On Point: Drug offender

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State v. Rogelio Guarnero, 2015 WI 72, 7/9/15, affirming a published court of appeals decision; majority by Roggensack; dissent by Bradley (joined by Abrahamson); case activity (including briefs)

In a decision that is short on analysis and long on Sixth Amendment problems, the supreme court holds that Guarnero’s prior conviction for conspiring to violate the Federal Racketeer Influenced and Corrupt Organizations (RICO) Act was a conviction for a crime “under a statute … relating to controlled substances,” and therefore qualified as a prior offense under the repeat drug offender enhancement provision of § 961.41(3g)(c), because the factual basis for the conviction involved controlled substance offenses.

Review of a published court of appeals decision; case activity: 2013AP1753-CR; 2013AP1754-CR

Issue (composed by On Point)

Does Guarnero’s conviction for violating the Federal Racketeer Influenced and Corrupt Organizations (RICO) Act qualify as a prior offense under the repeat drug offender enhancement provision of § 961.41(3g)(c) because the RICO conviction’s predicate acts involved, among other things, controlled substance offenses, thus making the RICO conviction a conviction for a crime “under a statute … relating to controlled substances”?

State v. Rogelio Guarnero, 2014 WI App 56, petition for review granted 11/14/14, affirmed, 2015 WI 72; case activity: 2013AP1753-CR; 2013AP1754-CR

Guarnero’s conviction for violating the Federal Racketeer Influenced and Corrupt Organizations (RICO) Act was a conviction for a crime “under a statute … relating to controlled substances,” and therefore qualified as a prior offense under the repeat drug offender enhancement provision of § 961.41(3g)(c), because the predicate acts of racketeering involved, among other things, controlled substance offenses.

State v. Paul R. Maxey, 2003 WI App 94
For Maxey: Douglas I. Henderson

Issue/Holding: A sentence may be enhanced by both the general repeater provision of § 939.62(1)(b) (1999-2000) and § the specific repeat drug offender provision of § 961.48(2) (1999-2000), given the rationale of State v. Richard W. Delaney, 2003 WI 9:

¶14. In summary, the law of Wis.

State v. Dawn C. Moline, 229 Wis. 2d 38, 598 N.W.2d 929 (Ct. App. 1999)
For Moline: Patrick M. Donnelly, SPD, Madison Appellate.

Issue/Holding:

By this decision, we hold that a prior conviction for possessing drug paraphernalia pursuant to § 961.573, STATS., qualifies as a prior offense under the repeat drug offender statute, § 961.48(3), STATS. … The statute is meant to include all prior convictions,

State v. Frank Miles, 221 Wis. 2d 56, 584 N.W.2d 703 (Ct. App. 1998)
For Miles: Craig W. Albee

Issue/Holding: Prior drug conviction is not element of crime of second or subsequent drug offense, § 161.48(2) (1993-94), which elevates what would otherwise be misdemeanor to felony possession:

Miles fails to recognize the distinction between the two types of penalty enhancers. The first type of penalty enhancer concerns facts or circumstances related to the underlying crime which alter the substantive nature of the charged offense.