State v. Johnson

• Decision Date: 24 June 1993
• Docket Number: No. 90-2903-CR,90-2903-CR
• Citation: 503 N.W.2d 575,178 Wis.2d 42
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. Billy G. JOHNSON, Defendant-Appellant. d
• Court: Wisconsin Court of Appeals

Page 575

503 N.W.2d 575

178 Wis.2d 42

STATE of Wisconsin, Plaintiff-Respondent, v. Billy G. JOHNSON, Defendant-Appellant. ^d

No. 90-2903-CR.

Court of Appeals of Wisconsin.

Submitted on Briefs July 14, 1992.

Opinion Released June 24, 1993.

Opinion Decided June 24, 1993.

Before EICH, C.J., GARTZKE, P.J., and DYKMAN, J.

EICH, Chief Judge. ¹

Billy Johnson appeals from a judgment convicting him of attempted murder (while armed), aggravated battery (while armed) and resisting arrest, and from an order denying his motions for postconviction relief. He was sentenced to a total of forty years on the charges: twenty-five years for attempted murder and fifteen years, consecutive, for aggravated battery. ²

He argues for reversal on two grounds: (1) that the attempted murder and battery convictions subjected him to double jeopardy in violation of the United States and Wisconsin constitutions; and (2) that the trial court exceeded its discretion in imposing maximum consecutive sentences for the two offenses. We reject his claims and affirm the conviction.

The proscription against double jeopardy provides basic protections to persons charged with committing a crime: protection against a second prosecution for the same offense after either acquittal or conviction; and protection against multiple punishments for the same offense. North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 2076, 23 L.Ed.2d 656 (1969). This case concerns the final element: a claim that Johnson's sentences on the two charges punish him twice for the same offense.

In Wisconsin, such claims have long been evaluated--at least in the first instance--under the "elements only" analysis first applied by the United States Supreme Court in Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932). In simplest terms, the test is whether each offense requires proof of an additional element or fact which the other does not.

Multiple punishments are permissible if each offense requires proof of an additional element or fact which the other offense or offenses do not. Conversely, multiple punishments are constitutionally barred as the "same offense" if the offenses are both identical in law and identical in fact. State v. Sauceda, 168 Wis.2d 486, 493-94 n. 8, 485 N.W.2d 1, 4 (1992).

The test has been codified. Section 939.66(1), Stats., provides that a defendant "may be convicted of either the crime charged or an included crime, but not both" and goes on to state that an "included crime" is one "which does not require proof of any fact in addition to those which must be proved for the crime charged." The analysis focuses entirely on the statutes defining the offenses. State v. Carrington, 134 Wis.2d 260, 264, 397 N.W.2d 484, 486 (1986). Thus, under the "elements only" test,

[A]n offense is a "lesser included" one only if all of its statutory elements can be demonstrated without proof of any fact or element in addition to those which must be proved for the "greater" offense.

... An offense is not a lesser-included one if it contains an additional statutory element. Id. at 265, 397 N.W.2d at 486-87 (quoting State v. Hagenkord, 100 Wis.2d 452, 481, 302 N.W.2d 421, 436 (1981) (citations omitted)).

If the Blockburger test is met--if each offense requires proof of an element the other does not--we will presume that the legislature intended to permit cumulative punishments for the two offenses. Sauceda, 168 Wis.2d at 495, 485 N.W.2d at 4. The question then becomes whether there are "other factors which evidence a contrary legislative intent." Id. at 495, 485 N.W.2d at 5.

The elements of attempted murder are that the defendant attempts to "cause[ ] the death of another human being with intent to kill that person or another...." Section 940.01(1), Stats. The elements of aggravated battery are that the defendant "cause[ ] bodily harm to another by an act done with intent to cause great bodily harm to that person or another with or without the consent of the person so harmed...." Section 940.19(2), Stats.

Neither offense includes the other. To convict a person of attempted first degree homicide, the state must prove that he or she intended to kill the victim; no proof of any harm to the victim is necessary. And, to secure a conviction for aggravated battery, the state must prove only that the defendant intended to cause the victim great bodily harm; an intent or attempt to kill is not part of the offense. We conclude, therefore, that each offense requires proof of an element the other does not, ³ thus satisfying the Blockburger test and activating the presumption that the legislature intended to permit cumulative punishments for the two offenses. Sauceda, 168 Wis.2d at 495, 485 N.W.2d at 4.

It is a presumption that will be overcome only by "a clear indication of legislative intent to the contrary." State v. Kuntz, 160 Wis.2d 722, 756, 467 N.W.2d 531, 545 (1991). To ascertain such a contrary intent, we look to "the language of the statutes, the legislative history, the nature of the proscribed conduct, and the appropriateness of multiple punishment." Id.

The only statutory provision generally limiting the number of convictions that may be obtained in a single prosecution is sec. 939.66, Stats., which provides that "[u]pon prosecution for a crime, the actor may be convicted of either the crime charged or an included crime, but not both." The statute goes on to list several specific "paired" offenses for which multiple convictions may not be had; and attempted murder/aggravated battery is not among them. The legislature has plainly stated that if a single act "forms the basis for a crime punishable under more than one statutory provision, prosecution may proceed under any or all such provisions." Section 939.65, Stats. We see no "clear indication" in the statutes or the arguments offered by Johnson of a contrary legislative intent that would rebut the Sauceda presumption. Sauceda, whether one agrees with it or not, is the law of Wisconsin; and it requires rejection of Johnson's double jeopardy challenge.

Johnson also challenges the length of his sentence, asserting that consecutive sentences were inappropriate in this case and, further, that the total time imposed was excessive.

He begins by noting that "various Model Acts and [the] ABA Standards [relating to sentencing alternatives and procedures]" have suggested that limitations be imposed on the authority of a court to impose consecutive sentences, and he urges us to "begin setting out some meaningful restraints [on] the trial judges' discretion to impose consecutive sentences" along the lines suggested in those acts and standards.

It is true, as Johnson points out, that more than fifteen years ago the supreme court "recommended" that the ABA standards for consecutive sentencing "be given consideration as a guideline" in Wisconsin. See Green v. State, 75 Wis.2d 631, 643-44, 250 N.W.2d 305, 311, cert. denied, 434 U.S. 841, 98 S.Ct. 138, 54 L.Ed.2d 105 (1977). But the court has never pursued the matter further; indeed, it has repeatedly declined to adopt the standards. See State v. LaTender, 86 Wis.2d 410, 432, 273 N.W.2d 260, 270 (1979); Cunningham v. State, 76 Wis.2d 277, 284 n. 13, 251 N.W.2d 65, 68 (1977); Drinkwater v. State, 73 Wis.2d 674, 684, 245 N.W.2d 664, 669 (1976). It is, of course, for the state's highest court, not this one, to develop and implement such a policy in furtherance of its law-declaring function. State v. Schumacher, 144 Wis.2d 388, 404-05, 424 N.W.2d 672, 678 (1988).

Section 973.15(2), Stats., allows a court to "impose as many sentences as there are convictions and [to] provide that any such sentence be concurrent with or consecutive to any other sentence imposed at the same time or previously." Thus, under existing law, whether to impose consecutive, as opposed to concurrent, sentences is, like all other sentencing decisions, committed to the trial court's discretion. Cunningham, 76 Wis.2d at 284, 251 N.W.2d at 68. We thus consider whether the trial court exceeded its sentencing discretion when it made the sentences for Johnson's two convictions consecutive.

Because trial courts have "a great advantage [over appellate courts] in considering the relevant factors and the [defendant's] demeanor" in sentencing proceedings, they are granted wide discretion in passing sentence. State v. Harris, 119 Wis.2d 612, 622, 350 N.W.2d 633, 638 (1984). And a defendant challenging a sentence bears a heavy burden, for Wisconsin law recognizes a "strong policy against interference with the discretion of the trial court in passing sentence." State v. Macemon, 113 Wis.2d 662, 670, 335 N.W.2d 402, 407 (1983). Indeed, we will presume the trial court acted reasonably, so it is up to the defendant to show an unreasonable or unjustifiable basis for the sentence. Harris, 119 Wis.2d at 622-23, 350 N.W.2d at 638-39.

A court may exceed its discretion when it places too much weight on any one factor in the face of contravening considerations, or when the sentence is so excessive as to "shock public sentiment and violate the judgment of reasonable people concerning what is right and proper under the circumstances." Ocanas v. State, 70 Wis.2d 179, 185, 233 N.W.2d 457, 461 (1975). However, the weight to be accorded to particular factors in sentencing is for the trial court, not the appellate court, to determine. In re Felony Sentencing Guidelines, 120 Wis.2d 198, 202-03, 353 N.W.2d 793, 796 (1984). Thus, we may not substitute our judgment or preference for a sentence merely because, had we been in the trial court's position, we would have imposed a different sentence. McCleary v. State, 49 Wis.2d 263, 281, 182 N.W.2d 512, 521 (1971). And where the challenge is that the sentence is excessive, the defendant bears the burden of establishing that it is unjustified or unreasonable. Elias v. State, 93 Wis.2d 278, 281-82, 286 N.W.2d 559, 560 (1980).

In State v. Glotz, 122 Wis.2d 519,...