State v. Rogers

• Decision Date: 18 January 2023
• Docket Number: 2022AP785-CRLV
• Parties: State of Wisconsin, Plaintiff-Respondent, v. Marvin Lee Rogers, Defendant-Petitioner.
• Court: Wisconsin Court of Appeals

State of Wisconsin, Plaintiff-Respondent, v. Marvin Lee Rogers, Defendant-Petitioner.

No. 2022AP785-CRLV

Court of Appeals of Wisconsin, District I

January 18, 2023

This opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)5.

APPEAL from an order of the circuit court for Milwaukee County: No 2020CF4102 JEAN M. KIES, Judge.

Before Brash, C.J., Donald, P.J., and White, J.

Per curiam opinions may not be cited in any court of this state as precedent or authority, except for the limited purposes specified in Wis.Stat. Rule 809.23(3).

PER CURIAM.

¶1 Marvin Lee Rogers appeals from the non-final order of the circuit court denying his motion to dismiss a criminal weapon possession charge on the basis of double jeopardy.^[1] We conclude that the circuit court acted within its discretion to declare a mistrial and that there was manifest necessity to restart the proceedings. Accordingly, we affirm the circuit court's decision to deny Rogers's motion to dismiss and we remand the case to the circuit court for further proceedings.

BACKGROUND

¶2 Although this case arises out of a firearms possession charge, the issue before us is to review the court's discretion to order a mistrial. The record reflects that the parties and the court agreed to resolve Rogers's charge in an "unorthodox" manner, attempting to rely only on a stipulated record in a court trial without sworn witnesses. The circuit court realized after agreeing to this method that it was not sound under Wisconsin law. To understand our resolution of the case, we now recite the basic underlying facts of the charge against Rogers and the procedural process employed before the circuit court.

¶3 According to the criminal complaint, on August 23, 2020, a Milwaukee Police Department officer stopped a vehicle on North 18th Street in Milwaukee due to incorrect registration. While speaking with Rogers, the driver and sole occupant of the vehicle, the officer observed a firearm in the center console. Rogers told the officer he did not have a concealed carry (CCW) license; he further admitted he purchased the firearm and it belonged to him. Upon examining court records the police ascertained that Rogers had been adjudicated delinquent for an offense that if committed by an adult would be a felony. On November 19, 2020, Rogers was charged with possession of a firearm by an adjudicated delinquent contrary to Wis.Stat. § 941.29(1m)(bm).

¶4 The case proceeded against Rogers. At a July 1, 2021 hearing Rogers's counsel informed the court that he had identified a possible defense, and Rogers wished to pursue a trial, rather than a plea hearing. Prior to the pretrial conference, Rogers's counsel informed the court by letter that he specifically requested a court trial. He contended that there was a triable issue in the case, namely whether there was a mens rea defense to the question of law presented by a possession of a firearm by an adjudicated delinquent charge. He asserted it was a matter of first impression under Wisconsin law whether Wis.Stat. § 941.29 requires a person to know about a prior felony conviction or adjudication in order to satisfy this element of the charge.

¶5 At the pretrial conference on September 2, 2021, the court conducted a thorough colloquy with Rogers before finding that he was making a "knowing, willing, and voluntary decision to waive his right to go forward" with a jury trial. The court found that Rogers instead chose to go forward with a bench trial to the court. The court stated it would approve Rogers's decision to pursue a court trial decision because he was presenting a question of law for the court to resolve. Trial counsel told the court that "there will probably be a stipulation to most facts. I think the [c]ourt may require Mr. Rogers' testimony about his state of mind."

¶6 On October 6, 2021, trial counsel and the prosecutor submitted to the court stipulated record materials comprised of: the criminal complaint in the current case; the report of the MPD officer who interviewed Rogers in the current case the dispositional order and circuit court record in his 2003 juvenile matter; the criminal complaint in Rogers's 2017 Dane County charges; the reports of City of Verona police officers who arrested and interviewed Rogers in the 2017 Dane County matter; and the judgment and court minutes in the 2017 Dane County case. That same day, the circuit court began the proceedings, noting that the court trial was "a little unusual." The court stated that it understood that the "the parties have a stipulated factual basis that they're relying upon that's contained [in] and based upon documents that were provided to [the court] in a stipulated record."

¶7 The court first addressed Rogers:

THE COURT: So you understand that-Mr. Rogers, that, instead of presenting witnesses who would come up here on the witness stand, as well as other evidence, that we're gonna have facts that are just presented by the lawyers, and I'm gonna rely upon them in making a determination in this case?

[ROGERS:] Yes, Your Honor.

THE COURT: You could have [trial counsel] call witnesses for you. You understand that?

[ROGERS:] Yes, Your Honor.

THE COURT: And you could also have him cross-examine the State's witnesses. You understand that?

[ROGERS:] Yes, Your Honor.

THE COURT: All right. Instead, we're gonna proceed in this unorthodox manner, if that's okay with you.

[ROGERS:] Yes, Your Honor.

The court then addressed trial counsel:

THE COURT: All right. [Trial counsel], turning to you, did you discuss with your client his right to proceed to a jury trial in this case?

[TRIAL COUNSEL:] I have.

THE COURT: Did you also offer him the benefit of going forward with a court trial wherein I would hear evidence from witnesses?

[TRIAL COUNSEL:] We've discussed both a jury trial and a court trial, and we've discussed in detail alternative ways of accomplishing both. And after conferring with him multiple times … I can inform the [c]ourt that he is understanding his rights and what could have happened, even in a bench trial, and … he believes this is … an appropriate way to move forward, given the nature of the issue and the nature of the facts in this case.

….

THE COURT: Furthermore, after talking to your client about having a court trial, where we would present evidence, and the [c]ourt would have to listen to the testimony and weigh the credibility of the witnesses after seeing them, do you believe that your client is also making a knowing, willing, and voluntary decision to go forward in that regard?

[TRIAL COUNSEL:] Yes, Your Honor.

THE COURT: And finally, after carefully talking to Mr. Rogers, do you believe that he, after consulting with you, is making a knowing and voluntary decision to proceed on the stipulated record?

[TRIAL COUNSEL:] Yes, Your Honor.

Finally, the court addressed the State:

THE COURT: All right. Does the State have any objection to proceeding? …. [A]re you okay not going forward with a court [sic] trial wherein witnesses would be presented?

[THE STATE:] The State is comfortable with that. Yes.

THE COURT: And you consent, or agree, to proceeding to trial on the stipulated record?

[THE STATE:] Yes.

¶8 The proceedings then continued with statements from both trial counsel and the prosecutor. Trial counsel framed the question of law as whether to be convicted of a Wis.Stat. § 941.29 violation, a person must know about a prohibition on firearms in a previous felony conviction or felony-equivalence delinquency adjudication. Trial counsel asserted that the stipulated record showed that Rogers was adjudicated delinquent at age thirteen, which included a firearm admonishment, and that about twenty years later, he was charged in Dane County with carrying a concealed weapon. However, the Dane County case was resolved by amendment to an ordinance violation after the police there determined that there was no criminal record that would bar him from possessing a firearm. The State argued that under State v. Phillips, 172 Wis.2d 391, 394-96, 493 N.W.2d 238 (Ct. App. 1992), a conviction under § 941.29 is not conditional on notification of a felony conviction or felony-equivalence adjudication. Trial counsel stated that previous cases with regard to §941.29 had only answered the question of the requirement of knowledge of possession-not knowledge of a felony status.

¶9 The court reviewed the contents of each of the documents in the stipulated record with the parties. The court then set a briefing schedule for the parties. Finally, the court set a date for a decision, but then reconvened the proceedings, stating:

To clean up the record, I went through each and every one of the pieces of evidence that the parties are stipulating or agreeing can be considered for purposes of the trial on this stipulated record; so, at this time, do the parties join in moving all of those pieces of evidence into the record, State?

Trial counsel and the prosecutor agreed with the moving of the evidence into the record. The court then continued, "Then the [c]ourt will receive that evidence, and the record will be closed. And then I will await the closing arguments, briefs, of the State[,] the [d]efense, and we'll see you on the decision date."

¶10 Five days later, on October 11, 2021, the court contacted the parties and called them into a hearing because of the court's concern upon reflection about the "unorthodox" procedure. The court concluded that upon the basis of State v. Beyer, 2021 WI 59, 397 Wis.2d 616, 960 N.W.2d 408, a recent case in which:

[T]he Wisconsin Supreme Court considered whether or not the guilty plea waiver rule applies when a defendant pleads not guilty to an offense, but, then, stipulates to the inculpatory facts supporting each element of the offense and

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