State v. Bautista

• Decision Date: 17 June 2009
• Docket Number: No. 2008AP1692-CR.,2008AP1692-CR.
• Citation: 770 N.W.2d 744,2009 WI App 100
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. Julio C. BAUTISTA, Defendant-Appellant.
• Court: Wisconsin Court of Appeals

770 N.W.2d 744

2009 WI App 100

STATE of Wisconsin, Plaintiff-Respondent, v. Julio C. BAUTISTA, Defendant-Appellant.

No. 2008AP1692-CR.

Court of Appeals of Wisconsin.

Submitted on Briefs March 5, 2009.

Opinion Filed June 17, 2009.

On behalf of the defendant-appellant, the cause was submitted on the briefs of Jefren E. Olsen, Assistant State Public Defender of Madison.

On behalf of the plaintiff-respondent, the cause was submitted on the brief of Michael C. Sanders, Assistant Attorney General, and J.B. Van Hollen, Attorney General.

Before BROWN, C.J., ANDERSON, P.J., and NEUBAUER, J.

¶ 1 BROWN, C.J

In State v. Hansen, 2001 WI 53, 243 Wis.2d 328, 627 N.W.2d 195, our supreme court addressed WIS. STAT. § 961.45 (2007-08),¹ providing for double jeopardy protection against successive prosecutions by dual sovereignties in the context of controlled substance offenses. The supreme court rejected the State's contention that, so long as the elements are different (the so-called Blockburger² test), dual prosecutions may proceed. Hansen, 243 Wis.2d 328, ¶¶ 12, 44, 627 N.W.2d 195. Rather, the court announced that successive prosecutions may not exist when the "conduct" is the same. Id., ¶ 44. In this case, Julio C. Bautista, relying on two cases from Pennsylvania, argues that conduct is defined as a "common scheme or plan" such that his conspiracy to sell drugs encompasses all acts under that planned endeavor. We are unwilling to accept that definition. Borrowing from a phrase in Harrell v. State, 88 Wis.2d 546, 558, 277 N.W.2d 462 (Ct.App.1979), we hold that when a defendant comes to a "fork in the road" and commits to a separate volitional act, it is different conduct and its prosecution is not subject to § 961.45. We affirm.

¶ 2 Bautista was arrested on September 7, 2005, after delivering twenty ounces of cocaine to a federal undercover agent. On September 12, the State charged him with delivering cocaine on two occasions, one on August 13 and the other on September 7. On September 20, the U.S. attorney filed federal charges based on the same two deliveries. As a result, the State dismissed its case. But on November 21, the State charged Bautista with one count of conspiracy to deliver tetrahydrocannabinols (marijuana). The State alleged that this conspiracy ran from April 11, 1997, to September 6, 2005, and that the first significant arrest in this conspiracy occurred in March 2005.

¶ 3 After Bautista was convicted in federal court for the two counts of delivering cocaine, he moved to dismiss the state charge on grounds that it was barred by WIS. STAT. § 961.45, because he had already been convicted of the same conduct in federal court. The circuit court denied the motion and Bautista then pled guilty. The circuit court imposed a bifurcated sentence and Bautista now appeals.

¶ 4 Bautista relies heavily on Hansen as the cornerstone for his argument. In that case, on September 29, 1997, a state narcotics agent arrested Hanson after cocaine was found on her person, in her vehicle (along with drug paraphernalia and cutting agents) and her home. Hansen, 243 Wis.2d 328, ¶¶ 2-3, 627 N.W.2d 195. The State charged her with possessing cocaine with intent to deliver. Id., ¶ 2. While the State action was pending, a federal grand jury indicted Hansen for conspiracy to distribute and possess with intent to distribute. Id., ¶ 4. She decided to plead guilty to the federal charge. Id. At the plea hearing, the assistant U.S. attorney explained the factual basis for Hansen's plea. Id., ¶ 5. He informed the court that the evidence which he would present at trial would include testimony from witnesses regarding Hansen's involvement with other individuals in the sale of cocaine. Id. Included as part of the factual basis was evidence of the cocaine found on her person, in her vehicle and at her apartment by the Wisconsin narcotics agent on September 29. Id. In particular, the factual basis included information about the amount of cocaine found, a number of scales commonly used for weighing cocaine which were found in the trunk of her vehicle, a shot gun and containers of various powdered chemicals sometimes used as cutting agents to dilute cocaine. Id.

¶ 5 Hansen was convicted of the federal charge and sentenced while the state charge was still pending. Id., ¶ 6. She then moved to dismiss the state charge. Id. She noted that WIS. STAT. § 961.45 bars a controlled substance prosecution in Wisconsin where the defendant has already been convicted for the "same act" under federal law or the laws of another state. Id. She argued that the state charge was for the same act as the federal charge for which she had been convicted. See id. The circuit court denied the motion on the grounds that § 961.45 required application of the "elements only" test of Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932), to determine whether the prior conviction was for the same act. Hansen, 243 Wis.2d 328, ¶ 6, 627 N.W.2d 195. Because the state charge required proof of different elements than the federal offense, the circuit court held that § 961.45 was inapplicable. Hansen, 243 Wis.2d 328, ¶ 6, 627 N.W.2d 195. Hansen then pled guilty and appealed. Id., ¶ ¶ 7-8. This court certified the case to the supreme court to decide if the Blockburger test was the proper analysis to use in assessing § 961.45 issues. Hansen, 243 Wis.2d 328, ¶ 8, 627 N.W.2d 195. The supreme court accepted the certification.

¶ 6 Before the supreme court, the State asserted that Blockburger should be the test. Hansen, 243 Wis.2d 328, ¶ 12, 627 N.W.2d 195. But the supreme court rejected that argument. Id., ¶ 44. In a thoughtful and lengthy discussion, the court reasoned that whether two crimes were the "same offense" (the Blockburger test) asked an altogether different question than whether a crime consisted of the "same act." Hansen, 243 Wis.2d 328, ¶¶ 22-29, 627 N.W.2d 195. In analyzing the cases addressing double jeopardy prior to the enactment of the uniform law upon which WIS. STAT. § 961.45 was based, the supreme court found that the terms "act" and "same act" were consistently used to "describe the conduct comprising the offense." Hansen, 243 Wis.2d 328, ¶¶ 27-30, 627 N.W.2d 195. Therefore, the supreme court concluded that if the same conduct comprised the charged offenses, in both sovereignties, the Wisconsin prosecution was barred once there was a conviction in the other sovereignty. Id., ¶¶ 30, 44.

¶ 7 Because Hansen's conduct consisted of possessing cocaine on September 29 in her home, in her car and on her person, and because this same conduct was the factual basis for both her federal conspiracy charge and her state possessing with intent to deliver charge, the supreme court held that the state prosecution was barred once the federal charge resulted in a conviction. Id., ¶ 43.

¶ 8 Bautista sees parallels between Hansen and the facts in his case. He explains that Hansen was charged in state court with a very specific act—possession with intent—and in federal court with conspiracy—of which the state act was part. Thus, he continues, "both the acts underlying the state charges and the overt acts constituting the federal conspiracy can be seen as acts of criminal behavior committed in support of the common and continuing scheme of controlled substances distribution in which Hansen played a role." Similarly, his legal problems consisted of two specific charges in federal court—possession with intent to deliver cocaine—and in state court with broad ranging conduct—a conspiracy to sell marijuana—of which, he claims, the federal acts were part.

¶ 9 Bautista borrows from two Pennsylvania cases to support his theory that a conspiracy charge swallows up all specific acts performed in furtherance of the conspiracy. In Commonwealth v. Abbott, 319 Pa.Super. 479, 466 A.2d 644 (1983), and Commonwealth v. Mascaro, 260 Pa.Super. 420, 394 A.2d 998 (1978), the courts interpreted a "same conduct" phrase in a Pennsylvania statute barring dual prosecution to mean "any and all criminal behavior committed in support of a `common and continuing scheme.'" Abbott, 466 A.2d at 651; see also Mascaro, 394 A.2d at 1001. He appears to argue that, even though the Hansen court never defined the term "same conduct" as meaning "all behavior in support of a common scheme," it is obvious to him that the only reasonable interpretation of Hansen is that compound charges consisting of a conspiracy in one court and its object offense in another, are barred by the statute. He appears to extrapolate from this that if a conspiracy involves multi-layered conduct, and all such conduct is part of the overarching common scheme, then WIS. STAT. § 961.45 must be read to bar prosecution where some other part of the multi-layered conduct has resulted in a prosecution in some other jurisdiction.

¶ 10 While Bautista gets points for a novel argument, at its core, it is fundamentally inconsistent with the very premise of the term "same conduct." The term "same conduct" is, after all, not exactly a rare term in criminal law, generally speaking. It is used in all kinds of contexts. For example, it is of continuing concern in sexual assault multiplicity/double jeopardy cases where the question is whether the defendant's assaultive conduct constituted a single offense or separate, distinct offenses. We cite to two cases where we discussed what conduct constitutes separate, distinct offenses—and specifically, how to determine if separate offenses are comprised of the same, or different, conduct.

¶ 11 Harrell, 88 Wis.2d 546, 277 N.W.2d 462, referred to at the top of our opinion, is one of the leading sexual assault multiplicity cases. There, the defendant committed two forcible vaginal intercourses on the same person, at the same location and separated by twenty-five minutes of conversation. Id. at 553, 277 N.W.2d 462. We held that the break in his conduct and the time between the acts was sufficient...