State v. Hermann, 90-2252-CR

• Decision Date: 14 August 1991
• Docket Number: No. 90-2252-CR,90-2252-CR
• Citation: 164 Wis.2d 269,474 N.W.2d 906
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. Fred L. HERMANN, Defendant-Appellant. d
• Court: Wisconsin Court of Appeals

Page 906

474 N.W.2d 906

164 Wis.2d 269

STATE of Wisconsin, Plaintiff-Respondent, v. Fred L. HERMANN, Defendant-Appellant. ^d

No. 90-2252-CR.

Court of Appeals of Wisconsin.

Submitted on Briefs May 14, 1991.

Opinion Released Aug. 14, 1991.

Opinion Filed Aug. 14, 1991.

Leonard D. Kachinsky, Kachinsky Law Offices, Neenah, for defendant-appellant.

James E. Doyle, Atty. Gen., and Paul Lundsten, Asst. Atty. Gen., for plaintiff-respondent.

Before NETTESHEIM, P.J., and SCOTT and ANDERSON, JJ.

SCOTT, Judge.

Fred L. Hermann was convicted of two counts of delivery of a controlled substance and two counts of delivery of a controlled substance, party to a crime, all within 1000 feet of school premises. He was sentenced to five years' imprisonment on each count, to run concurrently.

On appeal, Hermann argues that, for several reasons, he merits resentencing. He contends the state should have been made to prove that he knew he was within 1000 feet of a school when committing the offenses; that sec. 161.49, Stats., is unconstitutional; and that the trial court erred in sentencing him under the mandatory minimum penalty provision of sec. 161.49 instead of retroactively applying sec. 161.438, Stats., which authorizes a presumptive minimum penalty. Because we find none of his arguments persuasive, we affirm the judgment.

In February 1990, Hermann was charged with two counts of delivering cocaine and methamphetamines on August 25, 1989 and two counts of delivering more of the same controlled substances on October 16, 1989. The drug transactions leading to the charges took place between adults in a private residence. On June 1, 1990, a jury convicted Hermann on all four counts and made a separate finding that each offense had occurred within 1000 feet of a school. The trial court sentenced him pursuant to the penalty enhancer provisions of sec. 161.49, Stats.

I. CONSTRUCTION OF SEC. 161.49, STATS.

Hermann does not dispute that the state proved intent regarding the underlying delivery offenses. He argues, however, that the trial court erroneously failed to instruct the jury that the state also had to prove that he knew he was within 1000 feet of a school when the offenses occurred. While acknowledging that sec. 161.49, Stats., does not state whether scienter must be proved, Hermann nonetheless urges that we read it into the statute.

The state, by contrast, argues that the legislature properly can--and did here--create a strict liability statute. A strict liability statute does not require proof of scienter, or criminal intent. See State v. Stoehr, 134 Wis.2d 66, 75, 396 N.W.2d 177, 180 (1986). Legislative silence on whether scienter is an element of the offense is not unknown in criminal statutes. State v. Collova, 79 Wis.2d 473, 480, 255 N.W.2d 581, 584 (1977). Although the element of scienter is the rule rather than the exception, Wisconsin long has recognized "the existence of and ... the propriety of" strict liability statutes. Id. at 480, 255 N.W.2d at 584-85.

Whether proof of scienter is required when the statute does not explicitly refer to scienter turns on legislative intent. Stoehr, 134 Wis.2d at 75, 396 N.W.2d at 180. This presents a matter of statutory construction, ¹ id., which is a question of law and is reviewed without deference to the trial court. State v. McManus, 152 Wis.2d 113, 122-23, 447 N.W.2d 654, 657 (1989). In determining legislative intent regarding scienter, we consider the statute's language, legislative history and purpose, the seriousness of the penalty, and the practical requirements of effective law enforcement. Stoehr, 134 Wis.2d at 76, 396 N.W.2d at 180.

Section 161.49, Stats. (1987-88), in effect when the offenses were committed, provided in relevant part:

161.49. Distribution of or possession with intent to deliver a controlled substance on or near certain places.

....

(2)(a) Except as provided in par. (b), if any person violates s. 161.41(1) by distributing ... a controlled substance listed in schedule I or II while in or otherwise within 1,000 feet of a state, county, city, village or town park, a swimming pool open to members of the public, a youth center or a community center, while on or otherwise within 1,000 feet of any private or public school premises or while on or otherwise within 1,000 feet of a school bus ... the court shall sentence the person to at least 3 years in prison, but otherwise the penalties for the crime apply. The court shall not place the person on probation. The person is not eligible for parole until he or she has served at least 3 years, with no modification by the calculation under s. 302.11(1) ["good time" eligibility]. [Emphasis added.]

As Hermann concedes, sec. 161.49, Stats., contains no express scienter requirement. We therefore look to the legislative history to determine whether the legislature intended that scienter be shown on the enhancer element in addition to proof of intent on the underlying delivery charge.

Neither party has brought to our attention, nor have we found, any legislative history of sec. 161.49, Stats., evincing an intent to require proof of scienter. Both parties agree, however, that sec. 161.49 appears to have had its genesis in a comparable federal statute, 21 U.S.C. sec. 845a, ² enacted just one year before sec. 161.49. ³

The legislative history of sec. 845a, "the schoolyard statute," clearly reveals Congress' intent to establish a drug-free zone around schools. United States v. Falu, 776 F.2d 46, 50 (2d Cir.1985). The Falu court specifically determined that "a requirement that the dealer know that a sale is geographically within the prohibited area would undercut this unambiguous legislative design." Id. The court reasoned that such a construction does not criminalize otherwise innocent activity since the statute applies only to persons already in violation of a statute with a mens rea requirement. Id. Other federal courts agree with this rationale and result. See, e.g., United States v. Cross, 900 F.2d 66, 69 (6th Cir.1990); United States v. Lewin, 900 F.2d 145, 148 (8th Cir.1990); United States v. Holland, 810 F.2d 1215, 1223-24 (D.C.Cir.), cert. denied, 481 U.S. 1057, 107 S.Ct. 2199, 95 L.Ed.2d 854 (1987). We, too, agree and conclude that a similar logic motivated our legislature to enact sec. 161.49, Stats.

We next consider the purpose of the statute. When the legislature's primary goal is to regulate, to accomplish a social good, or to obtain a high standard of care, proof of a criminal state of mind often is eliminated to achieve the desired result. Stoehr, 134 Wis.2d at 79, 396 N.W.2d at 182. The federal analog to sec. 161.49, Stats., was designed to deter drug distribution in and around schools to help eliminate outside negative influences in those areas. Falu, 776 F.2d at 50.

Although proximity to a school must be proved, the state argues that it does not necessarily follow that scienter regarding that element be shown. In Collova, for example, a driving after revocation case, the supreme court did read into the statute a scienter requirement. The court emphasized that its determination to read scienter into the statute was based on the routine and innocent nature of the underlying conduct--driving--and noted that a person may be driving truly unaware of a license revocation. "To inflict substantial punishment on a person who is innocent of any intentional or negligent wrongdoing offends the sense of justice and is ineffective." Collova, 79 Wis.2d at 486, 255 N.W.2d at 588 (emphasis added). The court also stated:

Strict criminal liability has been imposed on persons who failed to have a license or to comply with regulations when trafficking in drugs or in firearms. But such acts are in and of themselves not innocent acts. Persons who choose to engage in these kinds of unusual and dangerous activities may reasonably be held to the highest standards of care and precision, enforced by strict criminal liability, in conforming to government regulations.

Id. at 484, 255 N.W.2d at 587 (citations omitted). Consistent with the rationale of Collova, the fact that the purpose of sec. 161.49, Stats., is to prohibit an "unusual and dangerous" activity suggests that scienter need not be proved other than in the underlying delivery charge.

We also must consider the severity of the penalty in determining whether the legislature intended proof of scienter. Hermann relies on Collova to argue that severe consequences attaching to a violation militate for a scienter requirement. See Collova, 79 Wis.2d at 486, 255 N.W.2d at 587-88. We are not persuaded. First, even the potential for lengthy incarceration is not dispositive of whether the legislature intended that scienter be an element. See Stoehr, 134 Wis.2d at 81, 396 N.W.2d at 182-83. Second, the Collova court looked to the "wholly routine and innocent" nature of the underlying conduct. Collova, 79 Wis.2d at 486, 255 N.W.2d at 587. A similar ordinariness and blamelessness cannot be ascribed to Hermann's underlying criminal conduct.

Finally, we consider the practical requirements of effective law enforcement. Establishing that a defendant knew he or she was in a protected zone by proving familiarity with an area could amount to an onerous task for law enforcement officials. In view of the purpose of the legislation, we conclude that the legislature did not intend to increase the burden of enforcing it.

Thus, having considered the language, legislative history and purpose of sec. 161.49, Stats.; the seriousness of the penalty; and the practicalities of enforcement, we conclude that the legislature did not intend to require proof of scienter in order to invoke the more severe penality. Hermann engaged in the "dangerous activity" of delivering drugs. He can be held strictly liable for carrying on that activity in a statutorily protected area. Section 161.49 serves to enforce a high standard of care for the protection of the public, and of schoolchildren in...