State v. Olson
| Decision Date | 21 November 1985 |
| Docket Number | No. 84-1537-CR,84-1537-CR |
| Parties | STATE of Wisconsin, Plaintiff-Respondent, v. John E. OLSON, Defendant-Appellant. * |
| Court | Wisconsin Court of Appeals |
Robert J. Ruth and Bolgrien, Ruth & Rentz, S.C., Beloit, for defendant-appellant.
Bronson C. La Follette, Atty. Gen., and Thomas J. Balistreri, Asst. Atty. Gen., for plaintiff-respondent.
Before GARTZKE, P.J., DYKMAN, J., and BRUCE F. BEILFUSS, Reserve Judge.
John Olson appeals from a judgment of conviction for delivering a controlled substance, tetrahydrocannabinol, contrary to secs. 161.14(4)(t) and 161.41(1)(b), Stats. Olson sold approximately four grams of marijuana to an undercover deputy sheriff February 10, 1983. He argues that sec. 161.14(4)(t) denies him equal protection because it irrationally classifies tetrahydrocannabinols (THC), including those in marijuana, as a Schedule I controlled substance, and because marijuana dealers are subjected to the same criminal sanctions as dealers of more dangerous drugs. We conclude that Olson may raise his equal protection argument on appeal, notwithstanding his guilty plea. Olson also argues that because the trial court considered his refusal to name his marijuana supplier, it abused its discretion when sentencing him. We reject his contentions and affirm.
Wisconsin has adopted the Uniform Controlled Substances Act, ch. 161, Stats. 1 The act classifies controlled substances according to five schedules. A substance is listed in Schedule I if it "(1) [h]as high potential for abuse; and (2) [h]as no accepted medical use in treatment in the United States or lacks accepted safety for use in treatment under medical supervision." Sec. 161.13. Schedule I includes "[t]etrahydrocannabinols, commonly known as 'THC', in any form including tetrahydrocannabinols contained in marijuana, obtained from marijuana or chemically synthesized." Sec. 161.14(4)(t). Delivery of a Schedule I controlled substance which is not a narcotic drug is subject to a fine of not more than $15,000 or imprisonment not more than five years or both. Sec. 161.41(1)(b). The statutory definition of a narcotic drug in sec. 161.01(15) does not include tetrahydrocannabinols.
Olson moved to dismiss the information on grounds that sec. 161.14(4)(t), Stats., on its face and as applied to him, is unconstitutional. He argues that THC is not properly classified as a Schedule I controlled substance because it has an accepted medical use in treatment in the United States and does not lack accepted safety for use in treatment under medical supervision. 2 His motion asserts that consequently the classification of THC in Schedule I is not rationally related to a legitimate state interest and is not a valid exercise of the police power, contrary to Wis. Const. art. I, secs. 1 and 8, and U.S. Const. amends. V and XIV. His appeal is limited to the equal protection issue.
Two defense witnesses testified at the motion hearing. Each testified that THC has proven accepted therapeutic use in controlling nausea resulting from chemotherapy administered to cancer patients and in treating glaucoma. According to one witness, a pharmacist and pharmacologist, 2,600 physicians and 715 institutions lawfully dispense THC in the United States, but the witness agrees that disputes exist among doctors and pharmacists concerning THC's acceptance for medical use and treatment. The second witness, a physician, testified that THC is safe and efficacious when given under strict medical supervision. In his view, a drug has an "accepted medical use" if the use is agreed upon by a body of physicians.
The prosecution's only witness was a staff member of the state's controlled substances board. He testified that the board will reschedule a controlled substance if the federal food and drug administration approves a "new drug application" for the substance. In his view, "accepted medical use" means that the FDA has approved a new drug application for a substance. The Federal Controlled Substances Act places marijuana and THC in Schedule I. 21 U.S.C. sec. 812, Schedule 1(c)(10) and (c)(17). The findings required under that act for a Schedule I substance are: high potential for abuse, no currently accepted medical use in treatment in the United States, and lack of accepted safety for use under medical supervision. 21 U.S.C. sec. 812(b)(1). FDA interprets the term "accepted medical use" to mean lawfully marketed under the Federal Food, Drug and Cosmetics Act, 21 U.S.C. sec. 301 et seq. 47 Fed.Reg. 28141, 28150 col. 3 (1982). A drug may be marketed lawfully under the federal Food, Drug and Cosmetics Act after approval of a new drug application for the substance. 47 Fed.Reg. at 28150 col. 3. FDA has concluded that marijuana should remain in Schedule I. 47 Fed.Reg. at 28152 col. 2. FDA had previously concluded in another proceeding that THC should not be rescheduled unless and until FDA approved a new drug application for THC. 47 Fed.Reg. 10080, 10086 col. 1 (1982).
At the conclusion of the hearing, the trial court denied Olson's motion to dismiss. The court concluded that because of the ongoing dispute regarding the classification of THC, its Schedule I classification is valid, even though it has limited uses in the treatment of chemotherapy reactions and glaucoma. The court made no findings or conclusions concerning THC's "accepted medical use" or "accepted safety for use," as those terms are used in sec. 161.13, Stats.
Olson made an Alford plea 3 of guilty after the parties stipulated to the scope of appellate review. They agreed that Olson reserved the right to appellate review of the order denying his motion to dismiss, that the constitutional issue he raised is jurisdictional, and that he had properly preserved the issue for review. The state agreed to take no position contrary to the stipulation and would not argue that Olson's guilty plea barred appellate review.
The stipulation was brought to the trial court's attention. The court neither approved nor commented on it. True to its word, the state's brief on appeal does not refer to the stipulation or to the effect of the guilty plea on appellate review.
The general rule is that a defendant who pleads guilty waives the right to raise nonjurisdictional defects and defenses, including claims of constitutional dimension. 4 State v. Riekkoff, 112 Wis.2d 119, 123, 332 N.W.2d 744, 746 (1983). The Riekkoff court concluded:
[I]n situations in respect to orders or objections to which the guilty-plea-waiver rule may apply, it is to be applied even though a defendant expressly states his intent not to waive certain issues on appeal and makes that intention a condition of his plea and even though the prosecutor and the judge acquiesce in that intention.
Id. at 127-28, 332 N.W.2d at 749. The court held that it would not permit a guilty plea to reserve an issue for appeal except as provided by statute, even if the state agreed not to argue that the guilty plea bars appellate review. Id. at 129-30, 332 N.W.2d at 749. No statute creates an exception on the facts before us, and the parties' stipulation therefore is ineffective to prevent consideration of the guilty-plea-waiver rule.
Nor does the stipulated description of the reserved constitutional claim as jurisdictional resolve the issue. Whether a criminal defendant who pleads guilty has lost the right to contest an issue of fact or law on appeal is an issue of law. The agreement of the parties on questions of law does not generally bind an appellate court. Swift & Co. v. Hocking Valley R. Co., 243 U.S. 281, 289, 37 S.Ct. 287, 289, 61 L.Ed. 722 (1917).
Accordingly, we must consider the application of the guilty-plea-waiver rule. The first question is whether Olson raised a jurisdictional defense by claiming that sec. 161.14(4)(t), Stats., is unconstitutional. If he did not, the second question is whether he is nevertheless entitled to reassert his constitutional claim on appeal. The second question remains because the Riekoff court refused to hold that a guilty plea waives all defenses except those related to subject-matter jurisdiction. 112 Wis.2d at 124 n. 2, 332 N.W.2d at 747.
If Olson has indeed asserted a defense that sec. 161.14(4)(t), Stats., "on its face" denies him equal protection, then he has raised a jurisdictional issue. "A statute, unconstitutional on its face, is void from its beginning to the end...." State ex rel. Comrs. of Pub. Lands v. Anderson, 56 Wis.2d 666, 672, 203 N.W.2d 84, 87 (1973). A challenge to the facial validity of a statute raises a jurisdictional defense which survives a guilty plea. State ex rel. Skinkis v. Treffert, 90 Wis.2d 528, 538-39, 280 N.W.2d 316, 321 (Ct.App.1979).
A defendant who merely claims "facial invalidity" has not necessarily asserted the defense. A motion claiming "facial invalidity" may itself show that a nonfacial challenge is raised. That is the case here.
For purposes of equal protection analysis, a statute is said to be facially invalid if its unconstitutionality can be determined without proof of extrinsic circumstances. Section 161.14(4), Stats., lists almost one hundred specific substances in Schedule I. To determine whether it is irrational to classify THC with the other substances listed in Schedule I, we must compare THC with those substances. It is impossible to intelligently compare THC with the other substances listed in Schedule I except through resort to information outside the statute. Similarly, it is impossible to intelligently compare the classification of offenders charged with violations involving Schedule I substances without resort to information outside the statute.
Defendant's motion itself shows that it...
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