author: SCHUDSON, J.

text:
    Tamara S. Heibler, Petitioner-Appellant, v. Department of Workforce Development, Equal Rights Division, and City of Milwaukee, Board of Fire and Police Commissioners of the City of Milwaukee, Respondents-Respondents.
    Court of Appeals

      No. 01-0794.

      Submitted on briefs November 7, 2001.

    Decided December 18, 2001.

    2002 WI App 21
    (Also reported in 639 N.W.2d 776.)

      On behalf of the petitioner-appellant, the cause was submitted on the briefs of Jeffrey P. Sweetland, of Shneidman, Hawks & Ehlke, S.C., of Milwaukee.
    On behalf of the respondent-respondent, Department of Workforce Development, Equal Rights Division, the cause was submitted on the brief of James E. Doyle, attorney general, and Richard Briles Moriarty, assistant attorney general.
    On behalf of the respondent-respondent, City of Milwaukee and Board of Fire and Police Commissioners of the City of Milwaukee, the cause was submitted on the brief of Grant F. Langley, city attorney, and Ellen H. Tangen, assistant city attorney.
    Before Wedemeyer, PJ., Schudson and Curley, JJ.
   SCHUDSON, J.

¶ 1. Tamara S. Heibler appeals from the circuit court order affirming the decision of the Department of Workforce Development, Equal Rights Division. The Department concluded that the City of Milwaukee had not unlawfully interfered with or restrained the exercise of Heibler's rights, under the Wisconsin Family and Medical Leave Act (WFMLA), by denying her request for a paid day off under the Sick Leave Incentive Program (SLIP) provisions of the collective bargaining agreement governing her employment.

¶ 2. Heibler argues that the City's denial of her request for the paid day off violated Wis. Stat. § 103.10(ll)(a) (1999-2000), which provides: "No person may interfere with, restrain or deny the exercise of any right provided under [WFMLA]." We conclude, however, that Heibler's request was properly denied, based on the terms of her employment under her union's collective bargaining agreement with the City. The denial of Heibler's request, therefore, did not constitute an interference with, restraint of, or denial of her rights under WFMLA. Accordingly, we affirm.

I. BACKGROUND

¶ 3. From May 18 through May 31, 1999, Heibler, a City of Milwaukee police district office assistant, took two weeks (eighty hours) of medical leave for surgery. Pursuant to Wis. Stat. § 103.10(5)(b), she exercised her option to substitute paid sick leave, accrued under her union's collective bargaining agreement with the City, for unpaid medical leave under WFMLA.

¶ 4. On September 22, 1999, Heibler requested a paid day off, for December 28, 1999, under SLIP The City denied Heibler's request because she had used paid sick leave during the applicable trimester, having substituted it for unpaid WFMLA leave.

II. DISCUSSION

¶ 5. Heibler argues that the denial of the SLIP paid day off violated her rights under WFMLA. Our determination of whether an employer's denial of such a request violates WFMLA requires the interpretation and application of the applicable statutes. See Richland Sch. Dist. v. DILHR, 174 Wis. 2d 878, 890, 498 N.W.2d 826 (1993). Although "[t]he interpretation of a statute presents a question of law, and the 'blackletter' rule is that a court is not bound by an agency's interpretation," id., here, because the Department "has gained experience and expertise in interpreting the substitution provision" of Wis. Stat. § 103.10(5)(b), id. at 894, we apply "the 'great weight' standard under which the reviewing court will defer to the agency's interpretation of a statute if its interpretation is reasonable, although an alternative interpretation may also be reasonable," id.

¶ 6. Heibler explains that, under WFMLA, she had three options: (1) take WFMLA leave, unpaid, with no substitution of any paid leave; (2) substitute paid sick leave; or (3) substitute paid vacation. Under the terms of her collective bargaining agreement, if she had substituted paid vacation for unpaid WFMLA leave, her attendance, for purposes of calculating eligibility for SLIP paid time off, would have remained perfect during the applicable trimester and, as a result, she would have been eligible for the requested SLIP paid day off. Because, however, she substituted paid sick leave for unpaid WFMLA leave, her attendance, under SLIP calculations, no longer was perfect and, therefore, she no longer qualified for the requested SLIP paid day off. Heibler maintains, therefore, that her WFMLA rights were violated.

¶ 7. Heibler asserts that Wisconsin courts "have repeatedly held that an employer interferes with WFMLA rights by requiring an employee to substitute vacation rather than sick leave for WFMLA leave." Here, however, the City did not require Heibler to, in her words, "substitute vacation rather than sick leave for WFMLA leave." Therefore, we conclude, the City's denial of Heibler's request for a SLIP paid day off did not violate her WFMLA rights.

¶ 8. Heibler acknowledges that she was not directly or explicitly required to substitute paid vacation, rather than paid sick time, for her unpaid WFMLA medical leave. She maintains, however, that she would effectively have been required to do so in order to preserve her eligibility for the SLIP paid day off. She explains:

Here, of course, the employer does not expressly prohibit the substitution of sick leave. Instead, it tells the employee that she qualifies for an extra benefit, an extra day off with pay, only if she substitutes vacation instead. By conditioning receipt of the extra benefit on the "correct" choice, then, it seeks to obtain by indirect discouragement what it cannot obtain by direct prohibition.

Heibler overstates her case. Explicitly, the City did not "tell[] the employee" anything. Implicitly, however, the City and Heibler's union, having arrived at a collective bargaining agreement governing the terms of Heibler's employment, advised Heibler to know its conditions and to make her choices accordingly. See Gray v. Marinette County, 200 Wis. 2d 426, 436, 546 N.W.2d 553 (Ct. App. 1996) (union is "exclusive bargaining representative for its members"); Krause v. Mass. Bay Ins. Co., 161 Wis. 2d 711, 718, 468 N.W.2d 755 (Ct. App. 1991) (contracting parties are presumed to know applicable statutory and case law in effect at time of contract formation); Wis. Stat. § 111.70 (containing provisions under which collective bargaining agreement at issue in instant case was implemented).

¶ 9. Heibler relies on Wis. Stat. § 103.10(9)(a) which, in relevant part, states:

[N]othing in this section entitles a returning employee to a right, employment benefit or employment position to which the employee would not have been entitled had he or she not taken family leave or medical leave or to the accrual of any seniority or employment benefit during a period of family leave or medical leave.

Heibler maintains that this section must be analyzed by dividing it into two clauses:

[N]othing in this section entitles a returning employee
(1) to a right, employment benefit or employment position to which the employee would not have been entitled had he or she not taken family leave or medical leave
or
(2) to the accrual of any seniority or employment benefit during a period of family leave or medical leave.

The Department does not object to this proposed method of analysis, and also agrees with Heibler that, when she returned from her leave, she was "a returning employee" under the statute. The parties disagree, however, on how clause (1) applies, and whether clause (2) and Wis. Admin. Code § DWD 225.03(4) also encompass her circumstances.

¶ 10. Heibler contends that her circumstances must be analyzed under clause (1). She asserts that if she "had not been absent from May 18 to 31,1999, when she was on medical leave, she would have qualified for a SLIP benefit based on the second trimester of 1999," and, therefore, that proper application of clause (1) would calculate her "entitlement to the SLIP benefit as though she had not been absent from work when she was on medical leave." Thus, she concludes, her leave period should be "simply ignored" in determining whether she qualified for the SLIP paid day off.

¶ 11. The Department agrees that by substituting paid sick leave for unpaid WFMLA leave, Heibler brought herself "squarely within the terms of' clause (1) of Wis. Stat. § 103.10(9)(a). The Department contends, however, that she also brought herself within Wis. Admin. Code § DWD 225.03(4), which provides: "If any other type of leave is substituted for family or medical leave, and any seniority or employment benefit would normally accrue during the taking of that other type of leave, that seniority or employment benefit shall accrue during the taking of that substituted leave." The Department maintains that both clause (2) of § 103.10(9)(a) and § DWD 225.03(4) establish that the denial of Heibler's request for the SLIP paid day off did not interfere with, restrain, or deny her WFMLA rights. On both bases, the Department is correct.

¶ 12. First, under Wis. Admin. Code § DWD 225.03(4), Heibler, having opted to substitute "any other type of leave" (paid sick leave) for unpaid WFMLA leave, remained eligible to accrue "any seniority or employment benefit" that "normally" would have accrued during her leave. The SLIP benefit, however, would not have accrued during Heibler's leave; by the terms of the collective bargaining agreement, she did not qualify for the benefit because she had used paid sick leave during the applicable trimester. While Heibler accurately argues that she would have had to have substituted paid vacation time, rather than paid sick leave, to qualify for the SLIP benefit, she offers nothing, in law or logic, that would expand WFMLA protections to preempt the contractual consequences of her choice.

¶ 13. Second, under Wis. Stat. § 103.10(9)(a), Heibler, returning to work after having substituted paid sick leave for unpaid WFMLA leave, became "a returning employee." Under clause (2) of the statutory provision, she was not entitled "to the accrual of any seniority or employment -benefit" during her period of medical leave. Therefore, Heibler did not qualify for the SLIP paid day off, which would have been available had she not used paid sick time during the applicable trimester.

¶ 14. At this intersection of WFMLA and employment under a collective bargaining agreement, we understand how Heibler may feel that the exercise of her WFMLA rights was restrained. After all, as she accurately argues, in order to qualify for SLIP paid time off, she would have had to substitute paid vacation, rather than paid sick time, for unpaid WFMLA leave. But while such a circumstance may motivate an employee to carefully calculate the contractual consequence of substituting paid vacation or paid sick time for unpaid WFMLA leave, and while that calculation may leave an employee with a dilemma, the contractual consequence is collateral; it does not interfere with, restrain, or deny WFMLA rights.

¶ 15. Indeed, parties negotiating collective bargaining agreements would do well to consider their potential consequences in conjunction with WFMLA. See Richland Sch. Dist., 174 Wis. 2d at 906 ("The school district apparently had opportunity to incorporate provisions into its collective bargaining agreement which would anticipate the effects of [Wis. Stat. §] 103.10(5)(b)."). The employee, attentive to the terms of the collective bargaining agreement, remains free to fully exercise all rights under WFMLA, with consideration of the various options and their consequences under the agreement. See id. at 895 ("When the employer provides leave, the statute does not restrict or limit the employee's power of substitution; the decision to substitute is left to the employe[e]'s discretion.").

¶ 16. Heibler, opting to substitute paid sick leave for unpaid WFMLA leave, preserved her salary, seniority, and benefits, pursuant to Wis. Admin. Code § DWD 225.03(4). But she did not gain "any seniority or employment benefit," including SLIP eligibility for paid time off, which she would have lost by virtue of exercising that option. By exercising that option, Heibler, upon returning to work, became a "returning employee" under Wis. Stat. § 103.10(9)(a) and, under clause (2) of that statute, she was not entitled "to the accrual of any ... employment benefit" that otherwise could have accrued during the period of her absence from work. The operation of the collective bargaining agreement did not interfere with, restrain, or deny Heibler's rights under WFMLA. See Richland Sch. Dist., 174 Wis. 2d at 906 ("[W]hen possible, collective bargaining agreements and statutes governing conditions of employment must be harmonized... .").

By the Court. — Order affirmed.

       The Department of Workforce Development was formerly known as the Department of Industry, Labor and Human Relations. Brauneis v. State, 2000 WI 69, ¶ 9 n.4, 236 Wis. 2d 27, 612 N.W.2d 635. In the instant appeal, the City of Milwaukee City Attorney and the Wisconsin Attorney General each submitted a respondent's brief. In this opinion, however, we will refer to the respondents collectively as "the Department."

       The Sick Leave Incentive Program (SLIP) provides each eligible City employee with up to one eight-hour paid day off if the employee, in addition to satisfying all other prerequisites during the applicable trimester period for each calendar year, "did not use any paid sick leave, did not receive injury pay, was not on an unpaid leave of absence, was not suspended from duty for disciplinary reasons, did not take any unpaid time off the payroll, was not tardy and was not [absent without leave]."

       All references to the Wisconsin Statutes are to the 1999-2000 version unless otherwise noted.

       Wisconsin Stat. § 103.10(5) provides:
      Payment for and restrictions upon leave, (a) This section does not entitle an employee to receive wages or salary while taking family leave or medical leave.
      (b) An employee may substitute, for portions of family leave or medical leave, paid or unpaid leave of any other type provided by the employer.

       Although Heibler's medical leave occurred during the year's second trimester, and the denied request was for a day during the year's third trimester, she does not argue that the denial was based on any miscalculation of the applicable trimester. According to the stipulated facts submitted to the administrative law judge (ALJ), Heibler's request was based on her attendance during the second trimester.

       In support of this assertion, Heibler invokes Aurora Medical Group v. DWD, 2000 WI 70, 236 Wis. 2d 1, 612 N.W.2d 646, Miller Brewing Co. v. DILHR, 210 Wis. 2d 26, 563 N.W.2d 460 (1997), and Richland School District v. DILHR, 174 Wis. 2d 878, 498 N.W.2d 826 (1993). As we will discuss, Richland School District casts some light on this controversy. There, one of the issues the supreme court considered was whether Wis. Stat. § 103.10(5)(b) "allows an employe[e] to substitute paid leave accumulated under a collective bargaining agreement for unpaid family leave authorized by [W1FMLA, when the employed] has not met the conditions of leave eligibility set forth in the collective bargaining agreement." Richland Sch. Dist., 174 Wis. 2d at 887.
      The other two cases, however, provide little guidance; their issues were wholly distinguishable from that of the instant appeal. In Miller Brewing, the issue was whether WFMLA was preempted by § 301 of the federal Labor Management Relations Act. Miller Brewing Co., 210 Wis. 2d at 28-29. In Aurora Medical Group, the issue was whether WFMLA was preempted by § 514(a) of the federal Employee Retirement Income Security Act. Aurora Med. Group, 2000 WI 70 at ¶ 1.

       Heibler also argues that no published court decision or departmental regulation has interpreted clause (1), so our review of this issue must be de novo. The Department responds that we must accord its interpretations of Wis. Stat. § 103.10(9)(a) and Wis. Admin. Code § DWD 225.03(4) "great weight" deference. Here, because, under either standard, we reject Heibler's interpretation of clause (1), and because we do not decide this case solely under that clause, we need not address Heibler's argument regarding the standard of review that would apply to an agency interpretation of clause (1), alone.

       Heibler also invokes the portion of the federal Family and Medical Leave Act (FFMLA) that she characterizes as paralleling Wis. Stat. § 103.10(9)(a). See 29 U.S.C. § 2614(a)(3) (2000). She asserts that "cases construing WFMLA are in complete accord" with the United States Department of Labor's stance that employers are prohibited from discriminating against employees who have used FFMLA leave.
      Heibler, however, offers no additional theory, under federal law, to strengthen the argument she has presented under state law. Citing federal regulations for the proposition that an employee "may not be disqualified" from a perfect-attendance bonus "for the taking of [F]FMLA leave," see 29 C.F.R. §§ 825.215(c)(2), 825.220(a)(1), (b), (c), Heibler continues to misconstrue what occurred. The City did not disqualify her from taking a SLIP paid day off because she took medical leave. It did so because Heibler's decision to substitute paid sick time for unpaid WFMLA leave, while benefiting her in some ways, also left her ineligible for the requested SLIP paid day off, under the terms of the collective bargaining agreement.

       Heibler also argues that the evidence does not support the Department's "finding" that her exercise of WFMLA rights "played no part in the application of the collectively bargained Sick Leave Incentive Program to her." The case was submitted to the ALJ on stipulated facts, and the quoted statement, in isolation, might seem to be a less-than-artful summary of the parties' understanding of those facts. In context, however, the statement, intertwined with the ALJ's legal conclusion, correctly separates the impact of the collective bargaining agreement from Heibler's exercise of WFMLA rights.


source: Caselaw Access Project

author: CANE, C.J.

license: Public Domain

text:
    State of Wisconsin, Plaintiff-Respondent, v. Jacob E. Herman, Defendant-Appellant.

    Court of Appeals

      No. 01-1118-CR.

      Submitted on briefs October 15,

      Decided December 18, 2001.

    2002 WI App 28
    (Also reported in 640 N.W.2d 539.)

      On behalf of the defendant-appellant, the cause was submitted on the briefs of Jefren E. Olsen, assistant state public defender, and Jack E. Schairer, assistant state public defender.
    On behalf of the plaintiff-respondent, the cause was submitted on the brief of James E. Doyle, attorney general, and James C. Babler, district attorney.
    Before Cane, C.J., Hoover, PJ., and Peterson, J.

       Petition to review denied 4-22-02.

       On April 8, 2001, this court granted Jacob Herman's motion for a three-judge panel, which the State did not oppose. See Wis. Stat. Rule 809.41(3). All statutory references are to the 1999-2000 version unless otherwise noted.

   CANE, C.J.

¶ 1. Jacob Herman appeals from the sentencing portion of a judgment convicting him of possession of THC contrary to Wis. Stat. § 961.41(3g)(e). The circuit court suspended Herman's operating privilege for six months after concluding that it had no discretion to impose less than the minimum suspension mandated by Wis. Stat. § 961.50, which applies to those who are convicted of violating Wis. Stat. ch. 961. This appeal presents a single issue: whether § 961.50 prescribes a "minimum sentence" as that term is used in Wis. Stat. § 961.438, which provides that minimum sentences for violations of ch. 961 are presumptive, rather than mandatory. We conclude that a suspension imposed pursuant to § 961.50 is not a "minimum sentence" as that term is used in § 961.438 and that it is a mandatory penalty. Accordingly, we affirm the judgment.

Statement of Facts

¶ 2. The facts are undisputed. Herman pled guilty to misdemeanor possession of THC. Prior to sentencing, Herman asked the circuit court not to impose the minimum six-month suspension of operating privileges dictated by Wis. Stat. § 961.50. Herman asserted that the suspension was not warranted because he was not driving at the time of his offense and he needs his car for employment. Herman argued that the court had discretion to suspend his operating privilege for less than six months because the § 961.50 suspension is presumptive rather than mandatory, pursuant to Wis. Stat. § 961.438.

¶ 3. The court withheld sentence and placed Herman on probation for one year. However, the court also suspended Herman's operating privilege for six months after concluding that it had no discretion to impose less than the six-month suspension dictated by Wis. Stat. § 961.50. The court agreed that if it had discretion to impose a shorter suspension, it would consider doing so. This appeal followed.

Applicable Statutes

¶ 4. Two statutes are at issue in this case. The first, Wis. Stat. § 961.438, provides:

Minimum sentence. Any minimum sentence under this chapter is a presumptive minimum sentence. Except as provided in s. 973.09(l)(d),[] the court may impose a sentence that is less than the presumptive minimum sentence or may place the person on probation only if it finds that the best interests of the community will be served and the public will not be harmed and if it places its reasons on the record.

¶ 5. The second statute, Wis. Stat. § 961.50, provides:

Suspension or revocation of operating privilege. (1) If a person is convicted of any violation of this chapter, the court shall, in addition to any other penalties that may apply to the crime, suspend the person's operating privilege, as defined in s. 340.01(40), for not less than 6 months nor more than 5 years. The court shall immediately take possession of any suspended license and forward it to the department of transportation together with the record of conviction and notice of the suspension. The person is eligible for an occupational license under s. 343.10 as follows:
(a) For the first such conviction, at any time.
(b) For a 2nd conviction within a 5-year period, after the first 60 days of the suspension or revocation period.
(c) For a 3rd or subsequent conviction within a 5-year period, after the first 90 days of the suspension or revocation period.
(2) For purposes of counting the number of convictions under sub. (1), convictions under the law of a federally recognized American Indian tribe or band in this state, federal law or the law of another jurisdiction, as defined in s. 343.32(lm)(a), for any offense therein which, if the person had committed the offense in this state and been convicted of the offense under the laws of this state, would have required suspension or revocation of such person's operating privilege under this section, shall be counted and given the effect specified under sub. (1). The 5-year period under this section shall be measured from the dates of the violations which resulted in the convictions.
(3) If the person's license or operating privilege is currently suspended or revoked or the person does not currently possess a valid operator's license issued under ch. 343, the suspension or revocation under this section is effective on the date on which the person is first eligible and applies for issuance, renewal or reinstatement of an operator's license under ch. 343.

Legal Standards

¶ 6. Resolution of this issue requires construction of Wis. Stat. §§ 961.50 and 961.438, an issue of law that we review independently. See State v. Schmitt, 145 Wis. 2d 724, 729-30, 429 N.W.2d 518 (Ct. App. 1988). The aim of all statutory construction is to ascertain the legislature's intent. Kerkvliet v. Kerkvliet, 166 Wis. 2d 930, 939, 480 N.W.2d 823 (Ct. App. 1992). In determining that intent, we first consider the statutory language. Id. We also bear in mind that statutes relating to the same subject matter should be read together and harmonized if possible. See id.

¶ 7. A statute is ambiguous when it is capable of being understood in two or more different senses by reasonably well-informed persons. State v. Setagord, 211 Wis. 2d 397, 406, 565 N.W.2d 506 (1997). If a statute is ambiguous, we look to the scope, history, context, subject matter and object of the statute in order to ascertain legislative intent. Id. Whether a statute is ambiguous is a question of law. Awve v. Physicians Ins. Co., 181 Wis. 2d 815, 822, 512 N.W.2d 216 (Ct. App. 1994).

Discussion

¶ 8. At issue is whether a suspension imposed pursuant to Wis. Stat. § 961.50 constitutes a "minimum sentence" as that term is used in Wis. Stat. § 961.438. If a suspension is a "minimum sentence" under § 961.438, then it would be presumptive, rather than mandatory. We conclude that § 961.50 suspensions are not "minimum sentences" subject to § 961.438 and that they are mandatory.

¶ 9. As Herman recognizes, the term "sentence" is not defined in Wis. Stat. § 961.438 or anywhere else in Wis. Stat. ch. 961. Nor has case law construed the term "sentence" as used in § 961.438, except in cases acknowledging that it applies to incarceration. See, e.g., State v. Mohr, 201 Wis. 2d 693, 696, 701, 549 N.W.2d 497 (Ct. App. 1996) (citing § 161.438 (1993-94), now renumbered Wis. Stat. § 961.438, court states that law presumes defendant, convicted of violating 161.41(lm)(cm)2 (1993-94), will be sentenced to at least two years in prison unless the defendant convinces the court that the best interests of the community would be served and the public would not be harmed by probation or a lesser sentence).

¶ 10. Nonetheless, case law has generally defined "sentence" as "the judgment of conviction by which the court imposes the punishment or penalty provided by the statute for the offense" upon the person being found guilty. See State v. Price, 231 Wis. 2d 229, 232, 604 N.W.2d 898 (Ct. App. 1999). Price also recognized that, in appropriate cases, the terms "sentence" and "sentencing" will be given their stricter legal meaning if the statute or law so requires. See id. "[W]hether a 'sentence' will be construed in a narrow or broad fashion depends on the purpose of the particular statute under consideration." Id. at 234.

¶ 11. Herman argues that the term "minimum sentence" in Wis. Stat. § 961.438 is ambiguous because it is capable of being understood in two or more different senses by reasonably well-informed persons. He contends the term can be construed narrowly to cover only the minimum terms of imprisonment and minimum fines prescribed in Wis. Stat. ch. 961. In the alternative, it can be construed broadly to cover all "penalties and punishments" provided in ch. 961 and imposed in the judgment of conviction, including the suspension of operating privileges under Wis. Stat. § 961.50. We agree that § 961.438 is, on its face, ambiguous.

¶ 12. However, we conclude that Wis. Stat. § 961.50 is not, on its face, ambiguous. First, § 961.50(1) provides that the penalty imposed is an additional penalty, above and beyond other penalties in Wis. Stat. ch. 961. The statute states, "the court shall, in addition to any other penalties that may apply to the crime, suspend the person's operating privilege.. . (emphasis added). See Karow v. Milwaukee County Civil Serv. Comm'n, 82 Wis. 2d 565, 570, 263 N.W.2d 214 (1978) (use of the word "shall" creates a presumption that the statute is mandatory). Moreover, there is no explicit attempt to incorporate Wis. Stat. § 961.438 in the statute, which arguably shows a lack of intent to apply § 961.438 to § 961.50.

¶ 13. Also, Wis. Stat. § 961.50 does not anticipate that an offender will receive a suspension of less than six months, or no suspension at all. The statute provides that the circuit court "shall immediately take possession of any suspended license." The statute also lays out a specific timeline for seeking an occupational license. This specificity does not contemplate that a person's operating privilege may have been suspended for less than six months, or not at all.

¶ 14. Although we have concluded that Wis. Stat. § 961.50 is unambiguous on its face, we recognize that a statute that is plain on its face may be rendered ambiguous by the context in which it is sought to be applied. See Weinberger v. Bowen, 2000 WI App 264, ¶ 13, 240 Wis. 2d 55, 622 N.W.2d 471. We conclude that the interaction of Wis. Stat. § 961.438 and § 961.50 does create an ambiguity. Although § 961.50 suggests that suspension of operating privileges is mandatory, other statutes in Wis. Stat. ch. 961 to which § 961.438 undisputedly applies — those involving incarceration— contain similar mandatory language and no references to § 961.438. See, e.g., Wis. Stat. § 961.41(l)(cm)(2) (defendant "shall be imprisoned for not less than one year nor more than 22 years and 6 months.").

¶ 15. Because we have concluded that the interaction of Wis. Stat. §§ 961.438 and 961.50 creates an ambiguity we must examine the scope, history, context, subject matter and object of the statutes in order to ascertain legislative intent. See Setagord, 211 Wis. 2d at 405-06. We begin with § 961.438, which was originally enacted as Wis. Stat. § 161.438 and renumbered in 1995.

¶ 16. Mandatory minimum sentences disappeared from Wisconsin's statutes in 1971 and were resurrected in the form of "presumptive" minimums. See Mohr, 201 Wis. 2d at 699; Laws of 1971, ch. 219 (repealing Wis. Stat. § 161.28 (1969); 1989 Wis. Act 121 § 53m (creating Wis. Stat. § 161.438 (1989-90)). Section 161.438 was created during a special session of the legislature that addressed legislation developed by the Assembly Special Committee on Drug Enforcement, Education and Treatment. Our review of the Legislative Reference Bureau drafting files does not illuminate the legislative intent regarding the meaning of "minimum sentence."

¶ 17. Wisconsin Stat. § 161.438, now renumbered § 961.438, appears in Wis. Stat. ch. 961, the Uniform Controlled Substances Act. The Act addresses the manufacture, distribution, delivery, possession and use of controlled substances, providing substantial penalties for those who traffic controlled substances. See Wis. Stat. § 961.001. However, penalties for those who are addicted to or experiment with controlled substances focus on treatment and rehabilitation. See id. Section 961.438 provides a blanket exception to the imposition of mandatory sentences, allowing courts to impose less than presumptive mínimums if the best interests of the community would be served and the public would not be harmed by probation or a lesser sentence.

¶ 18. Although our examination of the scope, history, context, subject matter and object of Wis. Stat. § 961.438 satisfies us that the statute was intended to make sentences of incarceration presumptive rather than mandatory, it sheds little light on the issue presented here: whether § 961.438 was also intended to apply to subsequently passed legislation on operating privilege suspensions.

¶ 19. However, our examination of the scope, history, context, subject matter and object of Wis. Stat. § 961.50 is more illuminating. Originally numbered § 161.50, the statute was created in 1991 in response to federal legislation requiring states to revoke operators' licenses for drug offenses or suffer the loss of federal highway funds. In a 1990 memorandum to the Legislative Reference Bureau, the Department of Administration explained:

The recently passed Federal Transportation Appropriations Bill (Public Law 101-516, section 333 signed by President Bush on November 5, 1990) contains a provision encouraging individual states to enact legislation to revoke, for at least six months, the driver's license of any individual convicted of a drug offense. With some exceptions, there is a penalty for failure to comply with this provision.

¶ 20. The federal legislation provided that a state would satisfy the federal requirements if:

(A) the State has enacted and is enforcing a law that requires in all circumstances, or requires in the absence of compelling circumstances warranting an exception—
(i) the revocation, or suspension for at least 6 months, of the driver's license of any individual who is convicted, after the enactment of such law, of—
(I) any violation of the Controlled Substances Act, or
(II) any drug offense, and
(ii) a delay in the issuance or reinstatement of a driver's license to such an individual for at least 6 months after the individual applies for the issuance or reinstatement of a driver's license if the individual does not have a driver's license, or the driver's license of the individual is suspended, at the time the individual is so convicted. []

See Pub. L. No. 101-516, § 333, amending 23 U.S.C. § 104.

¶ 21. In August 1991, Wisconsin passed 1991 Wis. Act 39, the budget bill, which included the creation of Wis. Stat. § 161.50, providing in relevant part:

(1) If a person is convicted of any violation of this chapter, the court shall, in addition to any other penalties that may apply to the crime, suspend the person's operating privilege, as defined in s. 340.01 (40), for not less than 6 months nor more than 5 years. The court shall immediately take possession of any suspended license and forward it to the department of transportation together with the record of conviction and notice of the suspension or revocation. If required by s. 345.54(1), the court shall impose an automatic reinstatement assessment of $50. The person is eligible for an occupational license under s. 343.10 as follows:
(a) For the first such conviction, at any time.
(b) For a 2nd conviction within a 5-year period, after the first 60 days of the suspension or revocation period.
(c) For a 3rd or subsequent conviction within a 5-year period, after the first 90 days of the suspension or revocation period.

See 1991 Wis. Act 39, § 2703.

¶ 22. Wisconsin Stat. § 161.50, now renumbered Wis. Stat. § 961.50, is consistent with the requirements of the federal legislation. Specifically, § 961.50(1) indicates that the legislature chose to make suspensions applicable in all cases. Pursuant to the federal legislation, states had the opportunity to require suspensions "in all circumstances," or to require suspensions "in the absence of compelling circumstances warranting an exception." See Pub. L. No. 101-516, § 333(A). Nothing in § 961.50(1) suggests that the legislature elected to require suspensions "in the absence of compelling circumstances warranting an exception." We conclude that the lack of a reference to "compelling circumstances" shows that the legislature intended to select the option of requiring suspensions "in all circumstances."

¶ 23. Herman disagrees, arguing that the legislature intended to select the option of suspending licenses only in the "absence of compelling circumstances." See Public Law 101-516 § 333(A). Under Herman's theory, the legislature knew that Wis. Stat. § 961.438 would apply, and therefore it did not use the language "compelling circumstances" in § 961.50 and did not refer to Wis. Stat. § 961.438. We reject this argument. It would be unreasonable for the legislature to assume that courts would automatically (1) consider the penalties of § 961.50 to be "minimum sentences" subject to § 961.438, and (2) conclude that the need to establish an "absence of compelling circumstances" would be satisfied by a trial court's determination "that the best interests of the community will be served and the public will not he harmed and if it places its reasons on the record." See Wis. Stat. § 961.438.

¶ 24. We conclude that the penalty outlined in Wis. Stat. § 961.50 was not intended to constitute a "minimum sentence" under Wis. Stat. § 961.438. Section 961.50 provides a mandatory penalty that the circuit court had no discretion to disregard. Therefore, the court correctly rejected Herman's request to impose a suspension of less than six months.

By the Court. — Judgment affirmed.

       Both statutes were originally part of Wis. Stat. ch. 161, which was renumbered ch. 961 in 1995. See 1995 Wis. Act 448 §§ 106-323. For purposes of this opinion, we will refer to the statutes as part of ch. 961 except where it is necessary to specify a statute as it existed prior to 1995.

       WISCONSIN Stat. § 973.09(l)(d) provides in part:
      If a person is convicted of an offense that provides a mandatory or presumptive minimum period of one year or less of imprisonment, a court may place the person on probation under par. (a) if the court requires, as a condition of probation, that the person he confined under sub. (4) for at least that mandatory or presumptive minimum period.

       As previously noted, the term "sentence" in Wis. Stat. § 961.438 has only been interpreted in passing, such as in State v. Mohr, 201 Wis. 2d 693, 701, 549 N.W.2d 497 (Ct. App. 1996), where the court assumed that the term "sentence" in § 961.438 includes incarceration. The parties do not dispute that § 961.438 includes incarceration. Because resolution of this appeal requires us to determine only whether "sentence" also includes suspensions pursuant to Wis. Stat. § 961.50, we do not address what other penalties in Wis. Stat. ch. 961, e.g., fines, may fall within the definition of "sentence." See Clark v. Waupaca County Bd. of Adj., 186 Wis. 2d 300, 304, 519 N.W.2d 782 (Ct. App. 1994) (we need only address dispositive issues and decide the matter on the narrowest ground).

       The legislation also provided that a state could instead object to passing legislation by passing a resolution. Because the Wisconsin Legislature chose to enact the legislation, this option is not relevant to this appeal.

       The most current version of this federal law is located at 23 U.S.C. § 159.

       WISCONSIN Stat. § 161.50 as it was originally enacted did not, however, contain a provision addressing cases where the individual lacks a valid driver's license at the time of the offense, as required by Pub. L. No. 101-516, § 333(A)(ii). This provision was added to Wis. Stat. § 161.50 in 1993. See 1993 Wis. Act 480.


author: NETTESHEIM, EJ.

text:
    State of Wisconsin, Plaintiff-Respondent, v. Charles J. Burroughs, Defendant-Appellant.

    Court of Appeals

      No. 01-0738-CR.

      Submitted on briefs November 20,

      Decided December 19, 2001.

    2002 WI App 18
    (Also reported in 640 N.W.2d 190.)

      Before Nettesheim, EJ., Brown and Anderson, JJ.

       Petition to review denied 4-22-02.

   NETTESHEIM, EJ.

¶ 1. Charles J. Burroughs appeals from a judgment of conviction for kidnapping and attempted first-degree sexual assault with the use of a dangerous weapon contrary to Wis. Stat. §§ 940.31(l)(b) and 940.225(l)(b), as a habitual criminal pursuant to Wis. Stat. § 939.62(2) (1999-2000). Burroughs additionally appeals his life sentence without possibility of parole pursuant to the "persistent repeater" statute or "three strikes" law, § 939.62(2m)(b), (c), and the trial court's order denying his motion for postconviction relief.

¶ 2. Burroughs raises three arguments on appeal. First, Burroughs challenges the sufficiency of the evidence on the "confinement" element of the kidnapping charge. We reject Burroughs' argument. We conclude there was sufficient evidence that Burroughs confined his victim, Sharon B., by depriving her of freedom of movement and compelling her to remain where she did not wish to remain.

¶ 3. Burroughs' second and third challenges pertain to his sentence of life without the possibility of parole as a "persistent repeater" under the "three strikes" law, Wis. Stat. § 939.62(2m)(c). Specifically, Burroughs challenges the use of his conviction in 1975 in the state of Alabama for "assault with intent to murder" as one of the prior "serious felony" convictions pursuant to § 939.62(2m)(b)l. Burroughs contends the Alabama conviction was not "comparable" to any "serious felony" set out in Wisconsin law as required by § 939.62(2m)(d). Burroughs further contends that there is insufficient evidence to demonstrate that his plea underlying the Alabama conviction was entered freely and voluntarily. We reject Burroughs' arguments on this issue. We conclude that Burroughs' prior conviction is comparable to the Wisconsin felony of attempted murder and that, pursuant to State v. Hahn, 2000 WI 118, 238 Wis. 2d 889, 618 N.W.2d 528, reconsideration denied, 2001 WI 15, 241 Wis. 2d 214, 626 N.W.2d 810 (Feb. 7), opinion clarified, 2001 WI 6, 241 Wis. 2d 85, 621 N.W.2d 902 (Feb. 9) (No. 99-0554-CR), the trial court need not determine whether Burroughs' plea was entered freely or voluntarily because Burroughs was represented by counsel. We therefore conclude that Burroughs' Alabama conviction provided a proper basis for the repeater portion of his conviction.

¶ 4. We affirm the judgment of conviction and the order denying Burroughs' motion for postconviction relief.

FACTS

¶ 5. The evidence at the jury trial established the following facts. The crimes charged against Burroughs occurred during the early morning hours of February 10, 1996. The victim, Sharon B., had met Burroughs prior to that date through her cousin, Lisa. Sharon understood Burroughs to be Lisa's boyfriend. On February 9, Sharon's aunt called her to inform her that Lisa was missing and to ask if Sharon would help Burroughs look for Lisa. Sharon agreed and accompanied Burroughs to two bars and an apartment where he believed Lisa might be hanging out. Their search was unsuccessful and Burroughs returned Sharon to her residence. At that time, Burroughs asked Sharon if he could call her if he found Lisa so that Sharon could accompany him to bring her home. Sharon agreed, knowing that Lisa would be more likely to come home if she were present.

¶ 6. At some point in the early morning of February 10, 1996, Burroughs returned to Sharon's residence, blowing his car horn. Sharon approached the vehicle and Burroughs indicated that he had found Lisa. Sharon got into Burroughs' car and he drove to a bar. Burroughs went into the bar and returned shortly. Sharon asked where Lisa was and Burroughs took her to another residence, indicating that he needed to make another phone call. Sharon stated that she would wait in the car. However, when Burroughs reminded her that they were in a bad neighborhood, Sharon agreed to accompany him into the residence.

¶ 7. Before entering an apartment in the residence, Burroughs had to unlock the main door of the residence and the apartment door using keys. Once inside the apartment, he attempted to make a phone call while Sharon took a seat in a chair by the door. Burroughs closed the curtains, stating that there were "nosey people" outside. Burroughs then turned to Sharon, asking her why she was shaking. He said, "[I]f you tell me .. . what happen[ed] to you I can let you go." Burroughs began to hug Sharon and then raised his fists saying, "[Y]ou know what you gotta do." Sharon backed up to the middle of the room and Burroughs instructed her to take her clothes off. Sharon refused until Burroughs reached behind his back and threatened to shoot her. Believing Burroughs had a gun behind his back, Sharon then took off everything but her bra.

¶ 8. Burroughs then told Sharon to sit on a small cot in a different, smaller room. Sharon refused until Burroughs said, "I'm not playing with you, sit. . . down." Next, Burroughs ordered Sharon to lie down. She did so, and he proceeded to lie down next to her. Sharon testified that she was very upset at this point and "everytime [she] would try to raise up he would pull [her] down." Sharon cried for help and Burroughs told her to "shut up." Burroughs then said to Sharon that she would have to "give him some." Sharon understood this to mean that she would have to have sexual contact with Burroughs. Sharon then told Burroughs that she needed to go to the bathroom. Burroughs initially told her she did not need to go but then stood up and guided her to the bathroom. Burroughs stood over Sharon while she used the bathroom. When Sharon finished she tried to exit the bathroom toward a light from outside, but Burroughs guided her back into the bedroom. Once in the bedroom, Burroughs stood at the door facing her and told her to get back on the bed. When Burroughs started to take off his pants, Sharon was able to run past him. She ran screaming to the door of the separate apartment and then to the door of the house, which she had to unlock before exiting. Sharon received assistance from two people in a car she approached on the street, who later called the police.

¶ 9. The State filed a criminal complaint against Burroughs alleging attempted first-degree sexual assault as a repeat offender. Following a bindover at the preliminary hearing, the State filed an information again alleging attempted first-degree sexual assault but adding a charge of kidnapping as a persistent repeat offender. As to kidnapping, the information alleged that Burroughs confined Sharon without her consent and with intent to cause her to be held secretly against her will. However, in an amended information, the State eliminated the secrecy allegation and instead alleged that Burroughs confined Sharon without her consent and with intent to cause her to be held to service against her will pursuant to Wis. Stat. § 940.31(l)(b).

¶ 10. Burroughs' first jury trial commenced in April 1998. The jury found Burroughs guilty of both offenses. Prior to sentencing, the trial court found that Burroughs' 1975 conviction for "assault with intent to murder" in Alabama was comparable to the Wisconsin felony of attempted first-degree intentional homicide. Therefore, Burroughs was subject to increased penalties under Wisconsin's "three strikes" law, Wis. Stat. § 939.62(2m)(b), (c), and the court sentenced Burroughs to life in prison without parole.

¶ 11. Burroughs filed a motion for a new trial on August 10, 1999, arguing, among other things, that certain testimony from his ex-wife was erroneously admitted at the jury trial. The trial court granted his motion and the matter proceeded to a second jury trial in February 2000. The jury convicted Burroughs, and he was again sentenced to life in prison without possibility of parole.

¶ 12. Burroughs filed a motion for postconviction relief on October 13, 2000, in which he renewed his argument that the Alabama conviction was not comparable to a Wisconsin offense and, therefore, could not be used as a basis for a repeater allegation. The trial court denied the motion, and Burroughs appeals.

DISCUSSION

Sufficiency of Evidence as to Confinement

¶ 13. Burroughs first argues that the evidence was insufficient to support a conviction of kidnapping. Specifically, he contends that there, was insufficient evidence at trial to satisfy the "confinement" element of Wis. Stat. § 940.31(l)(b).

¶ 14. In determining whether the evidence is sufficient to support a conviction, we bear in mind that the burden of proof at trial is upon the State to prove every essential element of the crime charged beyond a reasonable doubt. State v. Hamilton, 120 Wis. 2d 532, 540, 356 N.W.2d 169 (1984). "The test is not whether this court or any member is convinced of the guilt of the defendant beyond a reasonable doubt but whether this court can conclude that a trier of facts could, acting reasonably, be convinced to the required degree of certitude by the evidence which it had a right to believe and accept as true." Id. at 540 — 41. In reviewing the record, we view the evidence in the light most favorable to sustaining the conviction. Id. "Reasonable inferences drawn from the evidence can be used to support a conviction; if more than one reasonable inference can be drawn from the evidence, the inference which supports the conviction is the one that the reviewing court must adopt." Id.

¶ 15. As relevant to this case, Wisconsin's kidnapping statute, Wis. Stat. § 940.31, states:

(1) Whoever does any of the following is guilty of a Class B felony:
(b) By force or threat of imminent force . .. confines another without his or her consent and with intent to cause him or her to be ... held to service against his or her will[.] (Emphasis added.)

The amended information echoed this statutory language. It alleged that Burroughs:

as a persistent repeat offender, by force or threat of imminent force [confined] another without her consent and with intent to cause her to be held to service against her will. (Emphasis added.)

¶ 16. Thus, in this case, the State was required to prove that Burroughs forcibly confined Sharon without her consent and with the intent that she be held to service against her will. Wis. Stat. § 940.31(l)(b); Wis JI — CRIMINAL 1281. Burroughs does not dispute that Sharon was held to service against her will. However, he contends that the evidence does not sufficiently demonstrate that Sharon was confined within the meaning of the kidnapping statute.

¶ 17. Before we can address the sufficiency of the evidence to support the confinement element of kidnapping, we must define the term. We note at the outset that neither Wis. Stat. § 940.31(l)(b), Wis JI — Criminal 1281, nor any reported Wisconsin decision has defined the term "confine" for purposes of the kidnapping statute. The State argues that the meaning of the term in the context of the kidnapping statute is plain and unambiguous and therefore the State offers a conventional dictionary definition. Burroughs disputes this, but offers no alternative definition. In addition to the parties' arguments, we have examined and considered the definition used by other jurisdictions for purposes of their kidnapping statutes.

¶ 18. However, in the final analysis, we conclude that the answer lies in our own Wisconsin case law that has defined the term "confine" for purposes of Wis. S-tat. § 940.30, the false imprisonment statute. This statute reads, "Whoever intentionally confines or restrains another without the person's consent and with knowledge that he or she has no lawful authority to do so is guilty of a Class E felony." Id. (emphasis added). The courts have held that false imprisonment, or confinement, is the "intentional, unlawful, and uncon-sented restraint by one person of the physical liberty of another." Herbst v. Wuennenberg, 83 Wis. 2d 768, 774, 266 N.W.2d 391 (1978). In addition, the Wisconsin jury instruction for false imprisonment, Wis JI — Criminal 1275, provides in relevant part:

The first element [of § 940.30] requires that the defendant confined or restrained (name of victim). Although this requires genuine restraint or confinement, it does not require that it be in a jail or prison. If the defendant deprived (name of victim) of freedom of movement, or compelled him to remain where he did not wish to remain, then (name of victim) was confined or restrained. The use of physical force is not required. One may be confined or restrained by acts or words or both. (Emphasis added, footnotes omitted.)

¶ 19. We view the false imprisonment statute as a cousin to Wis. Stat. § 940.31(1), the kidnapping statute. At the core, both offenses require nonconsensual and intentional confinement. However, kidnapping also requires certain accompanying circumstances: force or threat of force together with secret confinement, secret imprisonment, asportation out of this state, or holding for service against the victim's will. Id. We therefore are satisfied that the definition of "confine" as set forth in Wis JI — Criminal 1275 is also appropriate for cases alleging kidnapping pursuant to § 940.31. We now evaluate Burroughs' evidentiary challenge in light of this definition.

¶ 20. Burroughs contends that Sharon entered the apartment voluntarily, that she was not bodily constrained and that the door had not been barred. He also contends that the apartment was on a first floor and that Sharon could have jumped out a window without sustaining major injuries. Based on this lack of physical confinement and a potential for escape, Burroughs contends that Sharon was not sufficiently confined. We disagree. Physical force is not essential to a finding of confinement. Wis JI — Criminal 1275. Nor are we persuaded that the presence of an opportunity to escape requires the victim to take that risk, and we know of no law that so holds.

¶ 21. Sharon testified that Burroughs took her to a strange apartment under the guise of locating her missing cousin. Once there, he raised his fists at her and threatened to shoot her if she did not take off her clothes. When Sharon headed for the door of the apartment, Burroughs guided her to a bedroom. He made her lie down on a cot and told her what she would have to do for him before leaving. Finally, Burroughs accompanied her and stood over her while she used the bathroom. Despite efforts to head toward the door and cry for help, Sharon was not able to leave the apartment until Burroughs' ability to stop her was hampered in taking off his pants.

¶ 22. Based on the evidence presented at trial, we conclude that a reasonable jury could find that Burroughs confined Sharon by depriving her of her freedom of movement and compelling her to remain where she did not wish to remain. We therefore uphold the jury's conviction.

Application of the "Three Strikes" Law, Wis. Stat. § 939.62

1. Comparability of Wisconsin and Alabama Statutes

¶ 23. Burroughs next challenges the trial court's application of the "three strikes" law, Wis. Stat. § 939.62(2m)(c), which provides for an increased penalty for "persistent repeaters." Burroughs argues that in imposing the increased penalty, the trial court erroneously relied upon a 1975 conviction in Alabama for "assault with intent to murder."

¶ 24. Pursuant to Wis. Stat. § 939.62(2m)(b)l, an actor is a persistent repeater if "[t]he actor has been convicted of a serious felony on 2 or more separate occasions at any time preceding the serious felony for which he or she presently is being sentenced under ch. 973, which convictions remain of record and unre-versed. ..." A "serious felony" is defined by § 939.62(2m)(a)2m and includes "[a] crime at any time under .. . the law of any other state ... that is compa-rabie to a crime specified in subd. 2m. a., b. or c." Sec. 939.62(2m)(a)2m.d. Subparagraph (2m)(a)2m.c includes the attempt to commit a Class A felony such as first-degree intentional homicide contrary to Wis. Stat. § 940.01. The trial court found that Burroughs' conviction for "assault with intent to murder" was comparable to Wisconsin's attempted first-degree intentional homicide statute. Burroughs challenges the trial court's finding of comparability.

¶ 25. At the time of Burroughs' Alabama conviction, Title 14, Section 38 of the Alabama Code (1958) governed Assault with Intent to Murder. It covered "[a]ny person who commits an assault on another, with intent to murder. ..." Based on the language of the statute and the accompanying Alabama jury instruction, we conclude that the elements of this offense were (1) that a person committed an assault on another and (2) that person had the intent, "unlawfully and maliciously to kill the person assaulted." Alabama Jury Instructions, Vol. 2, § 5961 (1953).

¶ 26. By comparison, Wisconsin's statute governing "attempt" provides, "An attempt to commit a crime requires that the actor have an intent to perform acts and attain a result which, if accomplished, would constitute such crime...." Wis. Stat. § 939.32(3). In order to prove attempted first-degree intentional homicide, the State must prove the following elements: (1) the defendant intended to commit the crime of first-degree intentional homicide which is committed by one who (a) causes the death of another person and (b) intended to kill that person, and (2) the defendant did acts toward the commission of a crime of first-degree intentional homicide which demonstrate unequivocally, under all of the circumstances, that the defendant intended to and would have committed the crime of first-degree intentional homicide except for the intervention of another person or some other extraneous factor. Wis JI— Criminal 580, 1010.

¶ 27. Burroughs argues that the two statutes are not "comparable" and, therefore, he should be resen-tenced to eliminate the persistent repeater portion of his sentence. Burroughs argues that the element of "intent" differs between the two statutes and that the Alabama statute does not provide for the interruption in the criminal act by an extraneous force. While we acknowledge that the language of the statutes is not identical and that certain nuances may differ, this does not per se translate into a lack of comparability. Moreover, in Clark v. State, 333 So. 2d 885 (Ala. Crim. App. 1976), the Alabama Court of Criminal Appeals expressly debunks Burroughs' argument. There, the court held that the offense of "an attempt to commit an assault with intent to murder" would be the equivalent of "an attempt to commit murder." Id. at 887. We therefore conclude that the Alabama Assault with Intent to Murder statute is comparable to Wisconsin's Attempted First-Degree Intentional Homicide statute. Therefore, the Alabama conviction qualified as the premise for a strike against Burroughs under Wisconsin's "three strikes" law pursuant to Wis. Stat. § 939.62(2m)(b), (c).

2. Challenge to the Alabama Plea

¶ 28. Finally, Burroughs contends that the record did not contain sufficient proof that his guilty plea resulting in his 1975 Alabama conviction was knowing, intelligent and voluntary. Therefore, Burroughs contends that the trial court improperly relied upon the conviction as a strike under Wis. Stat. § 939.62(2m) (b).

¶ 29. We conclude that the supreme court's decision in State v. Hahn, 2000 WI 118, 238 Wis. 2d 889, 618 N.W.2d 528, controls this issue. Like Burroughs, the defendant in Hahn was appealing his life sentence without the possibility of parole under Wisconsin's persistent repeater statute ("three strikes" law), Wis. Stat. § 939.62(2m)(b), (c). Hahn, 2000 WI 118 at ¶ 2. Also like Burroughs, Hahn argued that the United States Constitution required that an offender be permitted to challenge the prior conviction as unconstitutional on grounds that it was based on a guilty plea that was not knowing, intelligent and voluntary. The Hahn court concluded that "an offender does not have a federal constitutional right to use the enhanced sentence proceeding predicated on a prior state conviction as the forum in which to challenge the prior conviction, except when the offender alleges that a violation of the constitutional right to a lawyer occurred in the prior state conviction." Id. at ¶ 4.

¶ 30. Here, the document entitled "Judgment of Plea of Guilty and Sentence to the Penitentiary" from Alabama indicates that Burroughs appeared before the court and entered his plea while represented by counsel. Given that Burroughs has not contested this fact either on appeal or before the trial court, we conclude that the trial court properly relied on the Alabama conviction in sentencing Burroughs under the "three strikes" law.

CONCLUSION

¶ 31. We conclude that there was sufficient evidence for a reasonable jury to find that Burroughs confined Sharon contrary to the kidnapping statute, Wis. Stat. § 940.31(l)(b). We further conclude that the trial court properly relied on Burroughs' 1975 Alabama conviction as a basis for the "persistent repeater" portion of his sentence. We therefore affirm the judgment of conviction and the order denying Burroughs' request for postconviction relief.

By the Court. — Judgment and order affirmed.

       All references to the Wisconsin Statutes are to the 1999-2000 version unless otherwise noted.

       Both the original and amended informations alleged a violation of Wis. Stat. § 940.31 without specifying a particular subsection or paragraph. Nonetheless, given the charging language, we conclude that paragraph (l)(b) would be the only applicable paragraph.

       However, false imprisonment is not a lesser-included offense of kidnapping. This is because false imprisonment requires proof of knowledge that the actor has no authority to confine the victim whereas kidnapping does not. Geitner v. State, 59 Wis. 2d 128, 133, 207 N.W.2d 837 (1973).

       Burroughs does not challenge the other conviction relied upon by the trial court in finding him to he a "persistent repeater" pursuant to Wis. Stat. § 939.62(2m)(b).

       We note that the State contends that Burroughs concedes the comparability of the Alabama and Wisconsin offenses in his brief. However, the State's argument is based on a too narrow reading of Burroughs' brief. We therefore address the merits of Burroughs' argument on this issue.

       We note that Alabama's Assault with Intent to Murder statute was eliminated in 1978 and is now addressed by the Alabama statute governing Attempt, § 13A-4-2. Ala. Code § 13A-6-20 through 13A-6-22, commentary (2001).

       The commentary to Alabama's current code provides that it "eliminates the 'assault with intent' crimes which are now treated as attempts under § 13A-4-2.... Therefore, instead of prosecuting for assault with intent to murder ... it is proper to charge attempted murder." Ala. Code § 13A-6-20 through 13A-6-22, commentary (2001).


author: DYKMAN, J.

text:
    State of Wisconsin, Plaintiff-Respondent, v. Jeffrey L. Loranger, Defendant-Appellant.

    Court of Appeals

      No. 00-3364-CR.

      Submitted on briefs November 8, 2001.—

      Decided December 20, 2001.

    2002 WI App 5
    (Also reported in 640 N.W.2d 555.)

      Before Vergeront, PJ., Dykman and Roggensack, JJ.

       Petition to review denied 3-19-02.

   DYKMAN, J.

¶ 1. Jeffrey Loranger appeals from a judgment of conviction for manufacturing a controlled substance, maintaining a building for the use of manufacturing controlled substances, and possessing a firearm as a felon. He filed a motion to suppress evidence seized at his home under a search warrant, which the circuit court denied. There are two primary issues. The first is whether suppression of evidence is the proper remedy when police performed a thermal image scan on Loranger's home without a warrant, relying in good faith upon our decision in State v. McKee, 181 Wis. 2d 354, 510 N.W.2d 807 (Ct. App. 1993). McKee held that no warrant was required. The second issue is whether sufficient facts were alleged in the affidavit supporting the search warrant to furnish a finding of probable cause.

¶ 2. Kyllo v. United States, 533 U.S. 27 (2001), held that use of a thermal imaging device to detect heat emanating from a home is a "search" within the meaning of the Fourth Amendment and thus presumptively unreasonable when performed without a warrant. Thus, officers violated the Fourth Amendment when, in 1999, they performed a thermal image scan on Loranger's home. However, because they relied upon McKee, which had concluded that use of a thermal imaging device was not a search, we conclude the evidence obtained in the search need not be suppressed. Further, we conclude that the results of the thermal image scan in combination with electricity records showing that Loranger used above average amounts of electricity, and a confidential informant's tip that he had seen marijuana growing in Loranger's basement, were sufficient to provide the warrant-issuing court commissioner with a substantial basis for finding probable cause to issue a warrant to search Loranger's house.

Background

¶ 3. On May 6, 1999, Iowa County Deputy Sheriff Steve Bennett requested that the Iowa County court commissioner issue a warrant authorizing the search of Jeffrey Loranger's home. In his affidavit in support of the search warrant, Bennett stated that Special Agent Scott Jess had interviewed a confidential informant on April 19, 1999. The informant told Jess that approximately eighteen months ago, he had been in Loranger's house, and Loranger had shown the informant his "marijuana grow operation." The informant observed "two to three green children's turtle pools filled with approximately 60-80 marijuana plants each." In addition, the informant observed "six to seven shop lights with cloned marijuana plants underneath them," one 1500 watt light bulb, and one 2000 watt light bulb.

¶ 4. The affidavit also stated that, based on this tip, Special Agent Jess and Special Agent Gregory Phillips conducted a "thermal imagery site assessment" outside Loranger's home on May 5, 1999. The thermal imagery device indicated that "an unusual amount of heat was emanating from the wall of the northeast and north corner of the residence" in the basement area, but not from the roof. Further, according to Phillips, this suggested that the "unusual and uneven heat" was generated by "indoor grow lights, which are utilized for the indoor cultivation of marijuana."

¶ 5. Finally, the warrant contained information regarding the electric power used at Loranger's residence as compared to "the average monthly kilowatt usage." For the period of May 1, 1998, to March 31, 1999, the affidavit alleged that, according to information provided by the Alliant Energy Company, the average monthly kilowatt hour usage at Loranger's home was 1464 kilowatt hours per month. Further, the affidavit alleged that the average monthly kilowatt usage for a residential home was between approximately 550 and 700 kilowatt hours per month.

¶ 6. The court commissioner issued the warrant, and police searched Loranger's home, after which the State charged Loranger with one count of manufacturing a controlled substance under Wis. Stat. §§ 961.41(1), 961.41(l)(h)l, and 961.14(4)(t), one count of maintaining a building for the use of manufacturing controlled substances under Wis. Stat. § 961.42(1), and five counts of possessing a firearm as a felon under Wis. Stat. § 941.29(l)(b). In response, Loranger moved to suppress all evidence obtained by the State as a result of the thermal search and the subsequent search of his home. Loranger claimed that the warrantless thermal search was illegal and therefore could not provide probable cause to execute a warrant to search his home. In addition, Loranger filed a motion under Franks v. Delaware, 438 U.S. 154 (1978), to suppress the same evidence, arguing that the State had omitted facts from the affidavit in support of the search warrant that, if included, would have demonstrated that there was no probable cause to issue a warrant.

¶ 7. The circuit court held evidentiary hearings on November 23, 1999, and February 1, 2000, after which it denied both of Loranger's motions. The court concluded that "the current position of Wisconsin authority holds that the use of a thermal imaging device ... is not a search within the meaning of the Fourth Amendment," and that Loranger had not proven by a preponderance of the evidence that Bennett made intentional falsehoods or showed a reckless disregard for the truth in his affidavit. Finally, the court concluded that the affidavit contained sufficient facts to support a finding of probable cause.

¶ 8. Loranger pleaded no contest to one count each of manufacturing a controlled substance, maintaining a building for the use of manufacturing controlled substances, and possessing a firearm as a felon. The circuit court sentenced Loranger to a total of five years in prison, but stayed the sentence pending appeal.

Opinion

A. Thermal Search

¶ 9. Loranger first argues that the officers' use of a thermal imaging device to detect heat emanating from his home was a "search" within the meaning of the Fourth Amendment and article I, § 11, and was therefore unlawful because it was conducted without a warrant. Loranger further asserts that the evidence obtained through the thermal search should have been suppressed. The question whether police conduct violated the Fourth Amendment or article I, § 11, is a question of constitutional fact. See State v. Marquardt, 2001WI App 219, ¶ 9, 247 Wis. 2d 765, 635 N.W.2d 188. We review questions of constitutional fact independently of the circuit court. See id.

¶ 10. We agree with Loranger that the use of a thermal imaging device to detect heat emanating from his home was a search under the Fourth Amendment and was therefore presumptively unreasonable. We disagree, however, that the evidence obtained through the search must be suppressed as a result.

¶ 11. In State v. McKee, 181 Wis. 2d 354, 510 N.W.2d 807 (Ct. App. 1993), we considered "whether the use of an infrared sensing device to detect heat emanating from [a] residence constitutes a 'search' within the meaning of the Fourth Amendment." Id. at 356. Reasoning that heat emanating from a residence "may be considered 'waste,'" similar to "refuse left outside the house in bags and cans," and that heat sensing devices are similar to sniffing dogs in that they detect an object's interior in a non-intrusive manner, we concluded that it did not. Id. at 361-63. At the time McKee was decided, neither the Wisconsin nor the United States Supreme Court had addressed this issue.

¶ 12. McKee, however, was implicitly overruled by Kyllo v. United States, 533 U.S. 27, 121 S. Ct. 2038 (2001). In Kyllo, an agent from the Department of the Interior used a thermal imaging device to detect heat emanating from the defendant's home without first obtaining a warrant. Id. at 29-30. The Supreme Court held that this violated the Fourth Amendment. The Court rejected the United States' argument that thermal imaging is not a search because it detects "only heat radiating from the external surface of the house," reasoning that accepting such an argument would lead to a "mechanical interpretation of the Fourth Amendment," and "would leave the homeowner at the mercy of advancing technology." Id. at 35. The Court concluded: "Where, as here, the Government uses a device that is not in general public use, to explore details of the home that would previously have been unknowable without physical intrusion, the surveillance is a 'search' and is presumptively unreasonable without a warrant." Id. at 40.

¶ 13. In accordance with Kyllo, we conclude that the State violated the Fourth Amendment when it used a thermal imaging device to detect heat coming from Loranger's home. See State v. Pitsch, 124 Wis. 2d 628, 641, 369 N.W.2d 711 (1985) (holding that Wisconsin courts are bound by Supreme Court's interpretations of the federal constitution). This does not end the inquiry, however. In State v. Ward, 2000 WI 3, 231 Wis. 2d 723, 604 N.W.2d 517, the supreme court concluded that police had violated the rule of announcement under the Fourth Amendment and article I, § 11, when they entered the defendant's residence with a no-knock warrant, contrary to Richards v. Wisconsin, 520 U.S. 385 (1997). Id. at ¶ 42. Nevertheless, because the police and the magistrate who issued the no-knock warrant relied upon the Wisconsin Supreme Court's decision in State v. Richards, 201 Wis. 2d 845, 549 N.W.2d 218 (1996), which was still good law when the magistrate issued the warrant, the supreme court concluded that the evidence did not have to be suppressed. Id. at ¶ 52, 62. The court reasoned that the exclusionary rule is a " 'judicially created remedy designed to safeguard Fourth Amendment rights generally through its deterrent effect.'" Id. at ¶ 46 (quoting United States v. Calandra, 414 U.S. 338, 348 (1974)). Because no remedial purpose would be served by excluding evidence "when the officers and magistrate followed, rather than defied, the rule of law," the evidence was deemed admissible. Id. at ¶ 52.

¶ 14. Applying the holding of Ward here, we must likewise conclude that the evidence obtained through the thermal imaging device is admissible. In May 1999 when police used the device to detect heat emanating from Loranger's home, Kyllo had not yet been decided,' and McKee was applicable. Therefore, the police relied on McKee in good faith and suppressing the evidence would serve no remedial purpose. But see United States v. Acker, 2001 WL 1021587 (7th Cir. Aug. 9, 2001) (concluding that thermal imaging evidence obtained before Kyllo was decided must be suppressed).

¶ 15. Loranger contends that Ward is distinguishable because it involved "the issue of how a search should be conducted rather than whether the search itself is permissible." Although this observation is correct, there is no language in Ward to suggest its holding was limited to improperly issued no-knock search warrants. Rather, the court broadly stated that "we believe that law enforcement officers and magistrates must be allowed to reasonably rely upon the pronouncements of this court." Id. at ¶ 62. Although "this court" could be interpreted as meaning only the decisions of the supreme court and not the court of appeals, we see no logical reason to distinguish between published opinions of the court of appeals and the supreme court in this context. Even the dissent in Ward recognized that the "majority opinion applies to any published opinion of the court of appeals or this court authorizing a search when the decision is later declared unconstitutional." Id. at ¶ 88 (Abrahamson, C.J., dissenting).

¶ 16. Loranger's reliance on the limitations of the holding in State v. Eason, 2001 WI 98, 245 Wis. 2d 206, 629 N.W.2d 625, is misplaced. In Eason, the supreme court held that "a good faith exception for objective, reasonable reliance upon a search warrant does not offend the Wisconsin Constitution." Id. at ¶ 52. Lor-anger argues that in this case, unlike Eason, there was no "objectively reasonable reliance upon [a] warrant, which had been issued by a detached and neutral magistrate." In addition, Loranger asserts that the State failed to meet its burden under Eason, to show that there had been a "significant investigation and a review by either a police officer trained and knowledgeable in the requirements of probable cause and reasonable suspicion, or a knowledgeable government attorney." Eason did not hold, however, that the State must show both that it relied upon Wisconsin case law and that it reasonably relied upon a search warrant. Eason does not address reliance on case law at all, but involved only reliance on warrants. The holding in Eason, therefore, does not apply here.

B. Franks Motion And Probable Cause

¶ 17. The affidavit in support of the search warrant alleged that because strong lights are needed to grow marijuana indoors and these lights must operate continuously, those involved in the "indoor cultivation of marijuana" will use greater amounts of electricity than average. The affidavit also stated that Special Agent Jess had reviewed records of Loranger's power usage, provided by Alliant Energy Company, from April 30, 1996, to March 31, 1999. According to the affidavit, Loranger's average monthly kilowatt hour usage was 914 kilowatt hours per month from April 30, 1996, to April 2, 1997, 1102 kilowatt per month from May 1, 1997 to April 1, 1998, and 1464 kilowatt hours per month from May 1, 1998, to March 31, 1999.

¶ 18. The affidavit also contained the following two paragraphs:

Agent Jess has stated that he has reviewed documents provided by CEASE (Cannabis Enforcement and Suppression Effort) State Coordinator Stan Blazek. CEASE is a law enforcement program administered by the Wisconsin Department of Narcotics Enforcement that functions to eradicate cannabis.
The first CEASE document, dated October, 1997, indicated that the average monthly kilowatt usage for a residential house in the Madison, WI regional area was 600 kilowatt hours per month. The second CEASE document, dated July 29, 1997, indicated the average monthly kilowatt usage for a single family residence was 708 kilowatt hours per month. The information contained in this document was provided to CEASE by Madison Gas & Electric Company. The third CEASE document, received by CEASE on August 22, 1997, indicated that the residential customers living within a village or city use approximately 560 to 600 kilowatt hours per month and residential customers living in a township have a slightly higher average of 650 kilowatt hours per month. The document indicated that individual conditions such as heat source and lifestyle will cause deviations from the above numbers. The information contained in the document was provided to CEASE by Wisconsin Power & Light.

¶ 19. Loranger asserts that the above paragraph contains "wrongful omissions," contrary to Franks v. Delaware, 438 U.S. 154 (1978). Under Franks, a court is obligated to suppress evidence obtained from a search if, at an evidentiary hearing, the defendant can establish by a preponderance of the evidence that the affidavit in support of the search warrant contained false statements made intentionally or with reckless disregard for the truth and that the false statements are necessary to a finding of probable cause. Id. at 156. Loranger argues that he satisfied this test by showing that the affidavit failed to point out the limitations of the electrical statistics that it relied upon.

¶ 20. In his brief in chief, Loranger points out that the documents the affidavit refers to do not: (1) disclose the month, season, or year on which the electric usage figures are based; (2) indicate that Arena, Wisconsin, which is the location of Loranger's home, is included in the figures; or (3) "provide any specifications for the size, type of construction, heating and cooling system, appliances and other furnishings, number of occupants, or other data for an average 'residential customer.'" In addition, he notes that the documents indicate that air conditioning or electric heating can increase energy consumption.

¶ 21. Although we agree with these observations, we disagree that they demonstrate the affidavit was made with reckless disregard for the truth. Rather, the affidavit accurately reflects the information that is contained in the documents. The affidavit does not allege that the statistics regarding average usage were specific to a particular season or year, or that they included Arena, Wisconsin. And the affidavit expressly points out that "individual conditions such as heat source and lifestyle will cause deviations from the above numbers." The issue, therefore, is not whether the affidavit included false statements, but whether the electrical usage information contained in the affidavit, as limited as it was, supported a finding of probable cause.

¶ 22. In our review of a warrant-issuing court commissioner's finding of probable cause, we accord "great deference," to the commissioner's determination. State v. Multaler, 2001 WI App 149, ¶ 24, 246 Wis. 2d 752, 632 N.W.2d 89. The test for the issuance of a search warrant is whether, considering the totality of the circumstances set forth in support of the warrant, probable cause exists to believe that objects linked to the commission of a crime are likely to be found in the place designated in the warrant. State v. Jackowski, 2001 WI App 187, ¶ 10, 247 Wis. 2d 430, 633 N.W.2d 649. The warrant-issuing court commissioner must be apprised of sufficient facts to excite an honest belief in a reasonable mind that the objects sought are linked with the commission of a crime, and that the objects sought will be found in the place to be searched. State v. Meyer, 216 Wis. 2d 729, 742, 576 N.W.2d 260 (1998). The duty of a reviewing court is simply to ensure that the commissioner had a substantial basis for concluding that probable cause existed. State v. Hanson, 163 Wis. 2d 420, 423, 471 N.W.2d 301 (Ct. App. 1991).

¶ 23. Viewing the totality of the circumstances, we conclude that the issuing court commissioner had a substantial basis for concluding that probable cause existed. We agree with Loranger that the comparative statistics regarding Loranger's versus the "average" use of electricity could have been more specific. Not knowing exactly when or where the "average" figures were extracted diminishes their value. Loranger does not challenge the veracity, however, of the information that was provided. The affidavit alleged that the average monthly kilowatt hour usage for Loranger's residence was 1464 kilowatt hours per month. This was more than double each of the comparative averages provided in the affidavit. It would not be unreasonable to infer that a disparity of 100% is unlikely to be explained based upon the year or what part of the state the statistics came from. Although these statistics would not be sufficient to support a finding of probable cause on their own, see United States v. Field, 855 F. Supp. 1518, 1520 (W.D. Wis. 1994), they are supported by the results of the thermal imaging scan, which were consistent with the heat generated by lights used to grow marijuana indoors.

¶ 24. In addition, the affidavit relied upon a tip from a confidential informant. Loranger contends that the warrant-issuing commissioner could not rely upon this tip because it was based on information almost eighteen months old. Although search warrants may not rest on stale evidence, Sgro v. United States, 287 U.S. 206, 210 (1932), whether evidence is "stale" is not determined "by counting the time 'between the occurrence of the facts relied upon and the issuance of the warrant.'" Multaler, 2001WI App 149 at ¶ 28 (quoting State v. Ehnert, 160 Wis. 2d 464, 469, 466 N.W.2d 237 (Ct. App. 1991)). Rather, "timeliness depends on the nature of the underlying circumstances." Ehnert, 160 Wis. 2d at 469. Because marijuana growing is of a continuous nature, greater lapses of time are justified. United States v. Greany, 929 F.2d 523, 525 (9th Cir. 1991). Further, the combination of the informant's tip and the more recent electricity records and thermal imaging results suggested that the operation was ongoing. See State v. Moley, 171 Wis. 2d 207, 213-14, 490 N.W.2d 764 (concluding that "old information" may be combined with "new data to create present probable cause"). In sum, we conclude that probable cause existed to believe that objects linked to the commission of a crime were likely to be found in Loranger's residence. See United States v. Robertson, 39 F.3d 891, 894 (8th Cir. 1994) (holding that detailed information supplied by an anonymous informant in combination with infrared readings furnished probable cause to issue search warrant of defendant's home).

By the Court. — Judgment affirmed.