PUBLISHED OPINION
Case No.: 96-0865-CR
†Petition for Review filed.
Complete
Title
of
Case:STATE OF
WISCONSIN,
Plaintiff-Respondent,
v.
DAVID H. HUBBARD,
Defendant-Appellant.†
Submitted
on Briefs: October 11, 1996
COURT COURT OF
APPEALS OF WISCONSIN
Opinion
Released: November 27, 1996
Opinion
Filed: November
27, 1996
Source
of APPEAL Appeal from a judgment
Full
Name JUDGE COURT: Circuit
Lower
Court. COUNTY: Portage
(If
"Special" JUDGE: John
V. Finn
so
indicate)
JUDGES: Dykman,
P.J., Roggensack and Deininger, JJ.
Concurred:
Dissented:
Appellant
ATTORNEYSFor the defendant-appellant the
cause was submitted on the briefs of Margaret A. Maroney, assistant
state public defender.
Respondent
ATTORNEYSFor the plaintiff-respondent the
cause was submitted on the brief of James E. Doyle, attorney general and
James M. Freimuth, assistant attorney general.
|
COURT OF
APPEALS DECISION DATED AND
RELEASED November
27, 1996 |
NOTICE |
|
A party may file with the Supreme Court a petition to review an
adverse decision by the Court of Appeals.
See § 808.10 and Rule
809.62, Stats. |
This opinion is subject to further editing. If published, the official version will appear in the bound
volume of the Official Reports. |
No. 96-0865-CR
STATE OF WISCONSIN IN
COURT OF APPEALS
STATE
OF WISCONSIN,
Plaintiff-Respondent,
v.
DAVID
H. HUBBARD,
Defendant-Appellant.
APPEAL
from a judgment of the circuit court for Portage County: JOHN V. FINN, Judge. Affirmed.
Dykman,
P.J., Roggensack and Deininger, JJ.
DEININGER,
J. Hubbard appeals from a judgment convicting him of seven
counts of felony issuance of worthless checks, contrary to § 943.24(2), Stats.[1] Hubbard claims that six of the charges are
multiplicitous. He argues that the
legislature intended that any number of worthless checks for less than $1,000
each issued within a fifteen-day period, regardless of their aggregate value so
long as it exceeds $1,000, constitutes but one felony. We conclude, however, that the allowable
unit of prosecution under § 943.24(2) is a group of checks having a total
value of more than $1,000, and thus these charges are not multiplicitous. Accordingly, we affirm the convictions.
BACKGROUND
From
November 18 through November 23, 1994, Hubbard issued fifty-seven worthless checks,
each for less than $1,000, but amounting in the aggregate to more than
$6,000. The information charged six
felony counts under § 943.24(2), Stats.,
on these checks. Each count
identifies a different group of checks totalling more than $1,000 written
during the six days. Each individual
check is included in only one count.
Hubbard moved the trial court to "join" the six counts into
one because they were multiplicitous.
The trial court denied the motion.
Hubbard subsequently pled no contest to all six counts.[2]
ANALYSIS
Plea-Waiver
The
State argues that Hubbard has waived the double jeopardy issue by pleading no
contest to the six charges. Ordinarily,
a plea of guilty or no contest waives all nonjurisdictional defenses and
defenses occurring prior to the plea, including claims of constitutional error.
State v. Princess Cinema of Milwaukee, Inc., 96 Wis.2d 646, 651,
292 N.W.2d 807, 810 (1980). The
Wisconsin Supreme Court, however, has held that double jeopardy is an exception
to the guilty-plea-waiver rule. State
v. Morris, 108 Wis.2d 282, 284 n.2, 322 N.W.2d 264, 265 (1982).[3] United States v. Broce, 488
U.S. 563 (1989), cited by the State, is distinguishable. In Broce, the defendants
claimed double jeopardy as part of a collateral attack on allegedly
multiplicitous charges, and a determination of the double jeopardy issue would
have required the court to go beyond the record. Id. at 574-76.
Here, Hubbard's claim is on direct appeal from convictions where the
potential double jeopardy violation is facially ascertainable on the record
without supplementation. We conclude
that Hubbard's no contest pleas establish his "factual guilt" on the
six counts but do not bar his claim that, judged on their face, the charges
violate double jeopardy. See Menna
v. New York, 423 U.S. 61, 62 n.2 (1975).
We
similarly reject the State's waiver argument based upon Hubbard's plea
agreement. The State argues that a plea
agreement constitutes a separate ground for concluding that Hubbard waived his
double jeopardy argument. We do not
agree. Absent an express waiver of his
double jeopardy claim as part of a plea agreement, we fail to see how the
agreement can constitute waiver of the double jeopardy claim when the plea
itself does not.[4]
Here,
the plea agreement contains no express waiver of the double jeopardy claim.[5] In exchange for Hubbard's pleas to certain
charges, others were consolidated or read-in.
Additionally, the District Attorney agreed to recommend a cumulative
maximum of ten years imprisonment on all counts. The State would have us conclude that the plea agreement
accomplished a waiver because "the basis for the double-jeopardy complaint
was known to [Hubbard]" when he accepted the agreement. However we conclude that awareness of a
double jeopardy defense at the time of the plea agreement is not a substitute
for express waiver and does not distinguish a plea from a plea agreement for
the purposes of waiving the defense.
In
addition, the State also knew of the potential for appeal of the double
jeopardy claim despite the no contest plea. See Menna, 423 U.S. at 62 n.2; Morris,
108 Wis.2d at 284 n.2, 322 N.W.2d at 265.
If a waiver of the right to appeal the trial court's denial of Hubbard's
double jeopardy claim was an important consideration for the State, it could
have been expressly addressed in the plea agreement. Absent an express waiver, we conclude Hubbard is entitled to have
the merits of his double jeopardy claim reviewed on this appeal.
Multiplicity
Multiplicity is the
charging of a single criminal offense in more than one count. Harrell v. State, 88 Wis.2d
546, 555, 277 N.W.2d 462, 464‑65 (Ct. App. 1979). Multiplicitous charges violate the double
jeopardy provisions of the Wisconsin and United States Constitutions.[6] See State v. Rabe, 96
Wis.2d 48, 61, 291 N.W.2d 809, 815 (1980).
When, as here, multiple charges are brought under the same statute, the
proper question is "`what is the allowable unit of prosecution?'" Blenski v. State, 73 Wis.2d
685, 694, 245 N.W.2d 906, 911 (1976).
Hubbard
contends that the legislature intended under § 943.24(2), Stats., to create but one felony
offense for issuing any number of under-$1,000 checks within a fifteen-day
period, regardless of their aggregate value so long as it exceeds $1,000. Thus, Hubbard argues that the allowable unit
of prosecution is "a 15-day period," and the six felonies charged
here violate constitutional protections against multiple punishment for the
same offense. We disagree.
The
parties agree that the analysis in State v. Grayson, 172 Wis.2d
156, 493 N.W.2d 23 (1992), governs this appeal. In Grayson, the supreme court held that the
legislature intended the allowable unit of prosecution under § 948.22(2), Stats.,[7]
for felony nonsupport to be a 120-day time period. Id. at 163, 493 N.W.2d at 27. Since § 943.24(2), Stats., also makes express reference to
a time period, Hubbard urges us to declare that to be the allowable unit of
prosecution. We do not read Grayson
to require, however, that whenever a criminal statute mentions a period of time
in defining a crime, that time period necessarily defines the "unit of
prosecution" for purposes of multiplicity analysis.
Rather,
to discern the legislature's intended unit of prosecution when one is not
expressly indicated, we must examine four factors:[8] (1) the language of the statute; (2) the legislative history and context
of the statute; (3) the nature of
the proscribed conduct; and
(4) the appropriateness of multiple punishment for the conduct. Id. at 160, 493 N.W.2d at
25-26; State v. Tappa, 127 Wis.2d 155, 165, 378 N.W.2d 883, 887
(1985).
The
language of § 943.24(2), Stats.,
focuses on more than the passage of time.
It requires action for criminal liability to attach, the issuance of
multiple worthless checks:
"whoever within a 15‑day period issues more than one check
... amounting in the aggregate to more than $1,000 ...." Hubbard's time-based interpretation of the
statute would punish a "slow" issuer of serial worthless checks more
harshly than a more prodigious issuer like Hubbard. That is, Hubbard would allow six felonies to be charged against
someone who wrote the same number and amounts of checks as he did so long as
each group of checks aggregating to more than $1,000 was issued during separate
and discrete fifteen-day periods.
To
conclude that the legislature intended to reward speed in issuing worthless
checks by establishing a fifteen-day period as the unit of felony prosecution
is at best a strained reading of § 943.24(2), Stats. The language
of the statute does not support Hubbard's interpretation. See State v. Mattes,
175 Wis.2d 572, 578, 499 N.W.2d 711, 713 (Ct. App. 1993) ("[a] statute
should not be construed so as to work absurd or unreasonable results
...."). The fifteen-day period is
more plausibly read to be a limitation on prosecutorial discretion, ensuring
that checks aggregated for felony prosecution can reasonably be said to comprise
a single course of criminal conduct. In
the absence of this limitation, it would be possible for a prosecutor to charge
a felony when someone had issued a worthless check for $501 and then another
one for the same amount many months later.
Before
the enactment of Laws of 1977, ch. 173, §§ 67 and 69, issuing a worthless
check, regardless of amount, could only be prosecuted as a misdemeanor. In chapter 173, the legislature created a
value-based dividing line between misdemeanor and felony prosecutions for issuing
worthless checks, similar to the division in other property crimes. Prefatory Note to 1977 Senate Bill 14. In an explanatory note to § 943.24(2), Stats., contained in an earlier version
of the bill, the change is described as providing "greater sentencing
flexibility in punishing persons convicted of issuing worthless checks by
making the crime either a misdemeanor or a felony depending on the amount
wrongfully obtained."[9]
This
history renders the legislature's intent clear: whenever, by a single worthless check or by multiple checks
issued within a brief time span, more than $1,000 is obtained, the conduct may
be prosecuted as a felony. Establishing
the aggregate value of multiple checks, rather than the time period in which
they are issued, as the unit of prosecution defining a felony is consistent
with the history of § 943.24(2), Stats.,
and its context among the other crimes involving misappropriation of property
divided by value into misdemeanors and felonies.
Finally,
the nature of the proscribed conduct and the appropriateness of multiple
punishment also support the State's interpretation of § 943.24(2), Stats.
Hubbard would have us hold that once he issued a number of checks, each
for less than $1,000 but which aggregated to over that amount, he was immunized
from further felony prosecutions for the balance of the fifteen-day period
commencing with the date of his first check, regardless of the total value of
checks he might issue in that period.
An individual who continues to issue worthless checks after passing
$1,000 in aggregate value, however, inflicts new and additional financial harm,
often on new and different victims. It
is not inappropriate, therefore, to subject an issuer to separate felony punishments
for each series of checks which aggregate to more than $1,000.[10]
For
these reasons, we conclude that the legislature intended the allowable unit of
felony prosecution under § 943.24(2), Stats.,
to be a group of checks having a total value of more than $1,000. Accordingly, we affirm the convictions.
By
the Court.—Judgment affirmed.
[1] Section 943.24(2), Stats., provides as follows:
(2) Whoever issues any single check or other order for
the payment of more than $1,000 or whoever within a 15‑day period issues
more than one check or other order amounting in the aggregate to more than
$1,000 which, at the time of issuance, the person intends shall not be paid is
guilty of a Class E felony.
[2] Hubbard was charged and convicted of other
offenses as well, including some charges consolidated from another county. He appeals only from the six counts noted.
[3] The State cites Nelson v. State,
53 Wis.2d 769, 774, 193 N.W.2d 704, 707 (1972), in support of its argument that
a double jeopardy defense is waived by a no contest plea and also by a plea
agreement. However, Nelson
was decided prior to State v. Morris, 108 Wis.2d 282, 284 n.2,
322 N.W.2d 264, 265 (1982), and several other Wisconsin cases holding that
double jeopardy is not waived by a plea. See State v. Riley,
166 Wis.2d 299, 302 n.3, 479 N.W.2d 234, 235 (Ct. App. 1991); State v. Hartnek, 146 Wis.2d
188, 192 n.3, 430 N.W.2d 361, 362 (Ct. App. 1988); State v. Olson,
127 Wis.2d 412, 422, 380 N.W.2d 375, 380 (Ct. App. 1985) (discussing Menna
v. New York, 423 U.S. 61 (1975)).
[4] The State cites several cases from other
jurisdictions in support of its argument that a plea agreement waives double
jeopardy even if the plea itself does not.
See Dermota v. United States, 895 F.2d 1324,
1325-26 (11th Cir.), cert. denied, 498 U.S. 837 (1990); Novaton v.
State, 634 So. 2d 607, 609 (Fla. 1994). We do not find these cases persuasive. The State also cites People v. Allen, 658 N.E.2d
1012, 1014 (N.Y. 1995), with whose holding we have no quarrel: a defendant may expressly waive a double
jeopardy defense as part of a plea bargain.
[5] In fact, at the time of his pleas Hubbard
told the court that he had certain issues he wished to "bring up in
appeal," and at sentencing he gave the court a written statement which
included the following: "I feel
very strongly that counts #1 - #7, in the Portage County information,
are in direct violation of Wis. Statutes 943.24(2)."
[7] The predecessor to § 948.22(2), Stats., under which Grayson was
charged, provided as follows:
(2) Any person who intentionally fails for 120 or more
consecutive days to provide ... child support which the person knows or
reasonably should know the person is legally obligated to provide is guilty of
a Class E felony.
After Grayson was decided, the legislature
added the following sentence to this subsection: "A prosecutor may charge a person with multiple counts for a
violation under this subsection if each count covers a period of at least 120
consecutive days and there is no overlap between periods." 1993 Wis. Act 274.
[8] While there is a first prong to multiplicity
analysis, whether the charges are identical in law and fact, State v.
Rabe, 96 Wis.2d 48, 63, 291 N.W.2d 809, 816 (1980), there is no dispute
that these charges encompass different facts, i.e., different groupings of
issued checks with no single check included in more than one group. Thus, there is a presumption that
"`cumulative punishments'" are permissible, unless, under the second
prong of the test, the presumption is overcome by a contravening legislative
intent. See State v. Grayson,
172 Wis.2d 156, 160, 493 N.W.2d. 23, 25 (1992).
Some
cases indicate that compliance with the first prong of the multiplicity
analysis is all that is required to meet a double jeopardy challenge, because
the second prong concerns only statutory interpretation. See id. at 159 n.3, 493
N.W.2d at 25; see also State
v. Tappa, 127 Wis.2d 155, 164, 378 N.W.2d 883, 887 (1985). Because this issue was not briefed by the
parties, we decline to address it. See
State v. Hartnek, 146 Wis.2d 188, 192 n.3, 430 N.W.2d 361, 362
(Ct. App. 1988).
[10] Hubbard points out that the issuer of a
single worthless check for more than $1,000 does not face additional
punishments for each additional $1,000 in value of the check. Thus, as he notes in his reply brief, one who
issues four worthless checks of $550 each faces two felonies under the State's
interpretation of § 943.24(2), Stats.,
while another who writes a single check for $20,000 faces only one. This point does not diminish the propriety
of punishing each act (or series of acts) which inflicts more than $1,000 of
damage as a separate felony. The serial
check issuer engages in fraudulent intent and action repeatedly while the
single issuer does so only once.