State v. Davison

Plaintiff-Respondent- Wisconsin, State Petitioner, v. Defendant-Appellant. Jimmie Davison, Supreme Court 4, 2002. Decided December argument Oral 01-0826-CR. No. July 2003 WI 1.) (Also in 666 N.W.2d reported the cause For the plaintiff-respondent-petitioner Welsh, attorney assistant was Diane M. argued Doyle, was James E. with whom on the briefs general, attorney general. defendant-appellant

For the a there was brief and argument by Findley, Appeals oral A. Keith Criminal Project, University School, of Law Wisconsin Madison. PROSSER, T. J. DAVID This is a review of published appeals, decision the court of State v. App Davison, 2002 WI 2dWis. 647 N.W.2d judgment 390, which reversed the of the Kenosha County following Court, Circuit Jimmie Davison's (Davison) negotiated guilty plea aggra to one count of battery, special vated one count circumstances bat tery (battery by prisoner), one and count of threats to injure, repeater. appeals all as a The court of concluded aggravated battery battery by prisoner that punishments and multiplicitous,

were in violation of jeopardy rights Davison's double under the United Id., ¶ States and Wisconsin Constitutions. presented

¶ 2. Two issues are for First, review. pleads guilty does a criminal defendant who to several negotiated plea agreement right crimes in a waive the multiplicity against resulting to raise a claim one of the Second, convictions? did the circuit court err in enter- ing judgment aggra- of conviction for one count of battery by prisoner vated and one count of on specifically, legisla- facts this case? More did the 939.66(2m) (1999-2000)1 § ture intend in Wis. Stat. prohibit aggravated battery conviction for both under 940.19(6) § battery by prisoner Wis. Stat. under 940.20(1) § prosecution single Wis. Stat. in the of a act? clearly ¶ 3. We hold that the did not 939.66(2m) § intend in to bar convictions both 939.19(6) aggravated battery by under 940.20(1) prisoner single prosecution under in a aris- subsequent All references to the Wisconsin Statutes are to the 1999-2000 volumes unless otherwise indicated.

ing single language out of a act. When the broad 939.66(2m) considering context, full viewed its legislative history its as well as the different harms by battery statutes, addressed different we conclude 939.66(2m) specific was intended to address problems pertaining to and not 940.19 intended to prohibit punishments cumulative from un- convictions der the two statutes. aggravated

¶ 4. Davison's convictions both battery by prisoner conformity and inwere with legislative intent and thus did not violate due his process right against multiplicitous punishments. Be- objection multiplicity cause we conclude that Davison's merits, whether, fails on the pleading guilty, we decline to decide right he waived his to raise this claim. I. FACTS AND PROCEDURAL HISTORY are taken facts this case from the complaint. criminal In 1997, Jimmie Davison was an serving Center, inmate at the Kenosha Correctional 12-year first-degree During sentence for sexual assault. day, assigned program he to a work release at a was 11, 1997, farm in Davison Franksville. On November arranged him for his wife to meet for lunch at his work grounds site. When Mrs. Davison arrived at the about got noon, into her car and instructed her to Davison park drive to a remote area of the farm and inside an shed-type building. pushed there, isolated Once he his began making advances, food aside and sexual which rejected. Mrs. Davison very angry when his wife 6. Davison became away. grabbed

drew He her around the neck with both pulling hands, her face close to his. For the next 45 intermittently so, her, choked at- minutes or Davison up tempted grope pulled her, dress, her to kiss or him. Mrs. Davison screamed at her when she resisted "really hurting" her and later told told him that he was police going was to kill that she felt sure that Davison car, free and fled from the Davison her. she broke When caught and car. her and forced her back into the shed had a hard time He continued to choke her. She said she breathing her neck afraid Davison would break was jaw tight. grip Later, witnesses or because his was so on Mrs. Davison's saw evidence of black and blue marks bleeding scratches, and around her bruises, arm and of neck. p.m., approximately Mrs. Davison 7. At 1:00 persuade her husband that he would be

was able to got lunch, if he late from and he drove the trouble back exiting car, car to the area. Before back work violently punched suddenly, the left however, Davison eye head. had a black side of Mrs. Davison's approximately She physician A later noted two weeks. eye, and tenderness around her as well as bruises handprints around both of Mrs. Davison's ears and jaw. under her police

¶ 8. Mrs. Davison told that one reason she agreed had visited her husband was that he to divorce got prison promised fight he had as soon as out but way" if he incarcer- her "all the she filed while was still occasion, him on a ated. When she visited second February 1998, children, with their two Davison bluntly kill if He threatened to her she filed for divorce. plan declared that he had "set a motion" to have her days up three if she tried to break their killed within family. County 1998, the Kenosha Dis- 9. On June Attorney's complaint criminal

trict ing Office filed a recit- charging and Davison with one count these facts kidnapping,2 imprisonment,3 aggra- each of false § 940.19(6),4 vated under Stat. all Wis. as a 939.62(l)(b). § repeater charges under Wis. Stat. These 11, 1997, related to the November In addi- incidents. complaint tion, the contained one count of threats to 943.30(1), § injure repeater, under Wis. Stat. as based separate February 8, 1998, on the incident. After Davi- preliminary hearing, prosecutor son waived his (battery special a count of added circumstances 940.20(1),5 § by prisoner) repeater, under Wis. Stat. aas to the information. This additional count was based on the events of November 11. response count, to the added Davison claiming battery charges

filed a motion two 939.66(2m)6 § multiplicitous were under Wis. Stat. prohibition against violated the constitutional double 2 Contrary § Stat. 940.31. 3 Contrary § to Wis. Stat. 940.30. 940.19(6) provides Stat. por Wisconsin the relevant bodily intentionally tion: 'Whoever causes harm to another great bodily conduct that creates a substantial risk of harm is guilty felony." of a Class D 940.20(1) provided, Wisconsin Stat. at the times relevant "Battery by prisoners. Any

to this case: prisoner confined to a state, prison county municipal state or other or detention officer, facility intentionally bodily harm who causes to an employee, prison visitor or another inmate of such or institu tion, consent, guilty felony." his or her D without of a Class 940.20(1). Wis. Stat. 939.66(2m) provides: Wisconsin Stat. permitted. Upon prosecution Conviction of included crime for a crime, may charged the actor be convicted of either the crime or an crime, may any An

included but not both. included crime be of the following: County hearing, jeopardy. Circuit After a Kenosha Judge motion, denied Davison's David M. Bastianelli multiplicitous finding charges, not or that the were jeopardy. of double violation negotiated entered a Thereafter, 11. Davison plead guilty aggravated

plea, agreeing as a to to repeater, repeater, battery prisoner as a and threat- injure repeater. part, ening For its the State to as charges kidnap- agreed for dismiss, read-in, but to imprisonment repeater. repeater ping as a as a and false any provision plea bargain incorporate did not multiplicity forbidding making a or Davison from jeopardy appeal. claim on double guilty plea, accepting the circuit 12. After years prison for court sentenced Davison to six battery, years consecutively aggravated to five be served years battery by prisoner, to and another five be injure. consecutively Davison for the threats to served During briefing stage appeal, appealed. he his complained appointed failed ad- that his counsel to respond inquiries. equately him and consult with his granted appeals motion The court of Davison's counsel's public appoint defender to withdraw, directed the granted filing additional time for counsel, new and then appeal. postconviction and motion early filed a 2001 Davison's new counsel reasserting multiplicity postconviction motion jeopardy claim, other double as well as claims again appeal. denied relevant to this The circuit court jeopardy finding multiplicity claim, that, double (2m) equally type A or serious crime which is a less serious charged. than the one might while the claim merit, have the issue had been guilty plea. again ap- waived Davison's Davison pealed. reversing

¶ 14. court, the circuit the court of appeals rejected the State's contention that Davison multiplicity by pleading guilty had waived his claim charges. Davison, 715, 2dWis. 13. The court being characterized Davison's claim as one of double jeopardy jeopardy and observed that double claims are governed by guilty plea Id., ¶ waiver rule. aggravated battery The court also concluded that, while battery by prisoner are offenses that are different 939.66(2m) applies in law, to all statutes, including those Id., ¶¶ outside of 18, 940.19. Therefore, said, the court Davison could not be con 940.19(6) § 940.20(1), victed of both and the court appropriate remanded the case to determine the rem edy under Robinson, State v. 9, 2002 WI 249 Wis. 2d petitioned 553, Id., ¶ 638 N.W.2d564. 25. The State granted. review, which we

II. STANDARD OF REVIEW presents questions 15. This case several of law. right Whether an individual's constitutional to be free jeopardy question from double has been violated is a law that this court reviews Anderson, de novo. State v. (1998). 739, 746, Wis. 2d 580 N.W.2d329 Whether a multiplicity given violation exists in a case, which requires legislative a determination of intent, is a question subject independent appellate of law review. Multaler, See State v. 52, 2002 WI 252 Wis. 2d 643 N.W.2d437. ANALYSIS

III. CONSTITUTIONAL Jeopardy A. Double analysis of the clarification

¶ seeks State including multiplicity employed a dis- claims, in to be relationship jeopardy. multiplicity's to double of cussion Twenty years then-justice ago, opinion Abra- in an that: observed hamson, this court guarantee constitutional Although the federal it is antiquity," in jeopardy has "its roots against double Bill of the of provisions understood ... of the least "one Supreme holdings of the United States Rights" and of consis characterized as models "hardly can be Court States, 445 U.S. clarity." Whalen v. United tency and (1980) See J., dissenting). (Rehnquist, 684, 699-700 Theory Toward a General Drubel, also Westen and 81, Supreme Court Review Jeopardy, Double 1978 The 402, 406-07, 2d 338 N.W.2d 114 Wis. Bohacheff, State v. (1983). years, ensuing this court has In the 466 apply proper principles repeatedly with wrestled jeopardy.7 multiplicity and double to claims Amendment to the United States 17. The Fifth any person part: be in "nor shall reads Constitution jeopardy put subject in offence to be for the same twice 8(1) § I, of the Wisconsin life or limb." Article person provides part that "no Constitution jeopardy punish- may put be twice same offense ment ... ."

7 Sauceda, 486, v. 2d 493 see State 168 Wis. example, For majority n.10, (1992), compare n.8, 496 485 N.W.2d dissenting opinion of then- with the opinion of Justice Callow (Abrahamson, J., Abrahamson, 168 Wis. 2d at 501-508 Justice dissenting). provisions 18. Our tradition is to view these as scope purpose. Day

identical in State, v. 2dWis. (1977). Consequently, 588, 591, 251 N.W.2d 811 this accepts Supreme court decisions of the United States controlling interpretations Court as jeop of the double ardy provisions of both Lechner, constitutions. State v. (1998) 392, 217 Wis. 2d (citing n.5, 576 N.W.2d912 Day, 76 Wis. 2d at Calhoun, and State v. 67 Wis. 2d (1975)); 204, 220, 226 N.W.2d 504 see also State v. Tappa, (1985) 127 Wis. 2d 161, 378 N.W.2d 883 cases). (citing Supreme 19. The United States Court has Jeopardy provides

stated that the Double separate protections. Clause three protects against pros "It a second acquittal. protects ecution for the same after It offense against prosecution a second for the same after offense protects against multiple punish conviction. And it ments for the same Pearce, North Carolina v. offense."8 (1969) added). (emphasis 711, 395 U.S. 717 sum This mary quoted paraphrased many by has been or times apply person this court.9 It does not to cases in which a put "jeopardy" person was never in or in which the is properly subject to retrial. 8 To support statement, this Supreme the Court cited Ex

parte Lange, Benz, (1873); 18 United States v. Wall. 163 282 U.S. 304, Sacco, United States v. (1931); (2d 307 367 F.2d 368 Cir. Adams, 1966); (6th United States v. 1966); 362 F.2d 210 Cir. States, (9th Kennedy v. United 1964). 330 F.2d 26 Cir. Each of these five cases involves a second sentence or an amended sentence imposed after a first sentence was vacated or cor rected. 9 See, Trawitzki, e.g., State v. 77, 20, 2001 WI 244 Wis. 2d ¶ 523, 801; Derango, State v. 628 N.W.2d 89, 26, 2000 WI 236

157 analytical framework, the first this Under prosecution." protections The involve "a second two prosecution. protection single All three third protections involves a implicate "the offense." same years, struggled have courts with Over concept The in seminal case of "the same offense." Blockburger regard States, U.S. 299 v. United 284 this (1932). Blockburger charged was with five offenses drugs. jury guilty unlawfully selling A found him charges three. The variations on two sales three were particular drug purchaser. The had a to the same Court concluding difficulty made that sales on consecutive no days single "single did "a offense" or a not constitute continuing Blockburger, 284 at 301-03.10 offense." U.S. pointed separate case, In this the Court facet of distinguish the Two were acts to offenses. offenses committed. significant purposes,

¶ 22. for our the Court More defendant, claim "that addressed second made having [one] charged in made not the sale count as been original stamped package, and from the the same sale [charged having count] made not a second as been pursuance purchaser, of a written order of constitute single penalty lawfully only but one which offensefor added). may imposed." (emphasis at be Id. 301 court addressed this second claim as follows: requires proof

Each the offenses of a created Sauceda, 833; 486, 2d v. 2d 613 N.W.2d State 168 Wis. Rabe, (1992); 48, 64, 485 N.W.2d State v. Wis. 2d (1980). N.W.2d 10The "[T]he Court stated: first sale had been consum mated, payment drug, and for the additional however the closely separate the and distinct following, was initiation of States, delivery." 284 completed by Blockburger its v. United sale (1932). 299, U.S. 301 applicable different element. The rule is that where the act or transaction constitutes a same violation of two statutory provisions, applied distinct the test to be one, only determine whether there are two offenses or provision requires proof is whether each aof fact which States, the other does not. Gavieres v. United 220 U.S. [1911], and authorities cited. In that case this quoted court from and adopted language the of the Supreme Morey Court of Massachusetts in v. Common- wealth, single may [1871]: 108 Mass. 433 "A act be an against statutes; if offense two each statute re- quires proof of an additional fact the which other does not, acquittal an or conviction under either statute does exempt not the prosecution pun- defendant from Applying test, ishment under the other." ... we here, although must conclude that both sections were sale, by violated the one two offenses were committed. case,

Id. at 304. For this facet of second there was only act, one statutes, but it violated two each of which required proof of a different element. Blockburger

¶ 23. There is no reference in to the Jeopardy Double Clause of the Fifth Amendment. jeopardy" any There is no direct reference to "double in punishment." context, or to "cumulative Court subject penalty observed that "each offense is to the prescribed; remedy if harsh, and that be too must be by judicial Congress, legislation afforded act of guise Blockburger, under the of construction." 284 U.S. opinion at However, cites Gavieres v. United (1911), States, 220 U.S. 338 which involved a 1902 Act Congress person, offense, that read: same "No put jeopardy punishment." shall be twice Id. at 341 (citing Congress July 1, 1902, section 5 of the Act of 691). Stat., addition, c the Court affirmed a Appeals, Blockburger decision of the Court of v. United (7th 1931), States, 50 F.2d 795 Cir. which the dissent- penalty ing judge "I think the section wrote: do not punishment contemplates double such the statute (Alschuler, J., Id. at 799 dissent- transaction." same ing). could not have been oblivious Thus, Court implications decision for future cases. of its only in test" articulated 24. The "elements frequently Blockburger to aid courts been used has determining charge "the same offense" for whether a is any protections purposes in the embodied Jeopardy Dixon, 509 United States v. Double Clause.11 (1993). Blockburger test 688, Because the U.S. 696 unsatisfactory produces results, however, it sometimes creating simply a rule of construction is "now seen as prescription Amar, Akhil Reed of sameness." rebuttable Jeopardy Simple, Yale L. Rev. Law Made 106 Double (1997) (citing States, v. United 471 1807, 1819 Garrett (1985); Johnson, 493, v. 467 U.S. 773, U.S. 778-79 Ohio (1984); Hunter, 359, 366-67 Missouri v. 459 U.S. 499 n.8 (1983)); States, 333, 450 U.S. see also Albernaz v. United (1981); States, 684, 445 691 Whalen v. United U.S. 337 (1980); States, 770, 420 U.S. 785 n.17 Iannelli v. United (1975). impact judicial The of a determination that Blockburger charge test

a appears is the same offense under the upon depend whether the to some extent single, charge prosecution" or in a comes a "second prosecution. Ohio, 161, 432 U.S. 165 first See Brown v. (1977); n.5; 114 2d at 407 Peter Westen Bohacheff,

11 States, (1996), Rutledge U.S. v. United century we have determined Court stated: "For over half for the 'same punished whether a defendant has been twice Blockburger the rule forth in v. United by applying offense' set (1932)." States, Blockburger 284 U.S. test used involving successive also to determine "sameness" for situations (1977). Ohio, 161, 168 prosecutions. Brown v. 432 U.S. Theory Drubel, & Richard Toward a General Double Jeopardy, Supreme in 1978 The Court Review 121 n.188 1979). Casper (Philip eds., B. Kurland & Gerhard distinguish It important here between the consti- multiple punishment tutional standards for and the multiple prosecution. Although distinct standards for a Blockburger operates nothing Rule as more than a presumption purposes pun- rebuttable for multiple ishment, may it rigid applica- have stricter and more in the of multiple prosecution. tion context supra, Drubel, 121-22 Westen & at n.188. The Court appears prosecuting less tolerant of in same offense prosecution. a second single If the same in 26. offense is involved

prosecution, we look to whether the same offense is (1) (2) part challenge, of: a "second sentence" a unit-of- (3) prosecution challenge, punishments or a cumulative challenge, present Whalen, as we have case. See (describ- (Rehnquist, dissenting) J., 445 U.S. at 702-705 ing "multiple punishment" prece- the three "strands" of dent) cases). (citing discussing "punishment,"

¶ 27. Before it should be Supreme noted that the Court said that the Double has Jeopardy prohibit Clause does not the State "from prosecuting multiple [a defendant] [ ] offenses in a single prosecution," even situations where it could impose punishments cumulative for the same of- added). (emphasis Johnson, fense. 467 U.S. at 500 distinguishes prosecution overlapping Johnson case on charges punishment for the same offense from on those charges explains prosecu- for the same offense equal punishment. tion does not solely punish- Looking to cumulative then single prosecution imposed in a for the same

ments Jeopardy no more than offense, "the Clause does Double prescribing greater prevent sentencing from court punishment Missouri v. than the intended." (1983). Hunter, if the crimes are 459 U.S. "Even Blockburger, if it that a state the same under is evident punish- legislature intended to authorize cumulative inquiry Johnson, an ments, a court's is at end." U.S. States, n.8; v. United 471 U.S. at 499 see also Garrett (1985). 773, 779 Supreme above, As noted the United States jeopardy protections as

Court summarized the double including "multiple punishments for the same offense." proposition, Pearce, 395 U.S. at 717. For this the Court only imposed by involving cited cases a second sentence uncertainty developed Hence, the court. Id.12 has against punishments prohibition "multiple whether the the for the same offense" can be reconciled with Court's body legislative may approve conclusion that a cumu punishments offense, lative for the same even when the offense identical in law and fact.13 12 (1980) States, 684, See also Whalen v. United 445 U.S. 703 ("As J., (Rehnquist, dissenting) by subsequent is borne out cases, Jeopardy interpreted parte as in Ex Double Clause increasing Lange prevents sentencing a court from a offense, any particular statutory defendant's sentence for even though by the second sentence is within the limits set legislature.").

13 Justice Antonin Scalia has written that Double multiple prosecutions, multiple "not Jeopardy prohibits Clause Ranch, punishments." Dep't Revenue Mont. v. Kurth 511 (1994) (Scalia, J., 767, dissenting). He cited materials U.S. 798 leading by Congress Fifth Amendment approval to the of the

162 uncertainty, ¶ 30. To address this the Court's rule prohibiting "multiple punishments for the same of- involving fense" should be modified in cases simulta- neous convictions under more than one statute. We Supreme saying read the Court as that when a defen- dant is convicted under one more than statute for a single charges act or transaction and the constitute "the they same offense" because are identical in fact, law and Jeopardy prohibits pun- the Double Clause cumulative ishments from these convictions unless the relevant legislative body pun-

intended to authorize cumulative "question punishments imposed ishments. The whether upon court after defendant's criminal conviction charges unconstitutionally multiple are cannot be re- determining punishments Leg- solved without what Whalen, Branch islative has authorized." 445 U.S. at Jeopardy Double Clause does not itself legislature's power restrict a to make law. "Because the power prescribe substantive crimes and determine punishments legislature, is vested with the United Wiltberger, (1820), question 76, States v. 5 Wheat. Jeopardy punish- under the Double Clause whether Hess, United States ex rel. Marcus v. 1789, 317 U.S. 555-56 (1943) (Frankfurter, J., concurring), and In re Bradley, 318 U.S. (1943) (Stone, C.J., dissenting), parte to show that Ex Lange, (1873), protection against Wall. the source of the "multiple punishments offense," for the same should have been solely process grounds, thereby avoiding many decided on due Id. misinterpretation. decades of at 798-800. growing wrong

A sense that the Court has been on the track may explain explicit recognition legislative its intent over- multiple punishments rides for the same offense.

163 essentially legislative 'multiple' one of are is ments (citing Hunter, Johnson, 459 at 499 intent." 467 U.S. 366-68). U.S. at imposition

¶ that the sum, In we conclude punishments in a from different statutes cumulative single prosecution double for "the same offense"violates punishments jeopardy are not when the cumulative by legislature. Whalen, at See 445 U.S. intended Rutledge States, 292, United 517 U.S. 689; see also v. (1996). 297 specific in this situation "same offense" in and fact. The an offense identical law

should be imposition punishments authorized of cumulative not process violation, is a due not punishments jeopardy violation, when the do double spring offense. "The offense" is from the same same jeopardy. qua Trawitzki, State the sine non of double v. 523, 801; 77, 22, 244 Wis. 2d 628 N.W.2d 2001 WI Grayson, n.3, State v. 172 Wis. 2d 159 493 N.W.2d (1992). 23 Multiplicity

B. present a claim of "multi 34. The case involves plicity." Rabe, 48, 61, v. 96 2d 291 N.W.2d State (1980), 809 we stated: charged

Multiplicity arises where defendant single than one count for a offense. United more (5th Free, 1978); State v. States v. 574 F.2d Cir. (Ct. Dreske, 60, 74, App. 2d 276 N.W.2d 324 88 Wis. 1979). George, v. 69 Wis. 2d As we noted State (1975), charges imper are multiplicitous N.W.2d pro missible, they jeopardy the double because violate and federal constitutions. visions of the state repeated Id. at 815. The Rabe statements have been by Anderson, numerous times this court. See 219 Wis. Grayson, Tappa, 746; 2d at 159; 172 Wis. 2d at 127 Wis. attempted In cases, 2d at 161. recent the court has "multiplicity" categories. Derango, divide into v. State ¶89, 27, 2000 WI 721, 833; 236 Wis. 2d 613 N.W.2d Lechner, 392, 217 Wis. 2d 402 n.6.14 commentary multiplicity Some our on light quarter-century must be re-evaluated in of the last Supreme of United States Court decisions. We know Blockburger long ago explained that the court single may against act be an offense two statutes. Blockburger, 284 U.S. at 304. We have learned since Blockburger may give that "the same offense" rise to punishment, more than one conviction and if cumula- punishments by tive for the same offense are intended legislature. Rutledge, 517 U.S. at 303. This is the teaching Hunter, Johnson, and This Garrett. court acknowledged has heretofore as much. In Bohacheff, the court stated:

In recent cases the United Supreme States Court long legislative has held that as as the intent is clear the federal Constitution does bar the from even the crimes de- imposing multiple punishments if statutory provisions scribed the two under which two are the same offense. punishments imposed are 14 Derango, State v. 89, In 721, 236 WI Wis. 2d 833, the court "Multiplicity challenges N.W.2d stated: ... usu 1) ally single arise two different situations: when a course of charged conduct in multiple statutory counts of the same (the 2) cases), single offense 'continuous and offense' when encompasses criminal act the elements of more than one statutory distinct crime." 236 Wis. 2d added) (emphasis 2d at 409 n.7 114 Wis. Bohacheff, (1983), (citing Hunter, 459 U.S. 359 Missouri v. Gordon, 137, 330 N.W.2d564 2d State v. (1983)).15 legislative to authorize cumu short, intent identity punishments a total of law overrides lative Blockburger. a la fact significant understanding

¶ because is 36. This in if "are identical law court has said that offenses this multiplicitous charges in are violation fact, and the jeopardy and state clauses of the federal the double Anderson, 747; 2d see also 219 Wis. at constitutions." Trawitzki, Derango, ¶ 2d 21; 244 2d 236 Wis. usually Although true, ¶ it is at 30. this statement may legislature always have true, the not because punishments for the to authorize cumulative intended same offense. legislature intends In situations where the punishments for the same authorize cumulative say charges may longer are

offense, "multiplicitous" no that the we jeopardy. they double or that violate "multiplicitous" be limited to Use of the term should legislature in the has not authorized situations which punishments. multiple charges cumulative discussing multiplicity, a ref- addition, In in carefully, "charges" employed because erence to must be charge permissible count, one even if more than it is n.3, Tappa, 127 Wis. 2d See also State v. ("[T]he (1985) (Abrahamson, J., dissenting) United N.W.2d 883 dispositive that the issue in deter Supreme Court held States punishments on a mining may impose multiple a court whether statutory violating provisions trial for two single defendant offense) is they constitute the same (regardless of whether multiple punishments."). authorized whether may punish on more than one a defendant state Johnson, Bohacheff, at 500. 467 U.S. count. being charged with state the defendant instance, the operating a of an intoxicant while the influence under 940.25(1)(a) Stat. in violation of Wis. vehicle, (1981-82), having alcohol concentration of a blood operating a vehicle violation of Wis. more while .10 or 940.25(1)(b) (1981-82). 114 Wis. 2d at Bohacheff, Stat. com- a motion to dismiss the The defendant filed 404. plaint ground charging him under both on against jeopardy. protections double violated sections granted motion. Id. at 405. This court The circuit complaint concluding did not that the reversed, court subjected jeopardy the statutes double because violate punish- only and one one conviction the defendant to ruling was and is consistent with Id. This court's ment. Supreme subsequent decision in Johnson. Court itself as multi- did not describe 39. Bohacheff multiplicity although plicity it would have been case, punishments had been if unauthorized cumulative case By imposed. Rabe, 48, 2d did describe contrast, 96 Wis. charges upon multiplicity case, based as a itself charges involved four it not. Rabe alone, but was by under of a motor vehicle intoxicated use homicide persons an killed in statute, four were as the same by Id. at intoxication. the defendant's accident caused the four to consolidate filed a motion 52. The defendant grounds that the defendant's count on counts into one negligently driving single intoxi- vehicle while his act of charged multiple offenses. as could not be cated granted Id. at 52-53. the motion. court circuit vacating dismissal of circuit court's "multiplicity" adopted the counts, this court three employed cited United the defendant. We rhetoric (5th 1978), for Free, 1221, 1224 Cir. 574 F.2d States v. proposition multiplicity arises where the de- charged single fendant is in more than one count for a Rabe, offense. Free, Wis. 2d at 61. In the defendant "multiplicitous" claimed that his indictment was be- charged second-degree cause one count him with mur- charged unlawfully der and a second count him with conveying weapon designed to kill an inmate from place place in a federal correctional Free, institution. Blockburger 574 F.2d at 1224. The court used the test to making dismiss the defendant's claim as meritless, no jeopardy reference to double in its decision. Id. For its "multiplicity," definition of the Free court cited Gerber- (8th ding 1973), States, v. United 471 F.2d Cir. completely jeopardy. Free, another case silent on double 574 F.2d at 1224. Gerberding 41. Both Free and involved different

charges, multiple charge. counts of the same This made them similar to case, this but different from Rabe. general proposition, As a different elements of law distinguish one offense from another when different charged. distinguish statutes are Different facts one count charged from another when the counts are under the same statute.16

¶ 42. methodology There is an established reviewing multiplicity Trawitzki, claims. 244 Wis. 2d 21; Anderson, 219 Wis. 2d at 746; Lechner, Wis. 2d at 402-03. 16The Rabe Anderson cases may compared be with

State v. George, 92, 69 Wis. 2d (1975), 230 N.W.2d 253 to contrasting illustrate treatment multiple counts under the same statute.

168 ¶ court determines whether First, 43. using

charged and fact are identical law offenses ¶ Blockburger Trawitzki, 523, 21; 2d 244 Wis. test. Derango ¶ determined, If it is 721, 2d 29. 236 Wis. using in law and offenses are identical test, that the this legislative body presumption did is that the fact, the punish different offense under two the same intend "Accordingly, Whalen, where 445 U.S. at 692. statutes. statutory proscribe provisions offense,1 the 'same two punish- they cumulative are construed not to authorize contrary a clear indication ments in the absence of (emphasis added). legislative intent." Id. Blockburger Conversely, test ¶ if under charged fact, a in law or offenses are different legislature presumption did intend that the arises Derango, punishments. permit 236 Wis. See cumulative Sauceda, Lechner, 168 407; 217 Wis. 2d at 721, 30; 2d Kuntz, 2d v. 160 Wis. 496; 2d at State (1991). only presumption can be "This N.W.2d contrary." legislative intent to the clear rebutted Derango, Lechner, 2d at 217 Wis. 721, 30; 2d 236 Wis. (citing v. Missouri Kuntz, 2d at 755 407; 160 Wis. 340). Albernaz, U.S. at Hunter, 367; at 469 U.S. charged are not if the offenses Second, even fact, must still determine the court identical law multiple to be offenses intended whether the brought single Anderson, at 219 Wis. 2d as a count. See juncture, the defendant's however, it is this 746. At legislative cumula- intent that a clear to show burden punishments are not authorized. tive Applying principles

¶ these case, to this there dispute aggravated battery is no that the offense of is battery by prisoner. not identical in law to the offense of Consequently, dealing potential we are not with a jeopardy involving double violation "the same offense." punishments against The cumulative the defendant are "multiplicitous" legislature either, unless the did not multiple intend to authorize convictions and cumulative punishments battery the two on these If offenses facts. multiple did not intend to authorize punishments, convictions and cumulative Davison has legitimate process due claim. To evaluate claim, this legislative we must concentrate our focus on intent. IV LEGISLATIVE INTENT challenges "battery" 47. Davison one of his two multiplicity grounds, arguing convictions on that Wis. 939.66(2m) represents expression Stat. a clear of legislative punish- intent not to authorize cumulative ments in his situation. Wisconsin Stat. 939.66 reads in part as follows:

Conviction of permitted. Upon included crime pros- crime, may ecution for a the actor be convicted of either charged the crime crime, or an included but not both. An may any included crime following: be of the

(2m) A crime which is'a equally less serious or type battery serious charged. than the one aggravated 48. Davison notes that battery by prisoner are both D Class Thus, felonies. if penalty measured structure, each crime an battery."17 type result, he "equally As a serious 939.66(2m) "[a] argues, bars conviction Stat. type equally [an] . . . serious crime which is charged." one than the dispute of- that the two Davison does not pre- there is a Thus, in law. are not identical

fenses pun- permit sumption intended to the to be The critical issue for both offenses. ishments 939.66(2m) § rep- whether Wis. Stat. decided, then, is prohibit legislative cumulative a clear intent resents rebutting punishments the us, on the facts before contrary. presumption to the multiplic- legislative in a intent As we seek language stop

ity of the at the claim, the court does not analyze deter- four factors to Instead, we subsection. (1) statutory applicable legislative lan- intent: all mine (2) history legislative guage; of the and context the (3) proscribed conduct; and nature of the statute; (4) multiple punishment appropriateness of (citing Tappa, Grayson, 2d at 160 172 Wis. See conduct. 165).18 2d at 127 Wis.

17 way correct is the penalty to the structure Reference equally "less or serious." type a of crime is determining whether (1998) Lechner, 392, 410, 912 2d 576 N.W.2d State v. 217 Wis. Davis, 852, 857, 411 425 N.W.2d (citing State v. 144 Wis. 2d (1988)). this court's part became test first This four-factor State, 413, 422, Manson v. 2d 101 Wis.

jurisprudence (1981). Manson, confronted with were we N.W.2d 729 considering the challenge. Id. at 419. Before verdict unanimous a unanimous deprived that he was contention defendant's robbery the armed verdict, determined whether this court alter 943.32(1), offense with statute, § defined one Stat. independent offenses. being or two committed native means A. Statutory Language 51. Wisconsin Stat. 939.66 is the second of two

sections that under the appear heading of the "Rights Prosecution" in V of Subchapter Chapter 939. The first section, 939.65, Wis. Stat. is entitled "Prosecution under more than one section It permitted." provides that "if an act forms the basis for a crime punishable under more than one statutory provision, prosecution may proceed under or all any such provisions." Wis. 939.65(1). Stat. This section gives a green light charges, multiple which in multiple convic- may result tions, under different statutory provisions.19 Id. In discerning legislature's matter, intent on this adopted court previously four-factor test employed in United (9th Co., States v. UCO Oil 1976), F.2d 833 Cir. concluded that only there was one legislatively intended offense Manson, §in 943.32. 101 Wis. 2d at The test applied was first to a jeopardy challenge double State v. Bohacheff, 402, 410, 114 Wis. 2d (1983), 338 N.W.2d 466 and directly incorporated was into our multiplicity jurispru in Tappa, dence 127 Wis. 2d at 165. may The State multiple charges file leading to multiple convictions. The comment to Wis. Stat. explains 939.65 the purpose of the section as follows: may prosecution This section makes clear that there be under more than one example, person section for the same conduct. For a may prosecuted general be though under a section even there is a specific conduct, may section prosecuted which covers the or he be both; person may prosecuted

under attempt a be for an rather crime; completed than person may prosecuted the a be for a though may misdemeanor even some other section make his felony. conduct a pleading, This section states a purport rule of and does not multiple state the limitations on sentences for the same act or the multiple subsequent prosecutions limitations on convictions and may for the same act which be included in the constitutional § 939.66 of an speaks Wisconsin Stat. then crime": "included crime, may be prosecution for a the actor

Upon charged included of either the crime or an convicted may any of crime, but not both. An included crime be following: the

(1) require any fact proof a crime which does proved to those be for the crime in addition which must charged. (1) of the Blockburger codification test.

Subsection In this two offenses share case, the (1) elements: the defendant caused only bodily two (2) victim, the defendant intended to harm to the JI— harm to the victim. Wis bodily Compare cause To prove with JI —Criminal 1228.20 Criminal Wis must four prove the State elements battery by prisoner, (1) battery, namely that are not included in aggravated jeopardy rule. of the limitations which have been double For some 339.66, code, incorporated and 339.72. in the see sections 339.71 100, at 52. 1953 A.B. 940.19(6) (1) statutory are: of Wis. Stat. elements (2) victim; the the bodily harm to defen caused defendant (3) victim; bodily harm to the intended to cause dant great bodily conduct created a substantial risk of defendant's (4) her conduct

harm; knew his or defendant JI— great bodily harm. Wis a substantial risk of created statutory contrast, Stat. 1226. In elements Wis. Criminal (2) (1) 940.20(1) was prisoner; are: the defendant (3) intentionally bodily harm; the victim was defendant caused (4) bodily harm institution; the defendant caused a visitor to the (5) victim; knew the consent of and defendant without the victim a of knew that victim visitor the institution was bodily harm. JI —Criminal causing did consent to of Wis 1228. (2) prisoner;

the defendant was a the victim was a (3) visitor to the defendant's institution; the defendant bodily caused harm without the victim; consent of the (4) the defendant knew the victim was a visitor to the institution and knew that the victim did not con- causing bodily sent to the of harm. See Wis JI— prove aggravated battery Criminal 1228. To under § 940.19(6), prove the State must two elements that are (1) battery by prisoner, namely not included in great defendant's conduct created a substantial of risk (2) bodily harm; and the defendant knew his conduct great bodily created a substantial risk of harm. See Wis JI —Criminal 1226. The marked difference in the ele- clearly supports presump- ments of the two offenses legislature's permit tion that the intent was to cumula- punishments. tive provides 54. On the hand, other 939.66 also (2m)

subsection that an included crime includes "a equally crime type which is a less or serious serious of charged." than the one Battery by prisoner ¶ 55. ais crime. Wis. Stat. 940.20(1). Battery by prisoner arguably "type battery" "battery" statutory if refers to offenses as opposed physical acts.21 Battery by prisoner "equally is an serious

type battery" statutory because both offenses are D Lechner, Class felonies. 217 Wis. 2d at 410.

21 "type battery" If does statutory offenses, not refer to then all "types battery" would be covered Wis. Stat. § 941.19. language plain

¶ on the of the subsec- 58. Based normally legislature that the would conclude tion, one of not be convicted both that the defendant intended crimes. Supporting is fact that this conclusion the legislature in Wis. Stat. 939.66

the showed elsewhere (2m) narrowly than could write more subsection that it (2r) reads: instance, subsection it wanted to. For when type of under a less serious violation "Acrime which is added). charged." (Emphasis than the one s. 943.23 (2m), analysis an confines Unlike this subsection specific crime a See also subsection included to statute. (6c) ("A type of violation crime is a serious less charged."); than the subsection under s. 940.285 one ("A (6e) type a of violation crime that is serious less (7) charged."); than the one subsection under s. 940.295 ("The 940.11(2) specified crime when the crime s. 940.11(1)."). specified charged in s. is legislature has text also shows that 60. The charges overlapping repeatedly evinced a concern about battery. ad- 939.66, the In Stat. ("The (5) battery at- crime of in subsection dressed charged tempted battery sexual the crime is when mayhem robbery, or child, of a assault, sexual assault any attempt aggravated to or an commit ("A them.") (6) specified in s. crime and in subsection 940.285(2)(b)4. ['maltreatment' of vulnerable or 5. charged specified adults] in s. crime when the 940.19(2) (6) [subsections statute to bodily great bodily pertaining harm and substantial (2) (3) harm]."), 940.225(1), or or 940.30. supportive Finally, provided in- the court parallel

terpretation in a subsection. of the statute 939.66(2) multiple convic- addresses Wisconsin Stat. prohibits of "a crime conviction tions for homicide which is a less serious of criminal type homicide than Lechner,. the one charged." 217 Wis. 2d defendant no contest pled both reck- second-degree less homicide and homicide intoxicated use of a vehicle when charges both involved death of single The person. defendant that he argued could not be convicted twice for the killing person. same In rejecting claim, his the court stated:

[T]he legislature, enacting § Stat. 939.66(2), Wis. specifically has addressed the of multiple issue homi- cide for a causing convictions criminal act a single single death. Where a act of a defendant forms the basis for a crime punishable under than one statutory more 939.66(2) provision, § provides Wis. Stat. that a defen- dant may not be convicted for two criminal homicides if one is "a criminal type less serious of homicide." The defendant case argues this this that section "un- equivocally" legislature's evinces the intent to allow only one causing homicide conviction for the death of person. one reading plain A closer language of the 939.66(2), § however, Stat. just establishes the opposite. 939.66(2) plain language

The § of Wis. Stat. does prohibit not multiple homicide for killing convictions one person. It multiple only bars convictions when one of the homicide convictions is for a "less serious type" of Noticeably prohibitions absent homicide. the from of 939.66(2) § Wis. Stat. is a bar against multiple homicide convictions when homicides "equally are serious." added). Id. at 407-08 (emphasis on that, We went to explain since the legis- 939.66(2) lature enacted as a prohibition against multiple homicide convictions "limited but its applica- to tion situations where one homicide conviction is for less serious homicide, infer type we can a legislative multiple prohibit convictions when intent equally types of for serious is convicted defendant Id. at 408. homicide." legislature did not intend to inference that multiple "equally for serious" ho-

prohibit convictions statutory fact supported by micides is 939.66(2) immediately following Wis. Stat. provision crime is a prohibits multiple convictions when one "less equally type serious or serious battery." Wis. Stat. added). 939.66(2m) (emphasis [T]he ... multiple for a apparently intended to bar convictions battery, single regardless of the of the act seriousness offenses. at

Id. 408-09. helpful to Davison. Turn- 63. This rationale is legislative ing infer a head, Lechner on its "we can prohibit multiple convictions when the defen- intent" types battery. equally serious dant convicted solely rely short, forced to Davison is not (2m). The are the in subsection words but- on words prior analysis and case law. tressed textual dis- is, however, another side to the 65. There (2m) reading pute. of is A of 939.66 literal subsection general 939.65, of which inconsistent with the permits multiple intent charges for a under different statutes single may multiple It is act and result in convictions. in (1) set out subsection inconsistent with the test also (2m) narrowly unless construed. introductory sentence addition, the may apply § of be read to subsections 939.66

several only single charged a lesser-included to a offense and to charged the not is later submitted to offense that is but jury. 939.66 reads: Section crime, a

Upon may the actor be prosecution for the charged crime convicted of either or an included crime, may any but not both. An included crime be of following:

(1) A proof crime which does require any fact in addition to those which the crime proved must be charged.

(2m) A which crime is a less serious or equally than the battery serious type of charged. one added). (emphasis Wis. Stat. 939.66 plausible reading ¶ 67. This of the statute could inapplicable present make the statute to the case be- present cause, in the case, both statutes were charged. legislative history seen, As will be lends support interpretation to this of the statute. (2m) Alternatively,

¶ 68. if subsection is inter- preted apply charged uncharged to both crimes, single battery against single it limits a act a victim to only "battery" regardless one conviction, the circum- "battery" stances. The for this reason result is that all charges equally will be either "less serious or serious" to charged one of the offenses. There will never be a "more battery charge simultaneously serious" that could be prosecuted. police illustrate, To if a officer visited prisoner correctional institution interview and the prisoner police causing great bodily attacked officer prisoner charged only harm, could be with one any adopt statute, offense under we if (2m). interpretation defendant's There is reason to ponder whether the intended such a result. plain language

¶ interpretation 69. The of subsec- (2m) plain tion language is also inconsistent with the (6). (6) explicitly exempts simple subsection Subsection of a simulta- 940.19(1), prohibition from battery, un- of maltreatment and conviction neous prosecution (2m) 940.285(2)(b)4. interpreted If is subsection §§ der serious bat- "types of equally conviction to preclude (6) rendered mean- in is subsection exemption tery," ingless. above, "type the phrase in As noted depend- interpretations, to different subject is

battery" or offense statutory refers to a "battery" on whether ing to refer battery" "type act. If one interprets a physical and state of mind affected the actor's by the "act" as to then those injury, resulting of the the seriousness §in 941.19. only elements are discussed argu- textual the State makes two Finally, (2m) notes that subsection First, the State ments. 'battery.'" of the "unadorned appellation simply speaks "battery" the word 940.19 is only It adds that who commit to the referring persons without applied whom the the persons against or contends, reasonable Therefore, the State committed.22 impose punishments statutes The other Wisconsin Stat. are Wis. special circumstances battery committed child; battery to substantial (Battery to an unborn §§ 940.195 child), an unborn child; battery to aggravated an unborn 940.20(lm) injunctions), certain subject to (Battery persons 940.20(2) firefighters), and officers (Battery to law enforcement 940.20(2m) supervision probation, extended (Battery to 940.20(3) (Battery to agents), aftercare agents and parole 940.20(5) 940.20(4) (Battery officers), (Battery public to jurors), and em officers college district or school district technical to 940.20(6) operator, transit vehicle (Battery public to ployees), 940.20(7) emergency (Battery passenger), or driver bat addition, particularized other providers). care medical (Battery or threat to §§ Stat. 940.201 tery offenses include Wis. (Bat judge), 940.205 witnesses), (Battery or threat to 940.203 and 940.207 employee), of revenue department tery or threat 939.66(2m) § "battery" doubt exists whether the word in apply special was intended to to the circumstances § batteries created of outside 940.19. questions Second, the State § whether it is 939.66(2m) apply specific battery

reasonable to to the provisions relating to named actors or victims and to battery provisions Chapter given other similar purpose specialized the fact that the of these statutes is penalties committing general to enhance the for § questionable under 940.19. The interaction of argues, ambiguity statutes, the State creates as to the 939.66(2m). legislature's § scope intended severity ¶ 73. Under 940.19, the of the different by offenses is measured the actor's intent and the injury seriousness of the victim. suffered These wholly special are factors from absent circum- §§ stances batteries 940.20, 940.201, 940.203, special 940.205, and 940.207—offenses based on the battery. status of the actor or the victim of the (2m) up, ¶ 74. To sum we think subsection is ambiguous. literally way, very helpful Read in one it is literally way, to the defendant. Read in another it inapplicable to the defendant. Read as the defendant §§ principle read, wishes it it contradicts the 939.65 939.66(1) produces and some curious results. Sub- (2m) enough section is not clear resolve issue of legislative intent.

(Battery or threat to department of department commerce or workforce development employee). Finally, we note that penalty burglary is enhanced from a Class C to a B Class felony burglar when a commits a burglar- while in the 943.10(2)(d). enclosure. See Wis. Stat. ized and Context Legislative History B. history now to the legislative 75. We turn 939.66(2m). Both and the parties Stat.

context Wis. (2m) created that subsection was court of appeals agree Richards, v. State in to this court's decision response (1985). useful, think it is 1, 2d 365 N.W.2d 7 We of however, history examine the full Wis. Stat. § 939.66. was created in two 76. Wisconsin Stat. 939.66 of the of the in the 1950s as revision early part

steps 623, 1953; 696, Laws of ch. state criminal code. Chapter accompanied by of 1955. The new text was Laws at The comment for the section extensive comments. provides part: issue of a crime included permits

This section conviction are charged and states what crimes within the crime the rule of this included crimes. The reason behind determining difficulty in before section is the state's degree of the crime it will be exactly trial what crime or beyond a reasonable doubt. upon prove able the trial to defendant in such a disadvantage no to the There is rule, charges against him apprised he is of charged is broader than that the crime reason of fact the included crime. an included crime under subsection example

An (1) charged burglary the crime is is the crime of when an included crime burglary. example An aggravated (2) by reckless conduct is homicide under subsection first-degree crime murder. An charged is when the (3) crime under subsection is example of an included charged the crime injury by reckless conduct when battery. added). (emphasis A.B. at 53 implication

¶ 77. The clear of the comment is that may charged a defendant be one crime with but ulti- mately convicted of an "included crime"—a in- lesser charged cluded crime that is not the State is —when prove unable more serious crime. In these complaint "by circumstances, the defendant has no charged reason of the fact that the crime is broader than the included crime." Id.

¶ 78. Richards, 1985 this court decided State v. (1985). question Wis. 2d 365 N.W.2d 7 presented simple battery in Richards was whether battery, proscribed by intermediate as the version of applicable Wis. Stat. time,23 940.19 at that were aggravated battery. lesser-included offenses Id. at 2. applied elements-only The court test articulated in 939.66(1) simple battery and concluded that intermediate were included offenses of aggravated battery, because two "lesser" crimes had requiring proof elements, different nonconsent, §940.19 The version of applicable Wis. Stat. to the provided: Richards case (1) Battery; aggravated battery. bodily 940.19 Whoever causes by bodily

harm to an another act done with intent to cause harm person person to that or another without the consent of the so guilty harmed is of a A Class misdemeanor. (lm) great bodily by Whoever causes harm to another an act bodily person done with intent to cause harm to that or another person guilty without the consent of the so harmed is of a Class E felony. (2) great bodily by Whoever causes harm to another an act great bodily person done with intent to cause harm to that or person another with or without the consent of the so harmed is guilty felony. of a Class C Richards, (1985) n.2, State v. 2d 123 Wis. 365 N.W.2d 7 (1979-80)). (quoting Wis. Stat. 940.19 battery aggravated did not. Id. at 6. As a whereas refusing the decision result, we affirmed circuit court's battery simple battery either or intermediate to submit jury aggravated of to the as lesser-included offenses battery. Id. at 4. Richards court the 79. While the felt bound

statutory in 940.19, elements laid out it nevertheless agreed the defendant that common dictated with sense battery degrees that the two lower of be lesser-included aggravated battery. Therefore, Id. at 12. the offenses legislature rectify explained how the could the court situation: could,

Simply legislature arguably because the and should, differ- statutory have delineated the elements ently permit not this court to rewrite the elements does by judicial legislature, the if up of the crime fiat. It is battery it offenses should be concludes lower offenses, statutory lesser included to do so within 940.19, Stats. The framework of sec. 939.66 sec. by adding a legislature remedy could the situation 939.66, 939.66(2), analogous subsection to sec. to sec. n may that an included crime be a crime which is provide charged. type battery a less serious than the one - non- Alternately, legislature could remove victim qonsent simple as an element of and intermediate 940.19(1) a defense to sec. and make consent (lm) (2). but not (footnote omitted). pre- Id. 12-13 The alternatives at sented, by options the Court offered the two peculiarity simple and intermediate tOveliminate being aggravated offenses of lesser-included battery. of the effect these The court made no mention proposals might punishments have on cumulative prosecuted under both 940.19 and one batteries battery special defined else- circumstances offenses Chapter 940. where Richards, Two months after our decision Assembly Assembly Bill

the introduced 1985 which ultimately Act 144 and created became 1985 Wisconsin 939.66(2m). § Legislative See Reference Bureau Draft- ing original 144. The File for 1985 Wis. Act bill was option removing drafted to the Richards follow simple victim nonconsent as an element of and inter- battery making and to mediate consent defense 940.19(1) (lm) §§ aggravated battery but not to 940.19(2). under Id. This revision would have affected only 940.19. Legislative original

¶ 81. The Reference Bureau's analysis Assembly explains of 1985 Bill that the degrees general battery bill's focus was on the con- special 940.19, tained in not the circumstances bat- According Legisla- Chapter located in the teries tive Reference Bureau: present law, prohibits

Under Wisconsin harm) (intentionally causing bodily under a number of potential penalties vary depend- different statutes. The act, actor, ing surrounding on the circumstances the the victim. This by victim harm suffered battery. bill 2 levels law, present Under affects first battery (ordinary battery) the first level of involves intentionally causing bodily harm to a victim without the victim's consent. The 2nd level of involves causing great bodily harm an act done with intent bodily cause harm the consent of the victim. without The bill removes the element of "no consent" from both of these crimes.

Legislative Drafting Reference Bureau File for 1985 Analysis by Legislative Act Reference added).24 (emphasis Bureau of 1985 A.B. 359 While alluding special to the existence of circumstances bat- analysis specifically teries, the bill stated that the bill only battery," affect "the first two levels of mean- would § ing simple battery in and intermediate 940.19. legislature approved end, option proposed by other the Richards court. It created (2m) type subsection and declared a "less serious battery charged" than the one to be an included offense. Although option unambiguously this did not limit the § scope change nothing 940.19, to there is in the 939.66(2m) legislative § history of to indicate that this option policy second was intended to achieve different objectives option. appears Rather, from the first it that options anticipated the two were to have the same previously narrow substantive effect. This court has 939.66(2m) recognized purpose was to rectify problem highlighted 940.19 in Richards. Vassos, 330, n.8, See State v. 218 2dWis. 338 579 N.W.2d drafting record for 1985 Act 144 Wis. reveals that given considerable attention incorporate was to how to simple defense of consent into the and intermediate drafted, originally statutes. As the bill created a defense of specifically persons willing participants consent to who were reasonably athletic events and when the harm suffered was a See practice competition. Legisla foreseeable hazard of the or Drafting tive Reference Bureau File for 1985 Wis. Act 144. nothing drafting explains While there is in the record that what route, forgo animated the to this it is reasonable to infer that regarding interpretative concerns existed either the might develop exception confusion that from this athletic-event provision or fear that the consent would be under-inclusive. (1998). no record the amendment We find public 939.66(2m) beyond an intent revealing apply § 940.19.25 added the "or In 1994 the legislature phrase (2m). Act serious" to subsection

equally addition also is instructive. § 2. The of this history Bill Assembly relating 84. 1993 introduced to originally and was providing penalties, § make to 940.19. The bill the changes passed several 939.66(2m). § to According with no to Assembly change from 16, 1994, a memorandum Assistant February Cohn, to Execu- Attorney Sally Andy General Wellman to General James Attorney Doyle, tive Assistant did not like the Assembly of state survey prosecutors bill.26 Wellman wrote: battery "middle"form questioned

Some whether a suggestions really They needed. also made some valid draft, regarding my questioning which batteries will offenses, my proposed now be lesser included whether much encompass "middle" form will too of what is arguably only battery, parts whether some of the defi- (i.e. vague multiple bruising) raising nition are too any degrees battery if should have issue of which difficulty consent" element. Given the of the "without raises, my it prefer- issue and the number of subissues ence take some more time this. If [ ] would be to with get pulled can it out of this session so that we can we range get input people from a wider on a second draft, up product. a better If that is not we will end with 25 to the model We observe Comment sections Jury battery offenses, JI—(cid:127) Wisconsin Instructions for Wis through Criminal 1220 make no mention of the effect of 939.66(2m) except pertaining § instructions to the those §in 940.19. offenses established

26 part Legislative memorandum is of the Wellman file on 1993 A.B. 879. Council

possible, and we still now, need to amend AB 879 I suggest following revisions: (1) proposed

¶ 85. Wellman then a new definition (2) bodily § of "substantial harm," 940.19, rewrote (3) 939.66(2m) proposed § an amendment to "A read: equally type crime which is a less serious or serious charged." (emphasis than the one Id. at added). only grammatical With modifications to the changes adopted by legis- definition, all these were lature. language In truth, then, all critical in the legislation Depart- was drafted the Wisconsin language Justice,

ment of with no indication that the any beyond Was intended to interact with statute (2m) language appears Rather, 940.19. the new changes proposed reflect the for 940.19. Department's proposal, 87. Under

(cid:127)%¶ projected felony, 940.19 was to contain one Class C felony, three D felonies, Class E one Class and one Class A misdemeanor. Without the Wellman amendment, 939.66(2m) § prohibited would not have simultaneous convictions of three Class D felonies under subsections (6) (3), (4), proposed 940.19. acknowledge legislature

¶ 88. We that the could original analysis, have had a different view. The bill begins before the amendment, with the statement that: law, Under current punishable by range of crime vary classifications from A Class misde- felony meanor to depending type Class C on the suffers, harm the victim type harmof the offender such as special circumstances to inflict and intends officer.27 peace the victim is a when Assembly Analysis Bill 879. to 1993 Bill appears in two ¶ statement This identical 89. respec- Legislative memoranda written Council Staff Assembly legisla- tively and Senate to the chairs of the Assembly Bill 879. See that considered tive committees Wayne Representative W.Wood to Memorandum Staff Attorney, Wisconsin Haas, Senior Staff from Shaun February Legislative 1; at Staff Memo- Council, 2,1994, Salm, Huelsman, from Don Joanne randum to Senator Attorney, Legislative March Council, Senior Staff accompanied memoranda were 1994, at 1. The two §§ and 940.20. 940.19 the texts both stronger infer- Nonetheless, we believe history legislative is that the ence to be drawn from (2m) only apply intended to subsection prevent cumulative and did not intend 940.19 battery. special punishments for a circumstances of the Proscribed Conduct C. Nature pro- of the factor, The third the nature policy requires of the an examination conduct, scribed in the various stat- embedded considerations utes. lays gradations Stat. 940.19 out 92. Wisconsin assigns pun- injury and offender intent and

of victim severity of these factors. in accord with the ishment Legislative Refer "type" of the word Note the use "type battery" analysis compare phrase ence Bureau 939.66(2m) the 1994 § before and after it existed in Wis. Stat. as amendment. pattern perfectly by escalating

This is illustrated "bodily bodily definitions of harm," "substantial harm," "great bodily harm": (1) "Bodily harm" physical pain means injury, or illness, any impairment or physical condition. Wis. 939.22(4). Stat.

(2) bodily "Substantial harm" bodily injury means that causes a requires stitches; laceration that any bone; fractúre of burn; a a temporary a loss of con- sciousness, sight hearing; concussion; or or a loss or 939.22(38). fracture of a tooth. Wis. Stat.

(3) bodily "Great harm" bodily injury means which creates a death, substantial risk of or which causes permanent disfigurement, or which perma- causes a protracted nent or impairment loss or of the function of any bodily member organ or or other bodily serious 939.22(14). injury. Wis. Stat.. By special contrast, circumstances bat- Chapter penalty may teries imposed 940 enhance the be bodily

for harm because of the status of the status/vulnerability offender or the of the victim. Plainly, punishment wanted more severe bodily for intentional harm to a law enforcement officer, fighter, judge, juror, ordinary a fire or a than to the participant fight. in a bar objective

¶ 94. This will be achieved when the only "bodily offender intends and causes harm" and charged special battery. under a circumstances How- interpretation ever, Davison's of the statute would permit charged only battery, an offender to be with one regardless aggravating circumstances. See above for discussion. mean, instance, This would bodily that an offender who causes substantial harm to bodily a woman an act done with intent to cause by punishment virtue no incremental will suffer harm, injunction is under court the offender the fact that of injunction. sought person who is the and the woman 940.20(2) 940.19(2) §§ E felonies. are Class and Both bodily substantial who causes Likewise, an offender by fracturing person's an act done with bone a harm only pain no incremental will suffer intent to cause though person a punishment, is battered even public public and the offender battered officer the officer.See the action of to influence officer order 940.20(4). 940.19(2), §§ An offender who Wis. Stat. breaking police intentionally nose a officer's succeeds "great bodily inflicting stops will harm" short but punishment a result of the as incremental suffer no 940.20(2). 940.19(3), §§ See Wis. Stat. officer's status. interpretation would that Davison's These results show objective special bat- circumstances undermine in a number of situations. teries bodily causing degree battery is an act A95. § prosecuted injury, 940.19 or under whether the act is 940.20(1). to treat all did not wish But the perma- pains, all bones, and broken and all lacerations merely disfigurements equally. the under- It is not nent distinguishes lying The offenses involved. act that act commits the in which the offender circumstances important. Selmon, 155, 2d 175 State v. Wis. are also (Ct. 1993). App. The are statutes 166, 876 498 N.W.2d Tappa, protect designed interests. See different 2d at 170. Wis. many argue might acts The defendant severely punished prosecuted if be more will

successfully special and that circumstances batteries as (2m) prevent a second serves to therefore subsection charge punishment a subsection of 940.19. and under normally is fact, however, misdemeanor §§ 940.20, 940.201, lesser-included offense under Fitzgerald, 940.203, 940.205, State v. 940.207. Cf. App ¶55, 2000 WI 2d N.W.2d391. eligible multiple Hence, defendants would not be convictions in these circumstances because of (1) 939.66(1), assuming interpreted subsection apply charged uncharged to both offenses.

problem of a true lesser-included offense under the special by circumstances batteries was addressed 939.66(1) (2m).28 § the enactment of subsection before

¶ result, 97. As a we believe that the nature of the proscribed supports leg- position conduct the that the preclude prosecution islature did not intend to and 940.19(6) 940.20(1). §§ punishment under both and Appropriateness Multiple D. Punishments multiplicity analyses, 98. Often our consider- appropriateness multiple punishments ation of the by regarding informed proscribed our the nature of the conclusions e.g., Tappa, See,

conduct. 127 Wis. 2d at (overlapping 168-170 the of the third and discussion factors); Anderson, fourth 219 Wis. 2d at 755-56 (same). present This is true in the case. There is no analysis repeat extensively previ- need to the from the category. ous protected by

¶ 99. Because different interests are § imposing punishment under both 940.19 and 940.20(1), § Anderson, 2d at see 219 Wis. the legislature thought appropriate could have it to convict arising punish a defendant for out of both offenses prisoner's single battery. act of battery require proof any If did not misdemeanor special battery, element than it additional the circumstances presumptively jeopardy would create a double violation. symmetry simply the no between 100. There is

battery by prisoner well-understood statute § legislature gradation If in 940.19. scheme found adequately general statute that sensed punished in all and deterred the conduct of circumstances, created it would have we doubt proscribed beyond un- additional offenses the conduct §der 940.19. 940.20(1) passed § was Stat. 101. Wisconsin prisoners

provide com who more severe sanctions non-prisoners who commit the mit batteries than for State, 170, 175, 2d v. 125 Wis. same batteries. See C.D.M (Ct. 1985). App. harm caused 370 N.W.2d by battery by aggravated battery and the harm caused significantly justify charging prisoner "are different to separate Tappa, offenses," 2d at them as generating disparate though act these harms even 940.20(1) top enacting 940.19, on is the same. punish different, intended to two albeit ("The overlapping C.D.M., See 125 Wis. 2d at 175 evils. 940.20(1)] [Wis.,Stat. penalty of is intended enhanced in circumstances where the usual to deter batteries penalty ineffective."). may be purpose that the of im- 102. Davison contends battery posing punishment additional when a is com- against by designated (e.g., prisoner) a or mitted a actor firefighter) designated (e.g., a a victim is under- by barring multiple punishments. that, mined He notes 940.20(1), battery by § any prisoner a is a Class D under felony, regardless degree bodily injury of the caused By contrast, intent cause harm. under or the level of 940.19(1) (2), bodily §§ harm a that causes only causing a misdemeanor, A while is Class felony. bodily only E harm a Class There- substantial is argues, provide fore, the statute would still for Davison punishment any deterrence, additional since bat- tery by prisoner felony.29 done would be a Class D 939.66(2m), §

¶ 103. Under Davison's view of prisoner aggravated battery however, a who commits exposed greater punishment will be to no than a non- prisoner Hence, who commits this same offense. objectives protection of deterrence and extra would be legislature may undermined. The of course enact interpretation, Davison's but we are not convinced that did, it previously

¶ 104. Wisconsin courts have valued by separate punishments the deterrence created for different offenses when the was not clear multiple punishments permitted. whether were In Grayson, example, multiple pun- for we reasoned that 120-day period ishment for each pay of continual failure to support deterring long-term child was essential provide support felony failure to in accordance with the non-support Grayson, statutes. 172 Wis. 2d at 166. (Ct. Hamilton, 426, State v. 146 Wis. 2d 432 N.W.2d108 1988), App. appeals multiple pun- the court of allowed 943.37(3) ishment under for each item a Wis. Stat. possesses defendant with altered or removed serial numbers, in criminal order to make the risk concomi- appeals argument The court of noted this and concluded: "Consequently, since the enhancer is the status of the actor crime, degree 940.20 and not of the there is not an ambiguity problem regard to the between the statutes with Davison, 18, 'battery.'" App word State v. 2002 WI exactly Wis: 2d 647 N.W.2d 390. We are unsure what the statement, appeals imagine court of meant it this but we congruent argument. However, precisely with Davison's it is because the enhancer is a status-based consideration that 940.20(1) entirely shows how embodies an different interest general battery than the statute. potential profit. Id. at 441. If criminal

tant with battery by prisoner punishment is not additional for battery, greater aggravated then the in cases of allowed battery by punished aggravated prisoner is not evil of greater Grayson, proportionally evil. See to that ("The period nonpayment, longer the Wis. 2d at 167 inflicted."). greater the harm that is Inability punish prosecute under 105. permits offender, an at least in some statues both greater degree of harm circumstances, to inflict a with- punishment. fear of This odd result is out additional recognized by In to one this court Anderson. similar explaining why multiple punishments under the bail jumping appropriate statute were when defendant bail, different and distinct terms of his we violated explained: imposing multiple punishments violating for

Without bail, may the different terms of a defendant even be terms, encouraged multiple knowing violate that the punishment will be no different whether he or she It violates one or all terms of bail. is difficult to believe legislature that the intended this result.

Anderson, 2d 219 Wis. at 756. summary, considering appropriate- multiple punishments committing

ness of both battery by aggravated battery prisoner, we do not perceive policy upon basis which the preclude multiple would have intended to convictions single prosecution. for these offenses in a V CONCLUSION Applying our four-factor examination of legislative multiplicity challenge, intent to this we conclude that Davison has failed to meet his burden of battery battery persuasion. Aggravated by prisoner and clearly are not "the same offense" as a matter of law. presumption in Davison has failed to rebut the this specific legislature situation that the intended to autho- multiple prosecutions punishments rize and for these two offenses. focusing solely If on the text of we were (2m),

subsection we would find this to be a much closer legislative seeking case, for we would not be intent informed, outside the of the statute. We are how- text Grayson, in "If ever, express legislative our decision where we said: an ambiguity

intent or the absence of against were the benchmark which the issue of the prosecution decided, unit of had to be consid- allowable to eration of the matter would be limited the first two factors. The last two factors would then be rel- Grayson, evant." 172 Wis. 2d at 161. applying expansive the more rules of

statutory interpretation traditionally we have em- only ployed multiplicity cases, are convinced not we burden, that Davison has not met his legislature very but also that the likely multiple intended to authorize disturbing punishments on these facts. inconsis- tency interpretation if literal within 939.66 Davison's (2m) adopted, compelling legis- subsection were (2m), history legislative motive lative of subsection ordinary proscribed for the conduct under the and special appro- statutes, circumstances priateness punishing than one lead us more offense clearly to conclude that the has not intended prohibit multiple punishments on these facts. single analyzed ¶ 110. have this case as a act We battery, way that is the the case reached us. because four-part analysis are We disinclined abandon multiplicity statutory in a on the construction case presented out in all, here. After facts set record multiple ¶¶ committed crimi- 5-7 reveal that Davison period. a 45-minute Davison nal acts of over bodily different times at harm to his wife at caused injuries. resulting multiple places, different objection multiplicity ¶ 111. Because Davison's not decide merits, on the we need not do fails right by pleading guilty, he his to raise whether, waived claim. this

By appeals the Court.—The decision of the court reversed. is

¶ ABRAHAMSON, 112. SHIRLEY CHIEF JUS- S. (dissenting). I would affirm the decision of the TICE appeals. court of present in the was 113. The defendant case

charged aggravated and of two batteries: with convicted battery prisoner. Aggravated a and is battery causing bodily a harm. It a substantial is Class 940.19(6). § felony Battery by D under Wis. Stat. a prisoner battery (by prisoner) causing bodily is a 940.20(1). § felony harm. It is a D under Stat. Class everyone agrees present case, that the issue, then, offenses are not the same in law. The is two legislative prohibit there is a clear intent to whether punishments. legislature's multiple is, does the That 939.66(2m) § express against multiple in bar Wis. Stat. punishments equally for batteries of a less serious or type apply only in serious to batteries created Wis. Stat.

§ § apply 940.19, or it created in does batteries 940.20 legislative "[T]he in as well? The answer intent. lies constitutionally question punishments per- are of what 196 no different missible is from the of what question Branch punishment Legislative intended to be imposed."1 115. On the of the basis and language legislative 939.66(2m) §

history of Wis. Stat. and the public policy 940.20, §§ Stat. 940.19 and I underlying Wis. conclude that the legislature clearly its intent expressed 939.66(2m) to batteries applies created 940.20 as well as batteries Therefore, 940.19. multiple pun- (1983) Hunter, Missouri v. (quoting U.S. (1981)). States, v. Albernaz United 450 U.S. majority opinion very lengthy

The and addresses numer- My ous failure aspects opinion issues. to comment on all of the interpreted my agreeing should not be as with them. example, majority

For opinion multiplicity discusses jeopardy length, and double at I am but not sure what conclu sion it relationship reaches about their difference it what makes in this applicable case. "constitutional law" in this case is multiple punishments single as follows: When in a (in prosecution fact), are not for the same offense law presumption legislature that permit arises the intended to multiple punishments. presumption by The can be rebutted legislative contrary. clear intent the Derango, to State v. 2000 30, 721, WI 236 2d ¶ Wis. 613 N.W.2d833. example, majority As another in opinion 65 the states ¶ 939.66(2m) §

that a reading literal of Wis. Stat. "is inconsistent 939.65, § general permits multiple with the intent of which charges single may under different a statutes for act and result multiple inconsistency. in I doubt there an A convictions." is 939.66(2m) reading prohibit multiple § literal does Rather, charges. only prohibits multiple it The convictions. majority in opinion may 66-67 intimates that the State ¶¶ by simply charging avoid all of the restrictions in 939.66 the multiple I offenses at the outset. do not understand this reasoning. charged uncharged The issue of versus offenses was by parties. not raised or discussed the

197 battery, aggravated is, a that ishments for felony bodily causing D harm, a Class under substantial 940.19(2), by prisoner, is, a Stat. Wis. felony battery causing bodily D harm, a Class under 940.20(1), prohibited. are Stat. Wis. applicable the rules of statu- examine first 116.1 language

tory interpretation, in the and then turn legislative history, legislative and the statute, purpose. discerning generally accepted for 117. The rules apply they

legislative in in case as do intent should this Legislative legislative any intent, other case. intent is regardless The of the context which it is examined. upon majority opinion four which the relies factors represent a restatement of the traditional rules for discerning legislative intent.2 majority suggests by that it is bound (1992), Grayson, v. 2d 493 N.W.2d23

State statutory apply expansive different, form of more present majority's in the case.3 The cita construction Grayson, inapplicable. Grayson however, In tion urged plain language that because the accused 402, 410, Bohacheff, v. 114 Wis. 2d State N.W.2d (1983), determine not the instructs: "To whether or language multiple intends convictions ... we look to of the conduct, statute, proscribed appropri the nature of the multiple punishments. ateness of We are also aided in our legislative statutory search intent canons construction." added). (emphasis keeping statutory with traditional rules of factor, legislative history, interpretation, appears a fourth in which it was available. cases 3Majority 108, op., ¶¶

198 was the court should the ambiguous, apply the statute Grayson The court concluded that the lenity. rule of invoked when rule of was not lenity appropriately ambigu of the statute was although plain language ous, statutory interpre to traditional rules resorting reasonable, the court to discern tation enabled intent.4 The legislative interpretation common-sense determine that multiplicity analy Grayson case did not construction. statutory some alternative rules requires sis II to look for intent legislative first place in the of the statute.5 Wis. Stat. language

is 939.66(2m) the stated its intent legislature expressly certain batteries multiple punishments to prohibit battery, If an convicted of as follows: accused is 4 expressly failed to state "[B]eeause 948.22, Stats., sec. this prosecution unit of under allowable according to 'a intent as to that issue court must determine its effect to give that will reading common sense of the statutes' object legislature' produce result 'the society.' ... To determine 'reasonable and fair to offenders the four factors ...." State v. legislative intent we will examine (1992) 156, 162, (quoting 493 23 Grayson, 172 Wis. 2d N.W.2d (1985)). 155, 170-71, 378 883 Tappa, State v. 127Wis. 2d N.W.2d 5 of statu meaning and the rules plain For discussions of Wisconsin, Knights v. Catholic tory interpretation in see Fox 181; 208, v. 87, 2d 665 N.W.2d State Soc'y, Ins. 2003 WI 263 Wis. (Abraha- 86, 113; 2d 665 N.W.2d 729 Byers, 2003 WI 263 Wis. Mil mson, C.J., Crooks, J., dissenting); Bruno v. concurring; 656; 28, 633, 660 260 Wis. 2d N.W.2d County, waukee 2003 WI 38-40, v, 259 Wis. 2d Delaney, 2003 WI ¶¶ State (Abrahamson, C.J., Sample, v. dissenting); State N.W.2d416 (1998) C.J., (Abrahamson, 487, 508, Wis. 2d 573 N.W.2d concurring). may punished

accused not be for a "which is a equally type or less serious serious of than the §§ charged."6 940.20, one In Wis. Stat. 940.19 and the legislature labeled both offenses of which the defendant was convicted as batteries and established that both equally battery; types batteries are serious of both are carrying penalty felonies, class D each a maximum of 10 years. plain language

¶ 120. It that is rare the aof clearly statute covers the situation in issue as itas fact According plain meaning does this case. to the ofWis. § 939.66(2m), legislature plainly Stat. the intended not permit punishment conviction and for both batteries. majority opinion Indeed, the concedes that based on the "plain language" 939.66(2m), of Wis. Stat. "one would normally conclude the that intended that the defendant not be convicted of both crimes."7 Despite majority

¶ 121. conclusion, this the de- ambiguous by reading cides that the statute is 939.66(2m) Stat. in the context of other statutes and supports reading law, case much of which the literal statutory language supports and some of which readings.8 alternative

6 The statute quoted is at 10 n.6 and 66 of the majority ¶ ¶ opinion.

7Majority op., 8 majority 58.

See op., Apparently majority opinion using a interpretation rule of that plain counterbalances meaning separate together, rule: When statutes are read isolation, rather plain than in meaning may statute be Chavez, rendered ambiguous. 366, 370-71, State v. 175 Wis. 2d (Ct. 1993). App. 498 N.W.2d 887 every Almost interpretation rule of can be countered an opposing rule. For the lead discussing article the "thrust and parry" contradictory statutory rules of interpretation, see majority's applaud decision to test the I way meaning" "plain and do not of the statute this support dispute for an alternative there is some that majority's get reading. in the it lost Yet should support ambiguity for the literal discussion 939.66(2m) any sup- greatly reading overwhelms contrary reading port of the statute. for a

f-H HH1—I majority opinion ¶ to the The then turns 123. purpose legislative history, context, and the of the the clarify ambiguity It on the it created.9 is clear statute to examining legislature did not

these factors that the multiple punishments imposed in case. this intend the majority opinion ¶ the 1985 124. The examines §§ adopting proposed amendment to 939.66 Wis. Stat. (2m). majority concludes that the 1985 The subsection apply reveal[] does "not an intent amendment 939.66(2m) § beyond disagree. § I 940.19."10 Stat. response Richards, 1985, In to State v. 125. (1985), legislature the 2d 7

123 Wis. N.W.2d § to bar an amendment to Wis. Stat. 939.66 considered multiple punishments case for batteries. The Richards only of of the three subsections involved the first two analysis Legislative § Bureau's Reference 940.19. although proposed noted that "a the amendment Theory Appellate the Deci- Llewellyn, Remarks on Karl N. To Be How Statutes Are and the Rules or Canons About sions (1950). Construed, 3 Vand. L. Rev. 395 ambigu if a statement is that statute The court's usual context, subject matter and ous, history, the the court examines Heaton v. legislative intent. See object the to discern statute (1980). Larsen, 379, 394, 2d 294 N.W.2d 97 Wis. 10Majority op., proscribe battery

number of different statutes" and that potential penalties vary depending the "on the circum- surrounding act, actor, stances the the victim and by proposed the harm victim, suffered amend- only battery," referring ment affects "the first 2 levels of (1) (2) § to subsections proposed of Wis. Stat. 940.19.11That adopted, amendment was not however. proposed ¶ 126. The amendment that was even- tually adopted language legislative was silent in history regarding any application intent to limit the 939.66(2m) § Obviously, strong to 940.19.12 infer- adopting ence can be drawn that the first proposed amendment limitation, with its 939.66(2m) refused to limit to the first two subsec- majority opinion Nonetheless, tions of 940.19. projects, any supporting

without documentation or reasoning, adopted that the defeated version and the anticipated version "were to have the same narrow substantive effect."13 pro- additional amendments were 939.66(2m)

posed §§ to Wis. Stat. and 940.19.14 The Legislative analysis Reference Bureau's of the bill that put legislature expressly was before the entire includes "battery," the within crime of those batteries committed "special under circumstances such as the when victim is peace Battery police a officer."15 to a officer was not then (and now) § is not Rather, set forth 940.19. to police § "Battery: a Special officer 940.20, is set forth in entitled Why Legislative

Circumstances." the does Ref- 11Quoted majority op., at 81. ¶ 12 majority op., See 80. ¶ id., See 82. ¶ id., See 84-89. ¶ 15Quoted majority op., at 88. ¶ analysis an amendment to erence Bureau's 939.66(2m) battery against police § if officer, refer to 939.66(2m) § proposed does amendment to the § affect 940.20? majority opinion care- Furthermore, the as 128. Legislative

fully‘notes, ex- memoranda Council two plaining texts of included the the 1994 amendments Why §§ does the 940.19 and 940.20. Stat. both Wis. Legislative text occasions, include the Council, on two § along § 940.19, if the the text of 940.20, with 939.66(2m) only § proposed affects to amendment § § 940.19, not 940.20? expression get a clearer rare to 129. It is history. legisla- legislative

legislative This from intent leg- history unambiguously the demonstrates that tive amendment to Wis. the 1994 was advised that islature 939.66(2m) § forth in both affects batteries set Stat. approach Applying §§ the and 940.20. Stat. 940.19 Wis. legislative process, that we assume take to the courts pre- legislature materials read and understood understanding adopted that the amendment sented and 939.66(2m) forth in both set affects batteries majority opinion, §§ contrast, and 940.20. 940.19 stating, "Nonetheless, we shrugs conclusion, off this stronger from the to drawn inference be believe history legislative intended that (2m) only did not apply 940.19 and subsection punishments multiple prevent cumulative intend to battery."16 special circumstances IV majority opinion Finally, to the turns 939.66(2m), policy to the purpose is, Stat. Majority op., ¶ underlying by exploring considerations the statute, proscribed appropriate- nature of the conduct and the multiple punishments. majority ness of The concludes legislature impose multiple pun- that the intended to protected ishments because different are interests un- §§ 940.20(1), der Wis. Stat. 940.19 and and that if the legislature general battery concluded that the statute adequately punished battery the conduct of in all cir- cumstances it would not have created additional bat- tery beyond disagree. offenses I 940.19. The statutes support do not this conclusion. majority legislature 131. The is correct that the penalty

intended to increase the for certain batteries depending "special battery. on the circumstances" legislature's penalties ap- The intent to increase the plies, only inflicting "bodily however, to batteries in- jury," the first level of harm. Battery any "special committed without subject

circumstances" is a A Class misdemeanor to a penalty of nine months. In contrast, Wis. Stat. 940.20(1) felony prisoner makes it a D Class for a battery inflicting "bodily injury." commit a Increased penalties "special for batteries committed under other similarly apply only circumstances" in 940.20 to those bodily injury, batteries that inflict not to those that injuries.17 inflict more serious could penalty have increased the for batteries under these "special bodily circumstances" that inflicted "substantial (increased See §§ also Wis. Stat. 940.201 penalty for battery (increased to a causing bodily harm), witness 940.203 penalty battery for judge to a causing bodily harm), 940.205 (increased penalty to a department of revenue (increased employee causing bodily harm), 940.207 penalty for a department of commerce department or a harm). development workforce employee causing bodily "great bodily injury" risk harm" or "substantial or bodily great not.18 harm," it did but majority opinion, Contrary I read the ¶ 133. legislative purpose express to deter these statutes causing and committed harm the least serious batteries dramatically by "special increas- circumstances" under (a bodily injury ing penalty nine months from for the (a misdemeanor) felony), years D Class to ten A Class multiple punish- imposing for to create avenues not equally The batteries. or less serious serious ments for penal- significant prison legislature that the concluded equally more or serious 940.19 ties in Wis. Stat. injuries bodily deterrent a sufficient would be serious any circumstance.19 under majority opinion little, if offers sum, the 134. contradicting clearly trustworthy the

any, evidence 939.66(2m) the language in which plain Stat. multiple punishments for batteries legislature barred equally serious.20 or are less serious that forth, I dissent. For the reasons set 18 § 940.195. Wis. Stat. Compare 19 133, 141, N.W.2d Gordon, 2d 111 Wis. v. See State 939.66(1) be

(1983) ("The sec. adopted apparently legislature offense greater for the by the penalty set cause commit has also that the defendant the fact into account takes Joseph, Charging, Remington and offense. ted a lesser-included Offender, Criminal Multiple Sentencing Convicting, and 546."). L. 1961 Wis. Rev. present in the that its decision suggests majority committed by the bad acts is, part, motivated at least case balancing com 110. When majority op., ¶ See

the defendant. it is of the law proper construction about arguments peting tip blameworthiness defendant's essential balance. I am authorized to state that Justice ANN joins

WALSH BRADLEY this dissent.

Case Details

Case Name: State v. Davison

Court Name: Wisconsin Supreme Court

Date Published: Jul 3, 2003

Citation: 666 N.W.2d 1

Docket Number: 01-0826-CR

Court Abbreviation: Wis.