State v. Davison

Decision Date03 July 2003
Docket NumberNo. 01-0826-CR.,01-0826-CR.
PartiesSTATE of Wisconsin, Plaintiff-Respondent-Petitioner, v. Jimmie DAVISON, Defendant-Appellant.
CourtWisconsin Supreme Court

For the plaintiff-respondent-petitioner the cause was argued by Diane M. Welsh, assistant attorney general, with whom on the briefs was James E. Doyle, attorney general.

For the defendant-appellant there was a brief and oral argument by Keith A. Findley, Criminal Appeals Project, University of Wisconsin Law School, Madison.


This is a review of a published decision of the court of appeals, State v. Davison, 2002 WI App 109, 255 Wis. 2d 715, 647 N.W.2d 390, which reversed the judgment of the Kenosha County Circuit Court, following Jimmie Davison's (Davison) negotiated guilty plea to one count of aggravated battery, one count of special circumstances battery (battery by prisoner), and one count of threats to injure, all as a repeater. The court of appeals concluded that the aggravated battery and battery by prisoner punishments were multiplicitous, in violation of Davison's double jeopardy rights under the United States and Wisconsin Constitutions. Id., ? 20.

? 2. Two issues are presented for review. First, does a criminal defendant who pleads guilty to several crimes in a negotiated plea agreement waive the right to raise a multiplicity claim against one of the resulting convictions? Second, did the circuit court err in entering a judgment of conviction for one count of aggravated battery and one count of battery by prisoner on the facts of this case? More specifically, did the legislature intend in Wis. Stat. ? 939.66(2m) (1999-2000)1 to prohibit conviction for both aggravated battery under Wis. Stat. ? 940.19(6) and battery by prisoner under Wis. Stat. ? 940.20(1) in the prosecution of a single act?

? 3. We hold that the legislature did not clearly intend in ? 939.66(2m) to bar convictions for both aggravated battery under ? 939.19(6) and battery by prisoner under ? 940.20(1) in a single prosecution arising out of a single act. When the broad language of ? 939.66(2m) is viewed in its full context, considering its legislative history as well as the different harms addressed by different battery statutes, we conclude that ? 939.66(2m) was intended to address specific problems pertaining to ? 940.19 and not intended to prohibit cumulative punishments from convictions under the two battery statutes.

? 4. Davison's convictions for both aggravated battery and battery by prisoner were in conformity with legislative intent and thus did not violate his due process right against multiplicitous punishments. Because we conclude that Davison's multiplicity objection fails on the merits, we decline to decide whether, by pleading guilty, he waived his right to raise this claim.


? 5. The facts in this case are taken from the criminal complaint. In 1997, Jimmie Davison was an inmate at the Kenosha Correctional Center, serving a 12-year sentence for first-degree sexual assault. During the day, he was assigned to a work release program at a farm in Franksville. On November 11, 1997, Davison arranged for his wife to meet him for lunch at his work site. When Mrs. Davison arrived at the grounds about noon, Davison got into her car and instructed her to drive to a remote area of the farm and park inside an isolated shed-type building. Once there, he pushed his food aside and began making sexual advances, which Mrs. Davison rejected.

? 6. Davison became very angry when his wife drew away. He grabbed her around the neck with both hands, pulling her face close to his. For the next 45 minutes or so, Davison intermittently choked her, attempted to kiss or grope her, pulled up her dress, and screamed at her when she resisted him. Mrs. Davison told him that he was "really hurting" her and later told police that she felt sure that Davison was going to kill her. When she broke free and fled from the car, Davison caught her and forced her back into the shed and car. He continued to choke her. She said she had a hard time breathing and was afraid Davison would break her neck or jaw because his grip was so tight. Later, witnesses saw evidence of black and blue marks on Mrs. Davison's arm and of bruises, scratches, and bleeding around her neck.

? 7. At approximately 1:00 p.m., Mrs. Davison was able to persuade her husband that he would be in trouble if he got back late from lunch, and he drove the car back to the work area. Before exiting the car, however, Davison suddenly, violently punched the left side of Mrs. Davison's head. She had a black eye for approximately two weeks. A physician later noted bruises and tenderness around her eye, as well as handprints around both of Mrs. Davison's ears and under her jaw.

? 8. Mrs. Davison told police that one reason she visited her husband was that he had agreed to a divorce as soon as he got out of prison but had promised to fight her "all the way" if she filed while he was still incarcerated. When she visited him on a second occasion, February 8, 1998, with their two children, Davison threatened to kill her if she filed for divorce. He bluntly declared that he had "set a plan in motion" to have her killed within three days if she tried to break up their family.

? 9. On June 26, 1998, the Kenosha County District Attorney's Office filed a criminal complaint reciting these facts and charging Davison with one count each of kidnapping,2 false imprisonment,3 and aggravated battery under Wis. Stat. ? 940.19(6),4 all as a repeater under Wis. Stat. ? 939.62(1)(b). These charges related to the November 11, 1997, incidents. In addition, the complaint contained one count of threats to injure under Wis. Stat. ? 943.30(1), as a repeater, based on the separate February 8, 1998, incident. After Davison waived his preliminary hearing, the prosecutor added a count of special circumstances battery (battery by prisoner) under Wis. Stat. ? 940.20(1),5 as a repeater, to the information. This additional count was based on the events of November 11.

? 10. In response to the added count, Davison filed a motion claiming that the two battery charges were multiplicitous under Wis. Stat. ? 939.66(2m)6 and violated the constitutional prohibition against double jeopardy. After a hearing, Kenosha County Circuit Judge David M. Bastianelli denied Davison's motion, finding that the charges were not multiplicitous or in violation of double jeopardy.

? 11. Thereafter, Davison entered a negotiated plea, agreeing to plead guilty to aggravated battery as a repeater, battery by prisoner as a repeater, and threatening to injure as a repeater. For its part, the State agreed to dismiss, but read-in, the charges for kidnapping as a repeater and false imprisonment as a repeater. The plea bargain did not incorporate any provision forbidding Davison from making a multiplicity or double jeopardy claim on appeal.

? 12. After accepting the guilty plea, the circuit court sentenced Davison to six years in prison for aggravated battery, five years to be served consecutively for battery by prisoner, and another five years to be served consecutively for the threats to injure. Davison appealed. During the briefing stage of his appeal, he complained that his appointed counsel failed to adequately consult with him and respond to his inquiries. The court of appeals granted Davison's counsel's motion to withdraw, directed the public defender to appoint new counsel, and then granted additional time for filing a postconviction motion and appeal.

? 13. In early 2001 Davison's new counsel filed a postconviction motion reasserting the multiplicity and double jeopardy claim, as well as other claims not relevant to this appeal. The circuit court again denied the multiplicity and double jeopardy claim, finding that, while the claim might have merit, the issue had been waived by Davison's guilty plea. Davison again appealed.

? 14. In reversing the circuit court, the court of appeals rejected the State's contention that Davison had waived his multiplicity claim by pleading guilty to the charges. Davison, 255 Wis. 2d 715, ? 13. The court characterized Davison's claim as being one of double jeopardy and observed that double jeopardy claims are not governed by the guilty plea waiver rule. Id., ? 12. The court also concluded that, while aggravated battery and battery by prisoner are offenses that are different in law, ? 939.66(2m) applies to all battery statutes, including those outside of ? 940.19. Id., ?? 18, 20. Therefore, the court said, Davison could not be convicted of both ? 940.19(6) and ? 940.20(1), and the court remanded the case to determine the appropriate remedy under State v. Robinson, 2002 WI 9, 249 Wis. 2d 553, 638 N.W.2d 564. Id., ? 25. The State petitioned for review, which we granted.


[1, 2]

? 15. This case presents several questions of law. 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. State v. Anderson, 219 Wis. 2d 739, 746, 580 N.W.2d 329 (1998). Whether a multiplicity violation exists in a given case, which requires a determination of legislative intent, is a question of law subject to independent appellate review. See State v. Multaler, 2002 WI 35, ? 52, 252 Wis. 2d 54, 643 N.W.2d 437


A. Double Jeopardy

? 16. The State seeks clarification of the analysis to be employed in multiplicity claims, including a discussion of multiplicity's relationship to double jeopardy. Twenty years ago, in an opinion by then-Justice Abrahamson, this court observed that:

Although the federal constitutional guarantee against double jeopardy has "its roots in antiquity," it is "one of the least understood . . . provisions of the Bill of Rights" and the holdings of the United States Supreme Court can

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