District II
May 14, 2014
To:
Hon. Mary Kay Wagner
Circuit Court Judge
Kenosha County Courthouse
912 56th Street
Kenosha, WI 53140
Rebecca Matoska-Mentink
Clerk of Circuit Court
Kenosha County Courthouse
912 56th Street
Kenosha, WI 53140
Tiffany M. Winter
Assistant Attorney General
P.O. Box 7857
Madison, WI 53707-7857
Robert D. Zapf
District Attorney
Molinaro Bldg.
912 56th Street
Kenosha, WI 53140-3747
Kiley Zellner
4915 S. Howell Ave., Suite 300
Milwaukee, WI 53207
You are hereby notified that the Court has entered the following opinion and order:
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State of Wisconsin v. Richard R. Turgeon (L.C. # 2011CF818) |
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Before Brown, C.J., Neubauer, P.J., and Reilly, J.
Richard R. Turgeon appeals from a judgment of conviction and an order denying his motion for postconviction relief. He contends that his convictions for three counts of possessing an improvised explosive device were multiplicitous. Based on our review of the briefs and record, we conclude at conference that this case is appropriate for summary disposition. See Wis. Stat. Rule 809.21 (2011-12).[1] We affirm the judgment and order of the circuit court.
Turgeon was convicted following no contest pleas to
three counts of possessing an improvised explosive device. The charges stemmed from the police’s
discovery of three cardboard tubes in his workroom at his home, each filled with
an explosive chemical compound and each having a “hobby fuse.”
The circuit court imposed an aggregate sentence of
twelve years of imprisonment. Turgeon subsequently
filed a motion for postconviction relief, arguing that his convictions
were multiplicitous. The circuit court denied his
motion. This appeal follows.
On appeal, Turgeon renews his argument based on multiplicity. He submits that he should not have been prosecuted or convicted for three counts of what he considers merely one act: possessing the improvised explosive devices in question.
The issue of multiplicity arises when a defendant is charged in more than one count for a single offense. State v. Ziegler, 2012 WI 73, ¶59, 342 Wis. 2d 256, 816 N.W.2d 238. The test to determine whether multiple counts are permissible is first, whether the charges are identical in law and fact, and second, whether the legislature intended to allow more than one unit of prosecution. See State v. Anderson, 219 Wis. 2d 739, 746, 580 N.W.2d 329 (1998). If the offenses are different in law or fact, then there is a presumption that the legislature intended multiple punishments. Id. at 751. The presumption may be rebutted only by showing clear intent to the contrary. Id. Questions of multiplicity and legislative intent are questions of law that we review de novo. See State v. Davison, 2003 WI 89, ¶15, 263 Wis. 2d 145, 666 N.W.2d 1.
Here, we are satisfied that the three counts of possessing an improvised explosive device were different in fact. That is because each required proof of an additional fact that the others did not (i.e., each required the State to prove that the cardboard tube associated with that specific count was an improvised explosive device). Accordingly, we presume that the legislature intended multiple punishments for the offenses in question. See Anderson, 219 Wis. 2d at 751. That presumption is consistent with the language of Wis. Stat. § 941.31(2)(b) which allows prosecution and punishment for “any improvised explosive device” (emphasis added). Because Turgeon has not met his burden of overcoming this presumption, we reject his multiplicity challenge.
Upon the foregoing reasons,
IT
IS ORDERED that the judgment and order of the circuit court are summarily
affirmed, pursuant to Wis. Stat. Rule
809.21.
Diane M. Fremgen
Clerk of Court of Appeals