Dickenson v. Israel, Civ. A. No. 77-C-568.

• Decision Date: 25 January 1980
• Docket Number: Civ. A. No. 77-C-568.
• Citation: 482 F. Supp. 1223
• Parties: Clarence Anthony DICKENSON, Petitioner, v. Thomas R. ISRAEL et al., Respondents.
• Court: U.S. District Court — Eastern District of Wisconsin

482 F. Supp. 1223

Clarence Anthony DICKENSON, Petitioner, v. Thomas R. ISRAEL et al., Respondents.

Civ. A. No. 77-C-568.

United States District Court, E. D. Wisconsin.

January 25, 1980.

Daniel W. Linehan, Madison, Wis., for petitioner.

Bronson C. La Follette, Atty. Gen. of Wisconsin, and Thomas J. Balistreri, Asst. Atty. Gen., Madison, Wis., for respondents.

DECISION AND ORDER

REYNOLDS, Chief Judge.

This is a petition for writ of habeas corpus brought pursuant to 28 U.S.C. § 2254. Petitioner is in custody at the Winnebago State Camp at Winnebago, Wisconsin. While petitioner raised twelve separate issues in his original petition, he has chosen to brief and argue only two of those issues. Both involve the operation and effect of the double jeopardy clause of the fifth amendment to the United States Constitution.

On January 28, 1975, petitioner was convicted of armed robbery in violation of § 943.32(1)(a) and (b) of the Wisconsin Statutes. The robbery took place at a McDonald's restaurant in the City of Milwaukee. Petitioner entered the restaurant and demanded money from the cashier on duty. She hesitated and he lifted his shirt and said, "Do you know what this is?" In the waistband of his trousers was a black object which the cashier took to be the butt of a gun. She looked around the room to see if anyone was watching, and he said, "It's not worth it baby." Feeling fear for her personal safety, she removed the cash drawer and placed it in front of petitioner. He removed the money from the drawer and left the restaurant. A customer noted his license plate and he was arrested the following day.

At petitioner's trial, he was positively identified as the man who committed the robbery. The cashier, however, could not positively identify the object in petitioner's waistband as a gun. None of the other witnesses were able to testify that petitioner was armed. The jury was instructed on the elements of armed robbery and the lesser-included charge of robbery. Petitioner was convicted on the greater charge and was sentenced to 25 years' imprisonment.

On appeal, the Wisconsin Supreme Court held that there was insufficient evidence to support the jury's determination that petitioner was armed at the time of the robbery. It was not enough, according to the Court, that the cashier had a subjective fear that her personal safety was in danger, even though such fear was induced by petitioner's words and actions. Instead, it was necessary for the prosecution to prove beyond a reasonable doubt that petitioner was in fact carrying a gun. Since the cashier could not positively identify the object in petitioner's waistband as a gun, and since there was no other evidence that petitioner was armed, the jury was precluded from finding petitioner guilty of armed robbery.

The Court did find that the prosecution had proved every element of the lesser-included offense of robbery. This being the case, the Court reversed petitioner's conviction for armed robbery and remanded the case to the trial court with directions to enter a judgment of conviction for robbery and to resentence him on the lesser charge. On remand, the new judgment of conviction was entered and petitioner's sentence was reduced to nine years.

Petitioner's allegations of constitutional error center around the remedial action taken by the Wisconsin Supreme Court following the reversal of his conviction for armed robbery. Petitioner claims that he was unconstitutionally placed in double jeopardy when the Wisconsin high court ordered that a judgment of conviction for robbery be entered against him. Petitioner also argues that he unconstitutionally received a harsher sentence on remand than he received following his trial.

The State first argues that petitioner has failed to exhaust his state remedies with respect to the above issues. While the State has a valid point as to the sentencing issue, there is no merit to its argument as it applies to petitioner's first issue. The Wisconsin Supreme Court explicitly considered its authority to order the entry of judgment on the lesser charge and concluded that such authority existed. Although the Court did not specifically address petitioner's constitutional argument, it cannot be assumed that the Court did not consider the constitutional implications of its action. Furthermore, since the order of entry of judgment emanated from the highest court of the state, it is unclear just what remedies the State would have petitioner exhaust. Petitioner has already exhausted his direct appeal from conviction, and any post-conviction motions at the trial level seeking relief from an order of the high court of Wisconsin would, of course, be futile.

Petitioner has not exhausted his state remedies with respect to the sentencing issue. The sentence to which petitioner objects was imposed by the trial court and could have been appealed. Nonetheless, considering the long pendency of this petition, the interrelationship of the issues involved, and the fact that petitioner will be released from prison in January of 1980, the Court finds that it would be unjust to send petitioner back through the state court system at this stage of the proceedings. See Grant v. State of Wisconsin, 450 F.Supp. 575, 579 (E.D.Wis.1978). Accordingly, petitioner's claims will be considered on the merits.

State and federal appellate courts have long exercised the power to reverse a conviction while at the same time ordering the entry of judgment on a lesser-included offense. See, e. g., United States v. Cobb, 558 F.2d 486, 489 (8th Cir. 1977); Austin v. United States, 127 U.S.App.D.C. 180, 191-192, 382 F.2d 129, 140-142 (D.C.Cir.1967); Luitze v. State, 204 Wis. 78, 234 N.W. 382 (1931). The usual situation in which this occurs is when there is insufficient evidence to support one of the elements of an offense. A court may be reluctant to overturn an entire conviction when there is ample evidence to support a lesser-included charge which does not contain the insufficiently proven element. The authority to order the entry of judgment on the lesser-included offense is both statutory, see, e. g., 28 U.S.C. § 2106, and based on the common law. The constitutionality of the practice has never seriously been questioned.

Petitioner argues that the practice must be reexamined in light of the recently decided case of Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978). In Burks, the defendant was charged with robbery of a federally insured bank by use of a dangerous weapon. His principle defense was insanity. Although he was convicted in the district court, the Sixth Circuit Court of Appeals held that there was insufficient evidence to support the finding that defendant was...