COURT OF APPEALS DECISION DATED AND FILED March 18, 2008 David R. Schanker Clerk of Court of Appeals |
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This opinion is subject to further editing. If published, the official version will appear in the bound volume of the Official Reports. A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals. See Wis. Stat. § 808.10 and Rule 809.62. |
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APPEAL
from an order of the circuit court for
Before Curley, P.J., Wedemeyer and Fine, JJ.
¶1 PER CURIAM. Eddie Baker appeals from an order dismissing his class action seeking a declaratory judgment. The issues are whether the party to a crime statute, Wis. Stat. § 939.05 (2005-06), is unconstitutional as violative of the double jeopardy, due process, and equal protection clauses of the United States and Wisconsin Constitutions, and whether § 939.05 deprives Baker of his right to the effective assistance of counsel, and deprives the circuit court of subject matter jurisdiction.[1] We conclude that § 939.05 is constitutional, and does not deprive Baker of the effective assistance of counsel, or the circuit court of subject matter jurisdiction. Therefore, we affirm.
¶2 Baker and other inmates convicted of various offenses as a party to the crime, filed a declaratory judgment action seeking a declaration on the constitutionality of Wis. Stat. § 939.05.[2] The circuit court dismissed the action, concluding that there were other “more appropriate remedies available at law” that would avert an award under the declaratory judgment statute, Wis. Stat. § 806.04. The circuit court also concluded that the substantive constitutional claims lacked merit. Baker appeals.[3]
¶3 We first address the principal basis for the circuit court’s
dismissal, the propriety of a declaratory judgment action for challenging Wis. Stat. § 939.05’s constitutionality. The existence of an alternative adequate
remedy is preferable to seeking declaratory relief. See Lister v. Board of Regents, 72
¶4 At their essence, all of Baker’s claims challenge the constitutionality of Wis. Stat. § 939.05. Section 939.05 provides:
Parties to crime. (1) Whoever is concerned in the commission of a crime is a principal and may be charged with and convicted of the commission of the crime although the person did not directly commit it and although the person who directly committed it has not been convicted or has been convicted of some other degree of the crime or of some other crime based on the same act.
(2) A person is concerned in the commission of the crime if the person:
(a) Directly commits the crime; or
(b) Intentionally aids and abets the commission of it; or
(c) Is a party to a conspiracy with another to commit it or advises, hires, counsels or otherwise procures another to commit it. Such a party is also concerned in the commission of any other crime which is committed in pursuance of the intended crime and which under the circumstances is a natural and probable consequence of the intended crime. This paragraph does not apply to a person who voluntarily changes his or her mind and no longer desires that the crime be committed and notifies the other parties concerned of his or her withdrawal within a reasonable time before the commission of the crime so as to allow the others also to withdraw.
¶5 A party challenging the constitutionality of a statute bears
a heavy burden, namely to prove unconstitutionality beyond a reasonable
doubt. See Aicher v. Wisconsin Patients
Comp. Fund, 2000 WI 98, ¶19, 237
¶6 Baker’s lead claim is that convicting a defendant of a crime
as a party to that crime violates the constitutional preclusion against double
jeopardy.[4] Double Jeopardy precludes successive
prosecutions and multiple punishments for the same crime.
¶7 Baker’s alleged deprivation of due process of law, insofar as we can interpret it, is substantially similar to his claimed deprivation of the effective assistance of counsel. His essential claims are that his alleged participation in the substantive offense as a party to the crime was so vague and indefinite that he was unable to identify and understand the charge against him to prepare his defense. Alternatively, he seemingly concedes that he can be held liable as a party to the substantive crime as either an accomplice or as a co‑conspirator, but that he was unable to prepare or assist in his defense because the State failed to specify which theory of liability it was pursuing under Wis. Stat. § 939.05(2). We reject these claims.
¶8
¶9 Baker’s alternative claim, that the State deprived him of due process of law and the effective assistance of counsel, has already been rejected. See State v. Cydzik, 60 Wis. 2d 683, 687-88, 211 N.W.2d 421 (1973) (“it is often difficult to tell in advance of filing the information whether to charge the defendant as the principal or … as a party to the crime”) (citation omitted); see also Hardison v. State, 61 Wis. 2d 262, 270‑72, 212 N.W.2d 103 (1973) (it is unnecessary to identify whether the State’s theory of criminal liability is predicated on the defendant’s alleged status as an accomplice or as a co-conspirator). Our rejection of this direct claim supports our correlative rejection of Baker’s indirect claim of his resulting inability to defend or assist in his defense.
¶10 We are at a loss to understand Baker’s equal protection
claim. He claims that he was deprived of
equal protection along with due process because he was not charged with a
“specific” offense, and was not “informed of the nature and cause of the
accusation that [would] allow for preparation of a defense, and to have
constructive assistance of counsel.” Insofar
as Baker’s equal protection claim is incident to his due process of law and
effective assistance of counsel deprivations, we reject it for the same reasons
we rejected those claims. Insofar as
Baker’s equal protection claim is something else, we reject it for his failure
to develop it in a comprehensible fashion. See State v. Pettit, 171
¶11 Baker also contends that the circuit court had no subject-matter jurisdiction to entertain a claim pursuant to Wis. Stat. § 939.05 because that was “a non-charge.” While affording Baker’s contention the benefit of every doubt would still not result in a lack of subject matter jurisdiction, Baker was not charged solely as a party to the crime; he was charged as a party to a substantive crime, as well.
By the Court.—Order affirmed.
This opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)5.
[1] All references to the Wisconsin Statutes are to the 2005-06 version.
[2] Baker and his co-plaintiffs were convicted at different times, and thus, under different biennial versions of Wis. Stat. § 939.05. Their challenge to § 939.05’s constitutionality is the same regardless of the biennial version applicable to each plaintiff’s specific judgment of conviction. Thus, we address this challenge to the 2005-06 version of § 939.05 because the specific biennial version pursuant to which each plaintiff was charged and convicted is legally inconsequential to the constitutional challenge raised.
We generically refer to the substantive crime because each plaintiff convicted of being a party to the crime, pursuant to Wis. Stat. § 939.05, was necessarily convicted of a substantive crime. The particular substantive crime is inconsequential to our resolution of the constitutionality of § 939.05.
[3] Baker appeals in his individual and “representative” capacities. None of the other plaintiffs appealed.
[4] See U.S. Const. amend. V; Wis. Const. art. I, § 8(1).
[5]