State v. Petty, No. 93-2200-CR (Wis. 5/31/1996)
| Decision Date | 31 May 1996 |
| Docket Number | No. 93-2200-CR.,93-2200-CR. |
| Parties | State of Wisconsin, Plaintiff-Respondent, v. Gary Lewis Petty, Defendant-Appellant-Petitioner. |
| Court | Wisconsin Supreme Court |
Appeal from the Circuit Court, Milwaukee County, Frank T. Crivello, Judge.
REVIEW of a decision of the Court of Appeals. Affirmed.
Reported at: 190 Wis. 2d 467, 528 N.W.2d 90 (Ct. App. 1994), Unpublished.
For the defendant-appellant-petitioner there was a brief and oral argument by Ellen Henak, assistant state public defender.
For the plaintiff-respondent the cause was argued by Maureen McGlynn Flanagan, assistant attorney general, with whom on the brief was James E. Doyle, attorney general.
The defendant-petitioner Gary Lewis Petty (Petty) seeks review of an unpublished court of appeals decision which affirmed Petty's conviction, following a guilty plea, for possession of cocaine with intent to deliver and the circuit court's order denying post-conviction relief. The court of appeals concluded that Petty was judicially estopped from asserting a claim that under Wis. Stat. § 161.45 (1991-92)1, his state conviction was statutorily barred because it was part of the conspiracy for which he had pled guilty and was sentenced in federal court.
We are presented with two issues on this appeal. First, did the court of appeals err as a matter of law in holding that Petty was judicially estopped from challenging his state conviction? We conclude that Petty did not maintain inconsistent positions during the course of the state and federal litigation, and there is not sufficient evidence in the record to demonstrate that he attempted to "coldly manipulate" the judicial process. Although a discretionary remedy to be applied by the court, the court of appeals in this case has mistakenly expanded the breadth of the legal requirements for judicial estoppel. In doing so, we therefore conclude that the appellate court erred as a matter of law when it judicially estopped Petty's challenge to his state conviction under Wis. Stat. § 161.45.
The second issue before this court requires us to consider whether Wis. Stat. § 161.45 bars Petty's October 1991 state conviction for possession of cocaine with intent to deliver, when the defendant subsequently entered a negotiated plea to a federal charge of conspiracy with intent to distribute cocaine, and the period covered by the federal conspiracy charge includes the date of the incident on which the state charge is based. We hold that § 161.45 does not bar the state conviction in this case. The determinative moment for identifying when the statutory bar of §161.45 applies is the point in the prosecution at which guilt is determined. In state court, the determination of guilt occurred in October 1991 when Petty entered a plea of guilty, prior to being indicted on conspiracy charges in federal court. The statutory bar provided under § 161.45 is therefore inapplicable to the state conviction for possession. Accordingly, we affirm the court of appeals on different grounds.
The relevant facts and procedural history are not in dispute. Petty was charged in a criminal complaint filed August 7, 1991, in Milwaukee County with one count of possession of a controlled substance (cocaine) with intent to deliver while armed, contrary to Wis. Stat. § § 161.16(2)(b)1, 161.41 (1m)(c)2 and 939.05, and one count of felon in possession of a firearm, contrary to Wis. Stat. § 941.29(2). The charges arose from an incident which occurred on August 1, 1991, at 3077 N. 25th Street in Milwaukee. An information was filed on August 15, 1991, following Petty's voluntary waiver of a preliminary hearing. On October 16, 1991, Petty entered a negotiated guilty plea to an amended complaint and information wherein the quantity of drugs involved was reduced from 25 to 100 grams to 10 to 25 grams. Sentencing on the state charges was postponed.
On December 11, 1991, Petty and several others were named in a federal indictment. We are primarily concerned on this review with only two of the nine original federal charges in which Petty was named. The first federal count charged Petty and eight others as having conspired to possess with intent to distribute in excess of five kilograms of cocaine, in violation of 21 U.S.C. § 841(a)(1), during the period from January 1, 1987, to December 1991. The sixth federal count alleged that on or about August 1, 1991, Petty had possessed approximately one ounce of cocaine with intent to distribute.
Sentencing on the state charges was originally scheduled for January 16, 1992, but was adjourned at least six times before a sentence was imposed. The circuit court was advised that repeated delays in sentencing in federal court were attributed to Petty's cooperation as an informant and witness in ongoing drug investigations by federal authorities.
Petty received an eleven-year sentence in federal court without parole for conspiracy to possess cocaine with intent to distribute. See United States v. Gary Lewis Petty, No. 91-CR-283 (E.D. Wis. 1992). The additional federal charges were dismissed, including the possession charge relating to the August 1, 1991, incident. Circuit Court Judge Frank T. Crivello sentenced Petty on the state charges on November 6, 1992. He received four years on the drug possession charge, to run consecutively to the federal sentence of eleven years without parole. He was sentenced to two years in prison on the firearm possession charge2, to run concurrently to his sentence on the state drug possession charge.
Petty originally filed a no-merit notice of appeal in May 1993. Shortly thereafter, he filed a motion in the court of appeals to allow this appeal to proceed as a meritorious appeal, to dismiss the no-merit notice of appeal, and to extend the time to file a post-conviction motion. By order of the court of appeals dated June 24, 1993, the appeal was voluntarily dismissed pursuant to Wis. Stat. § (Rule) 809.18, and Petty was given time to file a post-conviction motion and leave to file another appeal after the circuit court ruled on his post-conviction motion.
The post-conviction motion filed by Petty in July 1993 sought to vacate and dismiss his conviction for possession of a controlled substance while armed on the ground that his conviction was barred by Wis. Stat. § 161.45.3 The circuit court denied the motion, holding that § 161.45 did not bar the state prosecution, because: (1) the state court prosecution preceded the federal court prosecution and (2) Petty's state conviction was for a substantive offense while the federal one was for the inchoate offense of conspiracy and therefore they did not constitute convictions for the same act.
The court of appeals affirmed the judgment of conviction and order of the circuit court. However, the court did not reach the issue of whether Wis. Stat. § 161.45 bars the state prosecution. Instead, the court held that Petty's claim was barred by judicial estoppel. The court reasoned that estoppel applied in this case because adjournments requested, at least in part by the defense, had created the potential claim of statutory double jeopardy. The court articulated its conclusion as follows:
As we said in State v. Gove, 148 Wis. 2d 936, 944, 437 N.W.2d 218, 221 (1989), `It is contrary to fundamental principles of justice . . . to permit a party to assume a certain position in the course of litigation which may be advantageous, and then after the court maintains that position, argue on appeal that the action was error.' Here, inducing the state court to adjourn sentencing in order to attain his federal court goals, Petty created his potential claim under § 161.45, STATS., — a claim which would not have existed had the state sentencing been completed before the federal sentencing. Thus, we conclude that Petty is judicially estopped from challenging his state conviction.
State v. Petty, No. 93-2200-CR, slip op. at 4 (Wis. Ct. App. Dec. 6, 1994).
Petty challenges the court of appeals' application of the doctrine of judicial estoppel in this case on the grounds that the facts as presented do not satisfy the traditional requirements of the doctrine. He contends that judicial estoppel is appropriately applied only where a party advances two irreconcilably inconsistent positions, and the inconsistency is the result of an intentional, "cold manipulation" of the judicial system. Petty argues that his positions throughout the course of both the state and federal litigation have remained consistent, and the record clearly indicates that he did not deliberately attempt to manipulate the judicial process, a fundamental prerequisite to application of the doctrine. He maintains that employing the equitable doctrine in this case will unnecessarily preclude the otherwise meritorious appeal he has raised under Wis. Stat. § 161.45.
"Because judicial estoppel is not directed to the relationship between the parties, but is intended to protect the judiciary as an institution from the perversion of judicial machinery, Edwards v. Aetna Life Ins. Co., 690 F.2d 595, 599 (6th Cir. 1982), it is the prerogative of the trial court to invoke judicial estoppel at its discretion." State v. Fleming, 181 Wis. 2d 546, 558, 510 N.W.2d 837 (Ct. App. 1993). In this case however, the doctrine was not applied by the circuit court, but rather, by the court of appeals. The appellate court's interpretation of the fundamental, legal requirements of the doctrine is being challenged on this review.
Determining the elements and considerations involved before invoking the doctrine of judicial estoppel are questions of law which we decide independently. Harrison v. LIRC, 187 Wis. 2d 491, 496, 523 N.W.2d 138 (Ct. App. 1994).
The equitable doctrine of judicial estoppel, as traditionally applied in this state, is intended "to protect against a litigant playing `fast and loose with the courts' by asserting...
To continue reading
Request your trial