State v. Daniel Anderson

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SUPREME COURT OF WISCONSIN Case No.: 96-0087-CR, 96-0088-CR Complete Title of Case: State of Wisconsin, Plaintiff-Respondent-Petitioner, v. Daniel Anderson, Defendant-Appellant. ON REVIEW OF A DECISION OF THE COURT OF APPEALS Reported at: 214 Wis. 2d 126, 570 N.W.2d 872 (Ct. App. 1997-PUBLISHED) Opinion Filed: Submitted on Briefs: Oral Argument: Source of APPEAL COURT: COUNTY: JUDGE: JUSTICES: Concurred: Dissented: July 2, 1998 May 27, 1998 Circuit Kenosha David M. Bastianelli Geske, J., dissents (opinion filed) Abrahamson, C.J., Bradley, J., join Not Participating: ATTORNEYS: For the plaintiff-respondent-petitioner the cause was argued by Susan M. Crawford, assistant attorney general, with whom on the brief was James E. Doyle, attorney general. For the defendant-appellant there was a brief and oral argument by Jack E. Schairer, assistant state public defender. No. 96-0087-CR 96-0088-CR NOTICE This opinion is subject to further editing and modification. The final version will appear in the bound volume of the official reports. No. 96-0087-CR 96-0088-CR STATE OF WISCONSIN : IN SUPREME COURT FILED State of Wisconsin, JUL 2, 1998 Plaintiff-Respondent-Petitioner, v. Marilyn L. Graves Clerk of Supreme Court Madison, WI Daniel Anderson, Defendant-Appellant. REVIEW of a decision of the Court of Appeals. Reversed. ¶1 of WILLIAM A. BABLITCH, J. The State Wisconsin (State) seeks review of a decision of the court of appeals1 which reversed convictions of Daniel Anderson (Anderson) for two counts of bail jumping, each count based on a violation of a separate condition of the same bond. Because we determine that the violations of the different conditions of bond are different in fact and there is no clear indication to rebut the presumption that the legislature intended multiple punishments, we hold that the two convictions are not multiplicitous. Accordingly, we reverse the decision of the court of appeals. ¶2 The facts relevant to this appeal are undisputed. defendant, Anderson, was charged 1 with substantial The battery, a State v. Anderson, 214 Wis. 2d 126, 570 N.W.2d 872 (Ct. App. 1997). 1 No. felony contrary to Wis. Stat. 96-0087-CR 96-0088-CR (1993-94).2 § 940.19(2) At Anderson s initial appearance, the court commissioner set a cash bond, ordered statutory conditions of bond,3 and ordered as another condition of bond that Anderson have no contact with the victim, K. Lain (Lain). Following the preliminary hearing, the court commissioner reduced the cash bond but added, as another condition of bond, that Anderson not consume alcoholic beverages or illegal drugs. ¶3 At a pretrial hearing on May 11, 1995, before Kenosha County Circuit Court, David M. Bastianelli, Judge, the defendant pleaded no contest to the charge of substantial battery. on the plea, the court found the defendant guilty, Based entered judgment of conviction accordingly, and ordered a presentence investigation report. The court also released Anderson on the same bond pending sentencing. ¶4 While Anderson was still under bond and before sentencing on the battery conviction, City of Kenosha police officers were called to the victim s home. Upon arrival, they 2 All references to Wisconsin Statutes are to the 1993-94 version unless otherwise noted. 3 Statutory conditions of bond include the following: Wis. Stat. § 940.49 providing that the defendant shall neither directly nor indirectly threaten, harass, intimidate or otherwise interfere with victims or witnesses in the action; Wis. Stat. § 969.03(2) providing that the defendant shall not commit any crimes or engage in any criminal activity; Wis. Stat. § 969.09(1) providing that the defendant shall appear in court as ordered; and Wis. Stat. § 969.10 providing that the defendant shall give written notice to the clerk of court within 48 hours of any change of address or telephone number. 2 No. found the Powell victim, (Powell), the all defendant, of whom and were 96-0087-CR 96-0088-CR another individual, intoxicated. All R. three individuals told the officers that they were currently residing at the victim s address. Also, there had apparently been an altercation between Powell and Andersonï£§both had lacerations and were bleeding. ¶5 As a result of this incident, Anderson was charged by criminal complaint with five counts: one count of battery, one count of disorderly conduct and three counts of bail jumping, all by a repeat offender. Each count of bail jumping was based on a violation of a different term4 of Anderson s bond for the underlying substantial agreement, Anderson battery pleaded charge. guilty to Pursuant two to a of charges plea bail jumping, contrary to Wis. Stat. § 946.49 (reprinted below),5 one based on violating the term of bond prohibiting consumption of alcohol, and one based on violating the term of bond prohibiting contact with Lain. The circuit court consolidated the bail jumping charges with the underlying substantial battery charge. The circuit court sentenced Anderson to seven years in 4 the We use the phrases conditions of bail and terms of bail interchangeably throughout the opinion. The phrases are synonymous. 5 Wisconsin Stat. § 946.49 provides in pertinent part: Bail jumping. (1) Whoever, having been released from custody under ch. 969, intentionally fails to comply with the terms of his or her bond is: (a) If the offense with which the person is charged is a misdemeanor, guilty of a Class A misdemeanor. (b) If the offense with which the person is charge is a felony, guilty of a Class D felony. 3 No. Wisconsin state prisons on one count of 96-0087-CR 96-0088-CR bail jumping and a withheld sentence and six years of probation with conditions, consecutive to the prison term on the other bail jumping count. The circuit court also ordered a withheld sentence and three years of probation for the underlying substantial battery conviction, to run consecutive to the prison term and concurrent with the probation in the bail jumping case. ¶6 arguing Anderson filed that multiplicitous convictions and, a motion on for post-conviction two counts therefore, of violated bail the relief, jumping double were jeopardy provisions of the United States and Wisconsin constitutions.6 The circuit court denied Anderson s motion. ¶7 The court of appeals reversed the defendant s conviction on one count of bail jumping and remanded for resentencing on the other count. See State v. Anderson, 214 Wis. 2d 126, 570 N.W.2d 872 (Ct. App. 1997). The court of appeals of concluded that violating the terms bond is determinative and Anderson violated the terms once, at the same time and at the same place. See id. at 132. court that of appeals concluded the two violating one bail bond were multiplicitous. Therefore, the convictions for See id. 6 U.S. Const. amend. V provides in pertinent part: No person shall . . . be subject for the same offence to be twice put in jeopardy of life or limb . . . . Wis. Const. art. I, § 8 provides in pertinent part: [N]o person for the same offense may be put twice in jeopardy of punishment . . . . 4 No. ¶8 96-0087-CR 96-0088-CR We accepted the State s petition for review and are presented with one issue: whether the defendant s convictions for two counts of bail jumping were multiplicitous, thus violating the constitutional protection against double jeopardy, where each count was based on a violation of a separate term of the same bond. We hold that charging this defendant with multiple counts of bail jumping for violating separate terms of the same bond is not multiplicitous. Accordingly, we reverse the court of appeals decision. ¶9 Whether an individual s constitutional right to be free from double jeopardy has been violated is a question of law that this court reviews de novo. See State v. Sauceda, 168 Wis. 2d 486, 492, 485 N.W.2d 1 (1992). ¶10 Both the state and federal constitutions protect defendant from being punished twice for the same offense.7 a One of the protections embodied in the double jeopardy clause, and the one pertinent to this case, is protection against multiple punishments for the same offense. Sauceda, 168 Wis. 2d at 492 (citing North Carolina v. Pearce, 395 U.S. 711, 717 (1969)). Multiplicitous charges, that is charging a single criminal offense in more than one count, are impermissible because they violate the double jeopardy provisions 7 of the Wisconsin and The double jeopardy clauses of the federal and state constitutions are the same in scope and purpose. See Day v. State, 76 Wis. 2d 588, 591, 251 N.W.2d 811 (1977). Therefore, this court has accepted decisions of the United States Supreme Court as controlling the double jeopardy provisions of both constitutions. See id. 5 No. United States Constitutions. 96-0087-CR 96-0088-CR State v. Grayson, 172 Wis. 2d 156, 159, 493 N.W.2d 23 (1992) (citations omitted). ¶11 It is well-established that this court analyzes claims of multiplicity using a two-prong test: 1) whether the charged offenses are identical in law and fact; and 2) if the offenses are not identical in law and fact, whether the legislature intended the multiple offenses to be brought as a single count. See id. We most recently applied this test in State v. Lechner, No. 96-2830-CR, slip op. (S. Ct. April 30, 1998). ¶12 Under the first prong of the multiplicity analysis, if the offenses are identical in law and fact, the charges are multiplicitous in violation of the double jeopardy clauses of the federal and state constitutions. See Grayson, 172 Wis. 2d at 159. The analysis under this first prong is the same whether we reviewing are multiple charges brought under different statutory sections (a lesser-included offense challenge), or multiple charges brought under continuous offense challenge). one statutory section See id. at 159-60 (referring to Sauceda, 168 Wis. 2d at 493 n.8). However, our focus changes with respect to the particular challenge raised. In a lesser-included offense challenge, the factual situations underlying the offenses are the same, so our focus is on whether the offenses are also identical in law. See [Sauceda, 168 Wis. 2d] at 49394 n.8, 485 N.W.2d 1; see, e.g., State v. Kuntz, 160 Wis. 2d 722, 753-57, 467 N.W.2d 531 (1991); State v. Wolske, 143 Wis. 2d 175, 180-185, 420 N.W.2d 60 (Ct. App. 1988). In a continuous offense challenge, the course of conduct is alleged to have constituted multiple violations of the same statutory provision, so our focus is not on statutory definitions but on 6 (a No. 96-0087-CR 96-0088-CR the facts of a given defendant s criminal activity. See Sauceda, 168 Wis. 2d at 493-94 n.8, 485 N.W.2d 1; see, e.g., State v. Rabe, 96 Wis. 2d 48, 65-68, 291 N.W.2d 809 (1980); State v. Van Meter, 72 Wis. 2d 754, 758, 242 N.W.2d 206 (1976). Lechner, No. 96-2830-CR, slip op. at 9 n.7. ¶13 In this case, the State concedes that the two bail jumping charges are identical in law because both were contrary to the same statute, Wis. Stat. § 946.49. ¶14 are The parties disagree, however, on whether the offenses different in fact. Because the defendant s course of conduct allegedly constituted multiple violations of the same statute, Wis. defendant s Anderson Stat. § 946.49, offenses. asserts that we focus on the facts of the See Sauceda, 168 Wis. 2d at 493-94 n.8. the offenses are identical in fact because the violations happened at the same time, on the same date and at the same place. He argues that both offenses were part of the same general transgression or same episode. The State, on the other hand, asserts that the two bail jumping charges are, in all likelihood, separated in time and that the charges are significantly different in nature because each charge involves independent deliberation and a different course of conduct on Anderson s part. ¶15 bail Because the defendant pleaded guilty to two counts of jumping as part of a plea agreement, there evidentiary record on which to base our review. rely on the criminal complaint and information, is no Therefore, we as well as statements made at the pretrial hearing to determine whether the offenses were identical in fact. 7 See, e.g., State v. Eisch, 96 No. Wis. 2d 25, 27, 291 N.W.2d 800 (1980) 96-0087-CR 96-0088-CR (reviewing case at pleading stage). ¶16 One count of the complaint alleged that Anderson intentionally failed to comply with the term of his bond that prohibited him from consuming any alcoholic beverages during the pendency of the action regarding the substantial battery charge. Another count alleged that Anderson intentionally failed to comply with the term of his bond that prohibited him from having any contact with Lain. As a basis for the complaint, the complainant stated that two City of Kenosha police officers were dispatched to an apartment located on Sheridan Road in Kenosha. When they arrived at the apartment, the officers were met by three occupantsï£§Anderson, Lain and Powell. The officers observed that all three individuals were extremely intoxicated, and both Anderson and Powell had lacerations and were bleeding. All three individuals stated that they were currently residing at this apartment on Sheridan Road. ¶17 At the plea/sentencing hearing, the circuit court narrated the contents of the complaint to Anderson stating that on June 11, 1995, when the police arrived at the apartment on Sheridan Road at 5:49 p.m., they observed that Anderson had consumed alcohol and that he had contact with Lain. The court stated that the complaint alleged that Anderson violated the conditions of his bond, once by consuming alcohol and again, by having contact with Lain. ¶18 Based on the record, we conclude that the count of bail jumping for consuming alcohol and the count of bail jumping 8 No. for contact offenses with are Lain not are not identical multiplicitous if 96-0087-CR 96-0088-CR in the fact. facts Charged are either separated in time or of a significantly different nature. Eisch, 96 Wis. 2d at 31. these acts allegedly See [T[he appropriate question is whether committed . . . are so significantly different in fact that they may properly be denominated separate crimes although each would furnish a factual underpinning or a substitute legal element for the violation of the same statute. Id. at 34. ¶19 At first blush, the two counts of bail jumping do not appear to be separated in time. On June 11, 1995 at 5:49 p.m., the officers arrived at the apartment located on Sheridan Road to find Anderson intoxicated and in contact with Lain. However, all three individuals at the apartment told the officers that they resided at the apartment. We agree with the State that this suggests that Anderson resumed contact with Lain at some time before June 11, 1995, when he consumed alcohol. ¶20 Even if the offenses are not separated in time, they are nonetheless different in fact because they are significantly different in nature. The test is whether each count requires proof of an additional fact that the other count does not. See State v. Rabe, 96 Wis. 2d 48, 64, 291 N.W.2d 809 (1980). The offenses are significantly different in nature if each requires a new conduct. volitional Eisch, departure 96 in Wis. 2d the at defendant s 36. The course of defendant s successive intentions make him [or her] subject to cumulative punishment, and he [or she] must be treated as accepting that 9 No. risk . . . . 96-0087-CR 96-0088-CR Id. (quoting Irby v. United States, 390 F.2d 432, 435 (D.C. Cir. 1967)). ¶21 In Rabe, the court upheld the defendant s convictions of four counts of homicide by intoxicated use of a vehicle which resulted from a single act of negligently operating vehicle while under the influence of an intoxicant. 96 Wis. 2d at 53. multiplicitous, In the determining court whether stated that the in a motor See Rabe, charges this were type of continuous offense case, the issue turns on whether there is a sufficient break in the conduct and time between the acts to See id. at 65- constitute separate and distinct criminal acts. 66. In Rabe, the State conceded that the single negligent act took place at a single time and at a single place. 66. See id. at However, each charge involved a different victim and not all the victims were in the same car. requires proof of additional facts that See id. the Each count other counts do notï£§namely, the death of the particular victim named in each count and the causal relationship between the defendant s negligent operation of his vehicle while intoxicated and that particular death. Id. The court concluded that the charges were not multiplicitous and therefore upheld the convictions. ¶22 Similarly, in the present case, the underlying facts of the two counts of bail jumpingï£§consuming alcohol for one count and having significantly contact different. with Lain Each for count the other requires additional facts that the other count does not. countï£§are proof of Each offense requires a different and new volitional act on the defendant s 10 No. part. 96-0087-CR 96-0088-CR Consuming alcohol is separate and distinct from having contact with the victim. Based on the record, we conclude that the count of bail jumping based on Anderson s consuming alcohol and the count of bail jumping based on his contact with Lain are different in fact. Accordingly, the two charges are not violative of the double jeopardy provisions of the federal and state constitutions. ¶23 That conclusion, however, does not end our analysis. Turning to the second prong of the multiplicity analysis, the charges may be multiplicitous if the legislature intended that the multiple offenses, which are different in fact, be brought as a single count. have determined See Grayson, 172 Wis. 2d at 159. that the bail jumping offenses Because we charged are different in fact, in discerning legislative intent we begin with the presumption punishments. that the legislature See id. at 160. intended This presumption may only be rebutted by a clear indication to the contrary. Hunter, 459 determine U.S. 359, legislative 367 (1983). intent multiple in a We use See Missouri v. four multiplicity factors to analysis: 1) statutory language; 2) legislative history and context; 3) the nature of the proscribed conduct; and 4) the appropriateness of multiple punishment. See Grayson, 172 Wis. 2d at 160 (citing State v. Tappa, 127 Wis. 2d 155, 165, 378 N.W.2d 883 (1985)). We determine the legislature s intent relying on a common sense reading of the statute that will give effect to the object of the legislature and produce a result reasonable and fair to offenders and society. 11 that is Grayson, 172 No. 96-0087-CR 96-0088-CR Wis. 2d at 162 (citing Manson v. State, 101 Wis. 2d 413, 428, 304 N.W.2d 729 (1981)). If we determine that the legislature intended that the charges be brought as a single count, the charges are multiplicitous and impermissible, not as violating double jeopardy but as violating the will of the legislature. See Grayson 172 Wis. 2d at 159 n.3. ¶24 The specific language of Wis. Stat. § 946.49 provides that [w]hoever, having been released from custody under ch. 969, intentionally fails to comply with the terms of his or her bond is . . . guilty of a Class A misdemeanor if the underlying charge is a misdemeanor or guilty of a Class D felony if the underlying charge is a felony. The defendant points to the fact that the legislature uses the plural, terms, rather than the singular, term, of bond. violated the terms of The defendant argues that Anderson bond once convictions are multiplicitous. relying on Wis. Stat. and therefore, multiple The court of appeals agreed, § 990.001(1) which provides that in statutory construction, [t]he singular includes the plural, and the plural includes the singular. ¶25 In the plain language of Wis. Stat. § 946.49, the legislature did not expressly provide a unit of prosecution for violations of multiple terms of bond. Regarding the use of the plural of terms, we disagree with the heavy reliance on this plural to discern legislative intent. Even under the court of appeals reliance on Wis. Stat. § 990.001(1) that in statutory interpretation the plural includes the singular, § 946.49 could be understood to mean that the legislature intended to impose 12 No. 96-0087-CR 96-0088-CR one charge of bail jumping for each violation of each term of bond. However, the statute could also be read to mean that the legislature intended to impose one charge of bail jumping for a violation of any of the terms of bond regardless of how many terms are violated. Based on the plain language of the statute, reasonable could people disagree regarding its meaning; therefore, we turn to the next factor, legislative history and context, to discern the legislative intent. ¶26 Wisconsin Stat. § 946.49 was first enacted in ch. 255, Laws of 1969, a major overhaul of the criminal procedure code. The Prefatory Note to the act provides that the bail jumping statute was enacted to coincide with the amendments to Wis. Stat. ch. 969, providing for more flexible bail provisions. The act creates the crime of bail jumping so that . . . a person who violates the conditions of his bond may also be prosecuted criminally. The punishments are in accordance with the severity of the crime for which he was originally charged. Note, ch. 255, Laws of 1969. The statute as Prefatory enacted was substantially the same as it is today, using the word terms and providing a lesser penalty for bail jumping if the defendant is charged with a misdemeanor and a higher penalty for bail jumping if the defendant is charged with a felony. ¶27 The bail jumping statute essentially put teeth into a court s ability to set context of the entire jumping statute serve conditions statutory a variety of bail. scheme, of bail Viewed and legislative in the the bail interests. Conditions of release . . . may be imposed for the purpose of 13 No. 96-0087-CR 96-0088-CR protecting members of the community from serious bodily harm or preventing intimidation of witnesses. ¶28 Wis. Stat. § 969.01(4). When the legislature enacted ch. 183, Laws of 1981, amending Wis. Stat. ch. 969 relating to bail and other conditions of release, it did not modify Wis. Stat. § 946.49 regarding bail jumping. upon the general [Chapter] 183 codifies and expands constitutional requirements that release conditions must be reasonable and designed to assure the court appearance of a particular individual, protect members of the community from this person or prevent witness intimidation by this person. Bail Shaun Haas, Law Implementing the Constitutional Amendment Legislative (Chapter 183, Council Staff, Laws Information of 1981), Memorandum Wisconsin 82-8, April 29, 1982, at 6. ¶29 In sum, the legislature sought to give circuit courts flexibility general in setting interests: the terms protecting the of bail community, victim, and protecting the judicial system. 4-6. to achieve protecting three the See, e.g., id. at Conditions of release imposed by a court serve to address these different interests. The bail jumping statute, enacted to coincide with the greater flexibility in setting conditions of bail, provides courts with an enforcement mechanism and provides a deterrent for defendants. ¶30 The conditions of bail set in this case are a good example of the different interests that the legislature intended to protect. A condition to not consume alcoholic beverages is 14 No. usually aimed at protecting the public. condition presents harm to 96-0087-CR 96-0088-CR A violation of this the members of the community, as evidenced in this case by the altercation between Anderson and Powell. A condition to have no contact with a particular person is aimed at protecting that individual and serves the judicial system by preventing the defendant from intimidating that individual as a potential witness. ¶31 jumping Legislative statute history indicate and that protect different interests. the the context of legislature the bail intended to The statutorily required terms of bail (Wis. Stat. §§ 940.49, 969.03(2), 969.09(1), and 969.10), as well as judicially imposed conditions designed to meet the particular circumstances protecting these legislature. entirety, the different Given we of the interests context cannot perceive defendant, of of any the are all aimed recognized bail clear by at the scheme in its indication by the legislature to overcome the presumption of separate punishments for violations of different conditions of bail. ¶32 We now turn to the third factor in determining whether the legislature intended cumulative punishments under Wis. Stat. § 946.49: the nature of the proscribed conduct. Multiple punishments are permissible if the nature of the offenses is separate in time and significantly different in nature. See Grayson, 172 Wis. 2d at 165 (citing Eisch, 96 Wis. 2d at 31). The court in Grayson determined that the offenses were significantly different in nature because the defendant formed a new mens rea for each offense. See Grayson, 172 Wis. 2d at 165. 15 No. 96-0087-CR 96-0088-CR Each offense required a separate volitional act. 127 Wis. 2d at 169. offense did not. ¶33 See Tappa, Each offense caused harm that the other See id. at 170. As discussed above in regard to the first prong of the multiplicity test, the act of drinking and the act of having contact with the victim each requires a separate volitional act. In addition, each act presents harm that the other act does not. Drinking presents harm to the community, and contact with the victim presents harm to the victim and the judicial system because of the possible intimidation of the victim as a witness. Because the nature of the different proscribed conduct causes separate factor harms, of the we perceive analysis to no clear overcome indication the under presumption that this the legislature intended cumulative punishments. ¶34 We turn to the fourth factor: the appropriateness of multiple punishments. protected by the Given the different interests meant to be legislature, we conclude that separate punishments for violations of different conditions of bond is appropriate. Each of the conditions of bond serves to protect a different interest. ¶35 Multiple punishments are appropriate for each bail violation because of the deterrent effect on defendants to not violate the terms of bail. See, e.g., Grayson, 172 Wis. 2d at 166 (multiple punishments provide deterrent effect). the bail greater jumping statute flexibility given was enacted to circuit to coincide courts in Because with the setting conditions of bail, the bail jumping statute is generally meant 16 No. to provide Without a deterrent imposing to defendants multiple 96-0087-CR 96-0088-CR from punishments violating for violating bail. the different terms of bail, a defendant may even be encouraged to violate multiple terms, knowing that the punishment will be no different whether he or she violates one or all terms of bail. It is difficult to believe that the legislature intended this result. ¶36 Based on our analysis of the four factorsï£§statutory language, legislative history and context, the nature of the proscribed conduct, and the appropriateness of multiple punishmentsï£§we conclude that there is no clear indication to overcome the presumption that the legislature intended multiple punishments for violations of different conditions of the same bond. Accordingly, the two offenses are not multiplicitous. ¶37 In sum, we hold that charging this defendant with multiple counts of bail jumping for violating separate terms of the same bond is not multiplicitous. The two counts of bail jumping are not identical in fact because they are significantly different in nature. Accordingly, charging two counts of bail jumping does not violate the double jeopardy provisions of the federal or state constitutions. offenses are indication intended to not multiplicitous rebut multiple We also conclude that the two because the presumption punishments for offenses of the same bond. there that these the is no clear legislature factually different Accordingly, we reverse the decision of the court of appeals and uphold the circuit court s entry of judgment for two convictions of bail jumping. 17 No. By the Court. The decision reversed. 18 of the 96-0087-CR 96-0088-CR court of appeals is 96-0087-CR, 96-0088-CR.jpg ¶38 dissent. JANINE P. GESKE, J. (Dissenting). I respectfully I do not believe that the legislature intended that a defendant who violates more than one condition of his or her bail bond be subject to an undefined number of potential charges and punishment. convictions and Therefore penalties I for believe bail that jumping the multiple permitted by the majority opinion violate the double jeopardy provisions of the state and federal constitutions. ¶39 I agree with the majority that there are four factors used to determine legislative intent in a multiplicity analysis: statutory language; legislative history and context; the nature of the proscribed conduct; and the appropriateness of multiple punishments. the In my view, based on the third and fourth factors, legislature could not have intended that circuit courts create multiple crimes by imposing multiple conditions of bail. ¶40 This is a case where good facts make bad law. Good facts, sometimes, can form a comfortable backdrop against which courts relax their vigilance to protect constitutional rights. The majority nicely articulates reasons why the conditions of bail set for Anderson, and which he violated, serve to protect different interests. In the majority's analysis, separate punishments for each violated condition also serve to protect those interests. ¶41 However, the majority's interpretation in the hands of a zealous prosecutor could lead to results not intended by the legislature. In theory, a circuit court judge or a judicial court commissioner may set an infinite number of bail conditions 1 96-0087-CR, 96-0088-CR.jpg for a defendant conditions may pursuant include, to for Wis. Stat. example, no § 946.49. contact Those orders, no drinking alcoholic beverages, no driving a motor vehicle, no weapons, no drugs, no new crimes, the requirement to attend school, attend AA meetings, abide by a curfew, remain in or stay out of certain medication, geographical live address, etc. at home, areas, keep a attend job, counseling, notify of take change of The number and nature of the bail conditions will depend in part on the individual practices and philosophy of the judge, the time the judge has to spend on the case, the local practice, the variables. while other prosecutor's particular request, and other Some judges may set bail conditions in great detail judges may simply proscribe certain conduct by stating "no new arrests." ¶42 For example, Judge No. 1 might order Emily Mathews, a defendant charged with the crime of forging a check, a felony, released on bail with the detailed conditions of "no drinking, no violation of a curfew of 8:00 p.m., no contact with Susie Fox, and no new crimes." Judge No. 2, a busier judge who is always concise, might release Ms. Mathews on bail with only the condition of "no new crimes." One night Ms. Mathews drinks a couple of beers, violates her curfew and becomes disorderly with Ms. Fox. Under the majority opinion, Ms. Mathews, who was released by Judge No. 1, now can be charged with four new felony charges of bail jumping and can face 20 more years in prison. Or, Ms. Mathews, who engages in identical conduct but was released by Judge No. 2, could only be charged with one count of 2 96-0087-CR, 96-0088-CR.jpg felony bail jumping and face five years in prison. If Ms. Mathews repeated this behavior over a four-day period, in Judge No. 1's court she then would face 16 felony charges and an exposure of 80 years in prison. In Judge No. 2's court, she would only face four charges and 20 years in prison. See State v. Grayson, 172 Wis. 2d 156, 493 N.W.2d 23 (1992). ¶43 mentally In another disabled, example, defendant, street alcoholic the person, John is Riley, charged a with three counts of shoplifting three bags of potato chips from a drug store on separate days. In each case, Mr. Riley was released on bail and ordered "to live with his mother, to see his mental where the alcoholic health counselor drug beverages, friend of his. and then store is and everyday, located, to have to no to stay off refrain contact" the from with block drinking a certain On one particular day, Mr. Riley starts to drink violates the other four conditions. Under the majority's opinion and under State v. Richter, 189 Wis. 2d 105, 110, 525 N.W.2d 168 (Ct. App. 1994), Mr. Riley may be charged with 15 counts of bail jumping. For these 15 offenses he faces a possible sentence to the county jail for over 11 years and a fine of up to $150,000. This scenario is possible even if he were ultimately acquitted of the underlying shoplifting charges. Mr. Riley could face over 11 years in jail for behavior that, standing alone, has not been criminalized by the legislature. ¶44 Certainly the legislature intended that a defendant be held criminally accountable for violating the terms of the bail bond, even when the violation consists of conduct which in and 3 96-0087-CR, 96-0088-CR.jpg of itself is not criminal behavior. Both these examples demonstrate the potential implications, however, of interpreting legislative intent as the majority has. in this created case whether bail the is jumping the The real issue we face legislature statute in intended, 1969, to when subject it the defendant to a single criminal charge if he or she violated one or more conditions of a bail bond, or was the intent to subject the defendant to potentially unlimited criminal charges for violating multiple conditions of one or more bail bonds? In other words, is each bond, or each condition of each bond, the appropriate unit of prosecution? ¶45 The United States Supreme Court, in Ex Parte Lange, 85 U.S. (18 Wall.) 163, 178 (1873), established that the Double Jeopardy clause prohibits punishment authorized by the legislature. statute to permit a circuit in excess of that In construing the bail jumping court to separately convict and sentence a defendant for having violated multiple conditions of a bail bond, the majority allows, in my view, punishment in excess of that authorized by the legislature. ¶46 Moreover, the potential for infinite punishment fails the "appropriateness of the punishment" prong of the legislative intent analysis. Under the bail jumping statute, the legislature has authorized a certain punishment, based on the severity of the underlying offense, when at least one condition of bail is violated. ¶47 Unlike most crimes the legislature creates, any punishment for the crime of bail jumping is often only part of 4 96-0087-CR, 96-0088-CR.jpg the serious consequences for that prohibited conduct. When a defendant violates a condition of bail, the bail may be ordered forfeited, other conditions may be imposed, and/or the defendant may be taken into custody. and 940.49. also a See Wis. Stat. §§ 969.13, 969.08(2), If the defendant's violation of the bail bond is criminal offense, he or she could convicted and sentenced for that crime.8 also be charged, If the defendant is subject to more than one bail bond and violates a condition common to both, he or she may be charged with bail jumping for each bail bond breached. See Richter, 189 Wis. 2d at 110. If the defendant is on probation or parole at the time of the bail bond violation, that prohibited conduct could also become the grounds for revoking the probation or parole. §§ 973.10(2), 304.06(3). See Wis. Stat. If the defendant is convicted of the underlying offense, the circuit court can consider the violation of the terms of bail as an aggravating factor justifying an enhanced punishment at the time of sentencing. See Waddell v. State, 24 Wis. 2d 364, 368, 129 N.W.2d 201 (1964) (permitting use of information regarding complaints of other offenses as index of defendant's character); Handel v. State, 74 Wis. 2d 699, 701-02, 247 N.W.2d 711 (1976) (permitting consideration of 8 For instance, the defendant's violation of a condition of bail may also constitute violation of one of the following crimes: battery, Wis. Stat. § 940.19; battery to a witness, Wis. Stat. § 940.19; intimidation of witnesses, Wis. Stat. § 940.42 and 940.43; intimidation of victims, Wis. Stat. § 940.44 and 940.45; court orders and penalties for prevention or dissuasion of a victim or witness in a criminal matter, Wis. Stat. § 940.47 and 940.48. 5 96-0087-CR, 96-0088-CR.jpg pending criminal charges); see also Elias v. State, 93 Wis. 2d 278, 284, 182 N.W.2d 512 (1988) (listing cases permitting other uncharged and unproven offenses). ¶48 Finally, the plain language of the bail jumping statute itself supports my interpretation that the legislative intent was to impose one penalty for an intentional violation of "the terms majority of the correctly bail points bond." out Wis. that Stat. Wis. § 946.49. Stat. The § 990.001(1) provides that the word "terms" could be read in the singular. However, the majority then essentially reads out the word "the" before the word "terms" and replaces it with "a term." Thus the majority effectively reads a construction into the statute which is not present. Specifically, the majority interprets the bail jumping statute to prohibit the intentional failure to comply with "a term of his or her bond." If the legislature intended the result reached by the majority, it simply could have written the statute to read "whoever, having been released from custody under chapter 969, intentionally fails to comply with a term of his or her bond," is guilty of bail jumping. The legislature did not do so. ¶49 In my view, the presumption of legislative intent to create multiple penalties is overcome by a careful review of the implications of the majority opinion. The appropriate unit of prosecution is the bond, not the individual conditions. Once there is a violation of the "terms of the bond," the singular crime has been committed for each bail bond the defendant has signed and the defendant is then subject to the penalties set 6 96-0087-CR, 96-0088-CR.jpg forth in Wis. Stat. § 969.08: to increased bail requirements and altered condition(s) of release, the possible revocation of his or her release, the possible revocation of his or her probation or parole, to the forfeiture of the bond, and to a possible harsher sentence should he or she be convicted of the underlying offense. ¶50 In my view the possible scenarios I describe cannot be what the legislature intended when a defendant has committed the crime of bail jumping under Wis. Stat. § 946.49.9 The presumption in favor of multiple sentences is overcome by an analysis of the nature of the proscribed behavior and the appropriateness of multiple punishments. I conclude that the appropriate bond individual unit of condition. prosecution Under is the today's and majority not opinion each and existing law, there is nothing to prevent the examples I gave from occurring. Therefore, I respectfully dissent. 9 "[I]t is a precept of justice that punishment for a crime should be graduated and proportioned to the offense." Weems v. United States, 217 U.S. 349, 367 (1910). See also Carmona v. Ward, 576 F.2d 405, 426 n.6, (2d Cir. 1978) discussing origins of proportionality, and observing that English common law "had established a policy against disproportionate punishment, the ancient origins of which can be traced to the laws of Moses." 7 96-0087-CR, 96-0088-CR.jpg ¶51 I am authorized to state that Chief Justice Shirley S. Abrahamson and Justice Ann Walsh Bradley join this dissent. 8 96-0087-CR, 96-0088-CR.jpg 1

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