COA: Defendant not entitled to return of property after he was charged with carrying a firearm where alcohol is sold, but charge was dismissed and read in.
State v. Joseph A. Wheat, 2024AP2369-CR, 4/8/26, District II (ineligible for publication); case activity
The COA held that the defendant was not entitled to have his firearm and ammunition returned to him or sold to a third party for his benefit after they were seized by police when he was charged with carrying a handgun where alcohol is sold and consumed. Although the charge was dismissed and read in, the COA considered the defendant admitted to committing the offense when he agreed to have it dismissed and read in.
Joseph Wheat was charged with carrying a handgun where alcohol is sold and consumed, bail jumping, and disorderly conduct. After the charges were dismissed and read in, he filed a petition to allow a gun dealer to purchase the firearm and ammunition that were seized from him by the Fond du Lac Police Department with the proceeds going to Wheat. (¶ 2). The circuit court denied the petition.
Wisconsin Statute § 968.20(1m)(b) states that a dangerous weapon or ammunition that was seized “shall not be returned to any person who committed a crime involving the use of the dangerous weapon or ammunition.” Wheat argued the statute did not prevent selling the firearm and ammunition to the gun dealer because they were not “used” to commit the crime of carrying a handgun where alcohol is sold and consumed, but only “indirectly realized.” (¶ 4). The COA rejected this argument because a person convicted of carrying a handgun were alcohol is sold and consumed “has ‘committed a crime involving the use of the dangerous weapon,’ because ‘the use’ of the dangerous weapon is an indispensable element of a [§ 941.237] offense.’” (¶ 5) (quoting Perez).
The COA disagreed with Wheat’s other argument that selling the firearm to a third party was not prohibited by § 968.20(1m)(b) because he was not convicted of carrying a handgun where alcohol is sold or consumed, but it was only dismissed and read in. Citing its decision in Kueny, the COA concluded that “agreeing to a crime being read in at the time of sentencing constitutes an admission of having committed it.” (¶ 6).
The COA considered its 2006 decision in Kueny binding authority that a person “committed” an offense for purposes of § 968.20(1m)(b) if the offense was dismissed and read in because agreeing to the read-in procedure is an admission of guilt. Whether Kueny remains good law, however, is questionable given SCOW’s 2008 decision in Straszkowski that the read-in process does not require a defendant to admit guilt and its 2016 directive in Sulla that “counsel and courts should refrain from advising defendants that a read-in charge necessitates admitting guilt.”