State v. Carl L. McAdory, 2025 WI 30, 7/1/25, case activity
A unanimous SCOW held that the circuit court had authority under Wis. Stat. 346.63(1)(c) to reinstate Carl McAdory’s conviction for operating a vehicle with a restricted controlled substance in his blood, which was dismissed when he was also convicted of operating a motor vehicle under the influence of a controlled substance that arose out of the same incident or occurrence, after the OWI conviction was vacated on appeal. The Court also rejected McAdory’s claims that the State forfeited the right to seek reinstatement by not raising the issue on his appeal from his OWI conviction, that the circuit court did not comply with the COA’s mandate, and that he was subjected to double jeopardy.
The concurring opinion, written by Justice Ziegler and joined by Justice Bradley, would have overruled SCOW and COA precedents establishing that the circuit court must dismiss all but one of the convictions when a defendant is tried and found guilty of multiple offenses under § 346.63(1) that arise out of the same incident or occurrence.
A jury found McAdory guilty of operating a motor vehicle under the influence of a controlled substance as an 8th offense (OWI), and operating a motor vehicle with a detectable amount of a restricted controlled substance in his blood as an 8th offense (RCS). On the State’s motion at sentencing, the circuit court dismissed the RCS charge and guilty verdict and sentenced McAdory only on the OWI conviction. (¶¶ 1-2).
The OWI conviction was reversed in the court of appeals and remanded for “a new trial” on the OWI charge (McAdory I) (OP post). But instead of holding a new trial, the circuit court granted the State’s motion to reinstate the RCS charge and guilty verdict. (¶ 3).
McAdory contested the circuit court reinstating the RCS charge in a postconviction motion and in the court of appeals. He argued that 1) the circuit court did not have authority under Wis. Stat. § 346.63(1)(c) to reinstate a previously dismissed RCS charge; 2) reinstating the RCS charge violated the COA’s mandate vacating his OWI conviction; 3) the State forfeited its right to seek reinstatement by failing to raise the issue on his OWI appeal; and 4) reinstatement violated his right against double jeopardy. (¶ 8). The COA affirmed the circuit court’s reinstatement order (McAdory II) and SCOW granted review to address a circuit court’s authority to reinstate a conviction under § 346.63(1)(c). (¶¶ 8-9).
Statutory Authority
A person may be charged in a single complaint and tried for OWI, RCS, and operating a motor vehicle with a prohibited alcohol concentration (PAC) for acts arising out of the same incident or occurrence. § 346.63(1)(c). The statute further provides:
If the person is found guilty of any combination of [OWI, RCS, or PAC] 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 ss. 343.30(1q) and 343.305.
The Court recognized two “gaps” in the statute: what the circuit court must do procedurally after a person is convicted of more than one of the enumerated offenses; and what the circuit court may do on remand if a conviction for one or more of the enumerated offenses is overturned on appeal. (¶ 13). The first “gap” was addressed by the COA in Bastian, which held that if a defendant is convicted of more than one of the enumerated offenses in a single case, “the defendant is to be sentenced on one of the charges, and the other charge is to be dismissed.” The second “gap,” which was presented by this case, was a matter of first impression for SCOW.
McAdory argued that the circuit court did not have authority to reinstate his RCS case because § 346.63(1)(c) does not expressly authorize such an action. (¶ 18). But the Court concluded that § 346.63(1) “implicitly authorized the circuit court to reinstate the previously dismissed RCS charge and guilty verdict.” (¶ 19). The Court explained that the authority “flows from the text and structure” of the statute: “What the circuit court did – first by dismissing the RCS charge and guilty verdict and later by reinstating it – implemented that statutory structure in a way that gave effect to its central premise, namely that guilty verdicts for the enumerated offenses are fundamentally interchangeable for purposes of § 346.63(1)(c).” (¶ 19).
The Court considered McAdory’s argument to “read too much into the statutory silence, since nothing in the statute prohibits what the court did either.” (¶ 18). Positing that to accept McAdory’s argument would mean that whenever a statute identifies an end goal, but does not specify how courts should reach that goal, every means of implementing the goal would be prohibited: “That argument cannot be right if for no other reason than it would prevent courts from implementing such statutes entirely.” (¶ 18).
Forfeiture
Regarding McAdory’s argument that the State forfeited its right to seek reinstatementof the RCS charge and guilty verdict because it did not bring a cross-appeal or brief it in the COA, SCOW found that the State was not required or permitted to file a cross-appeal from dismissal of the RCS guilty verdict because the dismissal occurred at the State’s request, and the State may only appeal an adverse judgment or order. (¶ 23, citing Wis. Stat. § 974.05(1)(a)).
Nor did the State need to raise reinstatement in its briefing in McAdory I because that case only concerned the judgment of conviction for the OWI offense, and “raising the prospect of reinstating the RCS charge and guilty verdict in McAdory I could not in any way have supported the judgment of conviction for OWI.” (¶ 24).
COA’s Mandate
McAdory argued that, because McAdory I reversed the judgment of conviction on the OWI charge and “remanded for a new trial” on that charge, the circuit court’s only option on remand was to hold a new trial on the OWI charge. (¶ 27). The COA held in McAdory II (OP post) that its prior opinion did not direct the circuit court to schedule a trial on the OWI count even if the State moved to dismiss that count; therefore, reinstating the RCS charge did not violate the in McAdory I. SCOW considered that the COA was “better situated” to interpret its own mandate and deferred to the COA’s conclusion. (¶ 28).
Double Jeopardy
Finally, the Court rejected McAdory’s argument that he was subjected to double jeopardy by reinstating his conviction for RCS. The Court noted that he was not prosecuted twice for RCS, and the Double Jeopardy Clause does not bar reinstatement of a conviction on a charge for which the jury returned a guilty verdict. (¶ 32). Nor was McAdory prosecuted or tried twice for the OWI offense after the RCS charge and guilty verdict were reinstated. “Rather, the OWI charge was dismissed at the State’s request and he was never prosecuted or tried for it again.” (¶ 33).
Concurrence
Justice Ziegler, joined by Justice Bradley, concurred in the judgment, but wrote an alternative opinion that would have overruled SCOW’s decision in Bohacheff and the COA’s decision in Bastian.
The concurrence considered those cases to “stand for the proposition that when a defendant is tried and found guilty for multiple offenses under Wis. Stat. § 346.63(1) that arise out of the same incident or occurrence, the circuit court must dismiss all but one of the charges and guilty verdicts.” (¶ 44). The concurrence considered those cases inconsistent with the text of the statute, which states there “is to be single conviction for two specific, enumerated purposes: sentencing and counting convictions under Wis. Stat. §§ 343.30(1q) and 343.305.” (¶ 79). The concurrence considered Bohacheff’s holding that there shall be a single conviction for all purposes “at war” with the “clear text” of § 346.63(1). (¶ 80).
Instead, under the concurrence’s interpretation of the statute, if a defendant is found guilty of multiple offenses under § 346.63(1) for acts arising out of the same incident or occurrence, the circuit court is to enter a judgment of conviction on each guilty verdict. (¶ 87).