State v. Guarnero

Annotate this Case
Justia Opinion Summary

Defendant pleaded guilty to conspiracy of violating RICO. Approximately seven years later, Defendant was arrested for possession of cocaine in violation of Wis. Stat. 961.41(3g)(c). Defendant’s prior RICO conviction was listed as a prior conviction to enhance the penalty for cocaine possession conviction. The circuit court found Defendant guilty of violating section 961.41(3g)(c). Under the enhancement, Defendant’s cocaine possession constituted a felony. The court also convicted Defendant of felony bail jumping. Defendant appealed, arguing that the circuit court improperly enhanced the penalty for conviction of cocaine possession due to his prior RICO conspiracy conviction. The court of appeals affirmed. The Supreme Court affirmed, holding (1) Defendant’s prior RICO conviction enhanced the penalty for cocaine possession under section 961.41(3g)(c) to a second offense as a Class I felony; and (2) Defendant’s bail-jumping offense was properly a felony conviction.

Download PDF
2015 WI 72 SUPREME COURT CASE NO.: COMPLETE TITLE: OF WISCONSIN 2013AP1753-CR & 2013AP1754-CR State of Wisconsin, Plaintiff-Respondent, v. Rogelio Guarnero, Defendant-Appellant-Petitioner. REVIEW OF A DECISION OF THE COURT OF APPEALS (Reported at 354 Wis. 2d 307, 848 N.W.2d 329) (Ct. App. 2014 – Published) PDC No: 2014 WI App 56 OPINION FILED: SUBMITTED ON BRIEFS: ORAL ARGUMENT: SOURCE OF APPEAL: COURT: COUNTY: JUDGE: JUSTICES: CONCURRED: DISSENTED: NOT PARTICIPATING: July 9, 2015 March 10, 2015 Circuit Milwaukee Timothy G. Dugan BRADLEY, ABRAHAMSON, J.J., dissent. (Opinion Filed.) ATTORNEYS: For the defendant-appellant-petitioner, there were briefs by Robert J. Eddington, Milwaukee, and oral argument by Robert J. Eddington. For the plaintiff-respondent, the cause was argued by Sara Lynn Larson, assistant attorney general, with whom on the brief was Brad Schimel, attorney general. 2015 WI 72 NOTICE This opinion is subject to further editing and modification. The final version will appear in the bound volume of the official reports. No. 2013AP1753-CR & 2013AP1754-CR (L.C. No. 2012CF2319 & 2012CF4088) STATE OF WISCONSIN : IN SUPREME COURT State of Wisconsin, FILED Plaintiff-Respondent, v. JUL 9, 2015 Rogelio Guarnero, Diane M. Fremgen Clerk of Supreme Court Defendant-Appellant-Petitioner. REVIEW of a decision of the Court of Appeals. ¶1 of the PATIENCE DRAKE ROGGENSACK, C.J. court of appeals1 that affirmed Affirmed. We review a decision the circuit court's2 conclusion that Rogelio Guarnero's prior federal RICO3 conspiracy conviction served as a prior conviction under Wis. Stat. 1 State v. Guarnero, 2014 WI App 56, 354 Wis. 2d 307, 848 N.W.2d 329. 2 The presided. 3 Honorable Timothy Racketeer Influenced U.S.C. §§ 1961-68 (2005). and G. Dugan Corrupt of Milwaukee Organizations County Act, 18 No. 2013AP1753-CR & 2013AP1754-CR § 961.41(3g)(c) (2011-12)4 and therefore enhanced the penalty for his Wisconsin cocaine possession conviction. Under § 961.41(3g)(c), a court concludes that cocaine possession is a second offense when a statute under which the defendant previously was convicted relates to controlled substances. The circuit court considered the language of the RICO conspiracy statute and Guarnero's RICO indictment to reach its conclusion that the RICO conspiracy statute related to controlled substances and therefore enhanced Guarnero's cocaine possession to a second offense under § 961.41(3g)(c).5 ¶2 Guarnero appealed, contending that the circuit court improperly enhanced the penalty possession due his prior Guarnero should also have possession misdemeanor. to argued been a that his conviction of RICO conspiracy conviction. felony misdemeanor conviction for should bail-jumping offense have because been an cocaine conviction his cocaine unenhanced The court of appeals affirmed the circuit court, concluding that RICO and 18 U.S.C. § 1962(c) and (d) (2005)6 related to controlled substances. State v. Guarnero, 2014 WI App 56, ¶8, 354 Wis. 2d 307, 848 N.W.2d 329. 4 All subsequent references to the Wisconsin Statutes are to the 2011-12 version unless otherwise indicated. 5 A second or subsequent offense is a Class I felony. Stat. § 961.41(3g)(c). 6 Wis. All subsequent references to the United States Code are to the 2005 version unless otherwise indicated. 2 No. ¶3 the 2013AP1753-CR & 2013AP1754-CR We conclude that Guarnero's prior conviction, due to manner statute, in which Guarnero violated relates to controlled prior RICO conviction Guarnero's the RICO conspiracy substances. enhances Therefore, the penalty for cocaine possession under Wis. Stat. § 961.41(3g)(c) to a second offense as a Class I felony. We further conclude that Guarnero's bail-jumping offense is properly a felony conviction. Accordingly, affirmed we the affirm circuit the court court's of denial appeals of decision Guarnero's that motion to dismiss and motion for postconviction relief.7 I. ¶4 BACKGROUND In 2005, a grand jury issued a 38-count indictment in the United States District Court for the Eastern District of Wisconsin, alleging that 49 members of the Milwaukee chapter of the Latin Kings violated RICO. individuals indicted. the 38 counts: ¶5 Guarnero was one of the 49 He was personally charged with five of counts 2, 20, 24, 25 and 26. Count Two of the indictment alleged that Guarnero and others were members or associates of the Latin Kings, a criminal racketeering including murder, distribution indictment 7 organization of also that attempted controlled alleged "engaged murder, of violence, extortion Count Guarnero Guarnero, 354 Wis. 2d 307, ¶¶12, 14. 3 acts robbery, substances." that in Two of knowingly and the and No. intentionally conspired with others 2013AP1753-CR & 2013AP1754-CR to violate 18 U.S.C. § 1962(c): [T]o conduct and participate, directly and indirectly, in the conduct of the affairs of that enterprise through a pattern of racketeering activity involving . . . multiple acts involving the distribution of controlled substances including cocaine, cocaine base in the form of "crack" cocaine and marijuana in violation of the laws of the United States[.] The indictment continued: "It was a part of the conspiracy that each defendant agreed that a conspirator would commit at least two acts of racketeering activity in the conduct of the affairs of the enterprise," and that this conduct violated 18 U.S.C. § 1962(d). Guarnero was charged with four other counts that involved possession of marijuana and firearms. ¶6 Guarnero pled guilty to conspiracy of violating RICO as set out in Count Two, and the United States dismissed the remaining counts of the indictment. The plea agreement contained a section titled "Elements," which stated: The parties understand and agree that in order to sustain the charge of Conspiracy to Commit RICO as set forth in Count Two, the government must prove each of the following propositions beyond a reasonable doubt: First, that the defendant knowingly conspired to conduct or participate in the conduct of the affairs of the Milwaukee Latin Kings, an enterprise, through a pattern of racketeering activity as described in Count Two; Second, that the Milwaukee Latin Kings were an enterprise; and Third, that the activities of the Milwaukee Latin Kings would affect interstate commerce. 4 No. Guarnero's plea agreement 2013AP1753-CR & 2013AP1754-CR acknowledged that Guarnero had conspired to commit at least two qualifying criminal acts, but the plea agreement did not specify which acts he had committed. The plea police agreement officers also found contained marijuana Guarnero's in his admission apartment that while they executed a firearm search warrant at Guarnero's residence. ¶7 In August 2012, Guarnero was arrested for possession of cocaine in violation of Wis. Stat. § 961.41(3g)(c), which contains an enhanced penalty provision. The provision enhances the penalty for a cocaine possession conviction to a second or subsequent offense if the defendant has previously "been convicted of any felony or misdemeanor under this chapter or under any statute of the United States or of any state relating to controlled substances." § 961.41(3g)(c). The complaint listed Guarnero's RICO conspiracy conviction, noted that it was related to controlled substances, and listed the cocaine possession as a felony second or subsequent offense contrary to § 961.41(3g)(c). ¶8 Guarnero filed a motion to dismiss the cocaine possession charge, arguing that his prior RICO conviction could not serve as a prior conviction to enhance the penalty for cocaine possession conviction to a second offense under Wis. Stat. § 961.41(3g)(c). motion to dismiss. for RICO The circuit court denied Guarnero's The court recognized the many possible bases convictions and concluded that RICO was related to controlled substances because of the specific charges in Count Two of the indictment. Guarnero petitioned for leave to take an 5 No. 2013AP1753-CR & 2013AP1754-CR interlocutory appeal of the circuit court's denial of his motion The court of appeals denied leave.8 to dismiss. ¶9 Subsequently, the circuit court found Guarnero guilty of violating Wis. Stat. § 961.41(3g)(c). the facts of his possession conspiracy conviction. of Guarnero stipulated to cocaine and his prior RICO Under the § 961.41(3g)(c) enhancement, Guarnero's cocaine possession constituted a felony. The court also convicted Guarnero of felony bail jumping, an offense that occurred while Guarnero was on bail for the for postconviction felony cocaine possession charge. ¶10 Guarnero moved circuit court denied. relief, which the The circuit court concluded that a "RICO conviction can deal with drug-related activity or not be related to drugs or drug activity." two of the federal The court also noted that "count indictment related to distribution of controlled substances, including cocaine and other drugs." ¶11 orders. to The court of appeals affirmed the Guarnero, 354 Wis. 2d 307, ¶¶1, 14. Guarnero's guilty plea and held that statute related to controlled substances. circuit court The court referred the RICO conspiracy Id., ¶12. The court rejected Guarnero's arguments based on the rule of lenity and due process. Id., ¶13. The court of appeals also affirmed Guarnero's conviction for felony bail jumping. 8 Id., ¶14. At that time, the court of appeals also denied Guarnero's motion to consolidate Milwaukee County Circuit Court Case Nos. 12CF2319 and 12CF4088. The court of appeals later consolidated the cases on August 20, 2013. 6 No. II. A. ¶12 circuit We review court's 2013AP1753-CR & 2013AP1754-CR DISCUSSION Standard of Review the court denial of of appeals' Guarnero's affirmance motion the dismiss to of and motion for postconviction relief in which Guarnero argued that his prior controlled order RICO conspiracy substances to review § 961.41(3g)(c). under the conviction was Wis. § 961.41(3g)(c). Stat. questions not presented, related we to In interpret Statutory interpretation presents a question of law that we independently review, while benefitting from the discussions of the court of appeals and the circuit court. Richards v. Badger Mut. Ins. Co., 2008 WI 52, ¶14, 309 Wis. 2d 541, 749 N.W.2d 581. B. ¶13 Our conspiracy that it Statutory Interpretation review conviction may serve as focuses is a on related prior whether to a controlled conviction federal RICO substances triggering so penalty enhancement for a cocaine possession conviction under Wis. Stat. § 961.41(3g)(c). When we interpret a statute, we "begin[] with the language of the statute. If the meaning of the statute is plain, we ordinarily stop the inquiry." State ex rel. Kalal v. Circuit Court for Dane Cnty., 2004 WI 58, ¶45, 271 Wis. 2d 633, 681 N.W.2d 110 (internal quotation marks and citation omitted). We give statutory language its "common, ordinary, and accepted meaning, phrases meaning." except are that given technical their or technical Id. 7 specially-defined or special words or definitional No. ¶14 Wis. 2013AP1753-CR & 2013AP1754-CR Our focus is on "relating to controlled substances" in Stat. § 961.41(3g)(c), the statute that prohibits possession of cocaine, which provides: Cocaine and cocaine base. If a person possess[es] or attempts to possess cocaine or cocaine base, or a controlled substance analog of cocaine or cocaine base, the person shall be fined not more than $5,000 and may be imprisoned for not more than one year in the county jail upon a first conviction and is guilty of a Class I felony for a 2nd or subsequent offense. For purposes of this paragraph, an offense is considered a 2nd or subsequent offense if, prior to the offender's conviction of the offense, the offender has at any time been convicted of any felony or misdemeanor under this chapter or under any statute of the United States or of any state relating to controlled substances, controlled substance analogs, narcotic drugs, marijuana, or depressant, stimulant, or hallucinogenic drugs. ¶15 The statutory phrase, "relating to controlled substances," in Wis. Stat. § 961.41(3g)(c) is undefined. words the defined, meaning." ¶16 legislature we give chose them are their not technical "common, ordinary, or As the specially- and accepted Id., ¶45. In order to determine the common meaning of "relating to," we turn to a dictionary definition of "relate." Id., ¶54 (referring to the dictionary definition of statutory language with a common meaning). relation, or reference." "Relate" is defined as a "connection, The American Heritage Dictionary of the English Language 1482 (5th ed. 2011). Stat. § 961.41(3g)(c) requires that the We conclude that Wis. prior conviction be connected to controlled substances if a prior conviction is to trigger penalty enhancement under § 961.41(3g)(c). 8 No. ¶17 2013AP1753-CR & 2013AP1754-CR Our interpretation of "relating to" is consistent with the court of appeals' interpretation of "relating to controlled substances" in State v. Moline, 229 Wis. 2d 38, 598 N.W.2d 929 (Ct. App. 1999).9 interpretations In Moline, the parties advanced technical of the phrase, "relating to controlled substances," that were grounded in punctuation and grammatical nuances. Id. at 41-42. The court rejected technical interpretations in favor of a commonsense reading of "relating to" and concluded that Moline's prior conviction for possession of drug paraphernalia Id. at 42. was "linked" to controlled substances. We interpret Wis. Stat. § 961.41(3g)(c) as requiring the prior conviction, here RICO conspiracy, to be connected to or linked to controlled substances, just as possession of drug paraphernalia was in Moline.10 9 In State v. Moline, 229 Wis. 2d 38, 41-42, 598 N.W.2d 929 (Ct. App. 1999), the court of appeals interpreted "relating to controlled substances" as used in Wis. Stat. § 961.48(3), which includes the same penalty enhancement structure as Wis. Stat. § 961.41(3g)(c). 10 After oral argument, we ordered the parties to provide supplemental briefs on an issue that Guarnero asserted the State raised for the first time at oral argument. He asserted that at oral argument the State first argued that "18 U.S.C. § 841(b)(1)(C)" in the RICO judgment of conviction was a scrivener's error and the correct statute was 21 U.S.C. § 841(b)(1)(C). 21 U.S.C. § 841(b)(1)(C) lists controlled substances offenses and penalties. (continued) 9 No. C. ¶18 We Application to Federal RICO Conspiracy next controlled 2013AP1753-CR & 2013AP1754-CR apply substances" our in interpretation Wis. Stat. of "relating § 961.41(3g)(c) Guarnero's prior conviction for a RICO conspiracy. to to Guarnero was convicted of 18 U.S.C. § 1962(d), which causes conspiring to violate subsections (a), (b), and (c) to be unlawful. § 1962(d). Each subsection, (a) through 18 U.S.C. (c), involves racketeering activity11 and serves to link RICO conspiracy with racketeering activities that could involve controlled substances.12 ¶19 qualifying The definition offenses, of racketeering including "dealing activity in a lists many controlled substance or listed chemical (as defined in section 102 of the Controlled Substances Act)" and "the felonious manufacture, In supplemental briefing, Guarnero contended that the scrivener's error was the inclusion of a reference to § 841(b)(1)(C), regardless of the chapter number. Guarnero argues that he pled guilty and was convicted of Count Two of the federal indictment that included 18 U.S.C. § 1962(d), a RICO conspiracy charge, and that the reference to 18 U.S.C. § 841(b)(1)(C) was in error. However, neither the State's reference at oral argument nor Guarnero's discussion in supplemental briefing affects our approach to the issues presented by the parties to this review. 11 Subsections of 18 U.S.C. § 1962 involve a pattern of racketeering activity: (a) deriving income from racketeering activity; (b) acquiring interest in an enterprise through racketeering activity; or (c) participating in an enterprise through racketeering activity. 12 Count Two of Guarnero's RICO indictment clarifies that Guarnero's conspiracy charge was based on Guarnero conspiring to violate 18 U.S.C. 1962(c). 10 No. importation, receiving, 2013AP1753-CR & 2013AP1754-CR concealment, buying, selling, or otherwise dealing in a controlled substance or listed chemical (as defined in section 102 of the Controlled Substances Act), punishable under § 1961(1)(A) controlled & any law (D). of the RICO substances United States." conspiracy for the can purposes 18 be U.S.C. related of Wis. to Stat. § 961.41(3g)(c) because RICO conspiracy in 18 U.S.C. § 1962(d) is connected to controlled substances through the racketeering activity definition, § 1961(1)(A) and (D). ¶20 supports However, we Guarnero's determine RICO which conspiracy racketeering conviction, activity because only some of the multiple definitions of racketeering activity in 18 U.S.C. § 1961(1) are linked to controlled substances. determination is necessary to ascertain whether the Such a unlawful conduct underlying his prior conviction is related to controlled substances. conduct For example, were we not to consider the unlawful that gave rise to the RICO conviction, a defendant convicted of RICO conspiracy based on sports bribery could have his or her penalty § 961.41(3g)(c) definition of because When sports racketeering controlled substances. ¶21 erroneously the enhanced under bribery fits activity, but is not Wis. Stat. within related the to See 18 U.S.C. § 1961(1)(B). statute underlying a prior conviction presents alternative methods of violating the statute, it is appropriate to consult a limited class of documents to determine what statutory alternative formed the basis for the defendant's prior conviction. See Descamps v. United States, __ U.S. __, 11 No. 133 S. Ct. 2276, 2285 (2013). necessary information from 2013AP1753-CR & 2013AP1754-CR In this case, we can glean the Guarnero's RICO conspiracy plea, which incorporates Count Two of his RICO indictment. ¶22 Guarnero's convicted of RICO RICO conspiracy conspiracy based involving controlled substances. plea on shows that racketeering he was activity To explain further, Guarnero's plea agreement contained his admission that as a member of the Latin Kings he engaged in acts that included the "extortion and distribution of controlled substances" because Count Two of the indictment is attached to his plea agreement. Count Two provides that, as a member of the Latin Kings, he "engaged in" the "distribution of controlled substances." These documents confirm that the method of racketeering activity that underlies the RICO conspiracy of which Guarnero was convicted related to controlled substances. conviction was meaning of related Wis. Stat. Because to Guarnero's controlled RICO substances § 961.41(3g)(c), the conspiracy within penalty the for Guarnero's cocaine possession conviction was properly enhanced.13 13 In a recent Supreme Court opinion, Mellouli v. Lynch, __ U.S. __, 135 S. Ct. 1980 (2015), the Court discussed whether conviction of a state crime is a deportable offense. Id. at 1982-83. Mellouli focused on whether the controlled substance that resulted in a state conviction was a controlled substance "included in one of five federal schedules." Id. at 1984. It has no application here, as it does not focus on determining which of several statutory alternatives formed the basis for the defendant's prior conviction. 12 No. D. ¶23 were 2013AP1753-CR & 2013AP1754-CR Sixth Amendment Guarnero also contends that his Sixth Amendment rights violated elements of by the his consideration of court's RICO the examination conviction, facts of rather underlying more than his RICO than a the jury's conviction. Under the Sixth Amendment, "[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury." ¶24 fact U.S. Const. amend. VI. The United States Supreme Court has held that "any that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." U.S. 466, 490 (2000). Apprendi v. New Jersey, 530 The Court stated that the sole exception is the fact of a prior conviction. Id. The Court revisited this concern in Shepard v. United States, 544 U.S. 13 (2005). There, in charging reviewing a document, plea, plea the Court agreement or approved use transcript of of a the plea colloquy, but only to assess whether Shepard pled to violating the statute by a method that permitted the enhanced under the Armed Career Criminal Act. The transcript was not to be used "to penalty to be Id. at 25-26. determine 'what the defendant and state judge must have understood as the factual basis of the prior plea.'" Descamps, 133 S. Ct. at 2284 (quoting Shepard, 544 U.S. at 25). ¶25 In State v. LaCount, 2008 WI 59, 310 Wis. 2d 85, 750 N.W.2d 780, we considered the effect of Apprendi and Shepard on 13 No. 2013AP1753-CR & 2013AP1754-CR a circuit court's role in determining whether a prior conviction provided the basis for enhancing a defendant's sentence. The Shepard decision relaxed the holdings of . . . Apprendi . . . so that, when Shepard and Apprendi are read together, a trial court judge, rather than a jury, is allowed to determine the applicability of a defendant's prior conviction for sentence enhancement purposes, when the necessary information concerning the prior conviction can be readily determined from an existing judicial record. Id., ¶52.14 In our review of whether Guarnero's prior RICO conspiracy conviction applied to enhance his cocaine possession conviction, we rely on necessary information existing judicial record, his guilty plea. Guarnero's guilty plea did not from Guarnero's Our examination of violate Guarnero's Sixth Amendment right because it is consistent with the principles underlying Apprendi and Shepard as we explained in LaCount. E. ¶26 phrase, Guarnero "relating § 961.41(3g)(c) is further to Id. Rule of Lenity asserts controlled ambiguous; and that the meaning substances," accordingly, in of Wis. the the Stat. rule of lenity requires that the ambiguity be resolved in his favor. The rule of lenity provides that when doubt exists as to the meaning of a criminal statute, "a court should apply the rule of lenity and interpret the statute in favor of the accused." State v. Cole, 2003 WI 59, ¶13, 262 Wis. 2d 167, 663 N.W.2d 700. 14 Descamps v. United States, __ U.S. __, 133 S. Ct. 2276, 2288 (2013) confirms our conclusion in State v. LaCount, 2008 WI 59, 310 Wis. 2d 85, 750 N.W.2d 780. 14 No. Stated otherwise, construction, the rule ensuring of 2013AP1753-CR & 2013AP1754-CR is warning fair lenity by statutes to "conduct clearly covered." a canon of applying strict criminal United States v. Lanier, 520 U.S. 259, 266 (1997); see also United States v. Castleman, __ U.S. __, 134 S. Ct. 1405, 1416 (2014) (addressing the need for fair warning implicit in the rule of lenity). ¶27 However, the rule of lenity applies if a "grievous ambiguity" remains after a court has determined the statute's meaning by considering statutory language, context, structure and purpose, such that the court must "simply guess" at the meaning of the statute. Castleman, 134 S. Ct. at 1416; see Kalal, 271 Wis. 2d 633, ¶¶45-46. Here, applying the rule of lenity no is unnecessary. There is "grievous ambiguity" or uncertainty in Wis. Stat. § 961.41(3g)(c) that would cause a court to "simply guess" as to Castleman, 134 S. Ct. at 1416. in § 961.41(3g)(c), U.S.C. § 1962(d). in 18 the meaning of the statute. There is no grievous ambiguity U.S.C. § 1961(1)(A)&(D), or in 18 Accordingly, we do not apply the rule of lenity. F. ¶28 Due Process As a final argument, Guarnero contends that he did not have fair notice that his guilty plea to the RICO conspiracy charge could subject him to sentence enhancement in a subsequent criminal case conviction because related to no Wisconsin controlled case had substances. held "[D]ue such a process bars courts from applying a novel construction of a criminal statute to conduct that neither 15 the statute nor any prior No. 2013AP1753-CR & 2013AP1754-CR judicial decision has fairly disclosed to be within its scope." Lanier, 520 U.S. at 266. ¶29 respects. Guarnero's contention misses his mark in at least two First, our construction of Wis. Stat. § 961.41(3g)(c) is not "novel," but rather, a commonsense reading of the words the legislature chose. Second, Moline explained that "[i]f it is found to be related to drugs, it is very clearly an offense which may serve as the basis for an enhanced penalty." 229 Wis. 2d at 42. Our statutory interpretation Moline, herein is consistent with Moline where the same plain language, "relating to controlled substances" that appears in § 961.41(3g)(c) was interpreted in Wis. Stat. § 961.48(3), thereby giving notice of conduct that could result in sentence enhancement. Accordingly, due process does not bar enhancement of Guarnero's conviction under § 961.41(3g)(c).15 15 In a recent Supreme Court opinion, Johnson v. United States, 576 U.S. __ (2015), the Court discussed whether part of the "residual clause" of the Armed Career Criminal Act (ACCA) that provides, "otherwise involves conduct that presents a serious potential risk of physical injury to another," 18 U.S.C. § 924(e)(2)(B)(ii), is unconstitutionally vague, in violation of the due process clause. Johnson, 576 U.S. __, at 5. Johnson is of even passing consideration here because a line of ACCA cases is analogous to the approach we have taken: choosing between examination solely in terms of how the law defines an offense, or examination of a limited class of documents to determine what statutory alternative formed the basis for the defendant's prior conviction. See United States v. Castleman, __ U.S. __, 134 S. Ct. 1405, 1413-14 (2014). The differing approaches apply to different parts of the ACCA language. Id. at 1409, 1413-14; Johnson, 576 U.S. __, at 4. The former approach applies to 18 U.S.C. § 924(e)(2)(B)(ii) and the latter applies to 18 U.S.C. § 924(e)(2)(B)(i). The Court does not decide between the two approaches. (continued) 16 No. 2013AP1753-CR & 2013AP1754-CR III. CONCLUSION ¶30 the We conclude that Guarnero's prior conviction, due to manner statute, in which Guarnero violated relates to controlled prior RICO conviction Guarnero's the RICO substances. enhances conspiracy Therefore, the penalty for cocaine possession under Wis. Stat. § 961.41(3g)(c) to a second offense as a Class I felony. We further conclude that Guarnero's bail-jumping offense is properly a felony conviction. Accordingly, affirmed the we affirm circuit the court's court denial of of appeals decision Guarnero's that motion to appeals is dismiss and motion for postconviction relief. By the Court.—The decision of the court of affirmed. The Court's vagueness concerns centered on the necessity of imagining whether an "ordinary case" of a particular crime involved sufficient risk. Johnson, 576 U.S. __, at 5. The Court mentioned one of the federal analogs to our analysis in passing, essentially noting that because Johnson was a § 924(e)(2)(B)(ii) case, the "solely in terms of the law" approach applied. Johnson does not affect the validity of the alternate approach, which mirrors the analysis here. 17 No. ¶31 & 2013AP1754-CR.awb (dissenting). ANN WALSH BRADLEY, J. 2013AP1753-CR In reading the five paragraphs of the majority's brief statutory analysis, one would never guess that the impression in this state. issue presented is one of first The petition for review states the issue as follows: Did the court of appeals err when it looked "beyond the statutory elements of Guarnero's prior racketeering conspiracy conviction and conclude that his prior conviction was a second or subsequent offense." ¶32 Nor would one likely guess that in a one-sentence pronouncement, tucked away in its application discussion, the majority actually answers this question of first impression—— without any acknowledgement that it is doing so and without any analysis whatsoever. ¶33 Our responsibility to develop and clarify the law is not well served by the majority's failure to acknowledge the issue and subject it because this problematic impression potential but to to analysis. issue is It not also one of statewide affect the interpretation is only particularly one importance of of first having numerous the criminal statutes. ¶34 The court of appeals forthrightly addressed the issue and after a thorough analysis adopted an approach called the modified categorical applying "related to" approach, a court meaning may look in essence beyond the that in statutory elements of the conviction to limited extraneous documents. The court of appeals, however, did not have the benefit of the most recent United States Supreme Court decision, which, along with 1 No. other precedent, appears to 2013AP1753-CR suggest a & 2013AP1754-CR.awb contrary result. The majority has the benefit of Mellouli v. Lynch, 135 S. Ct. 1980 (2015), decided June 1, 2015, but its opinion fails to discuss it, referencing the case only briefly in a single footnote. ¶35 Regardless of whether we adopt as a matter of first impression the categorical approach (looking to the elements only) or a modified categorical approach (looking beyond the elements to extraneous documents), one thing is clear: neither the statute, Wis. Stat. § 961.41(3g)(c), nor its legislative history answers the question. They are silent on the issue of how broadly or narrowly the term "related to" should be defined. ¶36 Because it is unclear if "related to" should be narrowly construed, limited to looking only at the statutory elements, or more broadly construed, looking beyond the elements, the statute is ambiguous. Given the ambiguity, I would apply the rule of lenity which dictates that ambiguity in penal statutes be interpreted in favor of the defendant. Accordingly, I respectfully dissent. I ¶37 The § 961.41(3g)(c) majority's is statutory truncated. analysis Consisting of of Wis. a mere Stat. five paragraphs, it is limited to consulting a dictionary definition of "relate" and a case addressing the interpretation of "relate" with respect to a different prior offense. Majority op., ¶¶13- 17. ¶38 Based on its determination that "relating to" means "connected with" or "linked to" the majority determines that the 2 No. statutory language is clear. discussion, sentence and without pronouncement impression without 2013AP1753-CR & 2013AP1754-CR.awb Tucked away in its application analysis, that the majority answers acknowledging that the it makes issue is doing a of onefirst so. It chooses the modified categorical approach, allowing for looking beyond the documents: statutory elements to a limited class of other "[w]hen the statute underlying a prior conviction presents alternative methods of violating the statute, it is appropriate to consult a limited class of documents to determine what statutory alternative formed the basis for the defendant's prior conviction." ¶39 Id., ¶21. Ultimately the majority declines to follow the rule of lenity, which dictates statutes be interpreted that ambiguous in favor of or uncertain defendants. penal Having determined that the statutory language is clear, it concludes that the rule of lenity does not apply. Id., ¶27. II ¶40 The majority's analysis of the statutory language begs the question. Just as "relating to" fails to inform how broadly or narrowly those words should be defined, so do the substitute words "connected with" and "linked to." They are mere synonyms, providing no additional insight into how broadly or narrowly the term "relating to" ¶41 should be defined. We are left to question if a reference to controlled substances in a document relating to the conviction will suffice to render it a conviction relating to a controlled substance, or if the involvement of controlled substances must be an element 3 No. 2013AP1753-CR proved in obtaining the conviction. & 2013AP1754-CR.awb Thus, defining the words "relating to" as "to be connected with or linked to" does not answer the issue before us: Did the court of appeals err when it looked "beyond the statutory elements of Guarnero's prior racketeering conspiracy conviction and conclude that his prior conviction was a second or subsequent offense?" ¶42 The parties debate between two possible approaches for answering this issue. Guarnero contends that the categorical approach should govern. Under that approach, a court's inquiry into a past conviction is limited to considering the elements of the statute violated. If a relationship to controlled substances is not required in order for there to be a conviction under the statute, then it could not be considered a conviction relating to controlled substances. ¶43 In contrast, categorical approach. the State advocates for the modified That approach would permit the court to consult a limited number of extraneous documents to determine if the prior conviction involved controlled substances. ¶44 This court has not previously addressed the debate over whether to adopt the categorical approach or the modified categorical approach. may have far-reaching The issue is one of first impression that effects due to the host of Wisconsin statutes depending on the characterization of prior offenses. See, e.g., Wis. Stat. §§ 939.615(2)(b), 939.618(2), 939.619(2), 940.43(5), 940.45(5). ¶45 Ignoring the debate, the majority takes an approach that appears to be contrary to the well-established approach 4 No. 2013AP1753-CR & 2013AP1754-CR.awb recently affirmed by the United States Supreme Court, without any explanation why. Without commenting on the lengthy briefing and murky case law on this issue, and without acknowledging it as an issue, the majority addresses it in a single sentence. announces "[w]hen the statute underlying a prior It conviction presents alternative methods of violating the statute, it is appropriate to consult a limited class of documents to determine what statutory alternative formed the basis for the defendant's prior conviction." Majority op., ¶21 (citing Descamps v. United States, 133 S. Ct. 2276, 2285 (2013)). ¶46 A recent pronouncement of the United States Supreme Court suggests this is error. ¶47 In Mellouli v. Lynch, 135 S. Ct. 1980 (June 1, 2015), the Supreme Court considered whether a state drug conviction qualified as a law "relating to a controlled substance" under a federal deportation statute, 8 U.S.C. § 1227(a)(2)(B)(i). The Court observed that the definition of "controlled substance" in the state law included at least nine substances not included in the federal list of controlled substances. ¶48 history The of Court also limiting an acknowledged assessment of Id. at 1984, 1988. that a there is conviction a to long the language of the statute and disallowing an examination of the facts underlying the crime. Id. at 1986-87. Following that history, the Court did not use the modified categorical approach of consulting extraneous documents. Rather, it focused on the words of the statutes and determined that because the definition of controlled substances in the state law was broader than that 5 No. in the federal law, the state 2013AP1753-CR crime did not conviction relating to controlled substances. ¶49 This case appears analogous to & 2013AP1754-CR.awb constitute a Id. at 1988. Mellouli. As with Mellouli, the statute that the defendant previously violated, 18 U.S.C. § 1962(d), contains a phrase that is broadly defined such that a conviction under the statute may or may not be a prior conviction relating to controlled substances.1 As with Mellouli, the face of the statute Guarnero violated does not reveal which portion the there Thus, of is definition a strong was the basis implication for that his like conviction. Mellouli, the analysis should end there with the conclusion that Guarnero's prior conviction controlled does substances. not qualify Extraneous as a crime documents relating relating to to his conviction should not be consulted. ¶50 Rather than analyzing this case law, the majority supports its approach with a single citation, "See Descamps v. United States." Majority op., ¶21. However, Descamps does not clearly support its decision to use the modified categorical approach because it clarifies that the approach applies only in limited circumstances. ¶51 In Descamps the Court considered whether the violation of a state statute prohibiting burglary qualified as a violent felony under the Armed Career Criminal Act (ACCA). 2276. 133 S. Ct. The state statute at issue contained a broader definition 1 The definition of "racketeering activity," refers to approximately 90 different crimes, including some involving controlled substances. 18 U.S.C. § 1961(1). 6 No. 2013AP1753-CR of burglary than the definition in the ACCA. & 2013AP1754-CR.awb The Court observed that when a state law defines a crime in the alternative, a court may "examine a limited class of documents to determine which of a statute's alternative elements formed the basis of the defendant's prior conviction." stressed that this approach, Id. at 2284. referred to However, it as the modified categorical approach, applies only to a "narrow range of cases." Id. at 2283-84 (citing Taylor v. United States, 495 U.S. 575 (1990)). "Our decisions authorize review of the plea colloquy or other approved extra-statutory documents only when a statute defines burglary not alternatively . . . ." ¶52 modified Ultimately (as here) overbroadly, but instead Id. at 2286. the categorical Descamps approach Court was determined inapplicable to that the the state statute it was considering because the statute merely defined burglary contain more broadly alternative than the elements. federal Id. at statute and 2285. did Because not an individual could violate the state statute without committing a violent felony, the court concluded that the state conviction could not qualify as a violent felony conviction. ¶53 crime The majority makes no attempt to determine whether a involving Guarnero's Id. RICO a controlled conviction substance or was was merely definition of "racketeering activity." an part element of a of broad Descamps and Mellouli stress this is an important distinction because a court may not 7 No. 2013AP1753-CR & 2013AP1754-CR.awb apply the modified categorical approach where there is merely a broadly defined term.2 III ¶54 Regardless if it is determined as a matter of first impression that the categorical approach or the modified approach controls, I determine that the rule of lenity should be applied here. ¶55 As the United States Supreme Court has stated, "construction of a criminal statute must be guided by the need for fair warning." (1990). The rule Crandon v. United States, 494 U.S. 152, 160 of lenity "ensures fair warning by so resolving ambiguity in a criminal statute as to apply it only to conduct clearly covered." 259, 266 (1997). United States v. Lanier, 520 U.S. Thus, when a criminal statute is ambiguous and is not clarified by resort to legislative history, that penal statute "should be construed strictly against the party seeking 2 The United States Supreme Court has also recently reaffirmed that courts must use the categorical approach when deciding whether a conviction constitutes a prior conviction for a violent felony under the Armed Career Criminal Act. Johnson v. United States, No. 13-7120, 576 U.S. ___ (June 26, 2015). Both the majority and the dissent in Johnson analyzed the issue of which approach should be applied. The dissent advocated for the modified categorical approach, but the majority of the Court decided otherwise. In choosing between the two approaches it stated: "'[T]he only plausible interpretation' of the law, therefore, requires use of the categorical approach." Id. (quoting Taylor v. United States, 495 U.S. 575, 602 (1990). The analysis and discussion of the issue by both the majority and the dissent likewise reaffirms that selecting an approach requires a more detailed analysis than the majority's single sentence. 8 No. 2013AP1753-CR & 2013AP1754-CR.awb to exact statutory penalties and in favor of the person on whom statutory penalties are sought to be imposed." State v. Morris, 108 Wis. 2d 282, 289, 322 N.W.2d 264 (1982). ¶56 Here, the legislative history does not shine any light on our inquiry. Although Wis. Stat. § 961.41(3g)(c) has been renumbered, the language at issue in this case has been almost unchanged since its initial enactment in 1971.3 It was enacted as part of Wisconsin's Uniform Controlled Substances Act. That Act was "a product of the National Conference of Commissioners on Uniform State Laws (NCCUSL)." State v. Hansen, 2001 WI 53, ¶16, 243 Wis. 2d 328, 627 N.W.2d 195. Where the legislature enacts a uniform act provision, we consider the intent of the drafters of the uniform law, and "will presume the intent of the drafters is the intent of the legislature in the absence of evidence to the contrary." Id. A review of the comments, however, provides no guidance here because they do not address how "relating to" should be defined. See NCCUSL, Uniform Controlled Substances Act § 408, Comment (1970), in Handbook of 3 Wisconsin Stat. § 161.41(2r)(b) (1971) stated: For purposes of this subsection, an offense is considered a 2nd or subsequent offense if, prior to his conviction of the offense the offender has at any time been convicted under this chapter or under any statute of the United States or of any state relating to controlled substances, narcotic drugs, marijuana or depressant, stimulant or hallucinogenic drugs. The only difference between this language and the current version of Wis. Stat. § 971.41(3g)(c) is that the words "any felony or misdemeanor under this chapter" have been inserted into the description of a conviction. 9 No. 2013AP1753-CR & 2013AP1754-CR.awb the National Conference of Commissioners on Uniform State Laws and Proceedings of the Annual Conference Meeting in its SeventyNinth Year (1970); NCCUSL, Uniform Controlled Substances Act § 413, Comment (1990), in Handbook of the National Conference of Commissioners Annual on Uniform Conference State Meeting in Laws its and Proceedings Ninety-Ninth Year of the (1990); NCCUSL, Uniform Controlled Substances Act § 413, Comment (1994), available at www.uniformlaws.org/shared/docs/controlled%20substances/UCSA_fin al%20_94%20with%2095amends.pdf. ¶57 Given the ambiguity in the statute which is left unanswered by the legislative history, the majority should have applied the rule of lenity. There are two criteria for application of the rule of lenity: "(1) the penal statute is ambiguous; and (2) [a court is] unable to clarify the intent of the legislature by resort to legislative history." State v. Luedtke, 2015 WI 42, ¶73, 362 Wis. 2d 1, 863 N.W.2d 592. ¶58 met. As discussed above, both of these requirements are We have oft stated that "a statute is ambiguous if it is capable of being understood by reasonably well-informed persons in two or more senses." State ex rel. Kalal v. Circuit Court, 2004 WI 58, ¶47, 271 Wis. 2d 633, 681 N.W.2d 110. Wisconsin Stat. § 961.41(3g)(c) can reasonably be interpreted in two ways: one that looks beyond the statutory considers only the statutory elements. which a reference to controlled elements, and one that In other words, one in substances in extraneous documents relating to a conviction could suffice to render it a 10 No. 2013AP1753-CR & 2013AP1754-CR.awb conviction relating to a controlled substance, or one in which the involvement of controlled substances proved in obtaining the conviction. must be an element Therefore the statute is ambiguous. ¶59 result, The legislative history is silent on the issue. the court is unable to clarify the legislature by resort to legislative history. intent As a of the Having met both requirements, application of the rule of lenity is appropriate and Guarnero's RICO conviction should not be considered a prior conviction relating to controlled substances. ¶60 Accordingly, for the reasons set forth above, I respectfully dissent. ¶61 I am authorized to state ABRAHAMSON joins this dissent. 11 that Justice SHIRLEY S. No. 1 2013AP1753-CR & 2013AP1754-CR.awb