State v. Davison
| Decision Date | 24 April 2002 |
| Docket Number | No. 01-0826-CR.,01-0826-CR. |
| Citation | 2002 WI App 109,647 N.W.2d 390,255 Wis.2d 715 |
| Parties | STATE of Wisconsin, Plaintiff-Respondent, v. Jimmie DAVISON, Defendant-Appellant. |
| Court | Wisconsin Court of Appeals |
On behalf of the defendant-appellant, the cause was submitted on the briefs of Keith A. Findley of the University of Wisconsin Law School, Frank J. Remington Center, Madison.
On behalf of the plaintiff-respondent, the cause was submitted on the brief of Diane M. Welsh, assistant attorney general, and James E. Doyle, attorney general.
Before Brown, Anderson and Snyder, JJ.
¶ 1.
Jimmie Davison appeals a judgment of conviction and an order denying his postconviction motion. A judgment of conviction was entered pursuant to a guilty plea of battery by a prisoner under WIS. STAT. § 940.20(1) (1999-2000),2 aggravated battery under WIS. STAT. § 940.19(6), and threats to injure under WIS. STAT. § 943.30(1), all as a repeater under WIS. STAT. § 939.62. In addition, the trial court denied Davison's amended postconviction motion to reconsider vacating either the aggravated battery count as a repeater or the battery by a prisoner count as a repeater. The motion alleged that the two counts of battery were multiplicitous, thereby violating his state and federal constitutional guarantees against double jeopardy.3 The court declined to re-entertain the motion, reasoning that Davison waived his multiplicity and double jeopardy claim by pleading guilty.
¶ 2. Davison's appeal raises three issues: (1) was the right to challenge on the ground of multiplicity and a violation of double jeopardy rights waived by a guilty plea, (2) are the charges of battery multiplicitous under WIS. STAT. § 939.66(2m), and (3) what is the appropriate remedy. We conclude that Davison did not waive his right to challenge multiplicity and § 939.66(2m) applies to WIS. STAT. §§ 940.19 and 940.20, consequently making the charges multiplicitous. As to the remedy, we remand the issue to the trial court to conduct a hearing to determine whether the usual remedy of reversing the conviction, vacating the plea agreement, and reinstating the original information applies, or whether a different remedy is more appropriate. We therefore reverse and remand for further proceedings by the trial court.
¶ 3. On November 11, 1997, Davison was an inmate at the Kenosha Correctional Center assigned to a work release program at Maple Leaf Farms in Franksville, Wisconsin. On this date, Davison arranged for his wife, Sharon, to bring him lunch on the grounds of Maple Leaf Farms.
¶ 4. When Sharon arrived, according to the complaint, Davison got into the car and instructed her to drive into the farm area and park inside an isolated shed-type building. Davison then made a sexual advance towards his wife, which she rejected. For the next forty-five minutes, Sharon claims that Davison intermittently choked her, attempted to kiss or touch her, and continually screamed at her. At one point, she got out of the car and tried to escape, but Davison pursued and caught her and pulled her back into the shed. Davison then pulled her back into the car and began choking her again. Davison finally stopped choking her when she reminded him that he had to get back or he would be in trouble. His wife then drove him back to the work area and before getting out he punched her on the left side of the head. ¶ 5. Additionally, on February 8, 1998, Sharon brought their children to the Kenosha Correctional Center for a visit. During this visit, Davison threatened Sharon, saying that he would "blow her away" if she proceeded with filing for a divorce. He told her that he would set up a hit so that she would be killed and he would not be linked to the murder.
¶ 6. The criminal complaint filed by the Kenosha County District Attorney's Office charged Davison for the November 11 incident with one count of kidnapping, one count of false imprisonment, and one count of aggravated battery, all as a repeater. In addition, the complaint included one count of threats to injure as a repeater for the February 8 incident. The second count of battery by a prisoner as a repeater was added to the information filed July 27, 1998, based on the November 11 incident.
¶ 7. In response to the second count of battery being added to the information, Davison filed a motion on September 2, 1998, claiming that the two battery charges were multiplicitous under Wis. STAT. § 939.66(2m) and violated the constitutional prohibition against double jeopardy. On September 30, 1998, the trial court rejected Davison's motion, finding that the charges were not multiplicitous or in violation of double jeopardy.
¶ 8. Subsequently, Davison entered into a plea agreement whereby the State would dismiss but read in kidnapping as a persistent repeater and false imprisonment as a repeater; in return, Davison pled guilty to aggravated battery as a repeater, battery by a prisoner as a repeater, and threatening to injure as a repeater. However, the plea bargain did not include any provisions barring Davison from making his multiplicity or double jeopardy claim on appeal. ¶ 9. The court sentenced Davison to six years in prison for the aggravated battery, five years to be served consecutively for the battery by a prisoner, and another five-year term to be served consecutively for the threats to injure. Following sentencing, Davison appealed. Davison then complained that his appointed attorney failed to consult with him. The court of appeals granted Davison's counsel's motion to withdraw, directed the public defender to appoint new counsel, and granted an extension of time for filing a postconviction motion and appeal.
¶ 10. Accordingly, on January 26, 2001, Davison filed a postconviction motion, and on February 20, 2001, an amended postconviction motion reraising the multiplicity and double jeopardy claim was filed. The court denied the multiplicity and double jeopardy claim, finding that although the claim may have merit, the issue was waived by the guilty plea. Davison appeals.
¶ 11. In reviewing this decision, this court independently reviews questions of constitutional fact, requiring the application of constitutional principles to the facts of the case. State v. Anderson, 214 Wis. 2d 126, 129, 570 N.W.2d 872 (Ct. App. 1997).
[1]
¶ 12. The State argues that Davison waived his right to challenge on the ground of multiplicity and to claim a violation of his protection against double jeopardy in regard to the two battery charges when he entered a plea of guilty.4 However, while it is true that a guilty plea waives all nonjurisdictional defects, including constitutional claims, Mack v. State, 93 Wis. 2d 287, 293, 286 N.W.2d 563 (1980), there are certain defects that are not waived. Double jeopardy claims are one such defect. State v. Morris, 108 Wis. 2d 282, 284 n.2, 322 N.W.2d 264 (1982).
[2]
¶ 13. In this case, as in State v. Hubbard, 206 Wis. 2d 651, 656, 558 N.W.2d 126 (Ct. App. 1996), the potential double jeopardy violation is facially ascertainable on the record without supplementation. We conclude that Davison has not waived his right to challenge on the ground of multiplicity and to claim a double jeopardy violation.
¶ 14. Even though we find that Davison has the right to challenge, we still keep in mind that serious charges were dropped in the plea agreement, which had a potential penalty of life plus eight years' imprisonment, in return for Davison's guilty plea to the battery charges. The benefits accruing to Davison as a result of the plea agreement will be considered in the remedy portion of this opinion. Since we have determined that Davison has not waived his right to challenge, we now turn to the issue of multiplicity. Multiplicity
[3]
¶ 15. Multiplicity claims are analyzed using a two-pronged 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. State v. Anderson, 219 Wis. 2d 739, 746, 580 N.W.2d 329 (1998).
[4, 5]
¶ 16. Whether offenses are different in law, for purposes of double jeopardy, is determined by the Blockburger v. United States, 284 U.S. 299, 304 (1932) "elements only" test. State v. Lechner, 217 Wis. 2d 392, 405-06, 576 N.W.2d 912 (1998). The Blockburger test states as follows: "[W]here the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of an additional fact which the other does not." Blockburger, 284 U.S. at 304. In this case, both parties agree that WIS. STAT. §§ 940.19(6) and 940.20(1) do not contain the same elements and therefore the offenses are different in law.5 Blockburger, 284 U.S. at 304. ¶ 17. Since the offenses are different in law, the question becomes whether under WIS. STAT. § 939.66(2m) the battery charges should be brought as a single count. The State argues that the aggravated battery and the battery by a prisoner are not multiplicitous charges under § 939.66, which provides in part:
To arrive at this conclusion, the State reasons that the word "battery" is ambiguous and therefore we can turn to the legislative history which the State says reveals that § 939.66(2m) only applies to WIS. STAT. § 940.19 and degrees of battery. However, we disagree that the word "battery" is ambiguous and we disagree that the legislative history shows that § 939.66(2m) only applies to § 940.19 and degrees of battery.
[6, 7]
¶ 18. As...
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State v. Davison
...School, Madison. ? 1. DAVID T. PROSSER, J. 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 g......