State v. Guarnero, s. 2013AP1753–CR

• Citation: 363 Wis.2d 857,867 N.W.2d 400
• Decision Date: 09 July 2015
• Docket Number: Nos. 2013AP1753–CR,2013AP1754–CR.,s. 2013AP1753–CR
• Parties: STATE of Wisconsin, Plaintiff–Respondent, v. Rogelio GUARNERO, Defendant–Appellant–Petitioner.
• Court: United States State Supreme Court of Wisconsin

363 Wis.2d 857

867 N.W.2d 400

STATE of Wisconsin, Plaintiff–Respondent

v.Rogelio GUARNERO, Defendant–Appellant–Petitioner.

Nos. 2013AP1753–CR

2013AP1754–CR.

Supreme Court of Wisconsin.

Argued March 10, 2015.

Decided July 9, 2015.

For the defendant-appellant-petitioner, there were briefs by Robert J. Eddington, Milwaukee, and oral argument by Robert J. Eddington.

For the plaintiff-respondent, the cause was argued by Sara Lynn Larson, assistant attorney general, with whom on the brief was Brad Schimel, attorney general.

Opinion

PATIENCE DRAKE ROGGENSACK, C.J.

¶ 1 We review a decision of the court of appeals¹ that affirmed the circuit court's² conclusion that Rogelio Guarnero's prior federal RICO³ conspiracy conviction served as a prior conviction under Wis. Stat. § 961.41(3g)(c) (2011–12)⁴ and therefore enhanced the penalty for his Wisconsin cocaine possession conviction. Under § 961.41(3g)(c), a court concludes that cocaine possession is a second offense when a statute under which the defendant previously was convicted relates to controlled substances. The circuit court considered the language of the RICO conspiracy statute and Guarnero's RICO indictment to reach its conclusion that the RICO conspiracy statute related to controlled substances and therefore enhanced Guarnero's cocaine possession to a second offense under § 961.41(3g)(c).⁵

¶ 2 Guarnero appealed, contending that the circuit court improperly enhanced the penalty for conviction of cocaine possession due to his prior RICO conspiracy conviction. Guarnero also argued that his felony bail-jumping conviction should have been a misdemeanor offense because his cocaine possession conviction should have been an unenhanced misdemeanor. The court of appeals affirmed the circuit court, concluding that RICO and 18 U.S.C. § 1962(c) and (d) (2005)⁶ related to controlled substances. State v. Guarnero, 2014 WI App 56, ¶ 8, 354 Wis.2d 307, 848 N.W.2d 329.

¶ 3 We conclude that Guarnero's prior conviction, due to the manner in which Guarnero violated the RICO conspiracy statute, relates to controlled substances. Therefore, Guarnero's prior RICO conviction enhances the penalty for cocaine possession under Wis. Stat. § 961.41(3g)(c) to a second offense as a Class I felony. We further conclude that Guarnero's bail-jumping offense is properly a felony conviction. Accordingly, we affirm the court of appeals decision that affirmed the circuit court's denial of Guarnero's motion to dismiss and motion for postconviction relief.⁷

I. BACKGROUND

¶ 4 In 2005, a grand jury issued a 38–count indictment in the United States District Court for the Eastern District of Wisconsin, alleging that 49 members of the Milwaukee chapter of the Latin Kings violated RICO. Guarnero was one of the 49 individuals indicted. He was personally charged with five of the 38 counts: counts 2, 20, 24, 25 and 26.

¶ 5 Count Two of the indictment alleged that Guarnero and others were members or associates of the Latin Kings, a criminal racketeering organization that “engaged in acts of violence, including murder, attempted murder, robbery, extortion and distribution of controlled substances.” Count Two of the indictment also alleged that Guarnero knowingly and intentionally conspired with others to violate 18 U.S.C. § 1962(c) :

[T]o conduct and participate, directly and indirectly, in the conduct of the affairs of that enterprise through a pattern of racketeering activity involving ... multiple acts involving the distribution of controlled substances including cocaine, cocaine base in the form of “crack” cocaine and marijuana in violation of the laws of the United States[.]

The indictment continued: “It was a part of the conspiracy that each defendant agreed that a conspirator would commit at least two acts of racketeering activity in the conduct of the affairs of the enterprise,” and that this conduct violated 18 U.S.C. § 1962(d). Guarnero was charged with four other counts that involved possession of marijuana and firearms.

¶ 6 Guarnero pled guilty to conspiracy of violating RICO as set out in Count Two, and the United States dismissed the remaining counts of the indictment. The plea agreement contained a section titled “Elements,” which stated:

The parties understand and agree that in order to sustain the charge of Conspiracy to Commit RICO as set forth in Count Two, the government must prove each of the following propositions beyond a reasonable doubt:

First, that the defendant knowingly conspired to conduct or participate in the conduct of the affairs of the Milwaukee Latin Kings, an enterprise, through a pattern of racketeering activity as described in Count Two;

Second, that the Milwaukee Latin Kings were an enterprise; and

Third, that the activities of the Milwaukee Latin Kings would affect interstate commerce.

Guarnero's plea agreement acknowledged that Guarnero had conspired to commit at least two qualifying criminal acts, but the plea agreement did not specify which acts he had committed. The plea agreement also contained Guarnero's admission that police officers found marijuana in his apartment while they executed a firearm search warrant at Guarnero's residence.

¶ 7 In August 2012, Guarnero was arrested for possession of cocaine in violation of Wis. Stat. § 961.41(3g)(c), which contains an enhanced penalty provision. The provision enhances the penalty for a cocaine possession conviction to a second or subsequent offense if the defendant has previously “been convicted of any felony or misdemeanor under this chapter or under any statute of the United States or of any state relating to controlled substances.” § 961.41(3g)(c). The complaint listed Guarnero's RICO conspiracy conviction, noted that it was related to controlled substances, and listed the cocaine possession as a felony second or subsequent offense contrary to § 961.41(3g)(c).

¶ 8 Guarnero filed a motion to dismiss the cocaine possession charge, arguing that his prior RICO conviction could not serve as a prior conviction to enhance the penalty for cocaine possession conviction to a second offense under Wis. Stat. § 961.41(3g)(c). The circuit court denied Guarnero's motion to dismiss. The court recognized the many possible bases for RICO convictions and concluded that RICO was related to controlled substances because of the specific charges in Count Two of the indictment. Guarnero petitioned for leave to take an interlocutory appeal of the circuit court's denial of his motion to dismiss. The court of appeals denied leave.⁸

¶ 9 Subsequently, the circuit court found Guarnero guilty of violating Wis. Stat. § 961.41(3g)(c). Guarnero stipulated to the facts of his possession of cocaine and his prior RICO conspiracy conviction. Under the § 961.41(3g)(c) enhancement, Guarnero's cocaine possession constituted a felony. The court also convicted Guarnero of felony bail jumping, an offense that occurred while Guarnero was on bail for the felony cocaine possession charge.

¶ 10 Guarnero moved for postconviction relief, which the circuit court denied. The circuit court concluded that a “RICO conviction can deal with drug-related activity or not be related to drugs or drug activity.” The court also noted that “count two of the federal indictment related to distribution of controlled substances, including cocaine and other drugs.”

¶ 11 The court of appeals affirmed the circuit court orders. Guarnero, 354 Wis.2d 307, ¶¶ 1, 14, 848 N.W.2d 329. The court referred to Guarnero's guilty plea and held that the RICO conspiracy statute related to controlled substances. Id., ¶ 12. The court rejected Guarnero's arguments based on the rule of lenity and due process. Id., ¶ 13. The court of appeals also affirmed Guarnero's conviction for felony bail jumping. Id., ¶ 14.

II. DISCUSSION

A. Standard of Review

¶ 12 We review the court of appeals' affirmance of the circuit court's denial of Guarnero's motion to dismiss and motion for postconviction relief in which Guarnero argued that his prior RICO conspiracy conviction was not related to controlled substances under Wis. Stat. § 961.41(3g)(c). In order to review the questions presented, we interpret § 961.41(3g)(c). Statutory interpretation presents a question of law that we independently review, while benefitting from the discussions of the court of appeals and the circuit court. Richards v. Badger Mut. Ins. Co., 2008 WI 52, ¶ 14, 309 Wis.2d 541, 749 N.W.2d 581.

B. Statutory Interpretation

¶ 13 Our review focuses on whether a federal RICO conspiracy conviction is related to controlled substances so that it may serve as a prior conviction triggering penalty enhancement for a cocaine possession conviction under Wis. Stat. § 961.41(3g)(c). When we interpret a statute, we “begin [ ] with the language of the statute. If the meaning of the statute is plain, we ordinarily stop the inquiry.” State ex rel. Kalal v. Circuit Court for Dane Cnty., 2004 WI 58, ¶ 45, 271 Wis.2d 633, 681 N.W.2d 110 (internal quotation marks and citation omitted). We give statutory language its “common, ordinary, and accepted meaning, except that technical or specially-defined words or phrases are given their technical or special definitional meaning.” Id.

¶ 14 Our focus is on “relating to controlled substances” in Wis. Stat. § 961.41(3g)(c), the statute that prohibits possession of cocaine, which provides:

Cocaine and cocaine base. If a person possess[es] or attempts to possess cocaine or cocaine base, or a controlled substance analog of cocaine or cocaine base, the person shall be fined not more than $5,000 and may be imprisoned for not more than one year in the county jail upon a first conviction and is guilty of a Class I felony for a 2nd or subsequent offense. For purposes of this paragraph, an offense is considered a 2nd or subsequent offense if, prior to the offender's conviction of the offense, the offender has at any time been convicted of any felony or misdemeanor under this chapter or under any statute of the United States or of any state relating to controlled

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