Wisconsin Justices Dive Into Nitty-Gritty of Burglary Charges for 7th Circuit

MADISON, Wis. (CN) – The Wisconsin Supreme Court needled over the legal definitions of locations for committing burglary Monday to determine whether the prior convictions of two defendants can be considered for stiffer sentencing under the federal Armed Career Criminal Act.

The arguments, which lasted under an hour, dug into the language of Wisconsin’s relatively broad burglary statute, which lists both alternative elements – therefore defining more than one crime in a single statute – and alternative means for committing a single crime.

Wisconsin’s statute involves 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.

Dennis Franklin and Shane Sahm pleaded guilty to unlawful possession of a firearm in federal court. The court counted their three prior burglary convictions in Wisconsin as qualifying violent felonies under Armed Career Criminal Act, sentencing each to the mandatory minimum of 15 years.

The U.S. Supreme Court has ruled if the different locations in statutes like Wisconsin’s count as different elements, then the statute is divisible and prior convictions can be considered under the armed criminals act. If they are different means, prior convictions cannot be considered. 

Franklin and Sahm appealed to the Seventh Circuit, claiming they should only have been sentenced to 10 years under the act, rather than the mandatory minimum of 15 years, because their prior convictions weren’t predicate. This led the appeals court to ask the Wisconsin high court for clarity on state burglary law.

Monday’s oral arguments centered around the definitions of locations, whether they are elements or means and what the risks of double jeopardy were given those assumptions.

Justice Daniel Kelly asked early on whether a prosecutor could arrive at four different convictions for a single act of burglary given the overlap of locations in the statute’s subsections.

Shelley Fite, representing the defendants on behalf of Federal Defender Services of Wisconsin, said “if the Legislature created different statutes” for different locations “that would be an indication that they intend to create separate crimes.” However, the overlap presents a problem of double jeopardy, Fite noted.

Justice Kelly agreed that this could indicate that the statute is indivisible.

Assistant U.S. Attorney Laura Przybylinski argued against a whole-cloth reinterpretation of the statute, encouraging the court to look at “45-plus years of case law wherein the court has referred to each location as an element.”

Przybylinski saw no double jeopardy risk in the statutory overlap, noting the issue had never been raised.

Justice Rebecca Dallet took exception to this, referring to the “room within” subsection.

“Aren’t you sometimes in a room within a building?” Dallet asked, wondering how else one would burgle a building without also being in a room within the building. She said determining not only whether a building or dwelling was burgled but in which room within that building or dwelling a burglar was attempting to commit a felony put “an awfully high burden on the government.”

Dallet also questioned whether charging separate burglaries for the building and the room within the building might amount to double jeopardy.

Justice Ann Walsh Bradley appeared to doubt Przybylinski’s argument that case law indicates that these location subsections have always been charged as elements and not as means.

“It’s never been prosecuted that way, until it is,” Bradley noted.

Przybylinski said the scheme brings clarity to the system.

“A defense needs to know where the burglary happened, how to defend it and what the state is going to prove,” she said.

Fite used her response to note the need for courts to “double check our work” when double jeopardy is at risk.

The high court did not indicate when it would rule.

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