State v. Anthony M. Welda

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2009 WI 35 SUPREME COURT CASE NO.: COMPLETE TITLE: OF WISCONSIN 2007AP2024-CR State of Wisconsin, Plaintiff-Appellant, v. Anthony Michael Welda, Defendant-Respondent-Petitioner. REVIEW OF A DECISION OF THE COURT OF APPEALS (no cite) OPINION FILED: SUBMITTED ON BRIEFS: ORAL ARGUMENT: SOURCE OF APPEAL: COURT: COUNTY: JUDGE: May 19, 2009 April 16, 2009 Circuit Rock James P. Daley JUSTICES: CONCURRED: DISSENTED: NOT PARTICIPATING: ATTORNEYS: For the defendant-respondent-petitioner the cause was argued by Walter H. Isaacson, assistant state public defender, with whom on the briefs was Barbara L. Gerber, assistant state public defender. For the plaintiff-appellant the cause was argued by Katherine Desmond Lloyd, assistant attorney general, with whom on the brief was J.B. Van Hollen, attorney general. An amicus curiae brief was filed by Robyn S. Shapiro and Drinker Biddle & Reath LLP, Milwaukee; Bradley J. Andreozzi, Mark S. Melickian, Lionel W. Weaver, and Drinker Biddle & Reath LLP, Chicago, Ill.; Deborah R. Cohen and Anti-Defamation League, New York, N.Y.; and Clare M. Pinkert and Anti-Defamation League, Chicago, Ill., on behalf of the Anti-Defamation League. 2009 WI 35 NOTICE This opinion is subject to further editing and modification. The final version will appear in the bound volume of the official reports. No. 2007AP2024-CR (L.C. No. 2006CM2843) STATE OF WISCONSIN : IN SUPREME COURT State of Wisconsin FILED Plaintiff-Appellant, MAY 19, 2009 v. David R. Schanker Clerk of Supreme Court Anthony Michael Welda, Defendant-Respondent-Petitioner. REVIEW of a decision of the Court of Appeals. ¶1 PER CURIAM. Dismissed. The defendant, Anthony Michael Welda, petitioned for review of a decision of the court of appeals reversing an order of the Circuit Court for Rock County, James P. Daley, Judge.1 argument, and We granted the petition for review, heard oral now conclude that the petition for review was improvidently granted. ¶2 against 1 In September 2006 the State filed a criminal complaint the defendant, charging State v. Trappe, Nos. 2007AP2027-CR, unpublished slip 2008). him with disorderly 2007AP2021-CR, op. (Wis. Ct. conduct 2007AP2024-CR, App. July 24, No. contrary to Wis. Stat. § 947.01 (2005-06).2 2007AP2024-CR The complaint also charged the defendant with a hate-crime penalty enhancer under Wis. Stat. motion to § 939.645(1) dismiss the and (2)(a).3 complaint separate motion seeking to enhancer independent of The court The against dismiss defendant him, as filed well as a a hate-crime penalty underlying the the disorderly conduct charge. ¶3 dismiss the circuit complaint but penalty enhancer. denied the granted the defendant's motion to motion dismiss to the The State successfully petitioned for leave 2 All subsequent references to the Wisconsin Statutes are to the 2005-06 version unless otherwise indicated. 3 Wisconsin Stat. § 939.645 provides in relevant part as follows: (1) If a person does all of the following, the penalties for the underlying crime are increased as provided in sub. (2): (a) Commits a crime under chs. 939 to 948. (b) Intentionally selects the person against whom the crime under par. (a) is committed or selects the property that is damaged or otherwise affected by the crime under par. (a) in whole or in part because of the actor's belief or perception regarding the race, religion, color, disability, sexual orientation, national origin or ancestry of that person or the owner or occupant of that property, whether or not the actor's belief or perception was correct. (2) (a) If the crime committed under sub. (1) is ordinarily a misdemeanor other than a Class A misdemeanor, the revised maximum fine is $10,000 and the revised maximum term of imprisonment is one year in the county jail. 2 No. to appeal the circuit penalty enhancer. court's nonfinal order 2007AP2024-CR dismissing the The defendant did not petition for leave to appeal the nonfinal ruling denying his motion to dismiss the complaint. The disorderly conduct charge remains pending against the defendant. ¶4 In his brief to the court of appeals, the defendant urged that the circuit court's order dismissing the hate-crime penalty enhancer should be affirmed because application of the penalty enhancer in the present case would result in a multiplicity of punishment contrary to the Fifth Amendment to the United States Constitution and Article I, Section 8 of the Wisconsin Constitution. defendant's multiplicity The court argument of and appeals reversed rejected the the circuit court. ¶5 review The defendant presented one issue in his petition for to this multiplicitous appeals. court, punishment namely that was the issue decided by relating the court to of We granted the defendant's petition but ordered the parties to address two additional issues in their briefs to this court: (1) Does the hate-crime penalty enhancer, as applied to the defendant in the present case, violate the First Amendment to the United States Constitution in light of the United States Supreme Court's decision in R.A.V. v. City of St. Paul, 505 U.S. 377 (1992)? (2) Is this case a "speech only" disorderly conduct case or could the facts support a disorderly conduct charge based on the defendant's actions in addition to his speech? 3 No. ¶6 that 2007AP2024-CR The parties agree in their briefs before this court the present case should disorderly conduct case. be viewed as a "speech only" They do not agree whether the hate- crime penalty enhancer is unconstitutional as applied to the defendant. ¶7 After examining the record and the briefs of the parties, and after hearing oral argument, we have determined that it would be premature for this court to decide whether the hate-crime penalty enhancer is unconstitutional as applied to the defendant in the present case. The facts relating to the defendant's conduct have not been fully developed at this early stage in the proceedings. Furthermore, it is uncertain whether the defendant will be convicted of disorderly conduct. If the defendant is not convicted of disorderly conduct, the issues relating to the penalty enhancer will be moot. ¶8 Although it would not be premature to review the issue that was decided by the court of appeals and was raised in the defendant's petition for review, that which we would have granted review. issue is not one upon The court accepted review of this case primarily to address the issue of constitutional law that the court itself raised in our order granting the defendant's petition. ¶9 For the reasons set forth, we conclude that review in this case was improvidently granted, and we dismiss the petition for review. The matter is remanded to the circuit court for further proceedings not inconsistent with this opinion. 4 No. 2007AP2024-CR By the Court. The review of the decision of the court of appeals is dismissed. 5 No. 1 2007AP2024-CR

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