United States of America, Plaintiff-Appellee, v. Dennis Franklin and Shane Sahm, Defendants-Appellants.
CASE NO.: 2018AP1346-CQ
SUPREME COURT OF WISCONSIN
June 6, 2019
2019 WI 64
ON CERTIFIED QUESTION FROM THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT. ORAL ARGUMENT: February 11, 2019.
JUSTICES:
CONCURRED: ABRAHAMSON, J. concurs (opinion filed).
ATTORNEYS:
For the defendants-appellants, there were briefs filed by Shelley M. Fite and Federal Defender Services of Wisconsin, Madison. There was an oral argument by Shelley M. Fite.
An amicus curiae brief was filed on behalf of State of Wisconsin by Amy C. Miller, solicitor general, with whom on the brief were Ryan J. Walsh, chief deputy solicitor general, and Brad D. Schimel, attorney general. There was an oral argument by Amy C. Miller.
NOTICE
This opinion is subject to further editing and modification. The final version will appear in the bound volume of the official reports.
CERTIFICATION of a question of law from the United States Court of Appeals for the Seventh Circuit. Certified question answered and cause remanded.
¶1 REBECCA FRANK DALLET, J. This case is before the court on a certified question from the United States Court of Appeals for the Seventh Circuit. United States v. Franklin, 895 F.3d 954 (7th Cir. 2018); see
Whether the different location subsections of the Wisconsin burglary statute,
Wis. Stat. § 943.10(1m)(a) –(f), identify alternative elements of burglary, one of which a jury must unanimously find beyond a reasonable doubt to convict, or whether they identify alternative means of committing burglary, for which a unanimous finding beyond a reasonable doubt is not necessary to convict?
¶2 Our answer to this certified question will aid the Seventh Circuit in determining the appropriate sentences for Dennis Franklin and Shane Sahm (together, the defendants), who had their sentences enhanced pursuant to the federal Armed Career Criminal Act (ACCA),
¶3 The defendants pleaded guilty to violations of
¶4 To answer the certified question, we examine the four factors set forth in Derango: (1) the statutory text; (2) the legislative history and context of the statute; (3) the nature of the conduct; and (4) the appropriateness of multiple punishments. State v. Derango, 2000 WI 89, ¶¶14-15, 236 Wis. 2d 721, 613 N.W.2d 833. We conclude
I
¶5 Under
¶6 The categorical approach can be difficult to apply if a statute is phrased alternatively, like Wisconsin‘s burglary statute,
II
¶7 When faced with the question of whether the legislature “create[d] multiple offenses or a single offense with multiple modes of commission,” this court has analyzed the following four factors: (1) the language of the statute; (2) the legislative history and context of the statute; (3) the nature of the proscribed conduct; and (4) the appropriateness of multiple punishments for the conduct. Derango, 236 Wis. 2d 721, ¶¶14-15; see also State v. Hammer, 216 Wis. 2d 214, 220, 576 N.W.2d 285 (Ct. App. 1997); Manson v. State, 101 Wis. 2d 413, 422, 304 N.W.2d 729 (1981). The objective of this inquiry is to determine whether the legislature
¶8 In Derango, this court was faced with the question of whether
Whoever, with intent to commit any of the following acts, causes or attempts to cause any child who has not attained the age of 18 years to go into any vehicle, building, room or secluded place is guilty of a Class BC felony:
(1) Having sexual contact or sexual intercourse with the child in violation of s. 948.02 or 948.095.
(2) Causing the child to engage in prostitution.
(3) Exposing a sex organ to the child or causing the child to expose a sex organ in violation of s. 948.10.
(4) Taking a picture or making an audio recording of the child engaging in sexually explicit conduct.
(5) Causing bodily or mental harm to the child.
(6) Giving or selling to the child a controlled substance or controlled substance analog in violation of ch. 961.
Id., ¶16. The Derango court examined the four factors and determined that the statute created one offense of causing a child to go into a secluded place “with any of six possible prohibited intents.” Jury unanimity as to intent was therefore not required. Id., ¶17.
¶9 The defendants argue that application of the four Derango factors leads to the conclusion that the legislature intended to create a single offense of burglary with multiple means of commission.3 The federal government asserts that the Derango factors support its position that subsections (a)–(f) identify alternative locational elements requiring jury unanimity yet also maintains that the holding in Derango should be limited to the child enticement statute at issue in that case. We analyze the Derango factors and conclude that
¶10 We begin with an examination of the plain language of the statute.
Whoever intentionally enters any of the following places without the consent of the person in lawful possession and with intent to steal or commit a felony in such place is guilty of a Class F felony:
(a) Any building or dwelling; or
(b) An enclosed railroad car; or
(c) An enclosed portion of any ship or vessel; or
(d) A locked enclosed cargo portion of a truck or trailer; or
(e) A motor home or other motorized type of home or a trailer home, whether or not any person is living in any such home; or
(f) A room within any of the above.
The straightforward language of
¶11 Moreover, similar to the alternative prohibited intents set forth in the child enticement statute in Derango,
¶12 The second Derango factor instructs the court to examine the legislative history and context of the statute. We recognize that Derango was decided prior to State ex rel. Kalal v. Circuit Court for Dane Cty., 2004 WI 58, 271 Wis. 2d 633, 681 N.W.2d 110, this court‘s seminal case on statutory interpretation.6 As this court stressed in Kalal, statutory interpretation begins with the language of the statute. Kalal, 271 Wis. 2d 633, ¶45. Where the statutory language is unambiguous, we generally do not consult extrinsic sources of interpretation like legislative history. Id., ¶46. However, as we clarified in Kalal, “legislative history is sometimes consulted to confirm or verify a plain-meaning interpretation.” Id., ¶51. We determine that
¶13 We also observe that Kalal does not disturb this court‘s ability to inquire
¶14 A review of the legislative history and context of the statute further supports our conclusion that
¶15 The legislature‘s advisory committee subsequently made several changes to incorporate the various locations within the definition of “structure” into the burglary statute: “building, dwelling, enclosed railroad car or the enclosed portion of any ship or vessel, or any room therein.” See Wisconsin Legislative Council, Meeting of the Criminal Code Advisory Committee at 9 (July 23, 1954). Thereafter the committee sent the statute back to the technical staff to have it formatted in an “a-b-c fashion.” Wisconsin Legislative Council, Meeting of the Criminal Code Advisory Committee at 11 (July 24, 1954). Ultimately when the law was enacted in 1955 it read:
(1) Whoever intentionally enters any of the following places without the consent of the person in lawful possession and with intent to steal or commit a felony therein may be imprisoned not more than 10 years:
(a) Any building or dwelling; or
(b) Any enclosed railroad car; or
(c) An enclosed portion of any ship or vessel; or
(d) A locked enclosed cargo portion of a truck or trailer; or
(e) A room within any of the above.
§ 943.10, ch. 696, Laws of 1955.7
¶16 As is clear from the legislative history and context of the statute, the legislature did not intend for the crime of burglary to include a separate locational element. The statute originally included the element of entry of “any structure,” which was
¶17 Finally, our assessment of the nature of the proscribed conduct and the appropriateness of multiple punishments leads us to conclude that the legislature intended to create one crime of burglary with multiple means of commission. “We have previously concluded that acts warrant separate punishment when they are separate in time or are significantly different in nature.” Derango, 236 Wis. 2d 721, ¶21 (citing State v. Sauceda, 168 Wis. 2d 486, 499-500, 485 N.W.2d 1 (1992)). The proscribed conduct here is entering a specified location without consent and with intent to steal or commit a felony. Regardless of which location is entered, there is only one act of burglary.
¶18 If we adopt the position of the federal government, a defendant could receive multiple punishments for the same act in violation of the double jeopardy clauses of the federal and Wisconsin constitutions. Derango, 236 Wis. 2d 721, ¶26;
¶19 Recently, in denying an ineffective assistance of counsel claim for failure to object to jury instructions, we confirmed that the locational alternatives in
III
¶20 In sum, after analysis of the statutory text, the legislative history and context of the statute, the nature of the conduct, and the appropriateness of multiple punishments, we conclude that the locational alternatives in
By the Court.—Certified question answered and cause remanded.
United States of America, Plaintiff-Appellee, v. Dennis Franklin and Shane Sahm, Defendants-Appellants.
No. 2018AP1346-CQ.ssa
SUPREME COURT OF WISCONSIN
SHIRLEY S. ABRAHAMSON, J. (concurring).
¶21 SHIRLEY S. ABRAHAMSON, J. (concurring). I agree with the majority that
¶22 I write separately, however, to address the majority‘s imprudent, sua sponte decision to modify the legal test adopted by this court in State v. Derango, 2000 WI 89, ¶¶14-15, 236 Wis. 2d 721, 613 N.W.2d 833.
¶23 In Derango, this court held that the following four factors should be considered when determining whether the legislature intended to create multiple offenses or a single offense with multiple modes of commission: “1) the language of the statute, 2) the legislative history and context of the statute, 3) the nature of the proscribed conduct, and 4) the appropriateness of multiple punishment for the conduct.”1
¶24 Subsequently, in State ex rel. Kalal v. Circuit Court for Dane County, 2004 WI 58, ¶46, 271 Wis. 2d 633, 681 N.W.2d 110, this court limited the circumstances under which legislative history could be consulted in interpreting a statute‘s meaning. The Kalal court announced that “extrinsic sources of statutory interpretation” such as “items of legislative history” should not be consulted “except to resolve an ambiguity in the statutory language . . . .”2 “If the meaning of the statute is plain,” the inquiry ordinarily stops and extrinsic sources of statutory interpretation need not be consulted.3
¶25 The majority concludes that “[t]he straightforward language of § 943.10(1m) creates one offense with multiple means of commission.”4 Isn‘t this ordinarily the end of the inquiry under Kalal?5
¶26 The majority attempts to reconcile Derango with Kalal by highlighting that, under Kalal, “legislative history is sometimes consulted ‘to confirm or verify a plain-meaning interpretation‘” of an unambiguous
¶27 In my view, the majority has muddied that which it sought to clarify. By hastily disposing of a significant legal issue8 without the benefit of adversarial briefing,9 the majority has raised more questions than it answered.
¶28 For example, if the “straightforward language” of a statute creates one offense with multiple modes of commission, but the statute‘s legislative history suggests otherwise, what weight, if any, should be afforded to the legislative history? Under such circumstances, should the court disregard the legislative history altogether?
¶29 Further, does it remain proper for courts to examine and give analytical weight to Derango‘s third and fourth factors? That is, if the statute‘s language is plain and its plain meaning is confirmed by the statute‘s legislative history and context, what possible effect could the nature of the conduct or the appropriateness of multiple punishments have on the court‘s analysis?
¶30 These are important and complicated legal questions. The people of Wisconsin deserve careful and considered answers to them, and in my view, “[t]he rule of law is generally best developed when matters are tested by the fire of adversarial briefs and oral arguments.”10 “The fundamental premise of the adversary process is that these advocates will uncover and present more useful information and arguments to the decision maker than would be developed by a judicial officer acting on his own in an inquisitorial system.”11
¶31 Because the majority makes the unwise decision to deviate from adversarial process by spontaneously, and incautiously, answering a complicated legal question on its own, I concur.
Notes
- The defendant intentionally entered a building.
- The defendant entered the building without the consent of the person in lawful possession.
- The defendant knew that the entry was without consent.
- The defendant entered the building with intent to commit (state felony), [that is, that the defendant intended to commit (state felony) at the time the defendant entered the building].
When the appellate court considers a matter sua sponte for the first time it means that the litigants have not been given an opportunity to consider the matter and urge arguments in support of and against the position adopted by the reviewing court. If the question had been raised there is at least a possibility that other facts or other authorities might have been presented which might have changed the court‘s attitude on the matter.