State v. Steinhardt

• Decision Date: 21 June 2017
• Docket Number: No. 2015AP993-CR,2015AP993-CR
• Citation: 375 Wis.2d 712,896 N.W.2d 700,2017 WI 62
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. Heather L. STEINHARDT, Defendant-Appellant-Petitioner.
• Court: Wisconsin Supreme Court

375 Wis.2d 712

896 N.W.2d 700

2017 WI 62

STATE of Wisconsin, Plaintiff-Respondent,

v.Heather L. STEINHARDT, Defendant-Appellant-Petitioner.

No. 2015AP993-CR

Supreme Court of Wisconsin.

Oral Argument: February 28, 2017

Opinion Filed: June 21, 2017

For the defendant-appellant-petitioner there were briefs and an oral argument by Nicole M. Masnica, assistant state public defender.

For the plaintiff-respondent there was a brief and oral argument by Kevin M. LeRoy, deputy solicitor general, with whom on the brief was Brad D. Schimel, attorney general, and Misha Tseytlin, solicitor general.

MICHAEL J. GABLEMAN, J.

¶1 This is a review of an unpublished per curiam decision of the court of appeals that affirmed the Ozaukee County circuit court's¹ decision that denied Heather L. Steinhardt's ("Steinhardt") motion for postconviction relief. State v. Steinhardt , No. 2015AP993-CR, unpublished slip op., 367 Wis.2d 350, 2016 WL 237378 (Wis. Ct. App. Jan. 21, 2016) (per curiam).

¶2 Steinhardt argues that her convictions for both failure to protect a child from sexual assault contrary to Wis. Stat. § 948.02(3) (2011-12)² and first-degree sexual assault of a child under 13 as a party to a crime contrary to Wis. Stat. §§ 948.02(1)(e) and 939.05 violated the Double Jeopardy Clauses of the United States Constitution and Wisconsin Constitution. Therefore, she asks this court to vacate her conviction for failure to protect a child. In addition, she argues that she received ineffective assistance of counsel because her counsel never alerted her to the potential double jeopardy claim. She asks this court to remand her case for a hearing to determine whether her counsel was ineffective.

¶3 We hold that Steinhardt's conviction for failure to protect a child from sexual assault does not violate double jeopardy because failure to protect a child from sexual assault and first-degree sexual assault of a child under 13 as a party to a crime are not identical in fact. Moreover, we determine that Steinhardt failed to overcome the presumption that the legislature intended cumulative punishments for her conduct, given that her conduct consisted of two separate acts. We also hold that Steinhardt's claim of ineffective assistance of counsel fails because her counsel could not be deficient for failing to advise her of a potential double jeopardy claim that does not exist.

I. FACTUAL AND PROCEDURAL BACKGROUND

¶4 For roughly three years leading up to April 1, 2013, Steinhardt's husband, Walter, repeatedly expressed to Steinhardt an interest in having sex with Steinhardt's daughter, F.G.³ On April 1, 2013, Steinhardt acquiesced to Walter's requests, and Steinhardt facilitated her husband's sexual assault of the then-twelve-year-old F.G.

¶5 According to the criminal complaint, on April 1, "[Steinhardt] went to one of the other rooms w[h]ere F.G. was and brought her into the bedroom that [Steinhardt] shared with Walter and sat with her on the bed.... Walter was prepared, lying on the bed under the covers." "Walter then told F.G. to take off her clothes at which time [Steinhardt] remained on the bed...." Walter then engaged in three sexual acts with F.G.: "Walter engaged in digital penetration of F.G., Walter had F.G. engage in oral sex with him, and ultimately Walter had sexual intercourse with F.G....." Steinhardt remained seated on the bed throughout the entire assault. After Walter finished, "F.G. left the room to take a shower with [Steinhardt] following her into the bathroom."⁴

¶6 F.G. alerted her biological father of the assault, and he contacted the police. The State charged Steinhardt with failure to protect a child from sexual assault contrary to Wis. Stat. § 948.02(3)⁵ ("Count 1"), first-degree sexual assault of a child under 13 as a party to a crime contrary to Wis. Stat. §§ 948.02(1)(e) and 939.05⁶ "Count 2"), and child enticement contrary to Wis. Stat. § 948.07(1)⁷ ("Count 3").⁸

¶7 Steinhardt pled no contest to all three counts, and the circuit court sentenced Steinhardt to 7.5 years of initial confinement and 5 years of extended supervision on Count 1; 15 years of initial confinement and 10 years of extended supervision on Count 2 (consecutive to Count 1); and 15 years of initial confinement and 10 years of extended supervision on Count 3 (concurrent to Count 2). In total, Steinhardt's sentence amounts to 37.5 years, with 22.5 years of initial confinement and 15 years of extended supervision.

¶8 Steinhardt subsequently filed a motion for postconviction relief. She asked the circuit court to vacate her conviction for Count 1. She argued that Counts 1 and 2 are multiplicitous, thereby making her convictions on both counts a violation of double jeopardy. Steinhardt also asked the circuit court to hold a hearing to determine whether her counsel was ineffective for failing to advise her of her potential double jeopardy claim. Steinhardt alleged that she would not have pled no contest if she knew of the possible claim. The circuit court found Counts 1 and 2 were not multiplicitous and denied her motion. Steinhardt appealed.

¶9 The court of appeals affirmed the circuit court.

Steinhardt , unpublished slip op., ¶1. It determined that "Steinhardt relinquished the right to direct review of her double jeopardy claim" because her claim could not be resolved on the basis of the factual record before the circuit court at the time of Steinhardt's plea. Id. , ¶8 (citing State v. Kelty , 2006 WI 101, 294 Wis.2d 62, 716 N.W.2d 886 ("[A] guilty plea relinquishes the right to assert a multiplicity claim when the claim cannot be resolved on the record.")). The court of appeals also determined that Steinhardt's claim for ineffective assistance of counsel failed because Steinhardt did not sufficiently allege prejudice in her postconviction motion to warrant a hearing. Id. , ¶11 (citing State v. Bentley , 201 Wis.2d 303, 313-18, 548 N.W.2d 50 (1996) ("A defendant must do more than merely allege that he would have pled differently; such an allegation must be supported by objective factual assertions.")).

¶10 Steinhardt then sought review by this court, which we granted on October 11, 2016.

II. STANDARD OF REVIEW

¶11 "The issue of whether a person's right to be free from double jeopardy has been violated presents a question of law that we review de novo." State v. Trawitzki , 2001 WI 77, ¶19, 244 Wis.2d 523, 628 N.W.2d 801.

¶12 Ineffective assistance of counsel is a mixed question of law and fact. Id. This court upholds the circuit court's factual findings unless they are clearly erroneous. Id. Whether counsel was ineffective is a question of law that this court reviews de novo. Id.

III. DISCUSSION

A. Steinhardt's Convictions on Counts 1 and 2

¶13 The Fifth Amendment to the United States Constitution⁹ and Article I, Section 8 of the Wisconsin Constitution¹⁰ guarantee the right to be free from double jeopardy. This right provides three protections: "protection against a second prosecution for the same offense after acquittal; protection against a second prosecution for the same offense after conviction; and protection against multiple punishments for the same offense." State v. Sauceda , 168 Wis.2d 486, 492, 485 N.W.2d 1 (1992). This third category is known as multiplicity. See State v. Davison , 2003 WI 89, ¶37, 263 Wis.2d 145, 666 N.W.2d 1 ("Use of the term 'multiplicitous' should be limited to situations in which the legislature has not authorized multiple charges and cumulative punishments."). Here, Steinhardt argues that her right to be free from multiple punishments for the same offense has been violated by her convictions for Counts 1 and 2.

¶14 We apply a two-pronged test to determine whether charges are multiplicitous. State v. Anderson , 219 Wis.2d 739, 746, 580 N.W.2d 329 (1998). Under the first prong, we ask "whether the charged offenses are identical in law and fact." Id. Under the second prong, the question is "if the offenses are not identical in law and fact, whether the legislature intended the multiple offenses to be brought as a single count." Id.

1. Whether Counts 1 and 2 Are Identical in Law or Fact

¶15 We typically apply the Blockburger ¹¹ test to determine whether offenses are identical in law. E.g. , Sauceda , 168 Wis.2d at 493-94, 485 N.W.2d 1. Here, however, the State concedes, and we agree, that Counts 1 and 2 are identical in law due to the operation of Wis. Stat. § 939.66(2p),¹² which makes failure to protect a child from sexual assault a lesser-included offense of first-degree sexual assault of a child under 13. See, e.g. , Harrell v. State , 88 Wis.2d 546, 571, 277 N.W.2d 462 (Ct. App. 1979) ("[T]hus, a greater and lesser included offense are the 'same offense' and trial for one bars a second trial for the other."). Accordingly, our inquiry under the first prong focuses on whether Counts 1 and 2 are identical in fact. We conclude they are not.

¶16 Our review of whether Counts 1 and 2 are identical in fact is limited to the facts available to the circuit court at the time of Steinhardt's plea. See, e.g. , Kelty , 294 Wis.2d 62, ¶38, 716 N.W.2d 886 ("What this means is that a court will consider the merits of a defendant's double jeopardy challenge if it can be resolved on the record as it existed at the time the defendant pled."); State v. Eisch , 96 Wis.2d 25, 27, 291 N.W.2d 800 (1980) ( "Because we confront the case at the pleading stage, we are confined to the facts alleged in the complaint, information, and transcript of testimony of the witnesses at the preliminary examination."). In this case, that amounts to those facts contained in the probable cause section of the criminal complaint because those were the only facts of record at the time of Steinhardt's plea.¹³ Steinhardt waived her preliminary hearing, there are no facts contained in the information, and neither party sought to supplement the facts at Steinhardt's plea hearing.

¶17 The probable cause section of the criminal complaint provides, in relevant part:

[Steinhardt] stated that at

...