State v. Anderson

• Citation: 219 Wis.2d 739,580 N.W.2d 329
• Decision Date: 02 July 1998
• Docket Number: 96-0088-CR,Nos. 96-0087-C,s. 96-0087-C
• Parties: STATE of Wisconsin, Plaintiff-Respondent-Petitioner, v. Daniel ANDERSON, Defendant-Appellant.
• Court: United States State Supreme Court of Wisconsin

Page 329

580 N.W.2d 329

219 Wis.2d 739

STATE of Wisconsin, Plaintiff-Respondent-Petitioner, v. Daniel ANDERSON, Defendant-Appellant.

Nos. 96-0087-CR, 96-0088-CR.

Supreme Court of Wisconsin.

Argued May 27, 1998.

Decided July 2, 1998.

For the plaintiff-respondent-petitioner the cause was argued by Susan M. Crawford, Assistant Attorney General, with whom on the brief was James E. Doyle, Attorney General.

For the defendant-appellant there was a brief and oral argument by Jack E. Schairer, Assistant State Public Defender.

¶1 WILLIAM A. BABLITCH, Justice

The State of Wisconsin (State) seeks review of a decision of the court of appeals ¹ which reversed convictions of Daniel Anderson (Anderson) for two counts of bail jumping, each count based on a violation of a separate condition of the same bond. Because we determine that the violations of the different conditions of bond are different in fact and there is no clear indication to rebut the presumption that the legislature intended multiple punishments, we hold that the two convictions are not multiplicitous. Accordingly, we reverse the decision of the court of appeals.

¶2 The facts relevant to this appeal are undisputed. The defendant, Anderson, was charged with substantial battery, a felony contrary to Wis. Stat. § 940.19(2) (1993-94). ² At Anderson's initial appearance, the court commissioner set a cash bond, ordered statutory conditions of bond, ³ and ordered as another condition of bond that Anderson have no contact with the victim, K. Lain (Lain). Following the preliminary hearing, the court commissioner reduced the cash bond but added, as another condition of bond, that Anderson not consume alcoholic beverages or illegal drugs.

¶3 At a pretrial hearing on May 11, 1995, before Kenosha County Circuit Court, David M. Bastianelli, Judge, the defendant pleaded no contest to the charge of substantial battery. Based on the plea, the court found the defendant guilty, entered judgment of conviction accordingly, and ordered a presentence investigation report. The court also released Anderson on the same bond pending sentencing.

¶4 While Anderson was still under bond and before sentencing on the battery conviction, City of Kenosha police officers were called to the victim's home. Upon arrival, they found the victim, the defendant, and another individual, R. Powell (Powell), all of whom were intoxicated. All three individuals told the officers that they were currently residing at the victim's address. Also, there had apparently been an altercation between Powell and Anderson--both had lacerations and were bleeding.

¶5 As a result of this incident, Anderson was charged by criminal complaint with five counts: one count of battery, one count of disorderly conduct and three counts of bail jumping, all by a repeat offender. Each count of bail jumping was based on a violation of a different term ⁴ of Anderson's bond for the underlying substantial battery charge. Pursuant to a plea agreement, Anderson pleaded guilty to two charges of bail jumping, contrary to Wis. Stat. § 946.49 (reprinted below), ⁵ one based on violating the term of bond prohibiting consumption of alcohol, and one based on violating the term of bond prohibiting contact with Lain. The circuit court consolidated the bail jumping charges with the underlying substantial battery charge. The circuit court sentenced Anderson to seven years in the Wisconsin state prisons on one count of bail jumping and a withheld sentence and six years of probation with conditions, consecutive to the prison term on the other bail jumping count. The circuit court also ordered a withheld sentence and three years of probation for the underlying substantial battery conviction, to run consecutive to the prison term and concurrent with the probation in the bail jumping case.

¶6 Anderson filed a motion for post-conviction relief, arguing that convictions on two counts of bail jumping were multiplicitous and, therefore, violated the double jeopardy provisions of the United States and Wisconsin constitutions. ⁶ The circuit court denied Anderson's motion.

¶7 The court of appeals reversed the defendant's conviction on one count of bail jumping and remanded for re-sentencing on the other count. See State v. Anderson, 214 Wis.2d 126, 570 N.W.2d 872 (Ct.App.1997). The court of appeals concluded that violating the terms of bond is determinative and Anderson violated the terms once, at the same time and at the same place. See id. at 132, 570 N.W.2d 872. Therefore, the court of appeals concluded that the two convictions for violating one bail bond were multiplicitous. See id.

¶8 We accepted the State's petition for review and are presented with one issue: whether the defendant's convictions for two counts of bail jumping were multiplicitous, thus violating the constitutional protection against double jeopardy, where each count was based on a violation of a separate term of the same bond. We hold that charging this defendant with multiple counts of bail jumping for violating separate terms of the same bond is not multiplicitous. Accordingly, we reverse the court of appeals' decision.

¶9 Whether an individual's constitutional right to be free from double jeopardy has been violated is a question of law that this court reviews de novo. See State v. Sauceda, 168 Wis.2d 486, 492, 485 N.W.2d 1 (1992).

¶10 Both the state and federal constitutions protect a defendant from being punished twice for the same offense. ⁷ One of the protections embodied in the double jeopardy clause, and the one pertinent to this case, is "protection against multiple punishments for the same offense." Sauceda, 168 Wis.2d at 492, 485 N.W.2d 1 (citing North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969)). Multiplicitous charges, that is charging a single criminal offense in more than one count, "are impermissible because they violate the double jeopardy provisions of the Wisconsin and United States Constitutions." State v. Grayson, 172 Wis.2d 156, 159, 493 N.W.2d 23 (1992) (citations omitted).

¶11 It is well-established that this court analyzes claims of multiplicity using a two-prong test: 1) whether the charged offenses are identical in law and fact; and 2) if the offenses are not identical in law and fact, whether the legislature intended the multiple offenses to be brought as a single count. See id. We most recently applied this test in State v. Lechner, 217 Wis.2d 392, 576 N.W.2d 912 (1998).

¶12 Under the first prong of the multiplicity analysis, if the offenses are identical in law and fact, the charges are multiplicitous in violation of the double jeopardy clauses of the federal and state constitutions. See Grayson, 172 Wis.2d at 159, 493 N.W.2d 23. The analysis under this first prong is the same whether we are reviewing multiple charges brought under different statutory sections (a "lesser-included offense" challenge), or multiple charges brought under one statutory section (a "continuous offense" challenge). See id. at 159-60, 493 N.W.2d 23 (referring to Sauceda, 168 Wis.2d at 493 n. 8, 485 N.W.2d 1). However, our focus changes with respect to the particular challenge raised.

In a "lesser-included offense" challenge, the factual situations underlying the offenses are the same, so our focus is on whether the offenses are also identical in law. See [Sauceda, 168 Wis.2d] at 493-94 n. 8, 485 N.W.2d 1; see, e.g., State v. Kuntz, 160 Wis.2d 722, 753-57, 467 N.W.2d 531 (1991); State v. Wolske, 143 Wis.2d 175, 180-185, 420 N.W.2d 60 (Ct.App.1988). In a "continuous offense" challenge, the course of conduct is alleged to have constituted multiple violations of the same statutory provision, so our focus is not on statutory definitions but on the facts of a given defendant's criminal activity. See Sauceda, 168 Wis.2d at 493-94 n. 8, 485 N.W.2d 1; see, e.g., State v. Rabe, 96 Wis.2d 48, 65-68, 291 N.W.2d 809 (1980); State v. Van Meter, 72 Wis.2d 754, 758, 242 N.W.2d 206 (1976).

Lechner, 217 Wis.2d at 403 n. 7, 576 N.W.2d 912.

¶13 In this case, the State concedes that the two bail jumping charges are identical in law because both were contrary to the same statute, Wis. Stat. § 946.49.

¶14 The parties disagree, however, on whether the offenses are different in fact. Because the defendant's course of conduct allegedly constituted multiple violations of the same statute, Wis. Stat. § 946.49, we focus on the facts of the defendant's offenses. See Sauceda, 168 Wis.2d at 493-94 n. 8, 485 N.W.2d 1. Anderson asserts that the offenses are identical in fact because the violations happened at the same time, on the same date and at the same place. He argues that both offenses were part of the same general transgression or same episode. The State, on the other hand, asserts that the two bail jumping charges are, in all likelihood, separated in time and that the charges are significantly different in nature because each charge involves independent deliberation and a different course of conduct on Anderson's part.

¶15 Because the defendant pleaded guilty to two counts of bail jumping as part of a plea agreement, there is no evidentiary record on which to base our review. Therefore, we rely on the criminal complaint and information, as well as statements made at the pretrial hearing to determine whether the offenses were identical in fact. See, e.g., State v. Eisch, 96 Wis.2d 25, 27, 291 N.W.2d 800 (1980) (reviewing case at pleading stage).

¶16 One count of the complaint alleged that Anderson intentionally failed to comply with the term of his bond that prohibited him from consuming any alcoholic beverages during the pendency of the action regarding the substantial battery charge. Another count alleged that Anderson intentionally failed to comply with the term of his bond that prohibited him from having any contact with Lain. As a basis for the complaint, the complainant stated that two City of Kenosha police officers were dispatched to an...