State v. Radke

Decision Date26 February 2003
Docket NumberNo. 01-1879-CR.,01-1879-CR.
Citation2003 WI 7,259 Wis.2d 13,657 N.W.2d 66
PartiesSTATE of Wisconsin, Plaintiff-Respondent, v. Alan L. RADKE, Defendant-Appellant-Petitioner.
CourtWisconsin Supreme Court

For the defendant-appellant-petitioner there were briefs and oral argument by William E. Schmaal, assistant state public defender.

For the plaintiff-respondent the cause was argued by Sandra L. Nowack, assistant attorney general, with whom on the brief was James E. Doyle, attorney general.

¶ 1. SHIRLEY S. ABRAHAMSON, CHIEF JUSTICE.

This is a review of a published decision of the court of appeals, State v. Radke, 2002 WI App 146, 256 Wis. 2d 448, 647 N.W.2d 873, affirming the judgment of conviction of the Circuit Court for Dane County, Steven D. Ebert, Judge.

¶ 2. Alan L. Radke, the defendant, was convicted of repeated acts of sexual assault of the same child, in violation of Wis. Stat. § 948.025(1) (1997-1998),1 and was also convicted of being a persistent repeater under Wis. Stat. § 939.62(2m)(a)1m., (b)2., and (c), commonly known as Wisconsin's "two strikes" law.2 He was sentenced to life imprisonment without the possibility of parole. ¶ 3. The defendant challenges the constitutionality of the "two strikes" law. The challenge focuses on a comparison of Wisconsin's "two strikes" law and Wisconsin's "three strikes" law3 in light of the statutory felony classification system.4 Under the statutory felony classification system, a Class A felony has a greater maximum penalty than a Class B felony. The "two strikes" law, however, mandates that the second conviction for a Class B felony "serious child sex offense" be punished by life imprisonment without the possibility of parole, while the "three strikes" law mandates that the third conviction for a Class A homicide felony be punished by life imprisonment without the possibility of parole.

¶ 4. In short, the defendant argues that it is irrational and therefore unconstitutional for the legislature to authorize a more serious punishment for a single conviction of first-degree intentional homicide (a Class A felony) than for a single conviction of first-degree sexual assault of a child (a Class B felony) under the felony classification system while simultaneously punishing a second first-degree child sexual assault conviction more severely than a second first-degree intentional homicide conviction.

¶ 5. The precise question raised, therefore, is whether the "two strikes" law violates the Due Process Clause of either the United States or Wisconsin Constitution because it requires a greater penalty to be imposed on an offender convicted of a second Class B non-fatal child sexual assault than the statutes require to be imposed on an offender convicted of a second Class A felony homicide offense.5 ¶ 6. The circuit court, on a pretrial motion, ruled that the "two strikes" law was a reasonable exercise of the legislature's power to determine appropriate criminal penalties and thus was constitutional. The court of appeals affirmed the conviction. It presumed that the legislature had an interest in protecting children from repeat sex offenders whom the legislature viewed as more likely to re-offend than other serious felons and concluded that the "two strikes" law is rationally related to that interest under either a due process or equal protection analysis.

¶ 7. We conclude, as did the court of appeals, that the defendant's constitutional challenge to the "two strikes" law fails. The legislature's interest in protecting the public from child sexual assault offenders, a particular subset of offenders with a perceived high rate of recidivism who victimize an especially vulnerable segment of the population, makes it rational for the legislature to impose a greater penalty on an offender convicted of a second Class B non-fatal child sexual assault than on an offender convicted of a second Class A homicide offense.6 ¶ 8. The relevant facts of this case are few. In 1986, the defendant was convicted of first-degree sexual assault of a child, contrary to Wis. Stat. § 940.225(1)(d) (1983-1984), which proscribes sexual contact or sexual intercourse with a person 12 years of age or younger.7 The defendant was sentenced to five years' probation with nine months in jail as a condition of his probation. Violation of § 940.225(1)(d) was a Class B felony.8

¶ 9. On March 16, 1999, the State charged the defendant with committing repeated acts of sexual assault of the same child,9 in violation of Wis. Stat. § 948.025(1), a Class B felony.10 As a result of his prior conviction for first-degree sexual assault of a child, the State also charged the defendant as a "persistent repeater" under Wis. Stat. § 939.62(2m). The defendant entered a not guilty plea and then filed a motion to dismiss the repeater charge, arguing that it violated his right to due process. The circuit court denied his motion.

¶ 10. The jury convicted the defendant as charged. The circuit court denied the defendant's motion for post-conviction relief, and as required by the "two strikes" law, the circuit court sentenced him to life in prison without the possibility of parole.11 The defendant's conviction was upheld by the court of appeals, and we granted review.

[1-4]

¶ 11. The constitutionality of a statute is a question of law that this court determines independently of the circuit court and court of appeals, yet with the benefit of the analyses of these courts. All statutes enjoy a presumption of constitutionality and the heavy burden of overcoming this presumption lies with the person attacking the statute.12 This court will sustain a statute against a constitutional challenge if there is "any reasonable basis" for the statute.13 That reasonable basis need not be expressly stated by the legislature; if the court can conceive of facts on which the legislation could reasonably be based, it must uphold the legislation as constitutional.14

[5-7]

¶ 12. In this case, the defendant attacks the statute as unconstitutional under the Due Process Clause of the state and federal constitutions.15 In addition to the procedural protections provided by the Due Process Clause, there is also "a substantive component that bars certain arbitrary, wrongful government actions."16 Substantive due process forbids a government from exercising "power without any reasonable justification in the service of a legitimate governmental objective."17

¶ 13. The defendant argues that the "two strikes" law is "illogical, irrational, and arbitrary as a method of executing the legislature's overall determination of penal policy"18 and therefore violates his constitutional right to due process of law. According to the defendant, a child sexual assault is a less serious crime than a homicide offense. The defendant points out that the Wisconsin legislature has indicated that Class A felony offenses are more serious crimes than Class B felony offenses by imposing a higher maximum penalty for Class A felony offenses than for Class B felony offenses. Moreover, felony classification system aside, the defendant asserts that non-homicide child sexual assaults are inherently less serious than homicide offenses. Consequently, the defendant argues, a second child sexual assault cannot rationally be punishable by a more severe penalty than a second homicide offense. Yet convicted persons are considered persistent repeaters and sentenced to mandatory terms of life imprisonment without the possibility of parole after two convictions for Class B child sexual assault but are not so sentenced after two convictions for Class A homicide.

¶ 14. The State responds that the "two strikes" law is a rational legislative attempt to protect children from sexual violence by incapacitating repeat offenders who are not likely to be rehabilitated. Moreover, according to the State, the fact that a second conviction for a Class B felony might result in a more severe sentence than a second conviction for a Class A felony is consistent with the overall felony classification system in Wisconsin, which sets only maximum penalties for each felony class and permits other factors, such as the character of the offender and the need to protect the public from that particular offender, to establish the actual sentence to be imposed.

¶ 15. We begin our constitutional analysis with an examination of the relevant statutes. Wisconsin Stat. § 939.50 establishes Wisconsin's felony classification system. Under § 939.50, felonies are grouped into one of six different classes with letter designations A, B, BC, C, D, and E. The legislature has assigned a maximum penalty to each of these classes. Class A felonies have been assigned the most severe maximum penalty of life imprisonment.19 Class E felonies have been assigned the least severe maximum penalty of a fine not to exceed $10,000 or imprisonment not to exceed 2 years, or both.20 ¶ 16. Wisconsin Stat. § 939.62 is Wisconsin's repeat offender statute, containing the "two strikes" and "three strikes" laws. For more than a century, Wisconsin laws have authorized courts to enhance the sentences of repeat offenders. By 1993 Act 289, the legislature enacted the "three strikes" law, creating a new subcategory of repeat offenders known as "persistent repeaters".21 Persistent repeaters under the "three strikes" law are defendants who have been convicted of two offenses, each of which the legislature has designated as a "serious felony," and are presently being sentenced for a third such offense.

¶ 17. Several, but not all, Class A, B, BC, and C felonies have been given the "serious felony" designation under the "three strikes" law. These designated felonies range from Class A felonies such as first-degree intentional homicide to Class C felonies such as assault by a prisoner.22 Persistent repeaters under the "three strikes" law face a mandatory sentence of life in prison without the possibility of parole...

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