State v. Trawitzki

Plaintiff-Respondent, Wisconsin, State

v. Defendant-Appellant-Petitioner. J. Trawitzki, Jason

Supreme Court No. argument May 99-2234-CR. Oral June 2001.Decided 29, 2001. 2001 WI 77 (Also 801.) reported in 628 N.W.2d defendant-appellant-petitioner there were For the Lang, argument by Donald T. assistant briefs and oral public state defender. argued plaintiff-respondent

For the cause attorney general, by Nowack, L. assistant with Sandra Doyle, attorney James E. whom on the brief was general. ¶1. CROOKS, case, In this we N. PATRICK J. appeals cir- review court of decision that affirmed a brought post-conviction denial motion cuit court's of a (Trawitzki). by After Jason J. Trawitzki Petitioner charges guilty ten his Trawitzki was found theft for taking firearms a home five role ten from charges property his role in stolen hiding subsequent firearms, he of five claimed charges multiplicitous, were and therefore against prohibition violation of the constitutional jeopardy. also claimed his trial double impeach failing counsel was ineffective for three specific prior number of State's witnesses with for each one. convictions 2. The circuit court denied his motion. appeals Trawitzki, State

court of affirmed. v. 2000 WI App 2d 618 N.W.2d 884. We 205, 238 Wis. accepted petition for review. Trawitzki's charges multiplic- not 3. We hold that the are in fact, are not identical itous because presumption because Trawitzki has not overcome the multiple prosecu- that the allow tions. We further hold that Trawitzki's trial counsel failing impeach was not ineffective for three of the prior State's witnesses with the number of their crimi- convictions, nal because Trawitzki has not established prejudicial that this failure was to him. Confidence in by outcome the trial not has been undermined Accordingly, such failure. we affirm the court of appeals decision that in turn affirmed circuit judgment post-con- court's and its denial of Trawitzki's viction motion.

HH August ¶ 4. 29, 1997, On a members of criminal gang City burglarized Crips as the known West Side the Lehman residence in Watertown. in Included group Kristy Trawitzki, that entered the were home (Lehman), (Schoch), Lehman Chris Schoch Jason Glas- (Weiss). (Glascock), Johnny cock and Weiss Members group of this wrapped took ten firearms from rooms various and carry sheet, all in

them a in order to the fire- placed arms out of the home. The firearms were then in the trunk of Glascock's car and taken to Weiss they residence, stored where were in the basement. morning, Trawitzki, Schoch, Glascock, Weiss, next Phillip Ziegler, and J.R. Robinson took five the stolen bridge firearms and hid them a near in Helenville. Subsequently, group, including members of this they Trawitzki, traveled to Minnesota where were custody taken into near Duluth. Some of the firearms possession. were their found in charged ¶ 5. The State Trawitzki one count with burglary party of armed as a to a crime in associa and gang, in tion -with a criminal violation Wis. Stat. 943.10(1)(f), 943.10(2)(b), §§ 939.05, 939.625(1)(a)(1997-98).1 charged also The State carry taking and theft for counts of ten Trawitzki with ing away party crime and to a firearm as a gang, of Wis. in violation a criminal with association 943.20(3)(d)5, 943.20(1)(a), 939.05, and §§ Stat. 939.625(1)(a). charged Lastly, with Trawitzki the State party property to a as a stolen five counts gang, in viola a criminal in association with crime and 943.20(3)(d)5, 943.20(1)(a), 939.05, §§ of Wis. Stat. tion 939.625(1)(a). charges. guilty pled He to all not being present residence when the Lehman at admitted being present out, and carried the ten firearms were Helenville, concealed firearms were the five when participating He also denied in the crimes. denied but City Crips. being Side member of the West During jury. tried before The case was 7. testified for Schoch, and Glascock Lehman, trial, charged. implicated in the crimes Trawitzki and State was a member that Trawitzki testified Lehman City Crips, to the Leh- Trawitzki went that West Side August 29, and that Trawitzki residence on man car into of Glascock's from the trunk carried firearms that Trawitzki Schoch testified residence. the Weiss City Crips, Side of the West a member August 29, residence on the Lehman entered Trawitzki with Glas- to Helenville traveled and that Trawitzki Ziegler testified Glascock to hide the firearms. cock residence on the Lehman entered that Trawitzki bag August of ammunition carried a 29, that Trawitzki residence, that the Lehman of the basement out placing in the Weiss firearms assisted to Helenville Trawitzki went basement, and that Statutes are to the Wisconsin subsequent references All indicated. otherwise unless the 1997-98 version they hide the firearms. All three testified that incarcerated for their roles in the events that led to the were charges against Trawitzki. In addition, all three testi- wearing jail prison fied while or clothes.

¶ 8. The State also called other witnesses who testified to Trawitzki's involvement the crimes, including Katy Eigenberger (Eigenberger), Steve Cira (Cira), Watertown Police Detective Kenneth Severn (Detective Severn), Dodge County Deputy James Ketchem). (Deputy Eigenberger, acquain- Ketchem an of Trawitzki, tance. Lehman, Schoch, Glascock, and gang, others in August that, testified on 30th, group members of this told her Trawitzki, Leh- man, Schoch, and Glascock broke into the Lehman residence and took firearms. Cira testified that City Crips. Trawitzki was a member of the West Side investigated August Detective Severn, who 29th burglary at the Lehman residence, testified that January Schoch him, told in an 24, interview on up that Trawitzki carried at least one firearm from the August basement of the Lehman residence on 29th. Deputy picked up Ketchem, who Trawitzki as a run- away August on 7, 1997, testified that Trawitzki Crips claimed to abe member in Watertown. testimony In addition, Trawitzki's own placed him at the scene of the crimes. He testified that August he entered the Lehman residence on 29th, wrapped he saw the firearms in a sheet on the kitchen carry floor, and witnessed Schoch the firearms out of traveling the Lehman residence. He also testified to Ziegler Helenville with Glascock and when the fire- bridge. arms were hidden near the jury guilty ¶ 10. The found Trawitzki of all charges. 15-year The court sentenced Trawitzki ato prison burglary charge. term for the with- court

531 charges, placing on the other held sentence charge, years probation on each for 10 Trawitzki on concurrently. run brought post-conviction a

¶ 11. Trawitzki charges theft all of the firearm claimed that motion. He charges concealing mul- single were firearm stolen and charges tiplicitous, from "a arose all because (Br. concealing." single taking a act of act of Support 2). Trawitzki Mot. at of Def.'s Post-conviction from the removed that all of the firearms were claimed firearms were time, when the residence at one Lehman wrapped the house. and carried out of in a sheet legislature argued did not that also Trawitzki taking charges single multiple incidence of for a intend According concealing single the firearms. and a act of penal- increased Trawitzki, the stolen, not the of the items ties on the value based pun- also contended of items. Trawitzki number ishing multiple and the firearms theft of multiple multiple lead to would firearms with example, arbitrary the State results. For and absurd charge person steal- counts of theft for with two could ing pair of socks. he claimed that was addition, In Trawitzki right

deprived to the effective his constitutional trial failed to counsel, his counsel assistance of because by question- impeach Schoch, Glascock, Lehman, prior ing of their the existence and number them about suggested Trawitzki criminal convictions. against primarily on the testi- him rested State's case Arguing prior mony these three witnesses. jury's to the determi- are relevant criminal convictions credibility, contended of a witness' nation jurors them the before such information that with credibility reasonably doubted would have they implicated witnesses, three him when in the charged. crimes post- 13. The circuit court denied Trawitzki's

conviction motion.2 The circuit court held that the fire- charges arm property theft and the stolen charges against multiplicitous, Trawitzki were not charge required proof because each fact, of a different namely, specific identity of each firearm taken away and later concealed. The circuit court's conclu- required sion also relied on the fact that each theft "a new volitional act to take or conceal a different fire- (Tr. 3). arm." Ct. Mem. Decision at Furthermore, circuit court held that Trawitzki could not rebut the presumption regard reaching in to each firearm. In this legisla-

determination, the circuit court relied on the singular ture's choice to use the form of the word 943.20(3)(d)5. "firearm" Wis. Stat. The circuit court also noted that the theft statute treats firearms differently property, punishing than other forms of theft of a firearm and the concealment thereof as a felony regardless dangerous- value, ofits because of the regard ness associated with such acts to firearms. ¶ 14. In addition, the circuit court held that not was denied effective assistance of coun- impeach sel as a result of his trial counsel's failure to post-conviction motion, In his Trawitzki also claimed that: 1) there was insufficient apply evidence to gang criminal 2) enhancer; jury require jury instructions failed to unanimously agree on the existence of two or more criminal 3) necessary apply offenses gang enhancer; the criminal there was a new factor which warranted the reduction of his rejected sentence. The circuit court arguments. also these Since present Trawitzki did not appeals these issues to the court of or court, to this we do not address them. prior crimi- Schoch, and with their

Lehman, Glascock trial concluded that convictions. The circuit court nal performance deficient, not because counsel's was impeach deci- a reasonable tactical choice not to According court, it reasonable to the circuit was sion. emphasize refrain, in not to counsel to order being their convicted for unfairness of the witnesses seeking acquit- crimes, was role in the while Trawitzki decision court also determined that the tal. The circuit impeach reasonable, could was so that Trawitzki not to accusing lying. Moreover, the cir- his friends of avoid if failure that, even trial counsel's cuit court concluded performance, impeach this fail- constituted deficient prejudice Trawitzki's defense. circuit ure did not 1) jury prejudice knew that no because: court found 2) jury convictions; had criminal the witnesses are relevant to a witness' instructed that convictions 3) they credibility; testified that were the witnesses burglary respective in the for their roles incarcerated 4) wearing prison testified thefts; the witnesses 5) clothing; implicated in the other witnesses 6) testimony placed him at crimes; and Trawitzki's own reasons, all these the cir- the scene of the crimes. For failed to establish cuit court concluded that Trawitzki different of the trial would have been that the result impeached the three witnesses with had his counsel their convictions. appealed judgments

¶ of con- 15. Trawitzki denying post- order his and the circuit court viction motion. conviction appeals

¶ affirmed. The court of 16. The court of charges appeals the firearm theft held that charges multiplic- property not stolen were charge required proof of a different itous each because identity firearm, and fact, of the individual because charge required separate each volitional act on the part App Trawitzki, ¶ of Trawitzki. 2000 WI 205 at 10. appeals The court of also determined that Trawitzki presumption legislature did not overcome the that the multiple prosecutions. ¶ intended to allow Id. at In reaching appeals this determination, the court of relied legislature's singular phrase on the use of the "a fire- 943.20(3)(d)5, arm" in Wis. Stat. rather than ¶ "firearms" or "one or more firearms." Id. at 12. The appeals legislative history court of found that the provided theft statute no indication that the charge multiple intended but one when firearms are episode. taken or concealed in one Id. at 14. In addi- appeals tion, the court of concluded that appropriate for each firearm are to address society's spread among concern about the of firearms According appeals, criminals. Id. at 16. to the court of appropriate separately punish it is to the theft or con- cealment firearm, of each because each stolen firearm potentially places dangerous weapon a into the hands of a criminal for use in the commission of another crime. Id. appeals

¶ 17. The court of also held that right Trawitzki was not denied his constitutional to effective assistance of counsel when his trial counsel impeach failed Lehman, to Schoch, and Glascock with prior the number of their criminal convictions. Id. at appeals ¶ 18. The court of concluded that this failure to impeach prejudice did not defense, Trawitzki's because jury knew that the three witnesses were incarcer- giving jury ated for their crimes, role reason question credibility. ¶ their Id. at 22. While the court appeals recognized that the number of convictions is credibility determination, relevant to the it was not convinced that the result of Trawitzki's trial would

535 jury num- known the exact different had the have been each had. Id. of convictions witness ber

HHHH presents two issues for our 18. This case against One, are the review. away carried for each firearm taken and multiplicitous, therefore concealed for each firearm violating against prohibition double the constitutional jeopardy? trial counsel ineffective Two, was Trawitzki's failing impeach Lehman, Schoch, and Glascock prior for each criminal convictions with the number witness? following issues, the 19. To resolve these two applicable. The issue of of review are

standards jeop- person's right free from a to be double whether ardy presents question a has violated law been 739, Anderson, v. 219 Wis. 2d we review de novo. State (1998). a 329 The issue of whether 580 N.W.2d right person deprived has been constitutional presents mixed the effective assistance of counsel question 2d Johnson, and fact. State v. 153 Wis. of law (1990). uphold 121, 127, We will N.W.2d they clearly findings of fact unless are circuit court's performance erroneous. Id. Whether counsel's question prejudicial presents of law deficient and that we review de novo. Id. at HHHHHH claim that the 20. We first consider Trawitzki's charges theft and the stolen firearm firearm jeopardy charges multiplicitous. The double are Amendment to the United States clauses of the Fifth

536 I, Constitution and Article Section 8 of the Wisconsin nearly protect per- Constitution, identical, which are being "placed jeopardy punishment son from in twice for the same offense." State v. Sauceda, 168 Wis. 2d (1992). provide 486, 492, 1 485 N.W.2d These clauses 1) protections: "protection against prose- three a second 2) acquittal;" cution for the same offense after "protection against prosecution a second for the same 3) "protection against conviction;" offense after multiple punishments for the same offense." Id. This jeopardy case involves the third of the double protections. charges

¶ 21. To resolve the issue of whether the against multiplicitous, apply Trawitzki are we must two-part multiplicity the well-established test. First, charged we must determine whether the offenses are in identical law and Anderson, fact. 219 Wis. 2d at charged 746.3 If the offenses are identical in and in law they multiplicitous, fact, then are and are therefore in jeopardy violation of the double clauses of the United States and Wisconsin Constitutions. Second, Id. at 747. charged if offenses are not identical in law and fact, we must determine whether multiple prosecutions charged for the 3 by This test has been referred to this court as the "ele only States, Blockburger ments test" from v. United 284 U.S. (1932), test, test, 299 the "additional fact" the "different fact" Sauceda, the "identical law and fact" test. State v. 168 (1992). n.8, Regardless Wis. 2d 485 N.W.2d 1 test, analysis part name of the under the first the multi plicity regardless charges test same of whether the are brought multiple under statutes or whether are brought Anderson, under the same statute. State v. 219 Wis. 2d (1998). 739, 747, 580 N.W.2d 329 legislature If that the Id. at 751. we conclude offenses. charge single the offenses, for the then intended charged multiplicitous. Id. at 752. are offenses multiplicity only part

¶ the first of the It is jeopardy the constitutional double test that involves provisions. Grayson, n.3, v. 172 Wis. 2d 159 State (1992). charged If the offenses are not 493 N.W.2d 23 longer fact, then we are no identical in law and jeopardy violation. Id. The concerned with a double inquiry, part is not a constitutional second of this test statutory interpretation. question Id. rather a but legislative part the test "focuses on the The second prosecution under the to the allowable unit of intent as question." 48, 63, Rabe, State v. 96 Wis. 2d statute (1980). charged offenses are 809 When N.W.2d they part multiplicitous test, under this of the deemed contrary multiple are to the will are so because legislature. Grayson, 172 2d at 159 n.3. of the Wis. argues the firearm theft 23. The State property charges charges and the stolen against multiplicitous. are not The State charges are different in fact because contends that the charge charge requires proof a fact that another each namely, identity specific In firearm. not, does claims that the theft and conceal- addition, the State required act; ment of each firearm volitional the Lehman is, a choice to take each firearm out of to conceal each firearm near the residence and a choice bridge in Helenville. argues that Trawitzki can- 24. The State also legislature presumption

not overcome making separate charges for each firearm. In language argument, plain the State relies on the this legislature phrase statute, in used the "a which According legislature's State, .firearm." singular choice to use the form of the word "firearm," plural, rather than the indicates that the separate charge intended a for each firearm. The State legislative history further contends that of Wis. 943.20(3)(d)5 legislature Stat. indicates that the multiple charges. intended The State claims that when legislature changed the the statute to make the theft or felony regardless concealment of a firearm a of value, legislature emphasize dangerousness the meant to the Lastly, argues of each individual firearm. the State multiple punishments that for the theft and for the multiple appropriate concealment of firearms are society's regarding proliferation address concern the among firearms criminals. argues

¶ 25. Trawitzki that the ten firearm theft charges concealing charges multiplic- and the five are charges itous because the are identical in law and in charges fact. Trawitzki contends that the are identical charges in law because all of the arise under the same According charges statute. to Trawitzki, the are also though identical in that, fact. Trawitzki claims even charges the theft each firearm, involve different all of charges single the arose from a transaction. He claims concealing charges that the likewise arose from a sin- gle charges taking incident. The ten theft for carrying away single taking arose out of a act of firearms out of the Lehman residence and the five charges single hiding arose out of a act of the firearms. Trawitzki contends that the fact that charge signifi- each involves a different firearm is not cant because the focus of the statute is on the criminal taking concealing, act of or of not the nature of the property. multiple argues that, when 26. Trawitzki also pre-

charges brought statute, same are under the multiple legislature sumption that inappropriate. punishments claims is Trawitzki princi- contrary presumption to the established this strictly ple construed criminal statutes should be pre- presumption accused, that this in favor legislative objective intent. an determination vents legislature did contends that 27. Trawitzki for each firearm. Accord- intend not ing the statute Trawitzki, the structure increase intended to demonstrates that punishment stolen, not on the value of items based that increas- the ing of items. Trawitzki submits number punishment depending of items on the number charging person results, such as lead to absurd would taking pair theft for one of shoes. two counts of with argues legislature's pun- decision severely more theft or concealment of a firearm ish the legislature property the does not mean that than other charges separate for each firearm. Trawitzki intended punishes points theft of fact that the statute the to the sug- severely. Trawitzki then animals more domestic charge gests result that it would be an absurd taking eight person a litter of of theft for with counts eight claims that the Furthermore, kittens. Trawitzki phrase legislature's not of the "a firearm" does use separate charges legislature that the intended mean singular construing statutes, form because, when relying plural, Stat. also includes the on Wis. of a word 990.001(1). Lastly, argues § that there is Trawitzki sup- legislative history nothing of the statute to in the port the conclusion charges firearm. for each apply part multiplicity

¶ 28. We first of the charges test and that the conclude firearm theft charges against stolen firearms Trawitzki parties are not identical and in fact. law As both charges

concede, are identical in law they because under arise the same criminal statute, 943.20(1)(a). charges against Wis. Stat. However, the Trawitzki are not identical in The fact. test for whether charges are not identical in whether fact is "the facts separated significantly are either time or of a differ ent significantly Anderson, nature." at 749. Wis. 2d To be of a charged nature,

different each offense require proof must of an additional fact that the other case, do Id. at In not. this each theft charge against charge and each concealment Trawitzki require proof does charges of an additional fact that the other namely, identity not,

do of the individual charge alleges firearm. each Because specific either took or firearm, concealed the State prove identity specific must firearm. For example, charge alleges firearm the first theft away Trawitzki took and carried a Smith & Wesson model 28 N-frame 6" revolver with satin stainless steel grips. prove, finish and rubber State black must exactly alleged. therefore, that Trawitzki did what is alleges charge The second firearm theft that Trawitzki away took and a Star PD 45 semi-auto 4" carried blue/alloy pistol. Consequently, frame the State must prove that. charges against

¶ 29. Our conclusion that Trawitzki are identical in is consistent not fact with previous by Anderson, decisions this court. In we held charges multiple jumping that of bail were not identi- charge proof required fact, cal in each of a because fact

541 specific charge violation of not, the did the other that concluded that 2d at 751. We 219 Wis. condition of bail. proof jumping required charge Ander- of bail one charge required alcohol, another consumed while son previous proof his bat- had contact with that Anderson in tery similar conclusions have reached victim. Id. We (holding 2d at 66 Rabe, 96 Wis. cases. See also other charges, multiple deaths of four for the homicide resulting people use of a motor the intoxicated from charge fact, in each identical because vehicle, were not victim) specific proof and required the death of the 83-84, 223 2d N.W.2d Nickel, 66 Wis. Madison v. (1974) obscenity charges, (holding that four 865 magazines transaction, in were one sale of four obscene charge required proof permissible each because magazine). particular sale of a Having the firearm theft determined that charges against charges concealment and apply fact, in in law and we are not identical Trawitzki multiplicity part test, whether the second legislature charges. multiple Anderson, intended charges against Because the 2d at 746. Wis. legisla- presume fact, identical we are not for the for the theft and ture id. at 751. Trawitzki of each firearm. See concealment by only may presumption indication a clear rebut this contrary. legislative consider See id. We intent to the legislative discerning multi- intent for a four factors plicity "1) 2) language; legislative challenge: statutory 3) proscribed history context; the nature of the and 4) multiple pun- appropriateness conduct; at 751-52. ishment." Id. apply four-factor examination 31. We this pre- has not overcome that Trawitzki

conclude sumption legislature separate that the charges for the theft and for the concealment of each respect nothing factor, firearm. With to the first in the language clearly § of Wis. Stat. 943.20 indicates that legislature charge the intended one for the theft charge multiple one for the concealment of In firearms. penalty provision the fact, phrase of the statute uses the 943.20(3)(d)5. leg § "a firearm." Wis. Stat. singular islature's use of the of form the word "firearm" legislature indicates that the intended a charge example for each individual firearm.4 An of lan guage provide that would a clear indication that the legislature charge regardless intended one of the num of ber firearms would be "one or more We firearms." 990.001(1) agree § with Trawitzki that Wis. Stat. construing singular that, states statutes, when the plural. of form a word However, includes the rule this statutory phrase of construction renders the "a fire ambiguous regarding arm" in statute, best, the at prosecution. of allowable unit Even if we construe phrase singular plu "a firearm" to include the and the provide ral, this construction does not a clear legislature charge indication that the intended one 4 theft, The dissent claims that it is the act of rather than object theft, appropriate that determines number charges. However, only Dissent at n.l. source upon proposition, the dissent relies for this Law Wisconsin by Remington Joseph, article Frank J. Review J. Allan 1961, published legislature changed in well before Wis. Stat. 943.20, 1977, to separate the theft of a firearm from the § of other property. thefts forms Ch. Laws 1977. Conse quently, provides guidance this law review article no on 943.20, interpretation regard proper multiplicity to the § issue. charge of multi- one for the concealment

the theft and ple firearms. considering factor, In we find the second history legislative no there is for Wis. Stat. clearly indicates 943.20 which charges. multiple In of fact, intend our review

did not legislative history that the of the statute indicates the separate charges legislature did for each fire- intend legislature changed by the virtue of statute, arm. The punishing taking Chapter 255, 1977, of from the Laws only concealing property the based the value of or on punishing taking concealing property, to or of a the the regardless felony, D of the value of firearm with Class drafting Chapter 255, record of Laws the firearm. legislature changed pen- indicates the the of 1977 alty danger emphasize section of statute to the the Assembly with stolen firearm. In associated each Assembly 130, 1 to Bill Amendment 1997 which would legisla- Chapter 255, 1977, later Laws of the become penalty amended the section of the statute from ture "dangerous weapons" phrase phrase to "a fire- the the change plural singular, the arm." This from to the generic "dangerous spe- weapons" term the from the to firearm," "a the cific term demonstrates legislature was concerned with the theft or the conceal- Furthermore, each ment of Representative Stanley individual firearm. drafting request in a Lato, Legislative Bureau, the Reference that "the idea stated Chapter change [behind is] of 1977 from Laws danger monetary the amount to the involved with changed weapon." appears Since it that the dangerous- the statute to reflect a concern about the firearm, the ness of each stolen legislature it follows stolen for each firearm. factor, 33. Under this second we also examine Anderson, context statute. 2d Wis. at "[t]he part

751. Context is defined as of a text or state particular passage ment that surrounds word or meaning." Heritage determines its The American Dic (3d 1992). tionary 407 case, ed. In this we look at the penalty structure of the section of the which statute, specific penalty provision regarding surrounds penalty theft or concealment of a In firearm. statute, section there are three classifications taking property. or the Wis. Stat. 943.20(3). punishment § purposes, For these classifica differently. tions are treated The first classification general property, punished relates which accord ing property. to the value Wis. Stat. 943.20(3)(a)-(c). The second classification relates to property prop under certain circumstances, such as erty physical punished disaster, taken after a as a 943.20(3)(d)4. felony. § D Class Stat. Wis. The third property, classification to certain relates kinds of such punished as a firearm or a animal, domestic as a Class 943.20(3)(d)1 felony. D Wis. Stat. and 5. Since the legislature separated taking concealing the or a fire of taking arm from the or of other kinds of property, legislature sepa it follows that the charges rate for each firearm involved. penalty

¶ The fact that the section of the stat- property ute divides into three leads classifications to reject argument us to Trawitzki's that absurd results According Trawitzki, will follow from our decision. to multiple the decision to will to allow lead arbi- trary charging person results, and absurd such as stealing pair one shoes. with two counts of theft of comparison inappropriate This is because shoes and differently by pairA the are statute.5 firearms treated punished classification, the shoes falls under first of according property. A of firearm falls to the value the punished D classification, as a Class under the third felony regardless Therefore, a of the firearm's value. stealing pair of accused of one shoes will be defendant charged according the value, number, to the not the of shoes. pro- nature the factor, 35. The third clearly to conduct, fails indicate

scribed charges. multiple intend The nature did not proscribed conduct, of a or the of the concealing the theft firearm society. dangerous firearm, a stolen might putting danger- Each firearm stolen result weapon the hands a criminal. The criminal ous into can then use that firearm in the commission of another case, Trawitzki, crime. In this and the other members City Crips, the West Side took ten firearms from Consequently, gang Lehman residence. this criminal gained ten use other firearms to in the commission of City ability This Side crimes. increased West Crips to commit crimes and increased the threat society posed by gang. this If each stolen firearm society, each increases the threat then theft of suggests The dissent conclusion will lead to mul our tiple charges property items of stolen in based on number of ordinary According case. at 64. to the dis theft Dissent sent, position, argument, that the the State advanced at oral charges. discs could in five Id. compact theft of five result theft argument, persuaded by State made an we are not it. If the such above, differently are As stated firearms treated from other discs, including property, compact in Wis. Stat. forms of and Accordingly, comparison 943.20. between firearms one. compact discs not a valid

546 concealing may firearm and the of each stolen firearm charged separately. be appropri- fourth factor, and final multiple punishments, clearly

ateness of also fails to legislature multiple indicate that the prosecutions. did not intend above, As stated the theft and conceal- danger posed ment of each firearm increases the to society. Accordingly, appropriate punish it is to taking concealing separately. each firearm Imposing punishment regard each individual purposes. punishment firearm two First, serves each potential will as serve a sanction for the increased dan- ger posed society by Second, each firearm. each punishment hopefully defendant, will deter both the taking others, from or even one more firearm.

¶ 37. We therefore conclude that the firearm charges against theft and concealment Trawitzki are multiplicitous, not because are not identi- fact, cal in and because Trawitzki failed to rebut presumption multiple prosecutions under these circumstances.

¶ 38. We now turn to the second claim post-conviction motion, Trawitzki's his coun- trial failing impeach sel ineffective for Lehman, prior Schoch, and Glascock with the of their number criminal convictions. Amendment 39. Both the Sixth to the United I,

States Constitution and Article Section 7 of the Wis- consin Constitution afford criminal defendant right right right to counsel. This to counsel includes the Johnson, Wis. to the effective assistance of counsel. (citing Richardson, 2d at 126 McMann v. 397 U.S. (1970)). determine whether counsel was n.14 To 771 adopted by apply the United ineffective, the test we Washington, Supreme v. Court Strickland States (1984). Johnson, 126. "The U.S. 668 153 Wis. 2d at 466 judging any claim ineffectiveness benchmark for counsel's conduct so undermined must be whether process functioning proper that the adversarial having produced just a relied on trial cannot be as Strickland, 466 U.S. at 686. result." assis- 40. The Strickland test ineffective two-part part of the of counsel is a test. first tance per- requires that test a defendant to show counsel's 127. In Johnson, 153 Wis. 2d at formance was deficient. satisfy part test, must this defendant order counsel made serious errors so demonstrate that " guaran- functioning not as the "counsel" 'counsel was by Id. teed the defendant the Sixth Amendment.'" 687). give (citing great Strickland, 466 U.S. at We def- performance, and, therefore, a erence to counsel's strong presumption that must overcome "a defendant reasonably professional acted within norms." counsel Johnson, estab- 153 Wis. 2d at 127. If the defendant performance deficient, then lishes that counsel's satisfy part must the second the defendant prove perform- this deficient Strickland test showing, prejudiced the defense. Id. To make this ance " prove defendant has the burden to 'there is probability unprofes- that, for counsel's reasonable but proceeding errors, have sional the result would (quoting 466 Strickland, Id. at different.'" been 694)." probability probability U.S. at 'A reasonable is a confidence in the outcome.'" sufficient undermine may dispense part with the first of the Strick- Id. We prejudice. test, land if the defendant fails to establish Johnson, 153 Wis. 2d at 128. argues

¶ 41. The State that Trawitzki's trial by failing impeach was not ineffective Leh- counsel regard man, Schoch, and Glascock in to the number of prior criminal of convictions each witness. The State prejudice claims that this failure did not Trawitzki's jury they defense, that, the because knew at the time testified, each one was incarcerated for their involve- charges against ment the events that led to the jury Therefore, Trawitzki. State the claims that the question credibility had reason to Lehman, Schoch, and Glascock. The State concedes that might number of their convictions have decreased their credibility jury; with the however, the State contends credibility that it would not have diminished their enough to cast a on reasonable doubt Trawitzki's con- argues viction. The State further that the failure to impeach prejudice on the number of convictions did not defense, because other witnesses to testified Trawitzki's involvement in the crimes and Trawitzki's testimony placed own at him the scene of the crimes.

Lastly, the State contends the decision not to impeach Lehman, Schoch, and Glascock in such a man- jury ner was a one, reasonable could because have guilt associated their with Trawitzki. argues

¶ 42. Trawitzki that his trial counsel was failing ineffective for to raise number of convictions impeach Lehman, in order Schoch, to and Glascock. According Trawitzki, trial decision to counsel's not objectively impeach these witnesses not was reasona- performance, ble, and, therefore, constituted deficient prior because the number convictions of a witness credibility jury's relevant to the determination. necessary impeachment Trawitzki contends that was a participating part defense, he denied of his because claiming accusers, Lehman, his crimes, actually perpetrated Schoch, the crimes. Glascock, jus- argues Furthermore, Trawitzki that trial counsel's failing prior raise the number of tification for jury to convictions, that he did not want the associate guilt unreasonable, Trawitzki, the witnesses' with jury prior was instructed to use convictions because the only judge credibility, and for no other witness' argues purpose. JI —Criminal Trawitzki also Wis impeach prejudiced his the failure to defense. pri- against case him Trawitzki claims that the rested credibility, marily testimony, and therefore the on the that, had these Trawitzki contends three witnesses. jury prior convictions, known about the witnesses' doubt to the it would have created a reasonable as testimony, subsequently, and, truthfulness of their guilt. about Trawitzki's apply prong Strick- 43. We the second and that

land test conclude Trawitzki's counsel failing impeach Schoch, Lehman, to not ineffective for prior and Glascock with the number of their criminal dispense inquiry to convictions. We with the as performance, failure whether this amounts deficient not conclude that Trawitzki has satisfied because we prove prejudiced his the burden to that this failure Johnson, defense. 2d at 128. 153 Wis. is 44. Trawitzki has not that there established probability

a that the result of his trial reasonable different, if his trial counsel had would have been impeached Lehman, Schoch, and Glascock with prior From their testi- number of their convictions. jury mony all examination, on direct knew that participation three were incarcerated because of their charges against in the crimes that led to the Trawitzki. wearing jail prison addition, In all three testified or jury question Therefore, the clothes. had reason credibility of all three witnesses. While the num- exact might incrementally ber of convictions have weakened credibility the witnesses, is this decrease not enough probability a establish reasonable that the jury would have reached a different verdict. Confidence by in the outcome is trial not undermined impeach failure to with the numbers convictions of each witness. impeach Moreover, the failure to the three prejudice

witnesses did not defense, Trawitzki's they only implicate because were not the ones to Trawitzki in the firearm thefts and concealment. When strong supporting there evidence verdict in the likely prove record, it is less that a defendant can prejudice. Eigenberger Strickland, 466 U.S. at 696. tes- City Crips, tified that members of the West Side including himself, Trawitzki told her Trawitzki entered the Lehman residence and Cira took firearms. testified that Trawitzki was member West Side City Crips. Detective Severn testified Schoch told up him that Trawitzki carried at least firearm from one Deputy the basement of the Lehman residence. Ketchem testified that claimed to be a mem- Crips ber of the In addition, of Watertown. Trawitzki's testimony placed own at residence, him the Lehman taken, when firearms were at the scene Helenville, when firearms were hidden. summary,

¶ 46. In we conclude the ten fire- taking carrying away arm theft and the charges five firearm theft tiplicitous, for concealment are mul- not because the are not identical presump- the fact, Trawitzki cannot rebut and because multiple the tion prosecutions. We further conclude that Trawitzki's failing impeach for was not ineffective trial counsel of with the number Lehman, Schoch, Glascock prior Trawitzki has convictions, because their criminal prejudiced his defense. not that this failure established the has in the outcome of trial not been Confidence by undermined such failure.

By appeals of Court.—The decision the court the is affirmed. (dissenting).

¶ BRADLEY, ANN J. 47. WALSH prosecu- permissible this the unit of At issue in case is I statute, tion under the theft Wis. Stat. 943.20. permissible prosecution the unit of believe statutory of the crime. In theft is found the definition statutory examining I definition, the conclude that the legislature did not intend that two discrete violations of parsed into fifteen the theft statute be charges. majority ignores prose- Yet, the the unit of 48. by

cution defined statute and determines the unit the prosecution In be number firearms stolen. underlying by looking defining substantive offense provision majority penalty is statute, to the allowing wag dog. majority tail Because legislative statute, misconstrues the his- misreads tory, gross over-prosecution of theft and allows for respectfully offenses, I dissent. today's as essence, In case should be viewed inquiry legislative Bell v.

an into intent. See United (1955). the defen- States, 349 U.S. 82-83 Whether challenge multiplicity dant's under a addressed analysis question statutory interpretation, or as a of legislature ultimately of the intent is determina- appropriate prosecution. tive of the unit of See (1983). Hunter, 359, Missouri v. 459 U.S. 366-67 majority ¶ § 50. The misreads 943.20 when it analysis multiplicity concludes under its these majority offenses are not the same in law fact. The hinges its conclusion that the offenses are not the same prove in fact on the assertion that the State must identity specific Majority op. ¶ of each firearm. at 28. proper However, under a of statute, construction no proof such is needed. respect prosecu-

¶ 51. With theft, the unit of by tion intended the Wisconsin is embodied 943.20(l)(a), provides §in which the substantive defi- nition of the offense:

(1) ACTS. Whoever does of any following (3): may penalized be as provided in sub.

(a) Intentionally away, takes and carries uses, transfers, conceals, or possession retains of property movable of another without the other's consent with intent deprive per- owner manently of possession of such property. beyond jury

When the State has convinced a a reasona- ble doubt that all of satisfied, these elements are guilty defendant is of the crime of theft. 943.20(1)(a), by 52. Under is defined theft engaging defendant's conduct in one of the enumer property ated acts. Provided that is moveable property property another, the of nature of that is irrel question to the initial evant whether the defendant guilty State, is of theft. Sartin v. 2dWis. Cf. (value (1969) property 148, 170 N.W.2d 727 stolen is theft). not an element of the crime of The substantive asking of the no definition offense leaves room what . many specif- taken, taken, or from whom how were ically property is the act was taken. The sole focus defendant. It that the number allow follows upon dependent acts that the number such able appropriate prosecution is unit of were committed. 943.20(1). § In this case there were the act that violates taking guns act the from the Leh two such acts: the of subsequent act of them. man home and the 943.20(1)(a) Accordingly, permissible § is under it charged with two violations of the Trazwitzki be statute.1 Only

¶ the after the substantive elements of 54. prop- the have is the nature of offense erty been established into relevant. The statute is divided three (2) (3) (1) Acts, Definitions, and Penalties. subsections: 1 commentary authority the Criminal of one who sat on Advisory drafting in the of Wis. Code Committee assisted code, reveals that it is the Stat. 943.20 and the 1955 criminal § act, offense, object appropri the of that defines the and not the prosecution in ate unit of theft cases: by act, damaged single are or a it seems Where several items taken only charged. example, one offense can be For a defendant who charged cannot be with thefts each steals suitcase clothing can item of contained in the suitcase. Nor a defendant who place the time and from the same be so takes two suitcases at same However, damage charged. thefts of occur at where the or acts can, prosecution places at different the but need different times or not, charge single offense. Convicting, Remington Joseph, Charging, & Allan J. Frank J. Sentencing Offender, L. Multiple Criminal 1961 Wis. the 528, Rev. 540. statutory the of a pervades

The same view common law (1971) See, majority e.g., 37 of states. A.L.R.3d (explaining majority jurisdictions subscribe the "sin- that a doctrine"). larceny gle express penalty

Under statute, terms triggered provisions are not until a violation of subsec- (1), tion is "Acts," established. See Wis. Stat. ("Penalties. 943.20(3) (1)...."). § Whoever violates sub. only penalty provisions is It under the that we aré required property to examine the nature of the that is object of the theft. (3), ordinary In case, 55. subsection "Penal- (or requires property ties," that the value taken concealed) 943.20(l)(a) § in an act theft under be (1) assessed after a theft violation of subsection 943.20(3). § established. Wis. Stat. The value of the property appropriate penalty taken will determine the level. placed special However, has

emphasis property on two kinds of that will allow for a heightened penalty they object where are 943.20(3)(d)l theft: domestic animals and firearms. & object 5. When a firearm is the of a theft and where the property of value the taken does $2,500, not exceed the defendant's theft conviction is a classified as Class D felony, may properly and the defendant be sentenced to imprisonment years. term to ten not exceed If the property object that is the of the act of theft exceeds guilty felony. $2,500, the is defendant of a Class C The analysis applies same to domestic animals. Proper

¶ § 57. construction of this 943.20 in case require jury the first would that answer whether the 943.20(l)(a) Upon §of elements were satisfied. jury determination, to the would then have decide object whether a firearm was an of the theft. See Wis may so, JI —Criminal 1441B cmt. If the defendant be imprisonment to a sentenced term not to exceed ten years, weapon. regardless of the value of that contrary majority's assertions,

¶ Thus, to the simply prove, to the must in addition other the State offense, that the defendant took and of the elements Nothing property in the movable of another. concealed statutory prove requires to the the scheme the State weapon. identity If the desires of each individual State felony pursue prove D it then that a to a Class must object firearm was the of the theft.

¶ fact more one firearm 59. The than be rele- and more than one was concealed should taken only determining vant overall value upon aggregating property taken and concealed. If guns, $2,500, all the the value exceeds value of imprisonment may defendant sentenced a term be (Class felony).2 years However, C not to exceed 15 does not define the of firearms stolen number number permissible. are of theft convictions that legislative majority also misreads the 60. The agree history justifying I its result. with the court of appeals' history "[t]he conclusion that of Wis. Stat. insight § offers little as what the 943.20 regarding prosecution the allowable unit of are or in a when a number of firearms stolen concealed single episode Trawitzki, of theft." State v. WI App All 205, 14, 238 Wis. 2d 618 N.W.2d 884. legislative history intent reveals an object penalty of a theft is a increase when the might An firearm. offense that otherwise be misde- 943.20(3)(a), meanor under Wis. Stat. because felony. legislative as a value, limited is treated 2Indeed, appropriate in the case at hand it that the seems away penalty taking carrying ten firearms act of felony. its have a Class C The State advances in should been brief, reflects, complaint alleged that and criminal $2,500. aggregated weapons these exceeded value of emphasis danger on the of a stolen firearm that the majority penalty. describes is reflected in the increased legislative history

¶ 61. The does not indicate intended that a be new offense theft, created. crime is not theft of a firearm. The change penalty increase in the does not of nature underlying required proof offense. The for a theft conviction remains the same. It is unfounded to infer legislative history upgrading from the that the of the offense of theft where a firearm is a D involved to Class felony is tantamount creation of the new offense exactly of theft Yet, firearm. what the majority legislature may infers. While no doubt simply an offense, create such it has not done so. consequence major- ¶ 62. The unfortunate ity's opinion gross over-prosecution is the its case, decision will In allow. the instant Jason age Trawitzki, 16, committed theft two offenses. None- prosecutor theless, at the hands of a zealous majority court, of this he is marked for the remainder .life his as felon —15 times over—for those two offenses. majority attempts

¶ 63. The to limit its decision 943.20(3)(d)5. § to the theft of firearms under See majority op. By attempts ¶at 34. Its are futile. decon- structing the theft statute in a manner that allows the prosecution required by unit of the statute to be ignored, today's may decision have untold conse- ordinary quences theft cases. majority's analysis

¶ 64. Under the an overzeal- prosecutor may disregard ous be free to now the unit prosecution by 943.20(l)(a), through defined art- pleading any any ful can subdivide act of theft into charges. majority op. Indeed, number at See at argument posi- oral the State advanced the untenable may ordinary offense be subdivided tion that an theft charges items on the individual into numerous based compact of five State believes that the theft stolen. The may separate episode in five in of theft result discs one prose- charges. apparently is now the theft Because it legislature's, the cutor's, the definition of and not validity presumption controls, the of the of offense that may It majority a case will attach. take such part analysis some careful on today's having prevent from such an effect decision future cases. majority's agree I conclu- with the While regarding the Trawitzki's trial effectiveness of

sions regarding disagree counsel, I with its conclusions charges. majority's theft allowable number of justified only through misreading its result can be history. misconstruing legislative 943.20 and By defining prosecution unit in theft cases in a ignores statutory manner text and misinter- legislative history, majority may prets have over-prosecution opened door to the unbridled theft offenses.

¶ 66. Justice I am authorized state Chief SHIRLEY S. ABRAHAMSON and Justice WILLIAM join opinion. A. BABLITCH this

Case Details

Case Name: State v. Trawitzki

Court Name: Wisconsin Supreme Court

Date Published: Jun 29, 2001

Citation: 628 N.W.2d 801

Docket Number: 99-2234-CR

Court Abbreviation: Wis.