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Note: We are crunching Supreme Court of Wisconsin decisions down to size. The rule for this is that no justice gets more than 10 paragraphs as written in the actual decision. The “upshot” and “background” sections do not count as part of the 10 paragraphs because of their summary and necessary nature. We’ve also removed citations from the opinion for ease of reading but have linked to important cases cited or information about them. Italics indicate WJI insertions except for case names, which are also italicized. Case Name: State v. Stetzer  Dallet Majority: Justice Rebecca Dallet (17 pages), joined by Justices Ann Walsh Bradley, Rebecca Grassl Bradley, Brian Hagedorn, and Janet Protasiewicz Concurrence: Justice Annette Ziegler (2 pages) Dissent: Chief Justice Jill Karofsky (15 pages) Upshot When a defendant commits an ongoing, otherwise-criminal act, like operating a motor vehicle with a prohibited alcohol concentration (PAC), the elements of the coercion defense (a complete defense to the charge) must be met for the entire duration of that act. Further, a defendant’s personal history can be relevant to the reasonableness of her belief that committing a crime was the only means of preventing imminent death or great bodily harm. Taking these determinations into account, the imminent danger situation that caused defendant Joan Stetzer to drive with a PAC dissipated, ending the defense and resulting in her conviction. Background Joan Stetzer was physically, emotionally and sexually abused by her husband, Bill Behlmer, for many years. He admitted that he physically and verbally abused her. To get away from the abuse, Stetzer sometimes went to their lake house, about 15 minutes from their primary home, because it had interior chain locks on the doors that prevented even someone with a key from entering. During the early hours one morning, after an argument about Behlmer's sexual affairs, Behlmer became violent, screamed at Stetzer, and pushed her down the stairs. Behlmer threatened to call the police, and taunted Stetzer that the police would arrest her instead of him, which had happened in the past. He accidentally dialed 911 but quickly hung up. Around the same time, Stetzer went outside. When the police called back, Behlmer told them that she was likely driving to the lake house and that she may be intoxicated. When Stetzer reentered the house, he ran at her with a closed fist, telling her to “get the hell out.” Stetzer testified that Behlmer had a look on his face that she had never seen before. He then ran after Stetzer into the garage carrying a large metal pot, “whipped” the pot at her, and continued to chase her outside and around her car. Stetzer managed to get inside her car and lock the doors. Behlmer pounded on the windows of the car and yelled “I’m going to take you out you fucking bitch.” Stetzer testified that she was frightened that he would break the windows of the car. Despite drinking a number of glasses of wine earlier that evening, Stetzer fled in her car, testifying that she did not believe she had another alternative. At first, Stetzer said she was “just trying to escape,” without a particular destination in mind, but she soon decided to drive to the lake house. About halfway there, Stetzer passed Officer Kimberley Kuehl in a police car pulled over on the side of the road. Officer Kuehl had learned of Behlmer’s report that Stetzer was likely driving to the lake house and that she may be intoxicated, and had positioned herself along Stetzer’s expected route. Stetzer acknowledged at trial that she saw the police car. When asked why she did not stop, Stetzer testified, “I thought about it. I thought should I stop, and I thought no, I’m not going to stop, I have called the police on two other occasions when being physically abused. [Behlmer] lied and I got arrested." After observing Stetzer weaving and veering in her lane, Kuehl initiated a traffic stop. Stetzer admitted that she had been drinking. She told Officer Kuehl that her husband had thrown her down the stairs and that she was going to the lake house “to get out of there.” Officer Kuehl testified that Stetzer appeared to be afraid of her husband and that she was crying. During the stop, Stetzer exhibited signs of impairment, and a subsequent blood draw showed that her blood alcohol concentration was over the legal limit of 0.08. She was arrested and charged with operating a motor vehicle with a PAC as second offense. At her bench trial, Stetzer stipulated that her blood alcohol concentration exceeded the legal limit, but she argued that the coercion defense absolved her of the offense. She argued that the defense allowed her to a motor vehicle with a PAC because the physical attack and threats by Behlmer caused her reasonably to believe that driving to the lake house was the only means of preventing imminent death or great bodily harm. Trial evidence included testimony from Stetzer, Behlmer, and an expert on domestic violence, Dr. Darald Hanusa. Hanusa, a psychotherapist and clinical social worker specializing in domestic violence, testified that on the night in question, Stetzer was presented with a “classic dilemma” for a person experiencing domestic violence: “[d]oes she stay with the possibility of being injured or does she take a risk to drive a car to flee to safety?” Dr. Hanusa also explained that fear is a primary factor in the decisions of domestic violence victims and that victims often do not call the police. He further opined that because Stetzer had an “adverse relationship with the police department,” the police would be “the last people she’s going to call for help.” The circuit court concluded that the elements of the coercion defense were initially met when Stetzer initially decided to drive away from her home. However, the state proved beyond a reasonable doubt that by the time she was pulled over, Stetzer had other means of safety available, so the elements of the defense no longer existed. The judge pointed out that once Stetzer left the driveway she had more options than driving to the lake house. The court of appeals affirmed. Guts Stetzer argued that as long as the elements for the coercion defense were met at the beginning of the offense when she began to operate her vehicle, the defense applied. We start with the text of . . . the statutes defining the coercion defense. . . . The pertinent statute identifies when an individual’s conduct occurs under circumstances of coercion, providing, in relevant part, that “[a] threat by a person . . . which causes the actor reasonably to believe that his or her act is the only means of preventing imminent death or great bodily harm to the actor . . . and which causes him or her so to act is a defense to a prosecution for any crime based on that act . . . .” The “circumstances of coercion” referenced in the statute are therefore present only when the three elements . . . are met: (1) there is a threat by another person; (2) the threat causes the defendant reasonably to believe that an otherwise-criminal act is the only means of preventing imminent death or great bodily harm; and (3) the threat causes the defendant to engage in the act. *** Requiring the elements of the coercion defense to be met throughout the duration of an ongoing act is consistent with how we have interpreted the closely related defenses of self-defense and defense of others. Like coercion, these other defenses permit an individual to engage in otherwise-criminal conduct (use of force against another) under certain narrow circumstances without facing liability—namely, when the individual reasonably believes that the force is necessary to prevent unlawful interference with the individual’s person or with a third person. Significantly, we have concluded that these related defenses are available only when a defendant or a third person is actually under threat. Even more to the point, we have held that when the otherwise-criminal act is ongoing, like possessing a firearm as a felon or carrying a concealed weapon, a defendant arguing self-defense must not have continued the act any longer than reasonably necessary. Our interpretation of the coercion defense also finds support in how other jurisdictions have interpreted similar defenses. The Supreme Court of Alaska, for example, held that defendants asserting the necessity defense for continuing offenses, like drunk driving, must show some evidence that they stopped violating the law as soon as the necessity ended. And New Jersey courts have noted that in a drunk-driving prosecution, “the distance a driver traveled might be relevant to the defense of necessity if the driver had escaped the harm and continued to drive.” Other courts have come to the same conclusion outside the specific context of drunk driving. And still others have held that coercion or similar defenses apply only as long as the elements of the defense continue to be met. Stetzer’s interpretation, by contrast, lacks a meaningful limiting principle and would dramatically expand the scope of the defense. Accepting Stetzer’s argument that the elements of the coercion defense need to be met only at the beginning of an ongoing, otherwise-criminal act would mean that an individual who is coerced in the first instance is free to ignore clearly safe alternatives to continued criminal conduct, or may continue engaging in such conduct even long after the threat has dissipated. In other words, the coercion defense could apply even if the act is no longer “occur[ing] under circumstances of coercion,” as required by the relevant statutes. We decline to adopt this expansive interpretation and therefore hold that the elements of the coercion defense must continuously be met throughout the duration of an ongoing, otherwise-criminal act. With respect to the second issue before us, Stetzer argues that the circuit court failed to consider her personal history of domestic violence and interactions with the police when determining whether she reasonably believed that operating a motor vehicle with a PAC was the only means of preventing imminent death or great bodily harm. In response, the State asserts that a defendant’s personal history is always irrelevant to what she reasonably believed. We disagree with the State’s categorical claim that personal-history evidence is always irrelevant to the reasonableness of a defendant’s belief. . . . *** Importantly for our purposes, we have repeatedly held that “[t]he personal characteristics and histories of the parties are relevant to” the reasonableness of the defendant’s belief. Regarding self-defense, for example, we held that the defendant’s testimony that he was the victim of an armed robbery at his sister’s residence could support a finding that he reasonably believed he was under an imminent threat when he heard kicking at the door of that same residence. And regarding defense of others, we similarly held that evidence that the defendant knew the victim abused his sister and could be violent could support a finding that the defendant reasonably believed his actions were necessary to protect his sister. We conclude that evidence of a defendant’s personal history can be similarly relevant in the context of coercion. Like self-defense and defense of others, the coercion defense focuses on what the defendant “reasonably believes” about both the threat and the act necessary to prevent it. Determining whether the defendant “reasonably . . . believe[d] that . . . her act . . . [wa]s the only means of preventing imminent death or great bodily harm,” therefore, must be determined from the standpoint of the defendant, and the operative question is what a person of ordinary intelligence and prudence would have believed in the defendant’s position under the circumstances that existed at that time. And if personal history can be relevant to this analysis for self-defense and defense of others, it must similarly be relevant for the defense of coercion. The State suggests that the personal history of the defendant is irrelevant because considering it would transform “reasonableness” into a subjective standard. We disagree. Whether evidence of a defendant’s personal history is admitted or not, the underlying legal question remains the same: what a person of ordinary intelligence and prudence would have believed in the defendant’s position under the circumstances that existed at that time. In answering that question, the defendant’s past experiences, like her present ones, may be probative of what a reasonable person in the defendant’s position would have believed under the circumstances. The standard remains objective, however, because a mere subjective belief on the defendant’s part is insufficient to support the coercion defense. The factfinder must still determine if the defendant’s belief was objectively reasonable. Accordingly, we hold that, just as in the contexts of self-defense and defense of others, the defendant’s personal history can be relevant to the reasonableness of her belief that her actions were the only means of preventing imminent death of great bodily harm. *** Here, the circuit court’s conclusion that coercion had been disproven centered on two key factual findings: Stetzer knew she passed a police car and Stetzer was in a city she knows well. Those findings are amply supported by the evidence, and indeed are not disputed. Stetzer herself acknowledged that she saw the police car and that she thought about stopping, testifying that she thought “should I stop, and I thought no, I’m not going to stop, I have called the police on two other occasions when being physically abused. [Behlmer] lied and I got arrested.” On the basis of the findings that Stetzer knew she passed a police car and was in a city she knew, a reasonable factfinder could conclude, as the circuit court did, that beyond a reasonable doubt Stetzer knew there were other means of preventing imminent death or great bodily harm, and that the coercion defense was therefore disproven. Stetzer nevertheless argues that the circuit court’s verdict is not supported by sufficient evidence because she did not trust the police and feared they would arrest her, and that it was therefore reasonable for her to believe that continuing to drive past the police car was the only means of preventing imminent death or great bodily harm. But a reasonable factfinder could conclude, her distrust of police and fear of arrest notwithstanding, that Stetzer could not reasonably believe that she would still be under a threat of imminent death or great bodily harm by Behlmer while in the police’s presence. Moreover, a reasonable factfinder could have relied, as the circuit court did, on Stetzer’s knowledge of the area. In particular, the record indicates that on the way to the lake house, Stetzer passed a hotel that she knew was open. A reasonable factfinder considering this record could have reached the same conclusion as the circuit court: that the coercion defense had been disproven.  Ziegler Concurrence I cannot, however, join part of the majority opinion, . . . because the majority unnecessarily reaches out to address whether personal history may be relevant to determining the reasonableness of a defendant’s belief that her act was the only means of preventing imminent death or great bodily harm. The court does not need to address this issue to resolve this case. As the majority opinion itself concludes, there is sufficient evidence to support the circuit court’s guilty verdict even if Stetzer’s personal history is considered. Said otherwise, whether or not Stetzer’s personal history is considered has no bearing on the outcome of this case. “‘Issues that are not dispositive need not be addressed.’” Further, the majority’s analysis regarding the relevance of a defendant’s personal history appears to suggest that the psychological effects prior acts of abuse may have on a defendant may be relevant personal history. We have not received meaningful briefing or argument on that issue from the parties, and courts are divided on whether such evidence is relevant to determining the objective component of the coercion defense. Accordingly, we should not opine, explicitly or implicitly, on that issue in this case.  Karofsky Dissent
“I’m going to take you out, you fucking bitch!” Threats, violence, abuse, manipulation, and coercion were all tactics Bill Behlmer employed to exert power and control over his wife, Dr. Joan Stetzer. In the early hours of May 24, 2017, Behlmer yelled the above threat as Stetzer cowered in her truck, wearing only pajamas. She was trying to escape Behlmer’s rage after he engaged in several acts of domestic abuse, including throwing Stetzer down a flight of stairs. Behlmer also threatened Stetzer by calling 911 and promising, “They [the police] [a]re going to get you just like the last time.” At 2:00 a.m., Stetzer fled in her vehicle without her phone, a change of clothes, a wallet, shoes, or even a plan. Just as Behlmer predicted, she was pulled over by the police a few miles from her house. Stetzer, not Behlmer, was arrested. She was later charged with disorderly conduct as an act of domestic violence; operating a motor vehicle with a prohibited alcohol content; and operating a motor vehicle while intoxicated. *** To secure a conviction, the State had to prove beyond a reasonable doubt that Stetzer did not reasonably believe that continuing to drive was her only means of protection from the threat of imminent death or great bodily harm. When assessing both reasonableness and imminence, the circuit court applied the wrong legal standard and consequently erred in concluding that the State met its burden. The majority’s insistence that the circuit court correctly applied the pertinent statute does not square with a proper interpretation of the statute and a thorough review of the evidence introduced at trial. *** The police stopped Stetzer and she tried multiple times to explain to them how Behlmer had attacked her. The officers disregarded her report. Stetzer described her perspective: “I felt like I was a victim . . . of domestic abuse and violence that night, and I felt like I was being treated as a criminal. I was dismissed. [The officers] didn’t even want to hear about what happened.” One officer insisted “you’re lying about the whole thing, you’re just a liar.” The same officer called her “narcissistic,” and another officer “didn’t seem to care.” In the course of being questioned, Stetzer penned a one-page account of what had transpired. In her words, “I was trying to explain that, [number one], this had happened tonight and, [number two], he had gotten away with it before.” The police ignored Stetzer’s account of Behlmer’s violence and abuse. They conducted only the most perfunctory of investigations into Behlmer’s actions. Behlmer even hired an attorney, in anticipation of legal consequences, and was surprised that the police never questioned him again. Instead the police arrested Stetzer for operating a motor vehicle while intoxicated. She was later charged with disorderly conduct as an act of domestic violence, . . . operating a motor vehicle with a prohibited alcohol content, as a second offense, . . . and operating a motor vehicle while intoxicated, also as a second offense . . . . Karofsky says reasonableness and imminence are central to the case and must be assessed within the context of domestic abuse. *** Personal history is particularly salient when assessing the behavior of domestic abuse victims. Hanusa framed it this way: “The question for victims of domestic violence isn’t how a reasonable person reacts in this situation. The question is given trauma that the victim of domestic violence has received, how would a reasonable domestic violence survivor respond. That’s the important question.” The violence can have widespread effects. “As with victims of terrorism or those held hostage, a battered woman’s perception of her situation and reality in general is changed and substantially altered. When this occurs, her capacity to evaluate options is diminished substantially.” For a reasonable victim of domestic violence, “[i]n situations of stress and trauma, there tends to be a narrowing or focusing on parts of the experience that the brain is appraising as really essential to survival and coping.” A domestic violence victim in survival mode will experience an “ignoring or non-processing of peripheral details.” *** Understanding the distinction between imminent and immediate is especially important when assessing the culpability of a domestic violence victim who engages in unlawful conduct to protect herself from the threat of imminent death or great bodily harm. “Imminent” does not mean that the threat or harm is occurring this moment. Rather, “imminent” means that the threat or harm is impending. “[T]he use of the word ‘immediate’ . . . obliterates the nature of the buildup of terror and fear which had been systematically created over a long period of time. ‘Imminent’ describes the situation more accurately.” Conflating the two standards leads courts to improperly blame domestic violence victims for failing to exercise proper judgment. Said differently, “the relevant question . . . concerns the relationship as a whole,” not just the most recent incident of abuse. *** The police were hardly a means of safety for a reasonable person in Stetzer’s position. Behlmer himself admitted that he had manipulated the police against Stetzer in the past. And that very night he taunted her with the threat that the police would come and “get you just like last time.” Stetzer testified that if she contacted the police, they might return her to Behlmer. Stetzer learned from past experiences that the police do not believe her reports of domestic abuse. Why would the police believe her now? Why would the police keep her safe this time? The circuit court failed to consider whether a reasonable person with Stetzer’s past experiences would believe that contacting the police would have interrupted the imminent threat. Had it done so, it would have identified reasonable doubt. *** Mystifyingly, the circuit court made no mention of the years-long history of abuse that informed Stetzer’s decision-making that night. Nor did it account for Hanusa’s testimony that a domestic violence victim, having endured years of abuse, might behave in a state of fight-or-flight, which readily explains why Stetzer would flee. Stetzer had been a victim of Behlmer’s physical abuse for years, and Behlmer’s abuse that night had ricocheted between verbal (calling her names and threatening her), to psychological (calling 911 to get her arrested), to physical (throwing her down stairs, throwing a heavy pot at her, and pounding on the truck windows). Given the history of abuse and the events that preceded her driving, Stetzer was understandably still terrified of Behlmer once she started driving. And her fear did not diminish upon pulling out of the driveway. She thought the headlights behind her were Behlmer chasing her down as he had done in the past. Stetzer had no reason to believe Behlmer was no longer a threat to her. Stetzer, and any reasonable person in her circumstances, would believe that fleeing from Behlmer was her only means of safety. The presence of a police car did not alleviate the threat Behlmer posed—his aggression continued to be dangerously impending. In other words, a reasonable doubt remained as to whether the State proved that the threat was no longer imminent. To summarize, the majority misses the mark by adopting the circuit court’s incorrect conclusion that the State met its burden. The State’s entire case, and the circuit court’s conclusion, depended on two facts: the presence of an officer and Stetzer’s familiarity with the area. Yet a diligent examination of the record—including those two facts—reveals that the State failed to disprove Stetzer’s coercion defense. The circuit court did not apply the correct legal principles in evaluating the State’s case. Undoubtedly, Behlmer’s history of abuse, and his manipulation of law enforcement, coupled with his threat to use the police to “get” Stetzer, would cause a reasonable person in Stetzer’s circumstances to believe that seeking help from the police could catapult Stetzer back to Behlmer’s violence and abuse. And being in a familiar place would be cold comfort to anyone in Stetzer’s circumstances, given that the place was just as familiar to Behlmer, and he had followed her in the past. It was reasonable for Stetzer to believe that Behlmer’s escalating physical abuse remained dangerously impending. At minimum, a reasonable doubt remained as to whether the State showed that Behlmer was no longer coercing Stetzer. The majority adopts the circuit court’s legal error, effectively eliminating the coercion defense for a victim it was written to protect.
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Note: We are crunching Supreme Court of Wisconsin decisions down to size. The rule for this is that no justice gets more than 10 paragraphs as written in the actual decision. The “upshot” and “background” sections do not count as part of the 10 paragraphs because of their summary and necessary nature. We’ve also removed citations from the opinion for ease of reading but have linked to important cases cited or information about them. Italics indicate WJI insertions except for case names, which are also italicized. Case: State v. McAdory Dallet Majority: Justice Rebecca Frank Dallet (13 pages), joined by Chief Justice Ann Walsh Bradley and justices Jill Karofsky, Brian Hagedorn, and Janet Protasiewicz Concurrence: Justice Annette Ziegler (30 pages), joined by Justice Rebecca Grassl Bradley Upshot Under a Wisconsin statute directing a single sentence even when a defendant is found guilty of multiple impaired-driving offenses stemming from the same incident, if the conviction on one offense is reversed the court may reinstate a guilty verdict on an alternate offense. Background After a traffic stop in January 2016, Carl Lee McAdory was charged with eighth-offense operating a motor vehicle while under the influence of a controlled substance (OWI) and operating a motor vehicle with a detectable amount of a restricted controlled substance in his blood (RCS). A jury found him guilty of both offenses. Pursuant to a state statute, an individual may be charged and found guilty in a single case with any combination of three impaired driving charges, but can be sentenced on only one charge. Prior to sentencing the State moved (without objection) to dismiss the RCS charge and guilty verdict as “duplicative” under the statute. That statute provides that if a person is found guilty of more than one enumerated offense of OWI, RCS or operating a motor vehicle with a prohibited alcohol concentration (PAC), “there shall be a single conviction for purposes of sentencing . . . . " The circuit court granted the motion, and sentenced McAdory on the OWI charge and verdict alone. On appeal, the court of appeals overturned the OWI conviction on grounds unrelated to the RCS charge and guilty verdict. Accordingly the court of appeals’ opinion stated that it “reverse[d] and remand[ed] for a new trial on” the OWI offense. . . . The State did not seek to retry McAdory on remand. Instead, it asked the circuit court to reinstate the previously dismissed RCS charge and guilty verdict, enter a judgment of conviction, and dismiss the OWI charge. The circuit court agreed and proceeded to sentencing on the RCS charge and guilty verdict alone, granting McAdory sentence credit for the time he had already served on the invalidated OWI conviction. McAdory unsuccessfully challenged the circuit court’s reinstatement of the RCS charge and guilty verdict in post-conviction proceedings and in the court of appeals.  Guts The statute at issue is silent about two things: (1) what the circuit court must do procedurally after a person is convicted of more than one of the enumerated offenses, and (2) what the circuit court may do on remand if a conviction for one or more of those enumerated offenses is overturned on appeal. The first gap . . . has long been filled by the court of appeals’ decision in Town of Menasha v. Bastian, which explains that if a defendant is convicted of more than one of the . . . offenses (OWI, RCS, and PAC) in a single case, “the defendant is to be sentenced on one of the charges, and the other charge is to be dismissed.” That is what happened in McAdory’s case when, after the jury returned guilty verdicts on both the OWI and RCS charges, the circuit court dismissed the RCS charge and guilty verdict on the State’s motion prior to sentencing, and sentenced McAdory on the OWI conviction alone. The court decided not to address whether the court of appeals' Bastian and the court's own opinion in State v. Bohacheff (addressing similar statutory language) should be overturned, finding them irrelevant in McAdory's case, which involved only the second gap in the statute. . . . . In essence, McAdory argues that because the statute does not expressly authorize what the circuit court did, it must prohibit it. But that argument asks us to read too much into the statutory silence, since nothing in the statute prohibits what the circuit court did either. Accepting McAdory’s argument would mean that whenever a statute identifies an end goal like “a single conviction for purposes of sentencing and for purposes of counting convictions . . . ,” but does not specify how courts should reach that goal, every means of implementing the statute is prohibited. That argument cannot be right if for no other reason than it would prevent courts from implementing such statutes entirely. We conclude that the statute implicitly authorized the circuit court to reinstate the previously dismissed RCS charge and guilty verdict. That authorization flows from the text and structure of the statute itself, which establishes a procedure whereby multiple offenses from a single incident can be charged and tried in a single proceeding resulting in a single conviction for purposes of sentencing and counting convictions. What the circuit court did—first by dismissing the RCS charge and guilty verdict and later by reinstating it—implemented that statutory structure in a way that gave effect to its central premise, namely that guilty verdicts for the enumerated offenses are fundamentally interchangeable for purposes of the statute. Moreover, there is no suggestion that the RCS charge and guilty verdict itself was somehow invalid, or legally insufficient in a way that would otherwise make reinstating it improper. In short, the circuit court’s approach did not violate any provision of this statute or any other statute, and ensured that a statute designed to result in “a single conviction for purposes of sentencing and for purposes of counting convictions” was not transformed into one that results in no conviction at all. The court rejected McAdory's arguments that the state had somehow forfeited its right to seek reinstatement of the RCS charge and that the trial court violated the court of appeals' mandate by not holding a new trial. Finally, we are unpersuaded by McAdory’s arguments that reinstating the RCS charge and guilty verdict violated his right to be free from double jeopardy. The Fifth Amendment provides that “[n]o person shall be . . . subject for the same offence to be twice put in jeopardy of life or limb . . . ." The Wisconsin Constitution provides that “no person for the same offense may be put twice in jeopardy of punishment . . . .” Neither party develops any argument that the Wisconsin Constitution offers distinct double jeopardy protections from those guaranteed by the United States Constitution. As such, we analyze these claims together. The United States Supreme Court has described the Double Jeopardy Clause as containing three distinct protections: (1) “against a second prosecution for the same offense after acquittal;” (2) “against a second prosecution for the same offense after conviction,” and (3) “against multiple punishments for the same offense.” Although McAdory’s briefing is far from clear, we understand him to be focused solely on the latter two protections, the ones against second prosecutions for the same offense after conviction and against multiple punishments for the same offense. First, he appears to contend that he was prosecuted a second time for RCS after conviction because reinstating the previously dismissed charge and guilty verdict violated his expectation “that he would not be further prosecuted or punished for [that] offense.” Second, he asserts that he was threatened with a second prosecution for the OWI offense after conviction when, after reinstating the RCS charge and guilty verdict, the circuit court raised the possibility of a second trial on the OWI charge. Although the State stated that it did not intend to retry McAdory on that charge, and the circuit court dismissed it as a result, McAdory nonetheless contends that this sequence of events violates the Double Jeopardy Clause. And third, he maintains that he received multiple punishments because “swap[ping]” the RCS charge and guilty verdict for the OWI conviction may have prevented him from receiving sentence credit for the time he served. The problem with McAdory’s first argument is that he was not prosecuted twice for RCS. Instead, the circuit court reinstated the jury’s guilty verdict on the RCS charge from his first and only prosecution for that charge stemming from the January 2016 traffic stop. As many other courts have concluded, “[t]he Double Jeopardy Clause does not bar reinstatement of a conviction on a charge for which a jury returned a guilty verdict.” It is therefore irrelevant that once the RCS charge and guilty verdict were dismissed, McAdory “expect[ed]” that he would never be punished for it. Although the Double Jeopardy Clause certainly protects the defendants’ interest in finality, it does so only through its specific prohibitions, like the one on successive prosecutions after conviction. Because reinstating the RCS charge and guilty verdict did not result in a second prosecution for RCS after conviction, it did not violate the Double Jeopardy Clause. McAdory’s second and third arguments also miss the mark. McAdory was not prosecuted or tried twice for the OWI offense after the RCS charge and guilty verdict were reinstated. Rather, the OWI charge was dismissed at the State’s request, and he was never prosecuted or tried for it again. Moreover, even if a new trial had occurred, the Double Jeopardy Clause still would not have been violated since that second trial would have occurred as a result of the relief he sought in his appeal. As for multiplicity, McAdory’s argument is underdeveloped at best and is contrary to the facts, which—as McAdory’s counsel conceded at oral argument—demonstrate that he did in fact receive sentence credit for the time he served on the OWI conviction. Accordingly, we need not address this argument further.  Ziegler Concurrence
Like the majority, I would affirm the court of appeals. But I come to this conclusion for reasons quite different than those advanced by the majority. Unlike the majority, which employs a thoroughly purposivist analysis, I would address what the pertinent statute actually means and overrule this court’s decision in State v. Bohacheff, and the court of appeals’ decision in Town of Menasha v. Bastian. Rather than providing a detailed critique of the majority opinion, I set forth the opinion I believe should have been written by this court. One point must be made regarding the majority, however. The majority argues that this court cannot, or at least should not, overrule this court’s decision in Bohacheff because no party before this court asked us to overrule that decision. The majority’s argument rings hollow. First, the majority’s supposed commitment to the party presentation principle goes only so far. The argument the majority ultimately embraces in this case—that the statute implicitly authorized the circuit court to reinstate the dismissed charge and guilty verdict—is not advanced by either party. Both McAdory and the State expressly reject such an argument. Second, virtually every justice in the majority has voted to overrule a decision of this court even though no party asked the court to do so. In fact, one of the justices in the majority (Hagedorn) argued this very term that this court should have overruled at least four precedents of this court despite the fact no party requested this court to do so. *** Ziegler then sets for the full opinion she believes should have issued from the court, including the factual and procedural background and sections addressing McAdory's arguments regarding points with which she agrees with the majority. The following paragraphs are from her proposed version of the opinion regarding her point of difference. . . . The State and circuit court were following this court’s decision in State v. Bohacheff, and the court of appeals’ decision in Town of Menasha v. Bastian. Together, the two cases stand for the proposition that when a defendant is tried and found guilty for multiple offenses under the applicable statute that arise out of the same incident or occurrence, the circuit court must dismiss all but one of the charges and guilty verdicts. That is, even though there may be multiple guilty verdicts, there may be only one conviction. *** Bohacheff’s statutory analysis is unsound in principle. Bohacheff is accordingly overruled. Bastian’s dismiss-extra-counts rule is premised on Bohacheff’s faulty analysis and cannot be squared with the text of the statute. Consequently, Bastian must be overruled as well. . . . A fair reading of the statute allows the state to charge a defendant with an OWI offense . . . , an RCS offense . . . , and a PAC offense . . . , or “any combination” of those offenses, “for acts arising out of the same incident or occurrence.” Now, if the defendant is found guilty of more than one of the charges, the court enters judgment of conviction on each guilty verdict, as it is instructed to do . . .. There is to be a single conviction for two specific, enumerated purposes: sentencing and counting convictions . . . . This follows directly from the plain text of the statute. “If the person is found guilty of any combination. . . for acts arising out of the same incident or occurrence, there shall be a single conviction for purposes of sentencing and for purposes of counting convictions . . . . Bohacheff’s holding that there shall be a single conviction “for all purposes,” is at war with the statute's clear text. The statute enumerates two purposes for which there will be a single conviction, sentencing and counting convictions . . . . The legislature, therefore, expressly identified the circumstances when there shall be only one conviction. This means that in other circumstances there shall be more than one conviction. This is a classic application of the canon of statutory interpretation expressio unius est exclusio alterius, “‘[t]he expression of one thing implies the exclusion of others.’” *** Bastian’s dismiss-extra-counts rule adds words to the statute not found in its text. Nowhere . . . does the statute indicate that a circuit court must dismiss all but one guilty verdict if a jury finds a defendant guilty of more than one count. “‘One of the maxims of statutory construction is that courts should not add words to a statute to give it a certain meaning.’” Additionally, Bastian’s mandatory dismiss-extra-counts rule sits uneasily with another statute, which prescribes the procedure for dismissing (impaired driving) charges . . . . To dismiss a charge, the state must file an application with the circuit court that states the reasons for the proposed dismissal. It is after the application is filed that a circuit court may dismiss the charge, but “only if the court finds that the proposed . . . dismissal is consistent with the public’s interest in deterring” violations of the impaired driving laws. Accordingly, Bastian is overruled. *** Because of Bohacheff and Bastian, the State requested the circuit court to dismiss the RCS charge and guilty verdict, and the circuit court did so. That is, the dismissal was not due to any defect in the charge or guilty verdict, but simply due to the misinterpretation of the statute's text in Bohacheff and Bastian, which today we overrule. Under these circumstances, we find no error in the circuit court’s decision to reinstate the RCS charge and guilty verdict after McAdory’s initial appeal . . . . By Alexandria Staubach
More than 60 people appeared at a virtual Department of Corrections hearing Tuesday morning to comment on the Department of Corrections’ failure to implement a decade-old law that could change revocations statewide. Attendees raised personal, ethical, and legal arguments about the DOC’s proposed new administrative rule to implement 2013 Wisconsin Act 196. DOC proposed the new rule two weeks ago. As WJI reported last week, Act 196 requires the DOC to develop a list of sanctions that may be imposed for the most common violations, offering “clear and immediate consequences for violations.” The law also mandates that any rule developed by DOC take into account the impact of revocation on an offender’s employment and family. Advocates say that the DOC until now has largely ignored Act 196, which passed with bipartisan support. Participants at today’s hearing said the proposed rule remains insufficient to bring DOC into compliance with the law. The Wisconsin Legislative Council has said that the current rule “does not set forth a list of sanctions for the most common violations, nor does it explain what specific evidenced-based responses may be applied to a violation (e.g., when revocation is the required response). Instead, it implies that the list of sanctions and responses will be contained in a document somewhere outside the administrative rules.” Many at today’s hearing shared personal stories about how lengthy and unpredictable terms of supervision have impacted them. “It feels arbitrary and excessive,” said JenAnn Bauer, who has served eight years of supervision, which she said was more than 75% of any possible prison sentence. She said that despite making significant payments toward restitution, fees for extended supervision and her financial obligations to the court system keep growing. “I feel trapped in a cage made of numbers, not bars,” she said. Sean Wilson, Senior Director of Organizing and Partnerships at Dream.org, also expressed concerned about the impact of fees accrued during supervision. He said the proposed rule would actually codify profits into supervision, giving private vendors control over fees. A section of the proposed rule says “a vendor is authorized to charge a fee to probationers, parolees, and persons on extended supervision to cover the cost of supervision and administration of the contract.” Wilson called the DOC’s proposed rule a “missed opportunity” because the rule continues to be “focused on managing people rather than their success.” He said he recognized that DOC faces significant issues in staffing, but elsewhere in the nation departments use technology like kiosks to reduce the burden of check-ins on supervisees who are least likely to reoffend. Marianne Olson, an advocate with Ex-Incarcerated People Organizing who has been on supervision for eight years and has another 18 to go, said “people are being sent back (to prison) not to protect public safety but to punish past behavior,” in violation of federal law. Supervision “should be an opportunity for restoration, not retaliation” she said, calling extended supervision “retaliation disguised as support.” Shannon Ross of The Community expressed concern that the DOC seemingly did not engage any formerly incarcerated people in developing the rule. “A lot of us would be great in those rooms at the end of these things,” he said. WISDOM's Tom Gilbert, who has met with DOC about this issue since 2019, said the decisions that the DOC and its “agents make every day regarding people under your supervision, widely affect families, employers, health care providers, social services providers, schools—in other words, whole communities and this whole state.” The public comment period on the proposed rule will remain open through August 8. Instructions for submitting comments can be found here. By Alexandria Staubach
The Wisconsin Department of Corrections will hold a virtual hearing on July 8 for public comments on proposed new rules that could improve supervision and avoid revocations, though an advocate says the rules could be even better. More than a decade ago, the Legislature passed 2013 Wisconsin Act 196, which says the DOC “shall” create rules for a system of short-term sanctions for violations of supervision conditions, with “a list of sanctions to be imposed for the most common violations.” The rules were to give flexibility in imposing sanctions while providing “offenders with clear and immediate consequences for violations.” Implementation of the law had the potential to eliminate harsh revocation prison sentences and dramatically reduce the prison population. Instead, in 2019, the DOC created an administrative rule that an advocate says gives lip service to the law and continues opaque standards that prop up incarceration as the primary vehicle for revocation sanctions. “The rule was one sentence,” WISDOM’s Tom Gilbert recently told WJI. “It said they will adopt an evidence-based response to violations, which is what they had before the law was passed.” Gilbert calls the current administrative rule “wasted words and paper.” He strongly believes that the current rule does little to address the requirements imposed by the law. “I understand the difference between the word ‘shall’ and the word ‘may,'" Gilbert said. “When I learned about Act 196 and its potential for changing the way things are done and the consequences, I thought this could be a game changer,” said Gilbert. On behalf of WISDOM, Gilbert has been meeting with DOC about the law and rule since 2019. WISDOM is a statewide network of faith-based organizations and others advocating for racial, social and economic justice. In 2024, more than 8,000 people were admitted to Wisconsin’s prisons, and roughly 60% of those admissions were based on revocations, per DOC data. Act 196 was designed to ensure that short-term sanctions for individuals who violate the rules of their probation, parole, deferred sentence, or community supervision are tailored and take several individual factors into account. While correcting the offender’s behavior, providing proportionate consequences, and protecting the public are all objectives, the law requires DOC also to ensure “that efforts to minimize the impact on an offender’s employment” and “efforts to minimize the impact on an offender’s family” are made when imposing sanctions. Gilbert said that if DOC followed the law and considered the impacts on a person’s employment and family, it would be a radical departure from its current Electronic Case Reference Manual, which “says very little about these things.” The statute also requires DOC to be transparent about specific sanctions for the common types of rule violations. Before Act 196 passed, and continuing today, DOC has determined revocation sanctions using an evidenced-based, but proprietary, tool called “the Compass,” Gilbert said. “Because it’s a proprietary tool, no one can see how (DOC) arrives at their decisions." Defendants and defense attorneys have no way of knowing what sanctions will be imposed for what violations or how decisions to revoke are made, he said. Proper implementation of Act 196 through an improved rule could require DOC to set forth a clear list of sanctions for the most common offenses. “People would know in advance,” and “that kind of transparency is sadly lacking in supervision today,” said Gilbert. This year, DOC proposed new rules, which are the subject of the July 8 public hearing. After the hearing, interested individuals will have 30 days to submit written comments. Gilbert said the proposed rules “still will not implement the law” because they merely quote the eight requirements of Act 196 and fail to develop the mandated system of short-term sanctions. He called this a “conscious omission, not an oversight.” However, “the release of the proposed Act 196 rules for public comment provides a real opportunity to communicate our vision of a community corrections system that focuses on restoration, both of affected individuals and the communities in which they and we live,” Gilbert told WJI. More information about the hearing and how to make public comments can be found here. |
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