PUBLISHED OPINION
Case No.: 95-0770
†Petition for
Review Filed
Complete Title
of Case:
STATE OF WISCONSIN,
Plaintiff‑Respondent,†
v.
FRANK P. HOWARD,
Defendant‑Appellant.
Submitted on Briefs: December 15, 1995
Oral Argument:
COURT COURT OF APPEALS OF WISCONSIN
Opinion Released: January 24, 1996
Opinion Filed: January
24, 1996
Source of APPEAL Appeal from an order
Full Name JUDGE COURT: Circuit
Lower Court. COUNTY: Waukesha
(If
"Special", JUDGE: LEE S. DREYFUS, JR.
so indicate)
JUDGES: Anderson, P.J., Nettesheim and Snyder, JJ.
Concurred:
Dissented:
Appellant
ATTORNEYSOn behalf of the defendant-appellant, the cause was
submitted on the briefs of Daniel R. Clausz, Williams Law Offices,
of Delavan.
Respondent
ATTORNEYSOn behalf of the plaintiff-respondent, the cause was
submitted on the brief of James E. Doyle, attorney general and Sharon
Ruhly, assistant attorney general.
COURT OF APPEALS DECISION DATED AND RELEASED JANUARY 24, 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.
95-0770
STATE OF WISCONSIN IN
COURT OF APPEALS
STATE OF WISCONSIN,
Plaintiff‑Respondent,
v.
FRANK P. HOWARD,
Defendant‑Appellant.
APPEAL
from an order of the circuit court for Waukesha County: LEE S. DREYFUS, JR., Judge. Reversed and cause remanded with
directions.
Before
Anderson, P.J., Nettesheim and Snyder, JJ.
ANDERSON,
P.J. Frank P. Howard appeals[1]
from an order of the trial court denying his § 974.06, Stats., motion.
Howard requested a new trial on the issue of the weapons enhancer in
light of the supreme court's holding in State v. Peete, 185
Wis.2d 4, 517 N.W.2d 149 (1994), where the court held that in order to be
convicted of a weapons enhancer, a nexus must be established between the crime
committed and the dangerous weapon. We
conclude that Peete applies retroactively to Howard's conviction
of the weapons enhancer. Accordingly,
we reverse the trial court as to the weapons enhancer and remand for a new
trial on this issue alone.
The
criminal complaint alleged, among other things, that Howard aided and abetted
the commission of a crime and knowingly and unlawfully delivered a controlled
substance while possessing a dangerous weapon.
According to police testimony, when they searched Howard at the scene,
they found a handgun in his coat pocket.
Howard informed the police that he had another gun in his jacket. Howard, however, testified that he told the
police that he had two guns before he was searched.
A jury
trial was held on February 20-21, 1990.
After the close of the evidence, the trial court instructed the jury
regarding the penalty enhancer as follows:
The first count
of the Information alleged not only that the Defendant committed the crime of
party to the crime of delivery of cocaine on January 20th, 1989, but also that
he did so while possessing a dangerous weapon.
If you find the
Defendant guilty of party to the crime of delivery of cocaine, you must answer
the following question: Did the
Defendant commit the crime of party to the crime of delivery of cocaine while
posssssing [sic] a dangerous weapon?
Before you may
answer this question “yes,” you must be satisfied beyond a reasonable doubt
that the Defendant committed the crime while possessing a dangerous weapon.
A “dangerous
weapon” is any firearm, whether loaded or not.
If you are
satisfied beyond a reasonable doubt from the evidence presented that the
Defendant committed the crime of party to the crime of delivery of cocaine
while possessing a dangerous weapon -- and again this relates to Count No. 1,
ladies and gentlemen, the January 20th, 1989, incident -- then you should
answer the question “yes.”
If you are not
so satisfied, then you must answer the question “no.”
Howard was subsequently convicted of party to the crime
of delivery of cocaine while possessing a dangerous weapon, possession of a
firearm after having been convicted of a felony and delivery of cocaine.[2]
On
December 13, 1994, Howard filed a motion for postconviction relief pursuant to
§ 974.06, Stats., asserting that
he should receive a new trial on the issue of whether he was guilty of engaging
in the conduct prohibited by § 939.63, Stats.,
based on the June 22, 1994, Wisconsin Supreme Court holding in Peete. He argued that because the jury did not find
beyond a reasonable doubt that he possessed a dangerous weapon to facilitate
the commission of the drug offense, due process and the Peete
decision required that he receive a new trial on the dangerous weapon
enhancer. The trial court denied
Howard's motion. Howard appeals.
Howard
argues that the decision in Peete should apply
retroactively. In Peete,
the issue on appeal was whether § 939.63, Stats.,[3]
requires the state to prove the existence of a nexus between the crime and the
weapon the defendant possesses and, if so, how the nexus should be
defined. Peete, 185
Wis.2d at 16, 517 N.W.2d at 153.[4] The Wisconsin Supreme Court held that §
939.63 was intended to apply only when there is a relationship between the
weapon and the substantive crime. Peete,
185 Wis.2d at 16-17, 517 N.W.2d at 153.
The court wrote:
If a defendant commits a crime while using or
threatening to use a dangerous weapon, a nexus is established. ¼ The nexus required by the “while possessing” language
of sec. 939.63 is an element of sec. 939.63.
The Due Process Clause of the Fourteenth Amendment requires that the
State prove beyond reasonable doubt every element of the crime charged.
Peete, 185 Wis.2d at 18-19, 517 N.W.2d at 154.
We
must decide whether to retroactively apply the holding of Peete
to the present case. This is a question
of law that we review de novo. See Schulz
v. Ystad, 155 Wis.2d 574, 596, 456 N.W.2d 312, 320 (1990).
In State
v. Denny, 163 Wis.2d 352, 357, 471 N.W.2d 606, 608 (Ct. App.
1991)(footnote omitted), the court stated that “A new rule generally should not
be applied retroactively to cases on collateral review.” However, two exceptions exist:
First, a new rule should be applied retroactively if it
places certain kinds of primary, private individual conduct beyond the power of
the criminal law-making authority to proscribe. ¼ Second, a new
rule should be applied retroactively if it requires observance of those
procedures that are implicit in the concept of ordered liberty.
Id. We conclude that the first
exception articulated in Denny applies to the present case. The rule articulated in Peete,
that a nexus must exist between the weapon and the substantive crime, places
the conduct beyond the power of the criminal law-making authority to
proscribe. Therefore, under Denny
we may apply the Peete holding retroactively to Howard's
conviction of the penalty enhancer.
Before we
can apply the Peete rule retroactively to Howard's situation,
however, he must meet the requirements articulated in State v.
Escalona-Naranjo, 185 Wis.2d 168, 517 N.W.2d 157 (1994). The court in Escalona-Naranjo
stated: “First, all grounds for relief
under sec. 974.06 must be raised in a petitioner's original, supplemental, or
amended motion.” Escalona-Naranjo,
185 Wis.2d at 181, 517 N.W.2d at 162.
Section 974.06, Stats.,
provides in relevant part:
(1) After the time for appeal or postconviction
remedy ¼ has expired, a prisoner in custody under sentence of a
court or a person convicted and placed with a volunteers in probation program
under s. 973.11 claiming the right to be released upon the ground that the
sentence was imposed in violation of the U.S. constitution or the constitution
or laws of this state, that the court was without jurisdiction to impose such
sentence, or that the sentence was in excess of the maximum authorized by law
or is otherwise subject to collateral attack, may move the court which imposed
the sentence to vacate, set aside or correct the sentence.
¼.
(4) All grounds for relief available to a person
under this section must be raised in his or her original, supplemental or
amended motion. Any ground finally
adjudicated or not so raised, or knowingly, voluntarily and intelligently
waived in the proceeding that resulted in the conviction or sentence or in any
other proceeding the person has taken to secure relief may not be the basis for
a subsequent motion, unless the court finds a ground for relief asserted
which for sufficient reason was not asserted or was inadequately raised in the
original, supplemental or amended motion.
Id. (emphasis
added). According to Escalona-Naranjo
and § 974.06(4), if a ground for relief was not raised in an original,
supplemental or amended motion, a defendant must show a sufficient reason why
it was not asserted previously. See Escalona-Naranjo,
185 Wis.2d at 181-82, 517 N.W.2d at 162.
We
agree with Howard that the requirements of Escalona-Naranjo have
been met. The fact that Howard could
not have foreseen the affect of the Peete decision at the time of
his appeal constitutes a sufficient reason for not raising the issue at an
earlier date.
The
State argues that Howard's “claim that the jury did not find him guilty of
possessing a weapon while committing delivery of a controlled substance does
not rest on a rule of procedure and was available at the time of his direct
appeal.” It argues that a challenge to
the sufficiency of the evidence would have been available apart from the Peete
decision and Howard could have challenged the legal sufficiency of the evidence
adduced at trial to prove the weapons enhancer.
We
decline to adopt the State's argument that Howard is really arguing sufficiency
of the evidence. The issue in Peete
was one of statutory interpretation regarding § 939.63, Stats. It is
impractical to expect a plaintiff to argue sufficiency of the evidence
regarding an unknown statutory interpretation.
Although the court in United States v. Dashney, 52 F.3d
298, 299 (10th Cir. 1995) (quoted source omitted), stated that “a statute
cannot mean one thing prior to the Supreme Court's interpretation and something
entirely different afterwards,” a party cannot know the appropriate legal
argument until a higher authority determines the correct application.
The
State also argues that even if Peete applies retroactively,
Howard has waived his claim of error.
The State claims that because Howard did not object to the jury
instructions as given, he lost the right to appellate review. We reject this argument. We agree with Howard that he did not object
to the jury instructions because he did not foresee the subsequent Peete
decision in which the court determined that the penalty enhancer statute
required a nexus between the weapon and the underlying crime. The jury instructions on the weapon enhancer
were adequate at the time of trial. We
conclude that this reason sufficiently disposes of the State's waiver argument.
We
conclude that Howard is entitled to a new trial on the charge of a penalty
enhancer so that the trier of fact can determine whether there was a nexus
between the crime committed and the dangerous weapon. Similar to the situation in Dashney, the Peete
decision explained what conduct is criminalized and that mere possession of a
weapon that is not used or threatened to be used in the commission of a crime
cannot give rise to a weapons enhancer.[5] As the court stated in Dashney:
[P]rinciples of judicial finality, which the government
urges and the district court observed, are irrelevant. Surely, if a defendant's conviction and
punishment are for an act that the law does not make criminal, there can be no
room for doubt that such a circumstance inherently results in a complete
miscarriage of justice and presents exceptional circumstances that justify
collateral relief ¼.
Dashney, 52 F.3d at 299 (quoted source omitted). Similarly, Howard's possession of a dangerous weapon may be an act
that would not give rise to a penalty enhancer conviction. If this is the case, it would be a
miscarriage of justice to deny him the retroactive application of Peete.
We
therefore reverse Howard's conviction of party to the crime of delivery of
cocaine while possessing a dangerous weapon and direct the trial court to enter
a judgment of conviction solely on delivery of cocaine.[6] Howard is entitled to a new trial on the
issue of whether he was guilty of delivery while possessing a dangerous
weapon. Additionally, Howard's sentence
with respect to delivery of cocaine while armed should be vacated and Howard
should be resentenced solely on the charge of delivery of cocaine. If Howard is retried, the trial court should
vacate the sentence and resentence him after the new trial.
By the
Court.—Order reversed and
cause remanded with directions.
[1] This case was
previously on appeal in State v. Howard, No. 91-1163-CR,
unpublished slip op. (Wis. Ct. App. Nov. 27, 1991), where Howard appealed his
conviction, challenging the admission of a prosecution witness's prior
consistent statement under § 908.01(4)(a)2, Stats.,
to rebut a charge of recent fabrication.
We affirmed the trial court's decision to admit the prior consistent
statement into evidence.
[2] The relevant
portion of Howard's sentence was as follows:
As to count number 1, the court is going to sentence Mr.
Howard to the maximum allowed sentence under the law, that will be nine years
in duration. So that we are absolutely
clear, the underlying offense carried a maximum term of five years. Because Mr. Howard has been convicted of
comitting that drug delivery while armed, the law provides for the imposition
of increasing that sentence by not more than four years. The maximum sentences on that count are
warranted herein.
[3] Section 939.63, Stats., provides in pertinent part:
(1)(a) If a person commits a crime while possessing,
using or threatening to use a dangerous weapon, the maximum term of
imprisonment prescribed by law for that crime may be increased as follows ¼.
[4] In Bailey
v. United States, 116 S. Ct. 501, 505 (1995), the Supreme Court decided
a similar issue:
Section [18 U.S.C. § 924(c)(1)] requires the
imposition of specified penalties if the defendant, “during and in relation to
any crime of violence or drug trafficking crime ... uses or carries a
firearm.” Petitioners argue that “use”
signifies active employment of a firearm.
Respondent opposes that definition and defends the proximity and
accessibility test adopted by the Court of Appeals. We agree with petitioners, and hold that § 924(c)(1)
requires evidence sufficient to show an active employment of the firearm by the
defendant, a use that makes the firearm an operative factor in relation to the
predicate offense.
[5] In United
States v. Dashney, 52 F.3d 298, 299 (10th Cir. 1995), the court stated:
What [Ratzlaf v. United States, 114 S. Ct.
655 (1994)] did was articulate the substantive elements which the government
must prove to convict a person charged under [31 U.S.C. §§ 5322(a) and
5324(3)]. That is, it explained what
conduct is criminalized. This is a
substantive change in the law mandating retroactivity because a statute cannot
mean one thing prior to the Supreme Court's interpretation and something
entirely different afterwards. [Quoted
source omitted.]