The SCOW docket: Impaired-driving convictions are interchangeable

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.

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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. 

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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.

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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.’” 

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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.

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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 . . . .

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