State v. Jackson
| Decision Date | 17 February 2021 |
| Docket Number | Appeal No. 2019AP2091-CR |
| Citation | 958 N.W.2d 167 (Table),396 Wis.2d 703,2021 WI App 20 |
| Parties | STATE of Wisconsin, Plaintiff-Respondent, v. Marshun Dante JACKSON, Defendant-Appellant. |
| Court | Wisconsin Court of Appeals |
¶1 Marshun Jackson appeals a St. Croix County judgment convicting him of, among other crimes, committing fraud against a financial institution (value exceeds $500 but does not exceed $10,000) as a party to a crime, and as a repeater. Jackson argues his conviction on this count violates his constitutional right against double jeopardy because he was previously convicted in Dunn County of one count of conspiracy to commit fraud against a financial institution, as a repeater, for an offense that occurred on the same day as the St. Croix charge, May 25, 2017. Jackson argues that the Dunn County offense is identical in law and in fact to the offense at issue in this case. He also contends that WIS. STAT. § 939.72(2) (2017-18)1 specifically applies in this case and further invalidates the objected-to conviction. That statute provides that "[a] person shall not be convicted under both ... [s]ection 939.31 for conspiracy and s. 939.05 as a party to a crime which is the objective of the conspiracy." Sec. 939.72(2).
¶2 We determine that the St. Croix County charge was neither factually nor legally identical to the Dunn County conviction and, thus, there was no double jeopardy violation. Additionally, we conclude that Jackson's argument premised on WIS. STAT. § 939.72(2) lacks merit. We therefore reject Jackson's arguments and affirm.
¶3 On May 31, 2017, Dunn County prosecutors charged Jackson with three counts of conspiracy, each as a repeater, based on a check-cashing scheme involving Jackson, Brian Augustus, Robin Santee, Tyler Santee, and Peyton Heistand. The complaint alleged that on May 25, 2017, those individuals conspired to cash fraudulent checks totaling in excess of $13,000 at the downtown Dairy State Bank and east Dairy State Bank locations in the City of Menomonie, Dunn County, Wisconsin.
¶4 On September 8, 2017, Jackson entered a guilty plea to the first count of the Dunn County complaint—i.e., conspiracy to commit fraud against a financial institution ($10,000 to $100,000), as a repeater—and the other two counts were dismissed by the State. Jackson was sentenced to forty months in the Wisconsin Prison System comprised of fourteen months of initial confinement and twenty-six months of extended supervision.
¶5 The State filed two prior complaints that were dismissed without prejudice. On August 31, 2018, the State filed a third complaint in St. Croix County, alleging four counts of conspiracy based on the May 25, 2017 events. Namely: Count 1 alleged conspiracy to commit identity theft; Count 2 alleged conspiracy to commit fraud against a financial institution; Count 3 alleged conspiracy to commit forgery; and Count 4 alleged conspiracy to commit theft–movable property. On September 14, 2018, the State filed an amended complaint containing the same four counts as the August 31 complaint except the amended complaint removed the conspiracy allegations and charged Jackson with each count as a party to a crime (PTAC). Only Count 2 is relevant to this appeal. Count 2 alleged Jackson committed fraud against a financial institution (value exceeds $500 but does not exceed $10,000), as a PTAC, and as a repeater. The amended complaint stated that Count 2 was a Class H felony, with a maximum possible penalty upon conviction of no more than a $10,000 fine, imprisonment for not more than six years, or both, with exposure to an additional two-to-four years of imprisonment based on the repeater allegation.
¶6 The amended complaint alleged that Jackson, Augustus, Tyler Santee, Robin Santee, and Heistand were "involved in a large and elaborate fraudulent check scheme throughout western Wisconsin and eastern Minnesota." Specific to St. Croix County, Count 2 alleged that on or about May 25, 2017—the same day as the conduct leading to the Dunn County charges—Jackson committed fraud against Security Financial Bank, located in River Falls, St. Croix County, Wisconsin. This fraud was alleged to have occurred when Jackson, either directly or as a PTAC, cashed two checks at that bank in the amounts of $2,100.22 and $2,411.66. Both checks were purportedly issued by Construction Install Services.
¶7 The amended complaint also stated that Jackson and Brian Augustus had previously been convicted of conspiracy to commit fraud against a financial institution in Dunn County and sentenced to prison. When Jackson was released from prison for his Dunn County conviction, a warrant was issued for his arrest on the St. Croix County charges.
¶8 Jackson moved to dismiss the amended complaint, arguing that Count 2 violated his "constitutional protections against Double Jeopardy." In particular, Jackson claimed that he "was convicted on September 08, 2017, in Dunn County" of one count of conspiracy to commit fraud against a financial institution as a repeater, in violation of WIS. STAT. §§ 939.31, 934.82(1) and 939.62(1)(b) "for an offense that occurred on May 25, 2017." He argued that Count 2 of the St. Croix County complaint was a second prosecution for the same offense as his Dunn County conviction because "each of the Dunn County charges alleged the Conspiracy of which the current St. Croix County complaint alleges the completed acts that were the object of the Conspiracy."
¶9 The State argued that double jeopardy did not apply because in the St. Croix County case the State was alleging the "uttering of forged checks," a crime for which Jackson was not charged in Dunn County. At the plea and sentencing hearing, the circuit court denied Jackson's motion to dismiss, concluding that the charges in each county's case were not identical either in law or in fact. Jackson pled no contest to Count 2 of the amended complaint, and he now appeals.2
¶10 The Fifth Amendment of the United States Constitution and article I, section 8 of the Wisconsin Constitution guarantee a defendant's right to be free from double jeopardy. State v. Steinhardt , 2017 WI 62, ¶13, 375 Wis. 2d 712, 896 N.W.2d 700. Whether a person's right to be free from double jeopardy has been violated presents a question of law that we review de novo. State v. Schultz , 2020 WI 24, ¶16, 390 Wis. 2d 570, 939 N.W.2d 519.
¶11 The right to be free from double jeopardy provides three protections: "protection against a second prosecution for the same offense after acquittal; protection against a second prosecution for the same offense after conviction; and protection against multiple punishments for the same offense." Steinhardt , 375 Wis. 2d 712, ¶13 (citation omitted). Jackson argues the second protection was violated by his St. Croix County charge. For a defendant to show that a second prosecution subjected him or her to double jeopardy, the charges must be identical both in law and in fact. State v. Van Meter , 72 Wis. 2d 754, 758, 242 N.W.2d 206 (1976).
¶12 We apply the Blockburger3 test to determine whether offenses are identical in law. Under that test, "[o]ffenses are not identical in law if each requires proof of an element that the other does not." Schultz , 390 Wis. 2d 570, ¶22. Meanwhile, "[o]ffenses are not identical in fact when ‘a conviction for each offense requires proof of an additional fact that conviction for the other offenses does not.’ " Id. (quoting State v. Lechner , 217 Wis. 2d 392, 414, 576 N.W.2d 912 (1998) ).
¶13 Jackson was convicted in the instant St. Croix County case of fraud against a financial institution (value exceeds $500 but does not exceed $10,000) as a PTAC, and as repeater. He had previously been convicted of conspiracy to commit fraud against a financial institution, as a repeater, in Dunn County. Both offenses at issue occurred on May 25, 2017. Jackson contends that because a conviction for conspiracy to commit a crime incorporates the elements of any underlying criminal offense that is the object of the conspiracy, he was unconstitutionally subjected to double jeopardy by virtue of his St. Croix County conviction.
¶14 We reject Jackson's contention for a number of reasons. First, the State correctly notes that it is well established that "a substantive crime and a conspiracy to commit that crime are not the ‘same offense’ for double jeopardy purposes." See United States v. Felix , 503 U.S. 378, 389 (1992). The Supreme Court has repeatedly recognized that a "conspiracy poses distinct dangers quite apart from those of the substantive offense." Iannelli v. United States , 420 U.S. 770, 778 (1975). In Felix , the Supreme Court upheld the defendant's conspiracy conviction against a double jeopardy challenge, even though out of the nine overt acts supporting the conspiracy charge, two "were based on the conduct for which he had been previously prosecuted ...." Felix , 503 U.S. at 388. Given the holdings in Felix and Iannelli , Jackson's conspiracy conviction in Dunn County does not foreclose his fraud conviction in St. Croix County because these two offenses are not identical in law.
¶15 In the Dunn County case, Jackson was convicted of conspiracy to commit fraud against a financial institution (value exceeds $10,000 but does not exceed $100,000), as a repeater. That offense was a Class G felony, based on a conspiracy to commit a fraud at a bank. The Dunn County crime of conspiracy under WIS. STAT. § 939.31 had "three elements: (1) an intent by the defendant that the crime be committed; (2) an agreement between the defendant and at least one other person to commit the crime; and (3) an act performed by one of the conspirators in furtherance of the conspiracy." See State v. Routon , 2007 WI App 178, ¶18, 304 Wis. 2d 480, 736 N.W.2d 530. In contrast, the elements of Jackson's St. Croix County conviction for fraud against a financial institution (value exceeds $500 but does not exceed...
To continue reading
Request your trial