COA resolves recurring challenge to DV enhancer, rejects reliance on Rector, and applies definition of “separate occasions” from prior case law
State v. Brian Tyrone Ricketts, Jr., 2024AP2291-CR, 12/9/25, District III (recommended for publication); case activity
Following on the heels of the recent litigation as to the meaning of “separate occasions” that reached SCOW in the Rector case, COA holds that two charges in the same case constitute “separate occasions” for the purposes of the domestic abuse repeater.
Ricketts was charged with two misdemeanors arising from an alleged DV situation. (¶5). However, the charging document seeks to modify these charges to felonies via the DV repeater statute, § 939.621. (Id.) As grounds, the State pointed to two convictions stemming from the same 2021 case. (¶7). Ricketts moved to strike the enhancers, arguing that the statute’s requirement that a person be convicted on “2 or more separate occasions” is not satisfied when the two charges arise from the same underlying incident. (¶8). The circuit court, relying on SCOW’s recent decision in State v. Rector, granted the motion. (¶9). The State then pursued an interlocutory appeal.
Here, the crucial language from the statute is the phrase “was convicted on 2 or more separate occasions.” (¶12). Although Ricketts argues that the plain text is unambiguous, COA holds that the phrase “separate occasion” is ambiguous. (¶16). “Occasion” could be interpreted to mean “the occurrence of the conviction itself.” (¶18). Or it could be construed as having a “temporal element–in other words, that an ‘occasion’ refers to a specific time when something has taken place.” (¶19).
Notably, in two prior cases (Hopkins and Wittrock) the Wisconsin Supreme Court approved the former construction of the phrase “separate occasions” when interpreting the general repeater statute, § 939.62. (¶35). For example, in Hopkins, the Wisconsin Supreme Court concluded that the “quantity of the crimes” was the “critical factor” and that “neither the time of commission nor the time of conviction is important.” (Id.). Hopkins therefore read the phrase “separate occasions” in the habitual criminality statute to merely to require “that the defendant has been convicted of three prior misdemeanors” because each “conviction” is an “occasion.” (Id.).
As this neighboring statute uses identical language and has been interpreted contrary to Ricketts’s reading, the State invokes multiple canons of construction to compel an identical result here:
- The “related-status canon” which provides that “statutes in the same chapter containing the same subject matter must be considered in pari materia and construed together.” (¶22) (cleaned up).
- The “prior-construction canon, which is an ‘articulation of the principle that when a particular phrase has been given authoritative construction by the courts, it is to be understood according to that construction.'” (¶23).
- The “doctrine of legislative acquiescence” which provides that “[l]egislative inaction following judicial construction of a statute, while not conclusive, evinces legislative approval of the interpretation.” (¶24).
- The “harmonious-reading canon, under which ‘[t]he provisions of a text should be interpreted in a way that renders them compatible, not contradictory.'” (¶25).
COA finds these arguments persuasive and therefore holds that the meaning of “separate occasions” from Wittrock and Hopkins should apply to this identical statutory text. (¶26). These are part of the same statutory scheme (¶27), “share a similar structure and use similar terms[,]” (¶28), and COA “has previously relied upon cases interpreting the general repeater statute when interpreting the domestic abuse repeater statute. (¶29). Moreover, those cases have been on the books since 1984 and 1992 and the legislature has never rejected that reading in the intervening decades. (¶36). Thus, relying on Hopkins and Wittrock, COA holds that “what matters is the quantity of the defendant’s prior domestic abuse crimes, not the time of commission or the time of conviction.” (¶37). Although COA acknowledges Ricketts’s criticisms of those cases in a footnote, they are binding on COA. (Id.).
Having determined that the holdings of Wittrock and Hopkins apply, COA explains why the circuit court was wrong to rely on Rector, which adopted a contrary reading of identical language in the sex offender registration statute. (¶39). In COA’s reading, SCOW was careful to limit its holding to the sex offender registration statute, which it held was not “closely related” to the repeater statute at issue in Wittrock and Hopkins. (¶41). Moreover, SCOW did not overrule either case. (¶42). Accordingly, COA concludes the circuit court was wrong to rely on Rector for two reasons. First, it ignored the crucial distinction that Rector was dealing with a complete different statutory section. (¶43). Second, it also failed to acknowledge that the legislature affirmatively rejected SCOW’s reading of the sex offender registration statute via exceedingly prompt legislative action. (¶45).
Finally, COA also rejects Ricketts’s reliance on a U.S. Supreme Court case, Wooden v. United States, as that case was dealing with a federal statute wholly unrelated to the enhancer at issue here. (¶50).
Accordingly, COA reverses so that the matter can proceed as originally charged. (¶53).