State v. McAdory

412 Wis. 2d 112

State of Wisconsin, Plaintiff-Respondent,

v.Carl Lee McAdory, Defendant-Appellant.^†

Court of Appeals

No. 2023AP645-CR. Submitted on briefs January 18, 2024.— Decided April 11, 2024.

2024 WI App 29

(Also reported in — N.W.3d —.)

APPEAL from judgments and an order of the circuit court for Rock County: KARL HANSON, Judge. Affirmed.

On behalf of the defendant-appellant, the cause was submitted on the briefs of Brent A. Simerson of Simerson Law LLC, Wauwatosa.

On behalf of the plaintiff-respondent, the cause was submitted on the brief of John W. Kellis, assistant attorney general, and Joshua L. Kaul, attorney general.

Before Blanchard, Graham, and Nashold, JJ.

¶ 1. BLANCHARD, J. This appeal involves the proper interpretation and application of Wis. Stat. § 346.63(1)(c) (2021-22), which we call "the single-conviction provision."¹ Under the single-conviction provision, a prosecutor may, in one trial, pursue multiple counts that arise out of the same incident and that charge one of the three categories of offenses defined in § 346.63(1), which prohibits operating a motor vehicle under the influence of an intoxicant or other drug. The single-conviction provision further requires, however, that when that happens and the defendant is found guilty of more than one § 346.63(1) offense "there shall be a single conviction for purposes of sentencing and for purposes of counting convictions." See § 346.63(1)(c).

¶ 2. A jury found Carl McAdory guilty of two Wis. Stat. § 346.63(1) offenses for acts arising out of the same incident: (1) operating a motor vehicle while under the influence of one or more controlled substances (the "OWI" offense); and (2) operating a motor vehicle with a restricted controlled substance (the "RCS" offense).² Based on the single-conviction provision, the State moved the trial court to enter a conviction and to sentence McAdory on the OWI count and to dismiss the RCS count. The trial court granted this motion.

¶ 3. McAdory appealed the OWI conviction in part on the ground that his right to due process of law on the OWI count was violated at trial. See State v. McAdory, 2021 WI App 89, ¶ 2, 400 Wis. 2d 215, 968 N.W.2d 770. We granted the only relief that he sought based on his due-process argument: reversal of the OWI conviction and remand for a new trial on the OWI count. See id., ¶ 71. Our opinion did not address any aspect of the RCS guilty verdict or dismissed count. See id., ¶¶ 2, 38, 71.

¶ 4. Following remittitur, the State in effect asked the circuit court to do the following: reopen the judgment of conviction, which reflected a conviction on the OWI count and the dismissal of the RCS count; dismiss the OWI count and reinstate the RCS count; enter a conviction based on the RCS guilty verdict; and proceed to resentence McAdory, this time on the RCS count. McAdory objected, arguing that the court lacked authority to take these steps and that the court was in fact prohibited from taking them. McAdory also argued that this would violate the protections against double jeopardy. The court followed the course advocated by the State for reasons explained in written decisions, including a decision denying McAdory's motion for postconviction relief. McAdory appeals, raising the same arguments.

¶ 5. We conclude that the circuit court had authority to take, and was not barred from taking, these post-remittitur steps. We further conclude that McAdory does not have a double jeopardy claim on these facts. Accordingly, we affirm the order denying McAdory's motion for postconviction relief and affirm the amended judgment of conviction on the RCS count.

BACKGROUND

¶ 6. The parties do not dispute any pertinent facts in this appeal. As we explained in the first appeal, the jury found McAdory guilty of both the OWI and the RCS charges at the only trial that has been held in this case, after the jury heard "evidence that a chemical test of a sample of his blood, drawn after he was arrested following a traffic stop, showed the presence of cocaine and marijuana."³ See McAdory, 400 Wis. 2d 215, ¶ 1.

¶ 7. At the sentencing hearing following trial, the prosecutor moved to dismiss the RCS count on the ground that it duplicated the OWI count. Defense counsel did not object, the trial court granted the motion, and the court proceeded to sentence McAdory on the OWI count. The court's dismissal of the RCS count was reflected in the judgment of conviction that the court entered following sentencing.

¶ 8. Our prior opinion in McAdory addressed McAdory's two challenges to his conviction on the OWI count. Id., ¶¶ 2, 71. We concluded that one argument had merit. This was the argument that his due process rights were violated through a combination of factors that created a reasonable likelihood that the State was effectively relieved of its burden to prove all elements of the OWI count. Id. Accordingly, we remanded the case to the circuit court for a new trial on the OWI charge. Id., ¶ 71. We did not address the merits of the RCS count, nor did we make any reference to potential motions that either side might file in the circuit court following remittitur.

¶ 9. As already noted, following remittitur, the State moved the circuit court to reopen the judgment of conviction, convict and sentence McAdory on the RCS count, and dismiss the OWI count.⁴ McAdory opposed this motion and asked the circuit court to instead schedule a trial on the OWI count, "as ordered in the Court of Appeals decision."

¶ 10. The circuit court granted the State's motion. The court reasoned that "McAdory had no expectation of finality" in the sentence he received on the OWI count following trial, as opposed to a new sentence on the RCS count following remittitur. This was based on all of the following: the jury found McAdory guilty on the RCS count; the only reason the RCS count was dismissed at sentencing was to comply with the single-conviction provision; and McAdory had successfully appealed, obtaining a reversal of the OWI count. The court reached the general conclusion that "no mechanism of law" prevented reinstatement of the RCS count under these circumstances. The court ob- served that the issue "may have been avoided if the State had elected for the sentence to be imposed on the RCS offense," but that McAdory was not "prejudiced in any way by reinstatement of the RCS conviction."

¶ 11. In this appeal, McAdory does not claim any error related to the trial of the RCS count, such as that the verdict on that count was ambiguous or otherwise defective. He also does not raise any standalone argument challenging the sentence he received on the RCS count. Instead, McAdory's challenges are limited to the circuit court entering a conviction on the RCS guilty verdict and proceeding to resentence him based on that conviction.

DISCUSSION

¶ 12. The parties agree that we review all issues in this appeal under the de novo standard of review, applying well-settled standards, because each issue involves statutory or case law interpretation or determining the meaning and application of the constitutional protections against double jeopardy. See Tietsworth v. Harley-Davidson, Inc., 2007 WI 97, ¶ 22, 303 Wis. 2d 94, 735 N.W.2d 418; State v. Steinhardt, 2017 WI 62, ¶ 11, 375 Wis. 2d 712, 896 N.W.2d 700.

I. Circuit Court Authority to Reinstate the RCS Count and to Enter a Conviction for Purposes of Sentencing

¶ 13. Putting aside the double jeopardy argument addressed separately below, McAdory makes four arguments in support of his contention that the circuit court lacked authority to reinstate, or was barred from reinstating, the previously dismissed RCS count and entering a conviction for purposes of sentencing. We first explain our conclusion that the court’s actions were proper because they were implicitly authorized by the single-conviction provision as it has been construed in related case law. Then we explain why we reject McAdory's four arguments to the contrary.

A. Implicit authorization of the single-conviction provision and case law

¶ 14. The single-conviction provision states in its entirety:

(c) A person may be charged with and a prosecutor may proceed upon a complaint based upon a violation of any combination of par. (a), (am), or (b) [of Wis. Stat. § 346.63(1)] for acts arising out of the same incident or occurrence. If the person is charged with violating any combination of par. (a), (am), or (b), the offenses shall be joined. If the person is found guilty of any combination of par. (a), (am), or (b) for acts arising out of the same incident or occurrence, there shall be a single conviction for purposes of sentencing and for purposes of counting convictions under [Wis. Stat. §§] 343.30(1q) and 343.305. Paragraphs (a), (am), and (b) each require proof of a fact for conviction which the others do not require.

Sec. 346.63(1)(c). This establishes that, when a defendant "is found guilty of any combination of" § 346.63(1) offenses, as occurred here, the result should be "a single conviction for purposes of sentencing" and counting convictions. This has the effect of limiting the direction in Wis. Stat. § 972.13(1) that "[a] judgment of conviction shall be entered upon a verdict of guilty by the jury."

¶ 15. The somewhat sparse language of the single-conviction provision does not explicitly address the procedures to be used to accomplish the result of a single conviction, either generally or in the specific circumstances here. For example, as the circuit court noted in the decision challenged on appeal, the single conviction provision does not refer to dismissal of counts.

¶ 16. But one statement in an opinion of this court fills in a key procedural aspect. In Town of Menasha v. Bastian, 178 Wis. 2d 191, 503 N.W.2d 382 (Ct. App. 1993), we interpreted the single-conviction provision to mean that "the defendant is to be sentenced on one of the charges, and the other charge is to be dismissed." Id. at 195. In this case that is what the prosecutor requested...