On Point: f. Double jeopardy

State v. Carl Lee McAdory, 2023AP645-CR, 4/12/24, District IV (recommended for publication); petition for review granted 10/7/24 case activity

After McAdory persuaded the court of appeals to reverse his OWI conviction and grant him a new trial, the state pulled the “old switcheroo” on McAdory by getting the circuit court to swap his previously dismissed restricted controlled substance conviction with the OWI conviction overturned by the court of appeals. Instead of a new OWI trial, McAdory was stuck with a new sentence on his previously dismissed RCS conviction. After rejecting McAdory’s challenges to the circuit court’s post-remittitur actions and his double jeopardy claims, the court of appeals affirms.

State v. Douglas J. Richer, 2019AP2024, 5/18/21, District 3 (not recommended for publication); case activity (including briefs)

Douglas Richer was charged in two related cases in two counties; he reached a deal with the state wherein he’d plead to just one count in Eau Claire and there’d be a joint sentencing recommendation. The plea colloquy was a thorough one; Richer expressed dissatisfaction about various aspects of the prosecution but made it very clear that he wanted to plead no-contest. After a number of clarifications the circuit court eventually accepted the plea and found Richer guilty. During sentencing (which was part of the same hearing as the plea), the prosecutor and the court took umbrage at some of Mr. Richer’s statements and, at the state’s suggestion, the court said it was “withdrawing” Richer’s plea. Richer and his counsel objected, both at that hearing and in a later written motion, but to no avail. Richer eventually entered a much less favorable bargain and received a sentence substantially longer than the one the parties had agreed to recommend.

State v. Marshun Dante Jackson, 2019AP2091, 2/17/21, District 3 (not recommended for publication); case activity (including briefs)

Jackson pleaded to being part of a conspiracy to commit fraud (passing bad checks) against a bank in Dunn County. Then he was charged in St. Croix county with committing fraud against a bank there (initially this was also charged as a conspiracy, but ultimately he pleaded to the fraud itself as party to the crime). Both offenses occurred on the same date, and Jackson claims that the dual prosecutions violated both his constitutional right against double jeopardy and a statutory provision forbidding conviction of both conspiracy to commit a crime and the underlying crime itself. The court of appeals rejects both claims, holding that the conspiracy covered by the Dunn County charge didn’t encompass the acts in St. Croix County.

Review of an unpublished per curiam court of appeals decision; case activity (including briefs); petition for review

Issues (composed by On Point)

(1)  Was Steinhardt’s right to be free from double jeopardy violated when she was convicted of both party to the crime of First Degree Child Sexual Assault in violation of § 948.02(1)(e) and Failure to Protect a Child from Sexual Assault in violation of § 948.02(3)?

(2)  Did Steinhardt forfeit her right to raise the double jeopardy issue by pleading no contest to the charges?

(3)  Did Steinhardt’s postconviction motion, which alleged trial counsel was ineffective for failing to advise her about the double jeopardy issue, sufficiently allege that she was prejudiced by trial counsel’s failure?

State v. Douglas J. Lasky, 2002 WI App 126, PFR filed 5/16/02
For Lasky: Eileen A. Hirsch, SPD, Madison Appellate

Issue/Holding: Claim of “statutory double jeopardy,” § 939.71, not barred by guilty plea waiver rule; court therefore may consider merits of whether elements of federal bank robbery conviction are the same, and therefore preclude prosecution of, state armed robbery.

State v. Jimmie Davison, 2002 WI App 109, overruled on other grounds, 2003 WI 89, ¶111
For Davison: Keith A. Findley, UW Law School

Issue/Holding: A guilty plea doesn’t waive a facially valid multiplicity claim. ¶13.

State v. William Koller, 2001 WI App 253, PFR filed
For Koller: Peter M. Koneazny, SPD, Milwaukee Appellate

Issue: Whether multiplicity claims were waived due to lack of objection until after trial. Holding: Although it isn’t necessary to raise a multiplicity challenge before trial, waiver attaches if “also omitted prior to the time the case was submitted to the jury.” ¶40.

The court’s holding seems to be informed by two notions.

State v. Michael Johnson, 2001 WI App 105
For Johnson: David R. Karpe

Issue: Whether defendant’s partially successful trial strategy of defending against two counts of possession of intent to deliver of claiming personal use on one count and denial of any knowledge of the substance in the second count judicially estopped him from arguing on appeal that the two counts are multiplicitous.

Holding:

¶10.