State v. Hansen

Decision Date30 May 2001
Docket NumberNo. 99-1128-CR.,99-1128-CR.
Citation627 N.W.2d 195,2001 WI 53,243 Wis.2d 328
PartiesSTATE of Wisconsin, Plaintiff-Respondent, v. Colleen E. HANSEN, Defendant-Appellant.
CourtWisconsin Supreme Court

For the defendant-appellant there were briefs by Pamela Pepper and Cubbie & Pepper, Ltd., Milwaukee, and oral argument by Pamela Pepper.

For the plaintiff-respondent the cause was argued by Gregory M. Posner-Weber, assistant attorney general, with whom on the brief was James E. Doyle, attorney general.


This case is before us on certification from the court of appeals pursuant to Wis. Stat. (Rule) § 809.61 (1997-98). The defendant, Colleen E. Hansen (Hansen), asserts that Wis. Stat. § 961.45 (1995-96)1 bars a state prosecution under Chapter 961 for the same conduct upon which a prior federal conviction is based. We agree and conclude that her prosecution for the state crime of possession of cocaine with intent to deliver is barred by § 961.45, because a prior federal conviction based on the same conduct constitutes a conviction for the "same act" under § 961.45.2 Accordingly, we reverse the circuit court's order denying Hansen's motion for postconviction relief and the judgment of conviction.

¶ 2. The facts are undisputed. On September 29, 1997, state narcotics agents arrested Hansen after cocaine was found on her person, in her vehicle, and in her apartment. The State issued a complaint charging Hansen with possession with intent to deliver cocaine.

¶ 3. The complaint alleged that after observing Hansen on September 29, a state narcotics agent approached her and asked if she was in possession of any contraband. Hansen responded by admitting that she was carrying cocaine in her pocket, which was later determined to weigh 0.2 grams. The complaint noted that a subsequent search of Hansen's vehicle revealed more cocaine with a total weight of 0.8 grams and other contraband, including drug paraphernalia and cutting agents. Finally, the complaint alleged that a subsequent consent search of the defendant's Milwaukee residence revealed 84 grams of cocaine.

¶ 4. While the state prosecution was pending, a federal grand jury indicted Hansen under 21 U.S.C. § 841(a)(1) and § 846 (1994) for conspiracy to distribute and possess with intent to distribute cocaine.3 In May 1998, Hansen pled guilty in the Federal District Court for the Eastern District of Wisconsin to the federal conspiracy charge.

¶ 5. At the plea hearing the Assistant U.S. Attorney explained the factual basis for Hansen's plea. He informed the court that the evidence that would be presented at trial would include testimony from witnesses regarding Hansen's involvement with other individuals in the sale of cocaine. Included as part of the factual basis for the plea was evidence of the cocaine found on Hansen's person, in her vehicle, and at her apartment:

On September 29, 1997,. . .Ms. Hansen was surveilled by various officers in the late afternoon. She left the Blue Ribbon Pub, she went to another bar briefly. She then went to a different residence and picked up [a friend] and then they went to a third bar briefly. Ms. Hansen was confronted and questioned in the parking lot of that bar. She admitted that she had cocaine on her person which turned out to be true. She was searched and had .2 grams of cocaine on her.
She consented to a search of the trunk of her automobile. The trunk contained eight-tenth's of a gram of cocaine in a safe. It also contained a number of scales of a type commonly used for the weighing of cocaine. It contained a shotgun and containers of various powdered chemicals that were sometimes used as cutting agents to dilute cocaine. Ms. Hansen admitted at the time that all the materials found in the trunk were hers.
She also consented to a search of her residence. At that time she was living in a residence on South 61st Street in Milwaukee. And she admitted that. . .the agents would find cocaine there. They did search her residence. They found 84 grams of cocaine along with a derringer pistol.

The federal district court accepted Hansen's plea of guilty and sentenced her to a prison term of forty-six months.

¶ 6. Following the federal conviction, Hansen moved for dismissal of the state charge. She argued that Wis. Stat. § 961.45 barred a controlled substance prosecution in Wisconsin where the defendant has already been convicted for the "same act" under federal law or the laws of another state. The circuit court denied the motion on the grounds that § 961.45 required application of the "elements only" test of Blockburger v. United States, 284 U.S. 299 (1932), to determine whether the prior conviction was for the same act. Because the state offense in this case required proof of different elements than the offense for which Hansen was convicted in federal court, the circuit court concluded § 961.45 was not applicable.

¶ 7. Following the denial of her motion to dismiss, the defendant pled guilty to the violation of § 961.41(1m)(cm)4.4 Using the criminal complaint as the factual basis for the plea, the circuit court accepted Hansen's guilty plea and sentenced her to five years imprisonment. Hansen then pursued a motion for postconviction relief, again arguing that § 961.45 barred her Wisconsin prosecution. The circuit court denied that motion.

¶ 8. Hansen appealed the judgment of conviction and the order denying her post-conviction relief. The court of appeals certified the following question for our review:

Does Wis. Stat. § 961.45 bar prosecution for the state crime of possession of cocaine with intent to deliver, where a defendant previously has been convicted, based on the same conduct, for the federal crime of conspiracy to possess cocaine with intent to distribute? Stated differently, is the term "same act" under § 961.45 defined by the elements of the state and federal crimes, or by the conduct for which a defendant is convicted?

[1, 2]

¶ 9. As the certified question indicates, resolution of this case requires an examination and interpretation of § 961.45. Statutory interpretation is a question of law that we decide independently of the determination rendered by the circuit court. State v. Sprosty, 227 Wis. 2d 316, 323, 595 N.W.2d 692 (1999). The goal of statutory interpretation is to discern the legislative intent underlying a statute. State v. Corey J.G., 215 Wis. 2d 395, 411, 572 N.W.2d 845 (1998).

[3, 4]

¶ 10. As a general matter, § 961.45 provides a form of statutory double jeopardy protection that applies in the context of controlled substance offenses under Chapter 961. The statute reads:

If a violation of this chapter is a violation of a federal law or the law of another state, a conviction or acquittal under federal law or the law of another state for the same act is a bar to prosecution in this state.

Wis. Stat. § 961.45. The effect of § 961.45 is to abrogate the "dual sovereignty doctrine" in the context of controlled substance prosecutions. State v. Petty, 201 Wis. 2d 337, 358, 548 N.W.2d 817 (1996). Under the dual sovereignty doctrine, there is no constitutional bar to successive prosecutions for the same offense by different sovereigns. United States v. Lanza, 260 U.S. 377, 382 (1922); Petty, 201 Wis. 2d at 358. Section 961.45 thus operates as a limitation on the State's power to prosecute where no constitutional limit exists. Our inquiry today addresses the scope of the statutory protection against successive prosecutions.

¶ 11. The court of appeals and the parties correctly conclude that our interpretation of the statutory phrase "same act" is determinative of our inquiry into the scope of the § 961.45 double jeopardy protection. Hansen argues that "same act" must be construed to mean "same conduct." She asserts that under this interpretation, the state prosecution would be barred because the prior federal conviction is premised in part on the same conduct: her possession of the cocaine found on her person, in her vehicle, and in her residence.


¶ 12. The State asserts that "same act" must be construed to mean the crime as defined by its statutory elements. In other words, the State maintains that § 961.45 is intended to incorporate the "same elements" test of Blockburger v. United States.5 This test is recognized in most jurisdictions, including Wisconsin, as the controlling test in determining whether multiple prosecutions are for the "same offense" in contravention of the double jeopardy protection. Under Blockburger, successive prosecutions are barred "unless each offense necessarily requires proof of an element the other does not." State v. Kurzawa, 180 Wis. 2d 502, 524, 509 N.W.2d 712 (1994).

¶ 13. If we interpret § 961.45 to incorporate the "elements only" test, the statute would not bar Hansen's state prosecution. The federal offense requires proof of a conspiracy, which the state offense of possession with intent to deliver does not. The state offense requires proof of possession, which the federal offense of conspiracy does not. Compare 21 U.S.C. § 841(a) and § 846 with Wis. Stat. § 961.41(1m)(cm)4; see also United States v. Felix, 503 U.S. 378, 389 (1992)

("[A] substantive crime and a conspiracy to commit that crime are not the `same offense' for double jeopardy purposes.").6

¶ 14. Our initial inclination is to conclude that Hansen's interpretation of "same act" as meaning "same conduct" is more consistent with the plain and ordinary meaning of the term. See The American Heritage Dictionary of the English Language 17 (1992) (defining "act" as "[s]omething done or performed"). However, we stated in a footnote in Petty, 201 Wis. 2d at 361 n.13, that in the absence of any documented statements of legislative intent, the structure of § 961.45, and the goals of the uniform act in which it originated, required reading the statute consistent with Blockburger. Id.

¶ 15. Although the State's interpretation of § 961.45 is seemingly...

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