State v. Grayson, 91-0756-CR

• Decision Date: 15 December 1992
• Docket Number: No. 91-0756-CR,91-0756-CR
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. Keith A. GRAYSON, Defendant-Appellant-Petitioner.
• Court: Wisconsin Supreme Court

Page 23

493 N.W.2d 23

172 Wis.2d 156

STATE of Wisconsin, Plaintiff-Respondent, v. Keith A. GRAYSON, Defendant-Appellant-Petitioner.

No. 91-0756-CR.

Supreme Court of Wisconsin.

Argued Sept. 3, 1992.

Decided Dec. 15, 1992.

For the defendant-appellant-petitioner there were briefs by John Allan Pray, Kate Kruse Livermore and Legal Assistance Program, University of Wisconsin Law School, Madison and oral argument by Mr. Pray.

For the plaintiff-respondent the cause was argued by David J. Becker, assistant attorney general, with whom on the briefs was James E. Doyle, attorney general.

STEINMETZ, Justice.

The issue in this case is whether charging an individual who continuously failed to pay court-ordered child support for the years 1986, 1987, 1988, and 1989, with four counts of felony nonsupport under sec. 948.22(2), Stats., one for each year, is multiplicitous and therefore impermissible.

We hold that sec. 948.22(2), Stats., permits a prosecutor to charge one count of felony nonsupport for each 120-day term a person fails to pay child support, even if that person failed to pay over one continuous period. ¹ The defendant, Keith A. Grayson, was convicted on his plea of no contest of four counts of nonsupport contrary to sec. 940.27(2), Stats. 1987-88. ² Each of the four counts was for failure to pay court ordered child support for more than 120 days during a separate calendar year (1986, 1987, 1988 and 1989). During that four-year period, the defendant's failure to pay support was continuous. In other words, he paid no support at all for four years. The court of appeals affirmed all four convictions. State v. Grayson, 165 Wis.2d 557, 560, 478 N.W.2d 390 (Ct.App.1991).

The defendant has petitioned this court and argues that the four charges were multiplicitous. Consequently, his convictions should be overturned.

Multiplicity is defined as the charging of a single criminal offense in more than one count. Harrell v. State, 88 Wis.2d 546, 555, 277 N.W.2d 462, 464-65 (1979). Multiplicitous charges are impermissible because they violate the double jeopardy provisions of the Wisconsin and United States Constitutions. See, e.g., State v. Rabe, 96 Wis.2d 48, 61, 291 N.W.2d 809, 815 (1980).

In Wisconsin, courts employ a two-prong test when analyzing a multiplicity problem. Under the first prong, courts inquire whether the charged offenses are identical in law and fact. If they are, the charges are multiplicitous. Id. at 63, 277 N.W.2d 462. However, if the charges are different in law or fact, they may still be multiplicitous under the second prong. State v. Tappa, 127 Wis.2d 155, 164, 378 N.W.2d 883, 887 (1985). Under that test, the charges are multiplicitous if the legislature intended them to be brought as a single count. ³

In State v. Sauceda, 168 Wis.2d 486, 485 N.W.2d 1 (1992), this court stated that the first element of the multiplicity test, identity of law and fact, is the same whether we are addressing multiple criminal charges brought under different statutory sections, as in Sauceda, or multiple charges brought under one statutory section, as in the instant case. Id. at 493 n. 8, 485 N.W.2d 1. We also stated in Sauceda that if the first factor of the multiplicity test is satisfied, "then this court shall presume that the legislature intended to permit cumulative punishments...." Id. at 495, 485 N.W.2d 1. Since the first factor of the multiplicity test is the same under the fact situation in Sauceda and the fact situation here, it follows that the presumption of multiple punishments is also the same. We so hold.

In the instant case, the defendant concedes that each of the four charges is different in fact because they are based on different time periods. Consequently, our inquiry is limited to determining whether the legislature's intent contravenes the presumption that multiple felony convictions are permissible under sec. 948.22(2), Stats.

Statutory construction involves a question of law and is reviewed de novo. See, e.g., State v. Nixa, 121 Wis.2d 160, 163, 360 N.W.2d 52, 54 (Ct.App.1984).

When determining legislative intent for multiplicity purposes, this court examines four factors:

(1) the language of the statute;

(2) the legislative history and context of the statute;

(3) the nature of the proscribed conduct; and (4) the appropriateness of multiple punishment for the conduct.

Tappa, 127 Wis.2d at 165, 378 N.W.2d 883.

There is no express indication of legislative intent as to the allowable unit of prosecution in the language or legislative history of sec. 948.22, Stats. The state concedes that the statute is ambiguous in this respect.

The defendant argues that this lack of express intent and presence of ambiguity means that he should prevail. He bases this conclusion on the rule of lenity: in the absence of express legislative intent to permit multiple punishment, a penal statute should be interpreted in the defendant's favor. See, e.g., State v. Bohacheff, 114 Wis.2d 402, 417, 338 N.W.2d 466, 473 (1983).

This argument fails for several reasons. First, it flies in the face of the presumption that sec. 948.22(2), Stats., permits multiple counts.

Second, this court has previously rejected it. We did this by adopting the four-factor test. If an express legislative intent or the absence of ambiguity were the benchmark against which the issue of the allowable unit of prosecution had to be decided, consideration of the matter would be limited to the first two factors. The last two factors would not then be relevant.

This court has also rejected the defendant's argument expressly. In Tappa, 127 Wis.2d at 170-71, 378 N.W.2d 883, a case similar to this one involving the issue of the allowable unit of prosecution under a single statute, we stated the following:

We hold that a common sense reading of the statute supports the conclusion that transfer and concealment are separate offenses. The Defendant argues that if there is any ambiguity in the statute, then the statute should be interpreted in his favor. In Wisconsin, 'penal statutes are generally construed strictly to safeguard a defendant's rights.' Austin, 86 Wis.2d at 223 [271 N.W.2d 668 (1978) ]. However, 'the rule of strict construction is not violated by taking the common-sense view of the statute as a whole and giving effect to the object of the legislature, if a reasonable construction of the words permits it.' Austin, 86 Wis.2d at 223 (quoting Zarnott v. Timken-Detroit Axle Co., 244 Wis. 506 , 600, 13 N.W.2d 53 (1944)).

Similarly, in Manson v. State, 101 Wis.2d 413, 428, 304 N.W.2d 729 (1981), this court decided whether Wisconsin's armed robbery statute, sec. 943.32, Stats.1977, defined one or two separate offenses by resorting to "a common sense reading of the statute which [was] reasonable and fair to offenders and society...." Manson, 101 Wis.2d at 428, 304 N.W.2d 729. Like the statute at issue here, the robbery statute did "not expressly state whether the legislature intended ... one or two offenses." Id.

Consequently, because the legislature failed to expressly state the allowable unit of prosecution under sec. 948.22, Stats., this court must determine its intent as to that issue according to "a common sense reading of the statute" that will give effect to "the object of the legislature" and produce a result that is "reasonable and fair to offenders and society." If such a reading fails to rebut the presumption in favor of multiple counts, the state will prevail. To determine legislative intent, we will examine the four factors mentioned above.

A. Factor # 1: Statutory Language

Section 948.22(2), felony nonsupport, reads as follows:

Any person who intentionally fails for 120 or more consecutive days to provide ... child support which the person knows or reasonably should know the person is legally obligated to provide is guilty of a Class E felony.

Section 948.22(3), misdemeanor nonsupport, reads as follows:

Any person who intentionally fails for less than 120 consecutive days to provide ... child support which the person knows or reasonably should know the person is legally obligated to provide is guilty of a Class A misdemeanor.

The applicable penalty language, provides as follows:

For a Class E felony, a fine not to exceed $10,000 or imprisonment not to exceed 2 years, or both.

Section 939.50(3)(e), Stats.

For a Class A misdemeanor, a fine of not to exceed $10,000 or imprisonment not to exceed 9 months, or both.

Section 939.51(3)(a), Stats. Because of its express reference to the 120-day time period, the felony nonsupport statute can reasonably be interpreted as allowing a separate felony charge for each 120-day period a person fails to provide child support.

The applicable penalty language supports this interpretation. It is well established in Wisconsin that when an offense is an ongoing one over a period of time, the existence of gradations in punishment is indicative of a legislative intent that the offense constitute one continuing crime. State v. Schumacher, 144 Wis.2d 388, 411-12, 424 N.W.2d 672 (1988); John v. State, 96 Wis.2d 183, 191, 291 N.W.2d 502 (1980), aff'g 89 Wis.2d 214, 219, 278 N.W.2d 235 (Ct.App.1979). For example, in Schumacher, 144 Wis.2d at 411-12, 424 N.W.2d 672, considering a welfare fraud issue, we stated the following:

Section 49.12(6), Stats., incorporates the penalty structure of sec. 49.12(1). Subsection (1) makes clear that the penalties for welfare fraud become increasingly more severe depending on the amount of money the defrauder has received....

This structure of penalties is a progressive one. The more money one fails to report under subsec. (6), the stiffer the penalty becomes. Use of a progressive penalty structure must, within reason, contemplate a continuing crime.

Just as the presence of gradations in the penalty structure indicates that an ongoing offense should be treated as a single crime, the lack of gradations is viewed as indicating that an ongoing...