Wisconsin Court of Appeals OKs resurrection of dismissed conviction in impaired-driving case

By Alexandria Staubach

The Wisconsin Court of Appeals recently allowed the Rock County Circuit Court to resurrect a conviction previously dismissed under the “single-conviction provision” in Wisconsin law.

The single-conviction provision permits prosecutors to pursue multiple counts that arise out of a single incident and fall into the three categories prohibiting operating a motor vehicle under the influence of an intoxicant or other drug. Under the provision, if a defendant is convicted of multiple impaired-driving offenses for the same incident, all but one is dismissed so a single conviction remains for purposes of sentencing and counting convictions.

District IV of the Court of Appeals held that dismissal of a parallel count can be reversed if the offense chosen for the sentence is later thrown out on appeal. The dismissed count can be revived and then provide the basis for a new sentence.

Blanchard

Judge Brian Blanchard wrote for the court, joined by Judges Rachel Graham and Jennifer Nashold.

A Rock County jury found Carl Lee McAdory guilty of two eighth-offense driving-while-intoxicated charges arising out of the same incident: (1) operating a motor vehicle while under the influence of one or more controlled substances (“OWI”), and (2) operating a motor vehicle with a restricted controlled substance (“RSC”).

The OWI offense required the state to prove that McAdory’s driving was actually impaired by drugs or alcohol, while the RSC charge was a strict liability offense, meaning the state merely had to prove McAdory had consumed drugs and was operating a motor vehicle, regardless of whether the drugs affected his driving.

Though found guilty on both counts, under the single-conviction provision McAdory could be sentenced on only one. At sentencing, the state asked the court to dismiss the RSC charge and sentence McAdory on the OWI charge. Judge Karl Hanson did so.

McAdory appealed his OWI conviction to District IV of the Court of Appeals and won. The appeals court reversed the OWI conviction for violation of McAdory’s right to due process. Hanson had permitted a modified jury instruction as to the OWI offense, which, coupled with arguments raised in opening and closing arguments by the prosecution, resulted in a “reasonable likelihood that the State was effectively relieved of its burden to prove that McAdory was ‘under the influence’ of cocaine and marijuana while driving,” wrote the court.

The appeals court sent the case back to circuit court “for a new trial on the [OWI] offense.” The appeals court was not asked to and did not address the merits of the dismissed RSC charge.

McAdory did not get a new trial on remand, however.

Instead, the prosecutor asked Hanson to reopen the judgment, dismiss the OWI conviction, reinstate the RCS conviction, and sentence McAdory on the RSC charge. McAdory argued that the court lacked the authority to reinstate the dismissed count and that reconviction would violate protections against double jeopardy (the legal theory prohibiting multiple prosecutions for the same incident).

Hanson agreed with the prosecutor, entering a new sentence and judgment on the RSC charge. 

McAdory again appealed. He argued that Hanson exceeded his authority when he ignored the appellate court’s order for a new trial, nothing in state law authorized reinstatement of the RCS charge, and the second RCS conviction (following dismissal of the first) violated double-jeopardy protections. (WJI wrote about McAdory’s appeal here shortly after it was filed.)

The appeals court found that nothing in Wisconsin law prohibited reinstatement of the RSC count.

Although the single-conviction provision does not explicitly address the procedures to be used to accomplish the result of a single conviction, a prior Court of Appeals opinion “interpreted the single-conviction provision to mean that ‘the defendant is to be sentenced on one of the charges, and the other charge is to be dismissed,’” Blanchard wrote. In McAdory’s case that was what the prosecutor requested at the first sentencing hearing and what the prosecutor requested on remand—sentencing on one count and dismissal of the other, Blanchard said.

“(T)he only reasonable interpretation is that the single-conviction provision implicitly authorizes circuit courts, in the procedural posture here, to accomplish the intended goal of a single conviction in this way,” Blanchard wrote. “(I)t would be unreasonable to interpret the single-conviction provision to mean, as McAdory contends, that the court’s post-trial dismissal of the guilty verdict on the RCS count in order to satisfy the provision was necessarily permanent, regardless of subsequent events in the case.”

Further, “in enacting the single-conviction provision the legislature is presumed to have been aware of the postconviction and appellate relief potentially available to defendants in criminal cases, specifically in the form of potential reversal of individual counts of conviction,” Blanchard wrote.

Blanchard said the court’s decision comported with language from the Wisconsin Supreme Court that impaired-driving convictions “terminate with one conviction for all purposes,” because even through the second appeal McAdory’s case had not yet terminated.

The court found no double jeopardy problem.

Read the full opinion here.

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