State v. Jimmie Davison

REVIEW of a decision of the Court of Appeals. Reversed.

¶1 DAVID T. PROSSER, J. This is a review of a published decision of the court of appeals, State v. Davison, 2002 WI App 109, 255 Wis. 2d 715, 647 N.W.2d 390, which reversed the judgment of the Kenosha County Circuit Court, following Jimmie Davison's (Davison) negotiated guilty plea to one count of aggravated battery, one count of special circumstances battery (battery by prisoner), and one count of threats to injure, all as a repeater. The court of appeals concluded that the aggravated battery and battery by prisoner punishments were multiplicitous, in violation of Davison's double jeopardy rights under the United States and Wisconsin Constitutions. Id., ¶20.

¶2 Two issues are presented for review. First, does a criminal defendant who pleads guilty to several crimes in a negotiated plea agreement waive the right to raise a multiplicity claim against one of the resulting convictions? Second, did the circuit court err in entering a judgment of conviction for one count of aggravated battery and one count of battery by prisoner on the facts of this case? More specifically, did the legislature intend in Wis. Stat. § 939.66(2m) (1999-2000)[1] to prohibit conviction for both aggravated battery under Wis. Stat. § 940.19(6) and battery by prisoner under Wis. Stat. § 940.20(1) in the prosecution of a single act?

¶3 We hold that the legislature did not clearly intend in § 939.66(2m) to bar convictions for both aggravated battery under § 939.19(6) and battery by prisoner under § 940.20(1) in a single prosecution arising out of a single act. When the broad language of § 939.66(2m) is viewed in its full context, considering its legislative history as well as the different harms addressed by different battery statutes, we conclude that § 939.66(2m) was intended to address specific problems pertaining to § 940.19 and not intended to prohibit cumulative punishments from convictions under the two battery statutes.

¶4 Davison's convictions for both aggravated battery and battery by prisoner were in conformity with legislative intent and thus did not violate his due process right against multiplicitous punishments. Because we conclude that Davison's multiplicity objection fails on the merits, we decline to decide whether, by pleading guilty, he waived his right to raise this claim.

I. FACTS AND PROCEDURAL HISTORY

¶5 The facts in this case are taken from the criminal complaint. In 1997, Jimmie Davison was an inmate at the Kenosha Correctional Center, serving a 12-year sentence for first-degree sexual assault. During the day, he was assigned to a work release program at a farm in Franksville. On November 11, 1997, Davison arranged for his wife to meet him for lunch at his work site. When Mrs. Davison arrived at the grounds about noon, Davison got into her car and instructed her to drive to a remote area of the farm and park inside an isolated shed-type building. Once there, he pushed his food aside and began making sexual advances, which Mrs. Davison rejected.

¶6 Davison became very angry when his wife drew away. He grabbed her around the neck with both hands, pulling her face close to his. For the next 45 minutes or so, Davison intermittently choked her, attempted to kiss or grope her, pulled up her dress, and screamed at her when she resisted him. Mrs. Davison told him that he was "really hurting" her and later told police that she felt sure that Davison was going to kill her. When she broke free and fled from the car, Davison caught her and forced her back into the shed and car. He continued to choke her. She said she had a hard time breathing and was afraid Davison would break her neck or jaw because his grip was so tight. Later, witnesses saw evidence of black and blue marks on Mrs. Davison's arm and of bruises, scratches, and bleeding around her neck.

¶7 At approximately 1:00 p.m., Mrs. Davison was able to persuade her husband that he would be in trouble if he got back late from lunch, and he drove the car back to the work area. Before exiting the car, however, Davison suddenly, violently punched the left side of Mrs. Davison's head. She had a black eye for approximately two weeks. A physician later noted bruises and tenderness around her eye, as well as handprints around both of Mrs. Davison's ears and under her jaw.

¶8 Mrs. Davison told police that one reason she visited her husband was that he had agreed to a divorce as soon as he got out of prison but had promised to fight her "all the way" if she filed while he was still incarcerated. When she visited him on a second occasion, February 8, 1998, with their two children, Davison threatened to kill her if she filed for divorce. He bluntly declared that he had "set a plan in motion" to have her killed within three days if she tried to break up their family.

¶9 On June 26, 1998, the Kenosha County District Attorney's Office filed a criminal complaint reciting these facts and charging Davison with one count each of kidnapping,[2] false imprisonment,[3] and aggravated battery under Wis. Stat. § 940.19(6),[4] all as a repeater under Wis. Stat. § 939.62(1)(b). These charges related to the November 11, 1997, incidents. In addition, the complaint contained one count of threats to injure under Wis. Stat. § 943.30(1), as a repeater, based on the separate February 8, 1998, incident. After Davison waived his preliminary hearing, the prosecutor added a count of special circumstances battery (battery by prisoner) under Wis. Stat. § 940.20(1),[5] as a repeater, to the information. This additional count was based on the events of November 11.

¶10 In response to the added count, Davison filed a motion claiming that the two battery charges were multiplicitous under Wis. Stat. § 939.66(2m)[6] and violated the constitutional prohibition against double jeopardy. After a hearing, Kenosha County Circuit Judge David M. Bastianelli denied Davison's motion, finding that the charges were not multiplicitous or in violation of double jeopardy.

¶11 Thereafter, Davison entered a negotiated plea, agreeing to plead guilty to aggravated battery as a repeater, battery by prisoner as a repeater, and threatening to injure as a repeater. For its part, the State agreed to dismiss, but read-in, the charges for kidnapping as a repeater and false imprisonment as a repeater. The plea bargain did not incorporate any provision forbidding Davison from making a multiplicity or double jeopardy claim on appeal.

¶12 After accepting the guilty plea, the circuit court sentenced Davison to six years in prison for aggravated battery, five years to be served consecutively for battery by prisoner, and another five years to be served consecutively for the threats to injure. Davison appealed. During the briefing stage of his appeal, he complained that his appointed counsel failed to adequately consult with him and respond to his inquiries. The court of appeals granted Davison's counsel's motion to withdraw, directed the public defender to appoint new counsel, and then granted additional time for filing a postconviction motion and appeal.

¶13 In early 2001 Davison's new counsel filed a postconviction motion reasserting the multiplicity and double jeopardy claim, as well as other claims not relevant to this appeal. The circuit court again denied the multiplicity and double jeopardy claim, finding that, while the claim might have merit, the issue had been waived by Davison's guilty plea. Davison again appealed.

¶14 In reversing the circuit court, the court of appeals rejected the State's contention that Davison had waived his multiplicity claim by pleading guilty to the charges. Davison, 255 Wis. 2d 715, ¶13. The court characterized Davison's claim as being one of double jeopardy and observed that double jeopardy claims are not governed by the guilty plea waiver rule. Id., ¶12. The court also concluded that, while aggravated battery and battery by prisoner are offenses that are different in law, § 939.66(2m) applies to all battery statutes, including those outside of § 940.19. Id., ¶¶18, 20. Therefore, the court said, Davison could not be convicted of both § 940.19(6) and § 940.20(1), and the court remanded the case to determine the appropriate remedy under State v. Robinson, 2002 WI 9, 249 Wis. 2d 553, 638 N.W.2d 564. Id., ¶25. The State petitioned for review, which we granted.

II. STANDARD OF REVIEW

¶15 This case presents several questions of law. Whether an individual's constitutional right to be free from double jeopardy has been violated is a question of law that this court reviews de novo. State v. Anderson, 219 Wis. 2d 739, 746, 580 N.W.2d 329 (1998). Whether a multiplicity violation exists in a given case, which requires a determination of legislative intent, is a question of law subject to independent appellate review. See State v. Multaler, 2002 WI 35, ¶52, 252 Wis. 2d 54, 643 N.W.2d 437.

III. CONSTITUTIONAL ANALYSIS

A. Double Jeopardy

¶16 The State seeks clarification of the analysis to be employed in multiplicity claims, including a discussion of multiplicity's relationship to double jeopardy. Twenty years ago, in an opinion by then-Justice Abrahamson, this court observed that:

Although the federal constitutional guarantee against double jeopardy has "its roots in antiquity," it is "one of the least understood . . . provisions of the Bill of Rights" and the holdings of the United States Supreme Court can "hardly be characterized as models of consistency and clarity." Whalen v. United States, 445 U.S. 684, 699-700 (1980) (Rehnquist, J., dissenting). See also Westen and Drubel, Toward a General Theory of Double Jeopardy, 1978 The Supreme Court Review 81, 82.

State v. Bohacheff, 114 Wis. 2d 402, 406-07, 338 N.W.2d 466 (1983). In the ensuing years, this court has wrestled repeatedly with the proper principles to apply to claims of multiplicity and double jeopardy.[7]

¶17 The Fifth Amendment to the United States Constitution reads in part: "nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb." Article I, § 8(1) of the Wisconsin Constitution provides in part that "no person for the same offense may be twice put in jeopardy of punishment . . . ."

¶18 Our tradition is to view these provisions as identical in scope and purpose. Day v. State, 76 Wis. 2d 588, 591, 251 N.W.2d 811 (1977). Consequently, this court accepts decisions of the United States Supreme Court as controlling interpretations of the double jeopardy provisions of both constitutions. State v. Lechner, 217 Wis. 2d 392, 401 n.5, 576 N.W.2d 912 (1998) (citing Day, 76 Wis. 2d at 591, and State v. Calhoun, 67 Wis. 2d 204, 220, 226 N.W.2d 504 (1975)); see also State v. Tappa, 127 Wis. 2d 155, 161, 378 N.W.2d 883 (1985) (citing cases).

¶19 The United States Supreme Court has stated that the Double Jeopardy Clause provides three separate protections. "It protects against a second prosecution for the same offense after acquittal. It protects against a second prosecution for the same offense after conviction. And it protects against multiple punishments for the same offense."[8] North Carolina v. Pearce, 395 U.S. 711, 717 (1969) (emphasis added). This summary has been quoted or paraphrased many times by this court.[9] It does not apply to cases in which a person was never put in "jeopardy" or in which the person is properly subject to retrial.

¶20 Under this analytical framework, the first two protections involve "a second prosecution." The third protection involves a single prosecution. All three protections implicate "the same offense."

¶21 Over the years, courts have struggled with the concept of "the same offense." The seminal case in this regard is Blockburger v. United States, 284 U.S. 299 (1932). Blockburger was charged with five offenses for unlawfully selling drugs. A jury found him guilty of three. The three charges were variations on two sales of a particular drug to the same purchaser. The Court had no difficulty concluding that sales made on consecutive days did not constitute "a single offense" or a "single continuing offense." Blockburger, 284 U.S. at 301-03.[10] In this facet of the case, the Court pointed to separate acts to distinguish the offenses. Two offenses were committed.

¶22 More significant for our purposes, the Court addressed a second claim made by the defendant, "that the sale charged in [one] count as having been made not from the original stamped package, and the same sale [charged in a second count] as having been made not in pursuance of a written order of the purchaser, constitute but one offense for which only a single penalty lawfully may be imposed." Id. at 301 (emphasis added). The court addressed this second claim as follows:

Each of the offenses created requires proof of a different element. The applicable rule is that where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not. Gavieres v. United States, 230 U.S. 338, 342 [1911], and authorities cited. In that case this court quoted from and adopted the language of the Supreme Court of Massachusetts in Morey v. Commonwealth, 108 Mass. 433 [1871]: "A single act may be an offense against two statutes; and if each statute requires proof of an additional fact which the other does not, an acquittal or conviction under either statute does not exempt the defendant from prosecution and punishment under the other." . . . Applying the test, we must conclude that here, although both sections were violated by the one sale, two offenses were committed.

Id. at 304. For this second facet of the case, there was only one act, but it violated two statutes, each of which required proof of a different element.

¶23 There is no reference in Blockburger to the Double Jeopardy Clause of the Fifth Amendment. There is no direct reference to "double jeopardy" in any context, or to "cumulative punishment." The Court observed that "each offense is subject to the penalty prescribed; and if that be too harsh, the remedy must be afforded by act of Congress, not by judicial legislation under the guise of construction." Blockburger, 284 U.S. at 305. However, the opinion cites Gavieres v. United States, 220 U.S. 338 (1911), which involved a 1902 Act of Congress that read: "No person, for the same offense, shall be twice put in jeopardy of punishment." Id. at 341 (citing section 5 of the Act of Congress of July 1, 1902, 32 Stat., c 1369, 691). In addition, the Court affirmed a decision of the Court of Appeals, Blockburger v. United States, 50 F.2d 795 (7th Cir. 1931), in which the dissenting judge wrote: "I do not think the penalty section of the statute contemplates such double punishment for the same transaction." Id. at 799 (Alschuler, J., dissenting). Thus, the Court could not have been oblivious to the implications of its decision for future cases.

¶24 The "elements only test" articulated in Blockburger has frequently been used to aid courts in determining whether a charge is "the same offense" for purposes of any of the protections embodied in the Double Jeopardy Clause.[11] United States v. Dixon, 509 U.S. 688, 696 (1993). Because the Blockburger test sometimes produces unsatisfactory results, however, it is "now seen as simply a rule of construction creating a rebuttable prescription of sameness." Akhil Reed Amar, Double Jeopardy Law Made Simple, 106 Yale L. Rev. 1807, 1819 (1997) (citing Garrett v. United States, 471 U.S. 773, 778-79 (1985); Ohio v. Johnson, 467 U.S. 493, 499 n.8 (1984); Missouri v. Hunter, 459 U.S. 359, 366-67 (1983)); see also Albernaz v. United States, 450 U.S. 333, 337 (1981); Whalen v. United States, 445 U.S. 684, 691 (1980); Iannelli v. United States, 420 U.S. 770, 785 n.17 (1975).

¶25 The impact of a judicial determination that a charge is the same offense under the Blockburger test appears to depend to some extent upon whether the charge comes in a "second prosecution" or in a single, first prosecution. See Brown v. Ohio, 432 U.S. 161, 165 (1977); Bohacheff, 114 Wis. 2d at 407 n.5; Peter Westen & Richard Drubel, Toward a General Theory of Double Jeopardy, in 1978 The Supreme Court Review 121 n.188 (Philip B. Kurland & Gerhard Casper eds., 1979).

It is important to distinguish here between the constitutional standards for multiple punishment and the distinct standards for a multiple prosecution. Although the Blockburger Rule operates as nothing more than a rebuttable presumption for purposes of multiple punishment, it may have a stricter and more rigid application in the context of multiple prosecution.

Westen & Drubel, supra, at 121-22 n.188. The Court appears less tolerant of prosecuting the same offense in a second prosecution.

¶26 If the same offense is involved in a single prosecution, we look to whether the same offense is part of: (1) a "second sentence" challenge, (2) a unit-of-prosecution challenge, or (3) a cumulative punishments challenge, as we have in the present case. See Whalen, 445 U.S. at 702-705 (Rehnquist, J., dissenting) (describing the three "strands" of "multiple punishment" precedent) (citing cases).

¶27 Before discussing "punishment," it should be noted that the Supreme Court has said that the Double Jeopardy Clause does not prohibit the State "from prosecuting [a defendant] for [ ] multiple offenses in a single prosecution," even in situations where it could not impose cumulative punishments for the same offense. Johnson, 467 U.S. at 500 (emphasis added). The Johnson case distinguishes prosecution on overlapping charges for the same offense from punishment on those charges for the same offense and explains that prosecution does not equal punishment.

¶28 Looking then solely to cumulative punishments imposed in a single prosecution for the same offense, "the Double Jeopardy Clause does no more than prevent the sentencing court from prescribing greater punishment than the legislature intended." Missouri v. Hunter, 459 U.S. 359, 366 (1983). "Even if the crimes are the same under Blockburger, if it is evident that a state legislature intended to authorize cumulative punishments, a court's inquiry is at an end." Johnson, 469 U.S. at 499 n.8; see also Garrett v. United States, 471 U.S. 773, 779 (1985).

¶29 As noted above, the United States Supreme Court summarized the double jeopardy protections as including "multiple punishments for the same offense." Pearce, 395 U.S. at 717. For this proposition, the Court cited only cases involving a second sentence imposed by the court. Id.[12] Hence, uncertainty has developed whether the prohibition against "multiple punishments for the same offense" can be reconciled with the Court's conclusion that a legislative body may approve cumulative punishments for the same offense, even when the offense is identical in law and fact.[13]

¶30 To address this uncertainty, the Court's rule prohibiting "multiple punishments for the same offense" should be modified in cases involving simultaneous convictions under more than one statute. We read the Supreme Court as saying that when a defendant is convicted under more than one statute for a single act or transaction and the charges constitute "the same offense" because they are identical in law and fact, the Double Jeopardy Clause prohibits cumulative punishments from these convictions unless the relevant legislative body intended to authorize cumulative punishments. The "question whether punishments imposed by a court after a defendant's conviction upon criminal charges are unconstitutionally multiple cannot be resolved without determining what punishments the Legislative Branch has authorized." Whalen, 445 U.S. at 688.

¶31 The Double Jeopardy Clause does not itself restrict a legislature's power to make law. "Because the substantive power to prescribe crimes and determine punishments is vested with the legislature, United States v. Wiltberger, 5 Wheat. 76, 93 (1820), the question under the Double Jeopardy Clause whether punishments are 'multiple' is essentially one of legislative intent." Johnson, 467 U.S. at 499 (citing Hunter, 459 U.S. at 366-368).

¶32 In sum, we conclude that the imposition of cumulative punishments from different statutes in a single prosecution for "the same offense" violates double jeopardy when the cumulative punishments are not intended by the legislature. See Whalen, 445 U.S. at 689; see also Rutledge v. United States, 517 U.S. 292, 297 (1996).

¶33 The "same offense" in this specific situation should be an offense identical in law and fact. The imposition of cumulative punishments not authorized by the legislature is a due process violation, not a double jeopardy violation, when the punishments do not spring from the same offense. "The same offense" is the sine qua non of double jeopardy. State v. Trawitzki, 2001 WI 77, ¶22, 244 Wis. 2d 523, 628 N.W.2d 801; State v. Grayson, 172 Wis. 2d 156, 159 n.3, 493 N.W.2d 23 (1992).

B. Multiplicity

¶34 The present case involves a claim of "multiplicity." In State v. Rabe, 96 Wis. 2d 48, 61, 291 N.W.2d 809 (1980), we stated:

Multiplicity arises where the defendant is charged in more than one count for a single offense. United States v. Free, 574 F.2d 1221 (5th Cir. 1978); State v. Dreske, 88 Wis. 2d 60, 74, 276 N.W.2d 324 (Ct. App. 1979). As we noted in State v. George, 69 Wis. 2d 92, 230 N.W.2d 253 (1975), multiplicitous charges are impermissible, because they violate the double jeopardy provisions of the state and federal constitutions.

Id. at 815. The Rabe statements have been repeated numerous times by this court. See Anderson, 219 Wis. 2d at 746; Grayson, 172 Wis. 2d at 159; Tappa, 127 Wis. 2d at 161. In recent cases, the court has attempted to divide "multiplicity" into categories. State v. Derango, 2000 WI 89, ¶27, 236 Wis. 2d 721, 613 N.W.2d 833; Lechner, 217 Wis. 2d 392, 402 n.6.[14]

¶35 Some of our commentary on multiplicity must be re-evaluated in light of the last quarter-century of United States Supreme Court decisions. We know that the Blockburger court long ago explained that a single act may be an offense against two statutes. Blockburger, 284 U.S. at 304. We have learned since Blockburger that "the same offense" may give rise to more than one conviction and punishment, if cumulative punishments for the same offense are intended by the legislature. Rutledge, 517 U.S. at 303. This is the teaching of Hunter, Johnson, and Garrett. This court has heretofore acknowledged as much. In Bohacheff, the court stated:

In recent cases the United States Supreme Court has held that as long as the legislative intent is clear the federal Constitution does not bar the legislature from imposing multiple punishments even if the crimes described by the two statutory provisions under which two punishments are imposed are the same offense.

Bohacheff, 114 Wis. 2d at 409 n.7 (emphasis added) (citing Missouri v. Hunter, 459 U.S. 359 (1973), and State v. Gordon, 111 Wis. 2d 133, 137, 330 N.W.2d 564 (1983)).[15] In short, legislative intent to authorize cumulative punishments overrides a total identity of law and fact a la Blockburger.

¶36 This understanding is significant because this court has said that if offenses "are identical in law and fact, the charges are multiplicitous in violation of the double jeopardy clauses of the federal and state constitutions." Anderson, 219 Wis. 2d at 747; see also Trawitzki, 244 Wis. 2d 523, ¶21; Derango, 236 Wis. 2d, ¶30. Although this statement is usually true, it is not always true, because the legislature may have intended to authorize cumulative punishments for the same offense.

¶37 In situations where the legislature intends to authorize cumulative punishments for the same offense, we may no longer say that the charges are "multiplicitous" or that they violate double jeopardy. Use of the term "multiplicitous" should be limited to situations in which the legislature has not authorized multiple charges and cumulative punishments.

¶38 In addition, in discussing multiplicity, a reference to "charges" must be employed carefully, because it is permissible to charge more than one count, even if the state may not punish a defendant on more than one count. Johnson, 467 U.S. at 500. In Bohacheff, for instance, the state charged the defendant with being under the influence of an intoxicant while operating a vehicle, in violation of Wis. Stat. § 940.25(1)(a) (1982-82), and having a blood alcohol concentration of .10 or more while operating a vehicle in violation of Wis. Stat. § 940.25(1)(b) (1981-82). Bohacheff, 114 Wis. 2d at 404. The defendant filed a motion to dismiss the complaint on the ground that charging him under both sections violated protections against double jeopardy. The circuit court granted the motion. Id. at 405. This court reversed, concluding that the complaint did not violate double jeopardy because the statutes subjected the defendant to only one conviction and one punishment. Id. This court's ruling was and is consistent with the subsequent Supreme Court decision in Johnson.

¶39 Bohacheff did not describe itself as a multiplicity case, although it would have been a multiplicity case if unauthorized cumulative punishments had been imposed. By contrast, Rabe, 96 Wis. 2d 48, did describe itself as a multiplicity case, based upon the charges alone, but it was not. Rabe involved four charges of homicide by intoxicated use of a motor vehicle under the same statute, as four persons were killed in an accident caused by the defendant's intoxication. Id. at 52. The defendant filed a motion to consolidate the four counts into one count on grounds that the defendant's single act of negligently driving his vehicle while intoxicated could not be charged as multiple offenses. The circuit court granted the motion. Id. at 52-53.

¶40 In vacating the circuit court's dismissal of three counts, this court adopted the "multiplicity" rhetoric employed by the defendant. We cited United States v. Free, 574 F.2d 1221, 1224 (5th Cir. 1978), for the proposition that multiplicity arises where the defendant is charged in more than one count for a single offense. Rabe, 96 Wis. 2d at 61. In Free, the defendant claimed that his indictment was "multiplicitous" because one count charged him with second-degree murder and a second count charged him with unlawfully conveying a weapon designed to kill an inmate from place to place in a federal correctional institution. Free, 524 F.2d at 1224. The court used the Blockburger test to dismiss the defendant's claim as meritless, making no reference to double jeopardy in its decision. Id. For its definition of "multiplicity," the Free court cited Gerberding v. United States, 471 F.2d 55, 58 (8th Cir. 1973), another case completely silent on double jeopardy. Free, 524 F.2d at 1224.

¶41 Both Free and Gerberding involved different charges, not multiple counts of the same charge. This made them similar to this case, but different from Rabe. As a general proposition, different elements of law distinguish one offense from another when different statutes are charged. Different facts distinguish one count from another when the counts are charged under the same statute.[16]

¶42 There is an established methodology for reviewing multiplicity claims. Trawitzki, 244 Wis. 2d 523, ¶21; Anderson, 219 Wis. 2d at 746; Lechner, 217 Wis. 2d at 402-03.

¶43 First, the court determines whether the charged offenses are identical in law and fact using the Blockburger test. Trawitzki, 244 Wis. 2d 523, ¶21; Derango 236 Wis. 2d 721, ¶29. If it is determined, using this test, that the offenses are identical in law and fact, the presumption is that the legislative body did not intend to punish the same offense under two different statutes. Whalen, 445 U.S. at 692. "Accordingly, where two statutory provisions proscribe the 'same offense,' they are construed not to authorize cumulative punishments in the absence of a clear indication of contrary legislative intent." Id. (emphasis added).

¶44 Conversely, if under the Blockburger test the charged offenses are different in law or fact, a presumption arises that the legislature did intend to permit cumulative punishments. See Derango, 236 Wis. 2d 721, ¶30; Lechner, 217 Wis. 2d at 407; Sauceda, 168 Wis. 2d at 496; State v. Kuntz, 160 Wis. 2d 722, 755, 467 N.W.2d 531 (1991). "This presumption can only be rebutted by clear legislative intent to the contrary." Derango, 236 Wis. 2d 721, ¶30; Lechner, 217 Wis. 2d at 407; Kuntz, 160 Wis. 2d at 755 (citing Missouri v. Hunter, 469 U.S. at 367; Albernaz, 450 U.S. at 340).

¶45 Second, even if the charged offenses are not identical in law and fact, the court must still determine whether the legislature intended multiple offenses to be brought as a single count. See Anderson, 219 Wis. 2d at 746. At this juncture, however, it is the defendant's burden to show a clear legislative intent that cumulative punishments are not authorized.

¶46 Applying these principles to this case, there is no dispute that the offense of aggravated battery is not identical in law to the offense of battery by prisoner. Consequently, we are not dealing with a potential double jeopardy violation involving "the same offense." The cumulative punishments against the defendant are not "multiplicitous" either, unless the legislature did not intend to authorize multiple convictions and cumulative punishments for the two battery offenses on these facts. If the legislature did not intend to authorize multiple convictions and cumulative punishments, Davison has a legitimate due process claim. To evaluate this claim, we must concentrate our focus on legislative intent.

IV. LEGISLATIVE INTENT

¶47 Davison challenges one of his two "battery" convictions on multiplicity grounds, arguing that Wis. Stat. § 939.66(2m) represents a clear expression of legislative intent not to authorize cumulative punishments in his situation. Wisconsin Stat. § 939.66 reads in part as follows:

Conviction of included crime permitted. Upon prosecution for a crime, the actor may be convicted of either the crime charged or an included crime, but not both. An included crime may be any of the following:

. . . .

(2m) A crime which is a less serious or equally serious type of battery than the one charged.

¶48 Davison notes that aggravated battery and battery by prisoner are both Class D felonies. Thus, if measured by the penalty structure, each crime is an "equally serious type of battery."[17] As a result, he argues, Wis. Stat. § 939.66(2m) bars conviction of "[a] crime which is [an] . . . equally serious type of battery than the one charged."

¶49 Davison does not dispute that the two offenses are not identical in law. Thus, there is a presumption that the legislature intended to permit punishments for both offenses. The critical issue to be decided, then, is whether Wis. Stat. § 939.66(2m) represents a clear legislative intent to prohibit cumulative punishments on the facts before us, rebutting the presumption to the contrary.

¶50 As we seek legislative intent in a multiplicity claim, the court does not stop at the language of the subsection. Instead, we analyze four factors to determine legislative intent: (1) all applicable statutory language; (2) the legislative history and context of the statute; (3) the nature of the proscribed conduct; and (4) the appropriateness of multiple punishment for the conduct. See Grayson, 172 Wis. 2d at 160 (citing Tappa, 127 Wis. 2d at 165).[18]

A. Statutory Language

¶51 Wisconsin Stat. § 939.66 is the second of two sections that appear under the heading "Rights of the Prosecution" in Subchapter V of Chapter 939. The first section, Wis. Stat. § 939.65, is entitled "Prosecution under more than one section permitted." It provides that "if an act forms the basis for a crime punishable under more than one statutory provision, prosecution may proceed under any or all such provisions." Wis. Stat. § 939.65(1). This section gives a green light to multiple charges, which may result in multiple convictions, under different statutory provisions.[19]

¶52 Wisconsin Stat. § 939.66 then speaks of an "included crime":

Upon prosecution for a crime, the actor may be convicted of either the crime charged or an included crime, but not both. An included crime may be any of the following:

(1) a crime which does not require proof of any fact in addition to those which must be proved for the crime charged.

Subsection (1) is a codification of the Blockburger test.

¶53 In this case, the two battery offenses share only two elements: (1) the defendant caused bodily harm to the victim, and (2) the defendant intended to cause bodily harm to the victim. Compare Wis JI——Criminal 1226, with Wis JI——Criminal 1228.[20] To prove battery by prisoner, the State must prove four elements that are not included in aggravated battery, namely (1) the defendant was a prisoner; (2) the victim was a visitor to the defendant's institution; (3) the defendant caused bodily harm without the consent of the victim; and (4) the defendant knew the victim was a visitor to the institution and knew that the victim did not consent to the causing of bodily harm. See Wis JI——Criminal 1228. To prove aggravated battery under § 940.19(6), the State must prove two elements that are not included in battery by prisoner, namely (1) the defendant's conduct created a substantial risk of great bodily harm; and (2) the defendant knew his conduct created a substantial risk of great bodily harm. See Wis JI——Criminal 1226. The marked difference in the elements of the two offenses clearly supports a presumption that the legislature's intent was to permit cumulative punishments.

¶54 On the other hand, § 939.66 also provides in subsection (2m) that an included crime includes "a crime which is a less serious or equally serious type of battery than the one charged."

¶55 Battery by prisoner is a crime. Wis. Stat. § 940.20(1).

¶56 Battery by prisoner is arguably a "type of battery" if "battery" refers to statutory offenses as opposed to physical acts.[21]

¶57 Battery by prisoner is an "equally serious type of battery" because both statutory offenses are Class D felonies. Lechner, 217 Wis. 2d at 410.

¶58 Based on the plain language of the subsection, one would normally conclude that the legislature intended that the defendant not be convicted of both crimes.

¶59 Supporting this conclusion is the fact that the legislature showed elsewhere in Wis. Stat. § 939.66 that it could write more narrowly than subsection (2m) when it wanted to. For instance, subsection (2r) reads: "A crime which is a less serious type of violation under s. 943.23 than the one charged." (Emphasis added). Unlike (2m), this subsection confines the analysis of an included crime to a specific statute. See also subsection (6c) ("A crime that is a less serious type of violation under s. 940.285 than the one charged."); subsection (6e) ("A crime that is a less serious type of violation under s. 940.295 than the one charged."); subsection (7) ("The crime specified in s. 940.11(2) when the crime charged is specified in s. 940.11(1).").

¶60 The text also shows that the legislature has repeatedly evinced a concern about overlapping charges of battery. In Wis. Stat. § 939.66, the legislature addressed battery in subsection (5) ("The crime of attempted battery when the crime charged is sexual assault, sexual assault of a child, robbery, mayhem or aggravated battery or an attempt to commit any of them.") and in subsection (6) ("A crime specified in s. 940.285(2)(b)4. or 5. ['maltreatment' of vulnerable adults] when the crime charged is specified in s. 940.19(2) to (6) [subsections of the battery statute pertaining to substantial bodily harm and great bodily harm]."), 940.225(1), (2) or (3) or 940.30.

¶61 Finally, the court provided a supportive interpretation of the statute in a parallel subsection. Wisconsin Stat. § 939.66(2) addresses multiple convictions for homicide and prohibits conviction of "a crime which is a less serious type of criminal homicide than the one charged." In Lechner, 217 Wis. 2d 392, the defendant pled no contest to both second-degree reckless homicide and homicide by intoxicated use of a vehicle when both charges involved the death of a single person. The defendant argued that he could not be convicted twice for killing the same person. In rejecting his claim, the court stated:

[T]he legislature, by enacting Wis. Stat. § 939.66(2), has specifically addressed the issue of multiple homicide convictions for a criminal act causing a single death. Where a single act of a defendant forms the basis for a crime punishable under more than one statutory provision, Wis. Stat. § 939.66(2) provides that a defendant may not be convicted for two criminal homicides if one is "a less serious type of criminal homicide." The defendant in this case argues that this section "unequivocally" evinces the legislature's intent to allow only one homicide conviction for causing the death of one person. A closer reading of the plain language in Wis. Stat. § 939.66(2), however, establishes just the opposite.

The plain language of Wis. Stat. § 939.66(2) does not prohibit multiple homicide convictions for killing one person. It bars multiple convictions only when one of the homicide convictions is for a "less serious type" of homicide. Noticeably absent from the prohibitions of Wis. Stat. § 939.66(2) is a bar against multiple homicide convictions when the homicides are "equally serious."

Id. at 407-08 (emphasis added).

¶62 We went on to explain that, since the legislature enacted § 939.66(2) as a prohibition against multiple homicide convictions but "limited its application to situations where one homicide conviction is for a less serious type of homicide, we can infer a legislative intent not to prohibit multiple convictions when the defendant is convicted for equally serious types of homicide." Id. at 408.

The inference that the legislature did not intend to prohibit multiple convictions for "equally serious" homicides is supported by the fact that the statutory provision immediately following Wis. Stat. § 939.66(2) prohibits multiple convictions when one crime is a "less serious or equally serious type of battery." Wis. Stat. § 939.66(2m) (emphasis added). . . . [T]he legislature apparently intended to bar multiple convictions for a single act of battery, regardless of the seriousness of the offenses.

Id. at 408-09.

¶63 This rationale is helpful to Davison. Turning Lechner on its head, "we can infer a legislative intent" to prohibit multiple convictions when the defendant is convicted for equally serious types of battery.

¶64 In short, Davison is not forced to rely solely on the words in subsection (2m). The words are buttressed by textual analysis and prior case law.

¶65 There is, however, another side to the dispute. A literal reading of subsection (2m) of § 939.66 is inconsistent with the general intent of § 939.65, which permits multiple charges under different statutes for a single act and may result in multiple convictions. It is also inconsistent with the test set out in subsection (1) unless (2m) is narrowly construed.

¶66 In addition, the introductory sentence and several subsections of § 939.66 may be read to apply only to a single charged offense and to a lesser-included offense that is not charged but is later submitted to the jury. Section 939.66 reads:

Upon prosecution for a crime, the actor may be convicted of either the crime charged or an included crime, but not both. An included crime may be any of the following:

(1) A crime which does not require proof of any fact in addition to those which must be proved for the crime charged.

. . . .

(2m) A crime which is a less serious or equally serious type of battery than the one charged.

Wis.


Case No.:		01-0826-CR

Complete Title:
		State of Wisconsin, Plaintiff-Respondent-Petitioner, v. Jimmie Davison, Defendant-Appellant.

		REVIEW OF A DECISION OF THE COURT OF APPEALS 2002 WI App 109 Reported at: 235 Wis. 2d 715, 647 N.W.2d 390 (Ct. App.-Published)

Opinion Filed:		July 3, 2003
Submitted on Briefs:
Oral Argument:		December 4, 2002

Source of Appeal:
	Court:	Circuit
	County:	Kenosha
	Judge:	David M. Bastianelli

Justices:
	Concurred:
	Dissented:	ABRAHAMSON, C.J., dissents (opinion filed) WALSH BRADLEY, J., joins dissent.
	Not Participating:

Attorneys:

(L.C. No.	98 CF 636)
STATE OF WISCONSIN :		IN SUPREME COURT

State of Wisconsin, Plaintiff-Respondent-Petitioner, v. Jimmie Davison, Defendant-Appellant.			FILED JUL 3, 2003 Cornelia G. Clark Clerk of Supreme Court