of a restricted controlled substance in his or her blood, and offenses concerning the operation of commercial motor vehicles by persons with an alcohol concentration of 0.04 or more.
Second,
¶67 The reading of
¶68 This court first interpreted this language in the context of a similar statute,
(1) Any person who does either of the following under par. (a) or (b) is guilty of a Class E felony:
(a) Causes great bodily harm to another human being by the operation of a vehicle while under the influence of an intoxicant or a controlled substance or a combination of an intoxicant and a controlled substance.
(b) Causes great bodily harm to another human being by the operation of a vehicle while the person has a blood alcohol concentration of 0.1 [percent] or more by weight of alcohol in that person‘s blood or 0.1 grams or more of
alcohol in 210 liters of that person‘s breath. (c) A person may be charged with and a prosecutor may proceed upon an information based upon a violation of par. (a) or (b) or both for acts arising out of the same incident or occurrence. If the person is charged with violating both pars. (a) and (b) in the information, the crimes shall be joined under
[WIS. STAT. §] 971.12 . If the person is found guilty of both pars. (a) and (b) for acts arising out of the same incident or occurrence, there shall be a single conviction for purposes of sentencing and for purposes of counting convictions under[WIS. STAT. §§] 343.30(1q) and343.305 . Paragraphs (a) and (b) each require proof of a fact for conviction which the other does not require.
¶69 The defendant in Bohacheff was charged with two counts of causing great bodily harm to another human being by operating a vehicle after the defendant struck and injured a police officer with his vehicle. Bohacheff, 114 Wis. 2d at 405. The defendant was charged under
¶70 This court accepted the case on bypass8 from the court of appeals. Id. at 404. Before this court, Bohacheff argued that charging him with the two counts was unconstitutional as it would subject him to multiple punishments for a single offense. Id. at 408. Specifically, he argued that
¶71 This court, however, did not determine whether charging the defendant under
¶72 But such indicators of textual meaning did not convince the court that the statute provided for multiple convictions. The court held that
¶73 The Bohacheff court also grounded its interpretation in what it saw as the statute‘s purpose. As the court saw it,
¶74 The court of appeals operationalized the holding of Bohacheff in Bastian. Following the holding and reasoning of Bohacheff, the court of appeals in Bastian explained that when a defendant is charged with multiple offenses arising out of the same incident or occurrence under
¶75 In this case, when the State requested the circuit court to dismiss the RCS charge and guilty verdict at McAdory‘s initial sentencing hearing, it was following Bohacheff and Bastian. After the State raised the issue, the circuit court said, “That was on my radar[] as well.” That is, had the State not requested the circuit court to dismiss the charge, the circuit court, following the precedents of Bohacheff and Bastian, would have dismissed the charge and guilty verdict sua sponte.
¶77 Still, our precedents may not be “abandoned lightly.” Outagamie Cnty. Bd. of Adjustment, 244 Wis. 2d 613, ¶29 (citing State v. Stevens, 181 Wis. 2d 410, 441, 511 N.W.2d 591 (1994) (Abrahamson, J., concurring)). We require a “‘special justification‘” to overturn the precedents of this court. Johnson Controls, 264 Wis. 2d 60, ¶94 (quoting Schultz, 257 Wis. 2d 19, ¶37). In our prior cases, we have identified and applied five special justifications:
(1) changes or developments in the law that undermine the rationale behind a decision; (2) the need to make a decision correspond to newly ascertained facts; (3) a showing that a decision has become detrimental to coherence and consistency in the law; (4) a showing that a decision is unsound in principle; and (5) a showing that a decision is unworkable in practice.
State v. Young, 2006 WI 98, ¶51 n.16, 294 Wis. 2d 1, 717 N.W.2d 729. “Any one of these special justifications is sufficient to justify overruling precedent.” State v. Johnson, 2023 WI 39, ¶20, 407 Wis. 2d 195, 990 N.W.2d 174 (citing State v. Roberson, 2019 WI 102, ¶50, 389 Wis. 2d 190, 935 N.W.2d 813). Decisions by the court of appeals, on the other hand, may be overruled without any special justification. Lira, 399 Wis. 2d 419, ¶45.
¶78 Bohacheff‘s statutory analysis is unsound in principle. Bohacheff is accordingly
¶79 As detailed previously, a fair reading of
¶80 Bohacheff‘s holding that there shall be a single conviction “for all purposes,” 114 Wis. 2d at 412, is at war with
¶81 In addition to ignoring the canon of expressio unius, Bohacheff‘s holding renders the language specifying the purposes for which there will be only one conviction completely superfluous. If there may be only one conviction following multiple guilty verdicts, the words “for purposes of sentencing and for purposes of counting convictions under
¶82 Other pieces of statutory context further evidence that Bohacheff‘s reading of the statutory language is untenable. The last sentence of
“each require proof of a fact for conviction which the others do not require.” As the court in Bohacheff noted, this language derives from the United States Supreme Court‘s decision in Blockburger 284 U.S. 299, “which sets forth the ‘additional fact’ or ‘additional element’ test used to determine whether two statutory provisions constitute the ‘same offense’ for imposition of multiple punishments.” 114 Wis. 2d at 411. But the court in Bohacheff failed to fully appreciate the implications of this sentence. It shows the legislature contemplated that there would be multiple convictions if a trial concluded with multiple guilty verdicts. The sentence is otherwise entirely inexplicable. Under Bohacheff‘s reading of the statute, the sentence appears to serve no purpose, contrary our traditional rules of statutory interpretation.
¶83 The reading adopted by the court in Bohacheff also sits in significant tension with
¶84 In defending its interpretation of the statutory text, the Bohacheff court erroneously invoked the rule of lenity. 114 Wis. 2d at 417. “The rule of lenity provides that when doubt exists as to the meaning of a criminal statute, ‘a court should apply the rule of lenity and interpret the statute in favor of the accused.‘” State v. Guarnero, 2015 WI 72, ¶26, 363 Wis. 2d 857, 867 N.W.2d 400 (quoting State v. Cole, 2003 WI 59, ¶13, 262 Wis. 2d 167, 663 N.W.2d 700); SCALIA & GARNER, supra, at 296 (“Ambiguity in a statute defining a crime or imposing a penalty should be resolved in the defendant‘s favor.“). The rule of lenity, however, “rarely comes into play.” Shular v. United States, 589 U.S. 154, 167 (2020) (Kavanaugh, J., concurring); State v. Kizer, 2022 WI 58, ¶43, 403 Wis. 2d 142, 976 N.W.2d 356 (Rebecca Grassl Bradley, J., concurring) (observing the same).11 It “comes into operation at the end of the process of construing what [the legislature] has expressed, not at the beginning as an overriding consideration of being lenient to wrongdoers.” Callanan v. United States, 364 U.S. 587, 596 (1961); State v. Pal, 2017 WI 44, ¶28, 374 Wis. 2d 759, 893 N.W.2d 848.
Accordingly, the rule of lenity “‘applies only when, after consulting traditional canons of statutory construction, we are left with an ambiguous statute.‘” Shular, 589 U.S. at 165 (quoting United States v. Shabani, 513 U.S. 10, 17 (1994)); Muscarello v. United States, 524 U.S. 125, 138 (1998); Lockhart v. United States, 577 U.S. 347, 361 (2016); Pulsifer v. United States, 601 U.S. 124, 152–53 (2024). “Lenity thus serves only as an aid for resolving an ambiguity; it is not to be used to beget one.” Albernaz v. United States, 450 U.S. 333, 342 (1981). The Bohacheff court‘s invocation of the rule of lenity was improper because the statutory language it interpreted is unambiguous, rendering the rule of lenity “inapplicable.” State v. Rabe, 96 Wis. 2d 48, 70, 291 N.W.2d 809 (1980) (first citing United States v. Batchelder, 442 U.S. 114, 119–21 (1979); and then citing Austin v. State, 86 Wis. 2d 213, 223, 271 N.W.2d 668 (1978)); State v. Setagord, 211 Wis. 2d 397, 414–15, 565 N.W.2d 506 (1997) (stating the rule of lenity “only comes into play” if the statute at issue is ambiguous).
¶85 In deciding to overrule Bohacheff, we recognize that it is a decision of this court that previously and authoritatively interpreted the statutory language at issue in this case. Traditionally, this court has been more reluctant to overrule a prior decision of this court that authoritatively interpreted the words of a statute. Progressive N. Ins. Co., 281 Wis. 2d 300, ¶45; Reyes Fuerte, 378 Wis. 2d 504, ¶18; Friedlander, 385 Wis. 2d 633, ¶18. Stare decisis “concerns are paramount” in such cases because the legislature can, at any time, correct this court‘s misinterpretation through new legislation. Progressive N. Ins. Co., 281 Wis. 2d 300, ¶45 (citing Hilton, 502 U.S. at 202); Patterson v. McLean Credit Union, 491 U.S. 164, 172–73 (1989) (“Considerations of stare decisis have special force in the area of statutory interpretation, for here, unlike in the context of constitutional interpretation, the legislative power is implicated, and Congress remains free to alter what we have done.” (citations omitted)). But prior decisions of this court—even decisions that authoritatively interpreted a statutory text—are not immune from critical reassessment. See Patterson, 491 U.S. at 172 (stating “[o]ur precedents are not sacrosanct“). We are not required to endlessly adhere to an interpretation of a statute that is undeniably mistaken and “objectively wrong.” Wenke v. Gehl Co., 2004 WI 103, ¶21, 274 Wis. 2d 220, 682 N.W.2d 405 (citing State v. Douangmala, 2002 WI 62, ¶42, 253 Wis. 2d 173, 646 N.W.2d 1); Manitowoc County v. Samuel J.H., 2013 WI 68, ¶5 n.2, 349 Wis. 2d 202, 833 N.W.2d 109; State v. Braunschweig, 2018 WI 113, ¶11, 384 Wis. 2d 742, 921 N.W.2d 199; State v. Breitzman, 2017 WI 100, ¶5 n.4, 378 Wis. 2d 431, 904 N.W.2d 93; Michels v. Lyons, 2019 WI 57, ¶33 n.15, 387 Wis. 2d 1, 927 N.W.2d 486. The forgoing analysis demonstrates Bohacheff is such a decision. It is, therefore, overruled.
¶86 Bastian‘s dismiss-extra-counts rule adds words to the statute not found in its text. Nowhere in
¶87 Under a proper reading of
¶88 In this case, the State charged McAdory with operating a motor vehicle while he was under the influence of a controlled substance under
¶89 Because of Bohacheff and Bastian, the State requested the circuit court to dismiss the RCS charge and guilty verdict, and the circuit court did so. That is, the dismissal was not due to any defect in the charge or guilty verdict, but simply due to the misinterpretation of
B. FORFEITURE, COMPETENCY, & MCADORY I
¶90 McAdory makes a number of additional arguments for why it was improper for the circuit court to reinstate the RCS charge and guilty verdict. It is asserted that the State forfeited its ability to move the circuit court to reinstate the RCS charge and guilty verdict because the State failed to file a cross-appeal on the issue or raise reinstatement in its brief during McAdory‘s initial appeal in McAdory I. Both of these arguments miss the mark.
¶91 The State‘s right to appeal and cross-appeal is “purely statutory.” State v. Newman, 162 Wis. 2d 41, 46, 469 N.W.2d 394 (1991). Under
¶92 With the statutory scheme governing the State‘s ability to appeal and cross-appeal in mind, it is clear that the State was not required to cross-appeal the dismissal of the RCS charge and guilty verdict in McAdory I in order to preserve its ability to motion the circuit court to reinstate the RCS charge and guilty verdict. The State was the party that requested the circuit court to dismiss the RCS charge and guilty verdict in light of Bohacheff and Bastian. The judgment dismissing the RCS charge and guilty verdict, therefore, was not “adverse to the state.”
¶93 If the State did not need to file a cross-appeal, McAdory insists that the State needed to at least raise reinstating the RCS charge and guilty verdict in its brief in McAdory I. We are told the State should have raised the argument “as a means to sustain the judgment of conviction.” We cannot agree with this argument. The State did not need to raise the reinstatement of the RCS charge and guilty verdict in its brief in McAdory I.
¶94 In his initial appeal in McAdory I, McAdory sought to have the judgment of conviction for the OWI charge vacated. It is unclear how the then-dismissed RCS charge and guilty verdict would have been relevant in McAdory I. See McAdory II, 412 Wis. 2d 112, ¶37. The reinstatement of the RCS charge and guilty verdict is simply not a means by which the court of appeals could have sustained the judgment of conviction for the OWI charge. They are different offenses, and a guilty verdict for one cannot support
¶95 Next, McAdory suggests that the circuit court lacked competency14 to reinstate the RCS charge and guilty verdict because such action conflicted with the court of appeals’ mandate in McAdory I. The court of appeals, it is argued, mandated a second trial on the OWI charge, which never took place. See McAdory I, 400 Wis. 2d 215, ¶71 (“For all of these reasons, we conclude that there was sufficient evidence to support the conviction for a violation of
¶96 We believe the court of appeals itself in McAdory II ably dispensed with these
necessarily a paragon of clarity. But the court of appeals has the authority to determine the meaning of its prior mandates, and we are loath to disagree with the court of appeals’ interpretation of one of its own mandates. Cf. id., ¶22.17 We will not do so in this case. We adopt the reasoning of the court of appeals and provide the court of appeals’ discussion of these arguments below:
[T]he circuit court did not disregard or take any action inconsistent with any statement that we made or implied in McAdory [I], including the opinion‘s mandate, and the circuit court was not obligated to hold a second trial on the OWI count under these circumstances.
Our mandate in McAdory [I] reversed the judgment of conviction on the OWI count and remanded the case to the circuit court. See [McAdory I, 400 Wis. 2d 215, ¶71]. We decided that a new trial on the OWI count would be the next step regarding that count. Id., ¶¶2, 71. Of course, under the law of the case doctrine the parties could not relitigate the issues that were resolved in our opinion. See Laatsch v. Derzon, 2018 WI App 10, ¶40, 380 Wis. 2d 108, 908 N.W.2d 471 (“‘[A] decision on a legal issue by an appellate court establishes the law of the case, which must be followed in all subsequent proceedings in the trial court or on later appeal.‘” (alteration in Laatsch; quoted source omitted)). But our opinion had nothing to say regarding any motions that either side might file after remittitur. We certainly did not direct that the circuit court was obligated to schedule a trial on the OWI count even if, as would come to pass, the State moved to dismiss that count.
McAdory calls our attention to
WIS. STAT. § 808.09 , which governs the actions that an appellate court may take on appeal, and toWIS. STAT. § 808.08 , which governs post-appeal proceedings in the circuit court following its receipt of the record and remittitur. But we see nothing in these provisions to support McAdory‘s
argument. Consistent with
McAdory II, 412 Wis. 2d 112, ¶¶23–25.
C. DOUBLE JEOPARDY
¶97 Finally, McAdory contends that the reinstatement of the RCS charge and guilty verdict violated his right to be free from double jeopardy. The Fifth Amendment provides that “[n]o person shall be . . . subject for the same offence to be twice put in jeopardy of life or limb[.]”
¶98 The first question is whether jeopardy attached to the OWI and RCS charges because if jeopardy did not attach, the Double Jeopardy Clause could not be implicated in this case. It is well established that once the jury is empaneled and sworn in, jeopardy attaches. Martinez v. Illinois, 572 U.S. 833, 839–41 (2014) (per curiam). No party in this case casts doubt on the fact that jeopardy attached to the OWI and RCS charges. The jury was empaneled and sworn in, and it went on to find McAdory guilty of both charges. Accordingly, jeopardy attached to both charges.
¶99 The United States Supreme Court has identified three protections provided by the Double Jeopardy Clause. “It protects against a second prosecution for the same offense after acquittal. It protects against a second prosecution for the same offense after conviction. And it protects against multiple punishments for the same offense.” North Carolina v. Pearce, 395 U.S. 711, 717 (1969) (footnotes omitted).
¶100 McAdory appears to concede that the first protection of the Double Jeopardy Clause—to be free from a second prosecution for the same offense after acquittal—is inapplicable in this case. He instead argues that the two other protections are implicated by the reinstatement of the RCS charge and guilty verdict. We agree that the first protection is inapplicable. McAdory was never acquitted of either the OWI charge or RCS charge. See McElrath v. Georgia, 601 U.S. 87, 94 (2024) (discussing the meaning of the term “acquittal” in the context of the Double Jeopardy Clause). We disagree, however, that the two other protections are applicable.
¶101 McAdory suggests that the reinstatement of the RCS charge and guilty verdict itself subjected him to a second prosecution for the same offense. We disagree. In this case, no second prosecution for the RCS offense arising from the events of January 5, 2016, occurred. Rather, the circuit court reinstated a guilty verdict already rendered by a jury following the court of appeals’ decision in McAdory I, which vacated the judgment of conviction for the OWI charge. Under these circumstances, we find no violation of the Double Jeopardy Clause. See United States v. Wilson, 420 U.S. 332, 344–45 (1975); Rutledge v. United States, 230 F.3d 1041, 1047 n.3 (7th Cir. 2000) (“[T]he Double Jeopardy Clause does not bar reinstatement of a conviction on a charge for which a jury returned a guilty verdict.” (citation omitted)); Taflinger v. State, 698 N.E.2d 325, 328 (Ind. Ct. App. 1998) (same).
¶102 Next, McAdory argues that the circuit court violated his right to be free from a second prosecution for the same offense after a conviction on that offense because the circuit court appeared to be willing to hold a new trial for the OWI charge after reinstating the RCS charge and guilty verdict. According to McAdory,
¶103 Additionally, McAdory contends that he was subjected to multiple punishments for the same offense. When McAdory was sentenced after the OWI and RCS charges were, in McAdory‘s words, “swapped,”
¶104 While both of these arguments have various problems individually,21 they share a critical flaw: At no point does McAdory argue that an
OWI offense under
¶105 Lastly, McAdory argues that the State “induced” him “to expect that he would not be further prosecuted or punished for the RCS offense” after the RCS charge and guilty verdict were dismissed. Reinstatement of the RCS charge and guilty verdict, he contends, violated “the constitutional requirement of finality in criminal litigation.” To provide support for his inducement theory, McAdory points us to quotations from United States Supreme Court cases that state the Double Jeopardy Clause “serves ‘a constitutional policy of finality for the defendant‘s benefit[,]‘” Brown, 432 U.S. at 165 (quoting United States v. Jorn, 400 U.S. 470, 479 (1971) (plurality opinion)), and “‘guarantees that the State shall not be permitted to make repeated attempts to convict the accused, thereby
subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity,” Blueford v. Arkansas, 566 U.S. 599, 605 (2012) (quoting United States v. Martin Linen Supply Co., 430 U.S. 564, 569 (1977)).
¶106 We fail to see a Double Jeopardy Clause violation on this basis. Although McAdory claims he was induced to believe that a judgment of conviction for the RCS charge would never be entered against him, he does not explain why his assertion of an induced expectation of finality amounts to a violation of the Double Jeopardy Clause. Nor does he cite relevant authority to support his inducement theory. The quotations he musters to support his position merely state the general purposes and interests the Double Jeopardy Clause serve. As the State rightly observes, his argument appears to confuse the purposes and interests the Double Jeopardy Clause serve with the protections the Double Jeopardy Clause actually provides. Because McAdory fails to advance an argument grounded in the protections provided by Double Jeopardy Clause or provide relevant support for his inducement theory, his argument must be rejected.
¶107 In sum, we see no merit to McAdory‘s arguments that the Double Jeopardy Clause barred the circuit court from reinstating the RCS charge and guilty verdict and entering the judgment against him for that offense.23
¶108 Before this court, McAdory makes the following arguments. The circuit court lacked authority to reinstate the RCS charge and guilty verdict. The State forfeited its ability to request the reinstatement of the RCS charge and guilty verdict during McAdory‘s initial appeal in McAdory I by failing to file a cross-appeal or raise the issue in its brief before the court of appeals in McAdory I. The circuit court lacked competency to reinstate the charge and guilty verdict.
The circuit court‘s decision to reinstate the RCS charge and guilty verdict violated the court of appeals’ mandate in McAdory I and McAdory‘s right to be free from double jeopardy.
¶109 We disagree. We find no error in the circuit court‘s decision to reinstate the RCS charge and guilty verdict. Under a proper reading of
¶110 The State did not forfeit its ability to request the reinstatement of the RCS charge and guilty verdict by failing to file a cross-appeal or raise the issue in its brief before the court of appeals in McAdory I. The State was not required to cross-appeal the judgment dismissing the RCS charge and guilty verdict because it was the State itself that requested the circuit court to dismiss the charge and guilty verdict. See
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¶111 For the foregoing reasons, I concur in the judgment.