State v. Fonder
| Decision Date | 25 April 1991 |
| Docket Number | No. 90-0687-CR,90-0687-CR |
| Citation | 162 Wis.2d 591,469 N.W.2d 922 |
| Parties | STATE of Wisconsin, Plaintiff-Respondent, v. Sidney FONDER, Defendant-Appellant. d |
| Court | Wisconsin Court of Appeals |
Mary E. Waitrovich, First Asst. State Public Defender, for defendant-appellant.
Donald J. Hanaway, Atty. Gen. and Michael R. Klos, Asst. Atty. Gen., for plaintiff-respondent.
Before GARTZKE, P.J., and DYKMAN and SUNDBY, JJ.
Sidney Fonder appeals from a judgment of conviction for battery to a correctional officer, sec. 940.20(1), Stats. The issue is whether criminal prosecution of a prison inmate for battery subjects the inmate to double jeopardy after prison officials took disciplinary action against him for the same battery. We conclude that the inmate is not subjected to double jeopardy, and we therefore affirm.
Fonder is an inmate of Waupun Correctional Institution. On May 11, 1988, he fought with prison guards, injuring three of them. On May 20, 1988, during institutional disciplinary proceedings, he was found guilty of violating three prison regulations: Wis.Adm.Code sec. HSS 303.12 (May 1988), battery; Wis.Adm.Code sec. HSS 303.16 (May 1988), threats; and Wis.Adm.Code sec. HSS 303.24 (May 1988), disobeying orders. He was given a disposition of eight days of adjustment segregation, 360 days of program segregation, and a ten-day extension of his mandatory release date. 1
A criminal action charging three counts of battery to a correctional officer was subsequently brought against Fonder. He moved to dismiss the complaint on double jeopardy grounds. After the trial court denied the motion, Fonder pleaded no contest to one count and was sentenced to nine months consecutive to his existing sentence.
Fonder argues that the prison disciplinary action combined with the criminal prosecution for the same incident violated his right to be free from double jeopardy. U.S. Const. amend. V; Wis. Const. art. I, sec. 8. The constitutional issue is a question of law. We decide such questions without deference to the trial court. Davis v. Grover, 159 Wis.2d 150, 158, 464 N.W.2d 220, 223 (Ct.App.1990). Fonder concedes that we recently rejected the same argument he makes here in State v. Quiroz, 149 Wis.2d 691, 439 N.W.2d 621 (Ct.App.1989) where we relied on State v. Killebrew, 115 Wis.2d 243, 340 N.W.2d 470 (1983). Fonder urges us to overrule Quiroz and to distinguish Killebrew from the present case.
Killebrew was a consolidated appeal of two cases, each involving the same double jeopardy argument. Each appellant was an inmate who had been subjected to disciplinary proceedings for escape. One had received a disposition of 360 days of program segregation and a forfeiture of five days earned good time. The other had received a disposition of eight days of adjustment segregation, 180 days of program segregation and forfeiture of all accumulated good time. Each was subsequently charged with escape in violation of sec. 946.42(3)(a), Stats. (1979-80). Each argued that the criminal charge subjected him to double jeopardy, since he had already been punished by prison officials.
The Killebrew court reasoned that the criminal charge would be barred by double jeopardy considerations only if the prison disciplinary action constituted punishment. Killebrew, 115 Wis.2d at 256, 340 N.W.2d at 477. To determine what constitutes punishment the court applied a "principal purpose" test: "Governmental action is punishment under the double jeopardy clause if its principal purpose is punishment, retribution or deterrence." Killebrew, 115 Wis.2d at 251, 340 N.W.2d at 475. The court held that the principal purposes of the disciplinary proceedings "are maintaining institutional order and safety and assisting individual rehabilitation." Killebrew, 115 Wis.2d at 256, 340 N.W.2d at 477. The court concluded that prison disciplinary action is not punishment and thus the inmate was not subjected to double jeopardy. Killebrew, 115 Wis.2d at 256, 340 N.W.2d at 477.
A similar situation arose in Quiroz, where an inmate escaped and was recaptured. Prison officials imposed eight days of administrative segregation, 360 days of program segregation, and a ten-day extension of the inmate's mandatory release date. The inmate was later charged in circuit court for criminal escape. He moved to dismiss the charge, claiming that the criminal proceedings constituted double jeopardy. The trial court agreed and dismissed the case. Concluding that Killebrew controlled the case and that the inmate's double jeopardy rights were not violated, we reversed. Quiroz, 149 Wis.2d at 692, 439 N.W.2d at 622.
Fonder argues that because of a statutory change between Killebrew and Quiroz, we mistakenly relied on the former when deciding the latter. In Killebrew, prison disciplinary action resulted in a loss of good time. In this appeal, as in Quiroz, disciplinary action extended the mandatory release date. Since statutory good time was eliminated after Killebrew, prison officials now extend mandatory release dates.
Fonder argues that the legislature intended the extension of mandatory release dates as punishment. He points to a note in the drafting file of 1983 Wis.Act 528. 2 The note states: "That portion of the present statute [sec. 53.11(2), Stats. (1981-82) ] dealing with punishment for institutional misconduct has been changed...." Wisconsin Legislative Reference Bureau, drafting file for 1983 Wis.Act 528, Proposed Revision of Good Time Statutes, Sept. 14, 1983, p. 2 (emphasis added). We are not persuaded that the note reflects the legislature's intent. The legislative reference bureau did not refer to the note or to punishment in its analysis of 1983 Assembly Bill 1011, which resulted in 1983 Wis.Act 528.
Moreover, the Killebrew court said: "When the principal purpose is nonpunitive, the fact that a punitive motive may also be present does not make the action punishment." Killebrew, 115 Wis.2d at 251, 340 N.W.2d at 475. As we have noted, the Killebrew court described the principal purposes of the prison disciplinary rules as maintenance of institutional order and safety and assistance of individual rehabilitation, even though the notes also specified punishment as a purpose. Killebrew, 115 Wis.2d at 256, 340 N.W.2d at 477. The purposes of the rules stated in Wis.Adm.Code sec. DOC 303.01 are the same today as they were when Killebrew was decided.
Fonder also relies on the testimony of Owen Mooney, Registrar at the Waupun Correctional Institution. Mooney testified that "[p]unishment is one of the purposes of the disciplinary action." Mooney's testimony adds nothing new. He testified that other purposes include maintenance of order, safety and security, and rehabilitation of the inmate.
The conclusions in Killebrew, Quiroz and this appeal are in good company. Under various rationales, many federal and state courts have concluded that prison disciplinary action followed by criminal prosecution for the same incident does not violate the double jeopardy clause. 3 In sum, Fonder's arguments were essentially answered in Killebrew, more specifically answered in Quiroz, and are contrary to the overwhelming view of other courts. 4 Because punishment was not the principal purpose of the disciplinary action taken against Fonder, the criminal proceeding based on the same incident did not subject him to double jeopardy. We affirm the judgment.
Judgment affirmed.
I agree that State v. Quiroz, 149 Wis.2d 691, 439 N.W.2d 621 (Ct.App.1989) requires that we affirm the judgment convicting Fonder of battery to a corrections official, contrary to sec. 940.20(1), Stats. I suggest, however, that we should certify this appeal to the Wisconsin Supreme Court to allow it to consider Quiroz and State v. Killebrew, 115 Wis.2d 243, 340 N.W.2d 470 (1983), in light of the legislation entitling each inmate to mandatory release on parole. Section 53.11(1), Stats. (1987-88). 1 Section 53.11, Stats. (1987-88), provided in part:
(1) The warden or superintendent shall keep a record of the conduct of each inmate, specifying each infraction of the rules. Except as provided in subs. (1m), (7) and (10), each inmate is entitled to mandatory release on parole by the department. The mandatory release date is established at two-thirds of the sentence....
....
(2)(a) Any inmate who violates any regulation of the prison or refuses or neglects to perform required or assigned duties is subject to extension of the mandatory release date as follows: 10 days for the first offense, 20 days for the 2nd offense and 40 days for the 3rd or each subsequent offense.
(b) In addition to the sanctions under par. (a), any inmate who is placed in adjustment, program or controlled segregation status shall have his or her mandatory release date extended by a number of days equal to 50% of the number of days spent in segregation status....
The WCI disciplinary committee imposed upon Fonder eight days adjustment segregation, 360 days program segregation, and a ten-day extension of his mandatory release date.
Fonder claims that he was subjected to multiple punishment, contrary to the double jeopardy bars of the fifth amendment to the U.S. Constitution and art. I § 8 of the Wisconsin Constitution. 2 Fonder has no claim if the imposition of punishment under the prison disciplinary rules does not bar a subsequent criminal prosecution for the same conduct. It is said in 21 AM.JUR. 2D Criminal Law § 248 at 444 (1981): "[P]rison disciplinary measures or administrative sanctions imposed upon a prisoner for violation of a prison rule of conduct do not raise the bar of double jeopardy to his prosecution for a statutory offense arising from the same act that was the basis of the prison discipline." (Footnote omitted.) The impressive list of authorities cited by the majority, maj. op. at 925 n. 3,...
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