MADISON, Wis. (CN) – The Wisconsin Supreme Court ruled Thursday in response to a question from the Seventh Circuit that prior burglary convictions involving overlapping locations cannot be considered for stiffer sentencing under the federal Armed Career Criminal Act, finding that state law counts them as alternative means of committing a single crime.
The language of Wisconsin’s relatively broad burglary statute lists both alternative elements – therefore defining more than one crime within the single statute – and alternative means for committing a single crime.
The statute refers to burglaries committed in enclosed portions of boats and railroad cars, motor homes, trucks and trailers, any building or dwelling, and any room within any of the above.
The U.S. Supreme Court has ruled that if the different locations in statutes like Wisconsin’s count as different elements, and thus different crimes, then the statute is divisible and prior convictions can be considered for enhanced sentencing under the federal Armed Career Criminal Act, or ACCA. If they are different means, prior convictions cannot be considered.
In the case underlying Thursday’s order, Dennis Franklin and Shane Sahm pleaded guilty to unlawful possession of a firearm in federal court. The court then counted their three prior burglary convictions in Wisconsin as separate predicate offenses and sentenced them to 15 years in prison – the mandatory minimum for the firearm charge under the ACCA when defendants have three qualifying convictions for violent felonies.
Franklin and Sahm appealed to the Seventh Circuit, claiming they should only have been sentenced to 10 years because their prior convictions weren’t predicate violent crimes and they should not have been deemed armed career criminals. This led the Chicago-based appeals court to ask Wisconsin’s high court for clarity on state burglary law.
In her 15-page majority opinion answering that certified question Thursday, Justice Rebecca Dallet wrote that the “locational alternatives” in Wisconsin’s burglary statute “identify alternative means of committing one element of the crime of burglary.”
The four precedent factors Dallet considered were the plain language of the statute, the legislative history related to the statute, the nature of the conduct and the appropriateness of multiple punishments for that conduct.
Part of Dallet’s reasoning was based on the idea that considering the locational alternatives elements or means matters in the sense that a defendant could be at risk of double jeopardy under the elements rationale, leaving them open to the possibility of being charged more than once for a single act of burglary.
Dallet concluded that “the legislature intended to create one crime of burglary with multiple means of commission” with Wisconsin’s statute.
“The proscribed conduct here is entering a specified location without consent and with intent to steal or commit a felony. Regardless of which location is entered, there is only one act of burglary,” she wrote.
Dallet conceded that the high court’s order is at odds with the position of the federal government.
“If we adopt the position of the federal government,” she said, “a defendant could receive multiple punishments for the same act in violation of the double jeopardy clauses of the federal and Wisconsin constitutions.”
Dallet offered up the hypothetical burglary of a houseboat, opining that an alternative elements interpretation could leave a defendant open to conviction of four different crimes for that single act: burglary of a dwelling, burglary of a vessel, burglary of a room within a dwelling and burglary of a room within a vessel.
In acknowledging that the federal government “disputes the frequency of such overlap,” Dallet still found that “undoubtedly…a defendant will oftentimes enter both a location…and a room within that location.”
The state high court having now answered the question, Franklin and Sahm’s case will be handed back to the Seventh Circuit.
In a concurring but separate opinion, Justice Shirley Abrahamson questioned consulting legislative history at all in answering the question before the court if it has already been determined that the statutory language is plain and clear, considering it an unnecessary modification of an old legal test.
“In my view,” Justice Abrahamson wrote, “the majority has muddied that which it sought to clarify. By hastily disposing of a significant legal issue without the benefit of adversarial briefing, the majority has raised more questions than it answered.”
Abrahamson doubted whether it was proper at all to “give analytical weight” to the third and fourth precedent factors under the circumstances.
She wrote that “if the statute’s language is plain and the plain meaning is confirmed by the statute’s legislative history and context, what possible effect could the nature of the conduct or the appropriateness of multiple punishments have on the court’s analysis?”
The adversarial process of briefs and oral arguments is more prudent for answering “important and complicated legal questions,” Justice Abrahamson concluded, taking issue with the majority’s “unwise decision to deviate from adversarial process” in order to go forward in “spontaneously, and incautiously, answering a complicated legal question on its own.”
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