author: HOOVER, PJ.

text:
    In re the Marriage of: Anthony Keller, Petitioner-Respondent, v. Barbara Keller, n/k/a Barbara Biliett, Respondent-Appellant.
    Court of Appeals

      No. 01-2970.

      Submitted on briefs April 9, 2002.

    Decided May 21, 2002.

    2002 WI App 161
    (Also reported in 647 N.W.2d 426.)

      On behalf of the respondent-appellant, the cause was submitted on the briefs of Phillip Todryk and Todryk Law Office, S.C. of Hudson.
    On behalf of the petitioner-respondent, the cause was submitted on the brief of Kenneth N. Sortedahl II and Gavie Law Office of Spring Valley.
    Before Cane, C.J., Hoover, PJ., and Peterson, J.
   HOOVER, PJ.

¶ 1. Barbara Billett (formerly Keller) appeals an order modifying the placement of their minor child after both Barbara and her ex-husband, Anthony Keller, moved to modify placement. The court granted Anthony's motion and granted equal placement to Barbara and Anthony. Barbara argues that the trial court erroneously exercised its discretion when it modified placement. She also contends that we should reverse the court's decision to deny her motion to modify placement.

¶ 2. We conclude that there has been a substantial change in circumstances that merits a review of their child's placement under Wis. Stat. § 767.325(l)(b). However, we conclude that the trial court erroneously exercised its discretion by applying a presumption of equal placement that does not exist in the statutes. We therefore reverse and remand for the trial court to apply the correct legal standard, the child's best interest, and modify placement accordingly.

Background

¶ 3. Barbara and Anthony were married in February 1995 and had a child in April 1996. In August 1997, Anthony petitioned for divorce. The trial court adopted a marital settlement agreement as part of its April 1998 judgment of divorce. The court granted Anthony and Barbara joint legal custody and ordered a very specific physical placement schedule.

¶ 4. In April 2001, both parents moved to modify placement. Anthony argued that placement should be equal because their child was starting school, Barbara was no longer breastfeeding and their daughter needed more contact with her father. Barbara proposed that she be granted placement every other weekend and that Anthony should be compensated for his lost weekend with one weeknight overnight each week. The trial court granted Barbara and Anthony equal placement. Barbara appeals.

Discussion

¶ 5. Barbara claims that Anthony failed to prove a substantial change in circumstances, which is necessary for a substantial modification of placement. She also claims that she does not need to prove a substantial change in circumstances because she was not asking for a substantial modification of placement.

¶ 6. Wisconsin Stat. § 767.325(1)(b) provides that, after two years, a court may substantially change physical placement if the modification is in the child's best interest and there has been a substantial change of circumstances since the entry of the last placement order. Whether to modify a placement or custody order is directed to the trial court's discretion. Hughes v. Hughes, 223 Wis. 2d 111, 119, 588 N.W.2d 346 (Ct. App. 1998). We affirm a trial court's discretionary determination when the court applies the correct legal standard to the facts of record and reaches a reasonable result. See Kerkvliet v. Kerkvliet, 166 Wis. 2d 930, 938-39, 480 N.W.2d 823 (Ct. App. 1992). Our task as a reviewing court is to search the record for reasons to sustain the trial court's exercise of discretion. See In re R.P.R., 98 Wis. 2d 613, 619, 297 N.W.2d 833 (1980). However, when a party argues that the trial court erroneously exercised its discretion by applying an incorrect legal standard, we independently review that issue of law. See Kerkvliet, 166 Wis. 2d at 939.

¶ 7. Barbara argues that there is no evidence of a substantial change of circumstances. Whether a "substantial change of circumstances" has occurred is a legal question. Harris v. Harris, 141 Wis. 2d 569, 574, 415 N.W.2d 586 (Ct. App. 1987). A "substantial change of circumstances" requires that the facts on which the prior order was based differ from the present facts, and the difference is enough to justify the court's considering whether to modify the order. Licary v. Licary, 168 Wis. 2d 686, 692, 484 N.W.2d 371 (Ct. App. 1992). We may defer to the trial court's conclusion that a change in circumstances is substantial, but we are not bound. See Harris, 141 Wis. 2d at 574-75.

¶ 8. In her brief, Barbara refers to the placement changes she wanted as "minor," but we reject Barbara's characterization. In the original order, Anthony had placement of their child on all weekends except the first weekend of the month. He also had her one evening a week from 4:30 p.m. to 8 p.m. Barbara proposed that she and Anthony alternate weekend placement. In exchange for his lost weekend, Barbara proposed that their daughter remain overnight at Anthony's home one weeknight each week. She contended that this was a net increase in the number of nights that Anthony would have her at his home because one weekend with two nights would be replaced by four weeknights a month, with a net increase of two nights a month for Anthony.

¶ 9. Barbara's proposed modification significantly alters the placement configuration, affording Anthony fewer weekends and therefore less "quality time" with their child. Additionally, it more than nominally changes the number of nights their daughter will spend with each parent. We therefore conclude that the change Barbara requested is substantial. By asking the trial court for what constituted a substantial modification of placement, Barbara effectively conceded that there was a substantial change in circumstances to merit placement modification under Wis. Stat. § 767.325(l)(b)l. She cannot maintain a contrary position on appeal.

¶ 10. Nevertheless, we agree with Barbara that the trial court erroneously exercised its discretion by employing an incorrect legal standard regarding the child's best interest. In reaching its placement decision, the court stated, "I think it is very clear that the statute indicates the policy, public policy of the State of Wisconsin is that children should have a mother and a father on an equal basis, that the mother and father should not one be preferred over the other unless there is some good reason to justify that." The court went further: "And so barring some evidence that shows it is not in the best interest of the child, or is physically unworkable... the court believes that the statutory admonition that equal and full contact at least as to the extent possible should be granted."

¶ 11. These statements demonstrate that the trial court believed there is, essentially, a statutory presumption of equal placement. The trial court started with the presumption or "policy" that equal placement is in the child's best interest and then placed the burden on the party opposing equal placement to show that such an arrangement would not be in the child's best interest.

¶ 12. Under Wis. Stat. § 767.24(2)(am), there is a statutory presumption of joint legal custody. However, there is no provision establishing a presumption of joint placement. While the physical placement statute, Wis. Stat. § 767.24(4)(a)2, requires the court to provide for placement that allows the child to have regularly occurring, meaningful periods of physical placement with each parent, this is not tantamount to a presumption of equal placement.

¶ 13. Anthony does not argue that there is a presumption of equal physical placement. Rather, he contends that there was ample evidence to support the trial court's placement decision. We are not, however, confident that the trial court would reach the same decision under the proper application of the best interest standard. The court must determine whether "[t]he modification is in the best interest of the child" and whether Anthony has overcome the rebuttable presumption that "[c]ontinuing the child's placement with the parent with whom the child resides for the greater period of time is in the best interest of the child." See Wis. Stat. §§ 767.325(l)(b)la and (l)(b)2b. Therefore, we deem it appropriate to reverse and remand for the trial court to exercise its discretion under the proper standard of law.

By the Court. — Order reversed and cause remanded.

       We are not persuaded that the trial court erroneously exercised its discretion by not awarding the precise modifications Barbara requested. While framed as an "erroneous exercise of discretion" argument, it is apparent that Barbara is requesting this court to exercise discretion and grant her motion. Exercising discretion is the exclusive province of the trial court. Filppula-McArthur v. Halloin, 2000 WI App 79, ¶ 16, 234 Wis. 2d 245, 610 N.W.2d 201. We only address the dispositive issues the parties raise. See Sweet v. Berge, 113 Wis. 2d 61, 67, 334 N.W.2d 559 (Ct. App. 1983).

       Wisconsin Stat. § 767.325(l)(b) provides:
      After 2-year period. 1. Except as provided under par. (a) and sub. (2), upon petition, motion or order to show cause by a party, a court may modify an order of legal custody or an order of physical placement where the modification would substantially alter the time a parent may spend with his or her child if the court finds all of the following:
      a. The modification is in the best interest of the child.
      b. There has been a substantial change of circumstances since the entry of the last order affecting legal custody or the last order substantially affecting physical placement.
      2. With respect to subd. 1., there is a rebuttable presumption that:

        a. Continuing the current allocation of decision making under a legal custody order is in the best interest of the child.
      b. Continuing the child's physical placement with the parent with whom the child resides for the greater period of time is in the best interest of the child.
      3. A change in the economic circumstances or marital status of either party is not sufficient to meet the standards for modification under subd. 1.
      All references to the Wisconsin Statutes are to the 1999-2000 version unless otherwise noted.

       The schedule provided that .Barbara would have primary physical placement. During the school year, Anthony would have placement every weekend except the first weekend of the month. He would also see the child one weeknight per week from 4:30 p.m. to 8 p.m. During the summer, the placement would be equal and alternate weekly between Anthony and Barbara. The schedule also designated that placement for holidays would alternate.

       Barbara did not propose to alter the summer placement schedule.


source: Caselaw Access Project

author: BROWN, J. SNYDER, J.

license: Public Domain

text:
    State of Wisconsin, Plaintiff-Respondent, v. Brian D. Seefeldt, Defendant-Appellant.
    Court of Appeals

      No. 01-1969-CR.

      Submitted on briefs March 21, 2002.

      Decided May 22, 2002.

    2002 WI App 149
    (Also reported in 647 N.W.2d 894.)

      On behalf of the defendant-appellant, the cause was submitted on the briefs of Donald T. Lang, assistant state public defender.
    On behalf of the plaintiff-respondent, the cause was submitted on the brief of James E. Doyle, attorney general, and Michael R. Klos, assistant attorney general.
    Before Brown, Anderson and Snyder, JJ.

       Petition to review granted 9-3-02.

   BROWN, J.

¶ 1. The constitutional protection against double jeopardy includes a defendant's cherished right to have his or her trial completed by the jury that was sworn. A limited exception to this right is recognized only when the government can demonstrate a manifest necessity for seeking a mistrial. In this case, the trial court granted the State's request for a mistrial on the ground that defense counsel's reference to a witness's outstanding warrants violated a pretrial order prohibiting introduction of "other acts" evidence until the trial court ruled on its admissibility. We assume without deciding that counsel blatantly violated a pretrial order prohibiting any mention of other crimes or acts until the court had a chance to decide their admissibility. Be that as it may, a court may not declare a mistrial in a criminal case simply because its order was violated. The court must ask whether the violation caused the jury to hear something it might not otherwise have been entitled to hear. In this case, we decide, as a matter of law, that the acts referred to by counsel would have been properly admitted even had the court been given the opportunity to decide the issue first. Thus, the jury was not tainted by the violation, there was no manifest necessity for the mistrial, double jeopardy attached and the subsequent retrial was improper. We reverse the judgment of conviction and the accompanying order denying postconviction relief.

FACTS

¶ 2. On March 15, 1997, law enforcement officers stopped a car driven by Michelle Bart, in which Brian D. Seefeldt was a passenger. During the stop, Bart provided the officers with a false name and refused to turn the ignition off. An officer then ordered Bart to exit the vehicle and attempted to reach in to remove the keys. Bart put the car in gear and took off at a high rate of speed; a high speed chase ensued.

¶ 3. The chase ended after the vehicle spun into a snowbank in the median of the highway. A search of Seefeldt and the vehicle yielded, among other things, marijuana, cocaine, weapons and drug paraphernalia.

¶ 4. An information was filed on April 9, 1997, charging Seefeldt with possession of marijuana with intent to deliver as a party to a crime, possession of cocaine with intent to deliver as a party to a crime, possession of drug paraphernalia, and two counts of carrying a concealed weapon. The intent to deliver charges also included penalty enhancers for possessing within 1000 feet of a public school building.

¶ 5. Seefeldt's first jury trial commenced on March 22, 1999. During presentation of opening statements, the prosecutor described the State's outline of the case, including these remarks:

[Y]ou'll hear testimony that the driver and/or the passenger of the car put the car in gear and it sped away. .. while the officer had a gun pointed at the car and persons in the car and actually had his arm in the car.
You will hear from Ms. Bart.... She is a person who you will hear about and obviously recognize, in terms of her dress, has been held accountable for her actions. She will tell you that she saw Mr. Seefeldt sell cocaine. She will tell you that she saw Mr. Seefeldt bring five pounds of marijuana to this community.

¶ 6. John Miller Carroll, Seefeldt's counsel at the first trial, also referred to the moments just prior to the flight with the following remarks:

Now, the evidence is also going to show that the second car was being driven by this Michelle, Brian's girlfriend. Now, at that point.. . the officers exit the car. Apparently they had their guns drawn on this vehicle. Michelle Bart had, at that time, I believe, 15 warrants for her arrest that were out there from around the state of Wisconsin, mostly from writing bad checks in places.

¶ 7. The prosecutor objected to the reference to Bart's fifteen warrants; his objection was sustained. The prosecutor then moved to strike the comment and asked to be heard outside the presence of the jury.

[PROSECUTOR]: Your Honor, the basis for my objection and motion for mistrial is the fact that prior to any information about other acts being presented to a jury either in argument form or statement form, which is tantamount to the argument today, you must, first of all, be advised and request permission and you must grant that permission.
And the fact of the matter is that of the warrants that were outstanding, because there were, I don't deny the truth of that, but they were ordinance violations, at least the greatest number of them, okay. So now we have other acts evidence submitted to this jury where there is no criminal conviction, where there was no request of the Court for permission to bring it to their attention.
Now I'm going to have to defend. I certainly understand that when she's asked the question when she testifies, have you been convicted of a crime, she would have to answer according to what the criminal record and history shows, and I have that for you to look at. But it does not include any convictions for the matters that he just brought up. It seems to me that that is unduly prejudicial and unfair, taking advantage of this Court, and I don't think it's appropriate.
I think the case should be [declared], at this point, a mistrial[,].. . that costs should be assessed against Mr. Carroll and his client for the actions that were just taken.
THE COURT: Mr. Carroll.
MR. CARROLL: Judge, that's patently absurd. First of all, the burden is on the State to inform us of intent to use other acts evidence of the statute. He hasn't done that. He indicated in chambers he was going to try to do it. It's obviously relevant to this case because they are arguing there was a high-speed chase where Mr. Seefeldt was throwing drugs out of the car. It explains the motivation for the driver to leave, and I'm going to prove it.
It's not other act evidence if she can explain on the witness stand these were bad check warrants from municipalities. And then when she testifies to her prior record, they will find out about her six prior convictions .... It's not prejudicial in any way whatsoever and it can be explained. It's relevant because it explains her reason ... for leaving the scene at a hundred miles an hour in the vehicle, and there was also no motion in limine on this. It's ... all over the police reports.
THE COURT: Mr. Carroll, you've tried enough of these cases to know that in an opening statement it is a neutral statement of facts, but what you indicated by your opening statement is not neutral. You don't know what other acts, whether it's even going to be an issue. In fact, you asked this morning in chambers about other acts, and I indicated to you, "I don't know what's going to happen. We will have to wait until the trial begins and people start to testify before we know."
.... We all know the standard procedure for other acts as to have you ever been convicted of a crime? If so, how many times? And that's it. That's the limitation of it. Now what you have done is you have opened a can of worms on the State's witness by saying these warrants were outstanding for her writing bad checks, and that's improper, and you know that.
The question is whether or not it so taints these proceedings at this point that the Court should grant the State's motion for a mistrial. I don't know of any way of curing this situation. I don't know of any curative instruction that the Court can give to tell them to disregard what's been said.
MR. CARROLL: Judge, with all due respect, municipal warrants people can understand, that it's clearly relevant in this case, and there is going to be a numerous amount of evidence that's going to come in regarding these warrants, and it's going to explain her motivation for leaving the scene which goes to his intent as to what these officers say[] they were observing. I do not believe this is prejudicial whatsoever. It's — clearly must be presented during the course of this trial in order to explain his intent as a passenger where he is being accused.
His rights are the ones that are supposed to be protected by a mistrial motion in this situation.... The State is going to admit that she was taken into custody on municipal warrants. This is not a basis for a mistrial, Your Honor.
[PROSECUTOR]: Wouldn't have to come up at all, Judge. The fact of the matter is what they are trying to do here is provoke a mistrial. I hesitate to ask for a mistrial when they are hoping the witness will change her mind about testifying.
He should be disqualified from this case for this kind of behavior .... What they really want to have happen is for there to be a mistrial so she changes her mind, that is Bart changes her mind about [testifying]. Seems to me this is a calculated scheme. Seems to me this man should be disqualified.
In addition to the motion for mistrial, I don't know how you can cure the fact of the matter those warrants for worthless checks and/or for ordinances. All of those, which is what all of those were in my reading of the warrant history that was provided to me, do not affect her credibility. What do they have to do with it? He is the one that — who put the car in gear and slammed on the accelerator, at least factually that's an argument that one person will say another thing....
MR. CARROLL: Judge, he brought that evidence in about him touching the accelerator and there is nowhere in the report that it says that the officer observed him leaving. She also said that he put a gun to her head so that she did it. This is clearly relevant to show why she sped away because they are going to try to use this other evidence to say that that showed an intent to deliver something.
[PROSECUTOR]: Brought out before we even had this argument.
MR. CARROLL: He was the one that opened the door to it, Judge. Flight, escape, and concealment is clearly a relevant jury instruction here, and they are using it to show intent, so we're entitled to bring in a motivation for her for leaving the scene, and warrants provide it, and I intend to ask her about that on the record and there has been no motion in limine to prevent me from doing so.
[PROSECUTOR]: There is an evidentiary code that prevents him from doing so until he's appropriately asked you to do so, and he hasn't done it, and who knows what your decision is going to be about this. I mean you haven't decided yet. Maybe that would be the basis of your decision for the mistrial. The fact of the matter is I don't have to file a motion in limine to enforce the rules of evidence.
THE COURT: I'm going to grant your motion for mistrial.
[PROSECUTOR]: What about costs and/or disqualification?
THE COURT: Costs will be assessed against the defendant.
Mr. Carroll, you are removed from the case.
[PROSECUTOR]: So can we have... a new trial? There was a speedy trial demand. I would imagine in light of the—
THE COURT: He is out on bail — or he is out on his own recognizance. He has — I guess he has got cash bail that's here that will continue.
MR. CARROLL: Judge, can I just ask why I would be removed from the case?
THE COURT: You've tried a number of these cases, Mr. Carroll. We had a talk about other acts. You know the way and the manner in which that's to be presented to the Court. You've tainted this jury. I can't think of any curative instruction to tell them to forget what they have heard. Isn't hardly adequate.
MR. CARROLL: Thank you.

¶ 8. On April 2, 1999, the trial court issued a written order declaring a mistrial, assessing costs against Seefeldt and Carroll and disqualifying Carroll from further representation. A second jury trial commenced on March 16, 2000, resulting in Seefeldt's conviction.

¶ 9. On July 2, 2001, a hearing was held on Seefeldt's postconviction motions to address, among other things, his claim of double jeopardy and the lack of necessity for a mistrial:

[DEFENSE COUNSEL]: Even if Mr. Carroll was wrong and should not have made the comment, it's our position that the mistrial here was just too extreme a remedy, that there was easier ways to have resolved this to the extent—
THE COURT: Even in light of the fact that he was warned prior to the commencement of the trial that he was not to go into that in his opening statement because we didn't know who was going to testify and what they were going to say, Mr. Lang?
[DEFENSE COUNSEL]: The record, unfortunately, is a little ambiguous as to what was being referred to in that regard and to his other acts, it seems to me, violated the court order.
THE COURT: It may be ambiguous to you but it was not ambiguous to the Prosecutor, to the Court, and to Mr. Carroll. And, in fact, Mr. Seefeldt was present in chambers when we had these discussions. That's my recollection.
[DEFENSE COUNSEL]: I guess Mr. Seefeldt does not recall being in chambers for that discussion ....
[PROSECUTOR]: This court was present in chambers with — I was there — discussions regarding other acts and criminal convictions were had. We were admonished not to go forward without prior judicial sanction. And within 15 minutes to 45 minutes, that's exactly what Attorney Carroll did. It was as much a shock to me as it was to you. My response was to seek a mistrial.

The trial court denied Seefeldt's postconviction motion and he appeals.

DISCUSSION

¶ 10. Seefeldt contends his second trial violated his constitutional right against double jeopardy because the requisite manifest necessity was not established to warrant the granting of the prosecutor's motion for a mistrial.

¶ 11. Under the federal and state constitutions, a defendant may not be twice put in jeopardy for the same offense. U.S. Const, amend. V; Wis. Const. art. I, § 8. In construing Wisconsin's prohibition against double jeopardy, we are guided by the rulings of the United States Supreme Court. State v. Barthels, 174 Wis. 2d 173, 181, 495 N.W.2d 341 (1993). We recount the Court's assessment of the underlying purpose for the prohibition:

[T]he State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty.

Id. (citation omitted).

¶ 12. Jeopardy attaches as soon as a defendant has been put at risk of penalty or harm, namely, when a witness is sworn in a trial to the court without a jury or when the selection of the jury has been completed and the jury sworn in a jury trial. Id. at 182. The Supreme Court has permitted limited exceptions to the general prohibition against double jeopardy when the trial is terminated before reaching a final resolution on the merits but only if the State can demonstrate a manifest necessity for asking for a mistrial. Id.

¶ 13. In deciding when circumstances warrant a declaration of mistrial rather than dismissal, we must consider whether the State has adequately met its burden of demonstrating the manifest necessity for the termination of the trial. Id. at 183.

Courts of justice [may] discharge a jury from giving any verdict, whenever, in their opinion, taking all the circumstances into consideration, there is a manifest necessity for the act, or the ends of public justice would otherwise be defeated.

Id. (citation omitted). The Supreme Court has refined its definition of manifest necessity to hold that a high degree of necessity must be found before concluding that a mistrial is appropriate. Id.

¶ 14. Determining whether a manifest necessity exists is a matter of discretion for the trial court. Id. Whether circumstances warrant the granting of a mistrial can best be ascertained by the trial court because the trial court is in the best position to determine whether the prosecution seeks a mistrial to gain unfair advantages over the defendant. Id.

¶ 15. The standard by which we review the discretion exercised in granting a mistrial varies according to the facts of the particular case. Id. at 184. Where, as here, the prosecutor requests the mistrial, we give strict and searching scrutiny to the trial court's decision to grant a mistrial. Id. The Wisconsin Supreme Court has held that the trial court must consider the particular circumstances that led to the State's motion for a mistrial and contemplate alternatives to a mistrial before depriving the defendant of the right to have the original tribunal render a final verdict. Id. at 185.

¶ 16. In the instant dispute, we are confronted with a situation where the trial court, over Seefeldt's objections, granted the State's request for a mistrial because of comments made by defense counsel during opening arguments, a decision which must be reviewed with marked strictness. See id. at 184.

¶ 17. At the postconviction hearing, the parties discussed the reason behind the mistrial, which appears to be the prejudicial impact of Carroll's remarks in violation of a pretrial order. However, this pretrial order is neither transcribed nor otherwise memorialized anywhere in the record. Consequently, we do not know exactly what the order prohibited. From our careful review of the record, we are confident that the order at least prohibited any mention of "other acts" evidence without first obtaining a ruling on its admissibility outside the presence of the jury. The order may have also explicitly forbidden Carroll from mentioning the fifteen warrants subject to the same condition. In any event, the trial court was certain that the remarks violated the order and further determined that a curative instruction could not remove the prejudicial impact of the remarks. According to the trial court, the tainted jury provided the manifest necessity to justify a mistrial.

¶ 18. For purposes of discussion, we will assume that Carroll's remarks did indeed violate the pretrial order. The question we then need to answer is whether as a result of those remarks the State would have been denied a fair proceeding before an impartial jury. Stated differently, did Carroll's reference to the warrants cause the jury to hear information so inappropriate that the jury became incurably tainted? If the answer to this question is "yes," then the State would demonstrate the high degree of necessity required to overcome Seefeldt's constitutional right against double jeopardy. As we explain below, however, the answer to the question is "no" because the remarks simply exposed the jury to information that the defense was constitutionally entitled to present as evidence during trial. Under these circumstances, the remarks did not cause the jury to lose its impartiality and the State's claim that it was prejudiced must fail.

¶ 19. At the first trial, the prosecutor argued that the reference to warrants tainted the jury for two reasons: first, it was impermissible "other acts" evidence under Wis. Stat. § 904.04(2) (1999-2000), and second, it violated the rule in Wis. Stat. § 906.09 governing the admission of prior convictions. The trial court agreed with the prosecutor and granted the prosecutor's motion. The prosecutor and trial court are mistaken on both counts. We will address each issue in turn.

¶ 20. Character evidence precluded under the first sentence of Wis. Stat. § 904.04(2) is evidence that an accused committed some other act for the purpose of showing that the accused had a corresponding character trait and acted in conformity with that trait. State v. Sullivan, 216 Wis. 2d 768, 782, 576 N.W.2d 30 (1998). Thus, the statute operates to "forbidO a chain of inferences running from act to character to conduct in conformity with the character." Id.

¶ 21. We have previously explained, however, that not all references to prior bad acts constitute "other acts" evidence in the eyes of the law. See State v. Bauer, 2000 WI App 206, ¶ 7 n.2, 238 Wis. 2d 687, 617 N.W.2d 902; see also State v. Johnson, 184 Wis. 2d 324, 348-54, 516 N.W.2d 463 (Ct. App. 1994) (Anderson, EJ., concurring). In Bauer, the other act was the defendant's attempt to solicit murder while incarcerated. Bauer, 2000 WI App 206 at ¶ 7. We held that evidence of the solicitation was not prohibited "other acts" evidence but was admissible evidence showing consciousness of guilt. Id. We further suggested that when reference is made to a prior bad act, the threshold question for the trial court to consider is "what is the purpose of the [party's] intention to admit the evidence?" Id. at ¶ 7 n.2. If it is not to show a similarity between the other act and the alleged act, then perhaps the parties should entertain the question of whether it is "other acts" evidence at all. Id.

¶ 22. Carroll clearly articulated to the trial court that he sought to admit the warrants in order to bolster Seefeldt's defense theory that Bart was the party who made the decision to flee and not Seefeldt. The existence of the warrants explained why Bart would engage in a high speed chase to avoid being arrested. There was no suggestion that the flight in this instance conformed in any way to an earlier incident of flight and that therefore Bart had the propensity to flee. In fact, there was no conformity comparison at all. The warrants were referenced for the sole purpose of showing Bart's motive to flee, an essential aspect of Seefeldt's theory of defense. Therefore, contrary to the assertions of the prosecutor at the first trial, evidence of the warrants was relevant to a proposition of consequence entirely unrelated to Bart's character and any inference that she acted in conformity therewith.

¶ 23. We are satisfied that the reference to the outstanding warrants is not classic "other acts" evidence invoking Wis. Stat. § 904.04(2) analysis. Rather, the existence of the warrants is "part of the panorama of evidence" that directly supports Seefeldt's defense and sits at the heart of his right to present exculpatory evidence. See Johnson, 184 Wis. 2d at 349, 354 (Anderson, P.J., concurring). Therefore, Carroll's remarks did not cause the jury to hear any information that would have rendered the proceedings unfair to the State.

¶ 24. The trial court also assumed that the remarks violated Wis. Stat. § 906.09 governing the admission of prior convictions for impeachment purposes. The court's assumption requires us to recap the purpose of § 906.09. The purpose of the statute is to establish a procedure to follow when a party seeks to admit prior conviction evidence for impeachment purposes. The statute reflects the long-standing view that "one who has been convicted of a crime is less likely to be a truthful witness than one who has not been convicted." Nicholas v. State, 49 Wis. 2d 683, 688, 183 N.W.2d 11 (1971). In fact, when a party brings a witness's past criminal convictions into evidence for that purpose, it is entitled to a jury instruction which tells jurors that the evidence has been received "solely because it bears upon the credibility of the witness." Wis JI — Criminal 325.

¶ 25. Here, the trial court reasoned that Carroll's reference to Bart's outstanding warrants implicated Wis. Stat. § 906.09 and should not have been introduced to the jury without allowing the trial court to first determine the proper answer to two standard inquiries: "Have you ever been convicted of a crime?" and if so, "How many times?" See State v. Kuntz, 160 Wis. 2d 722, 752, 467 N.W.2d 531 (1991).

¶ 26. We are at a loss to understand how Wis. Stat. § 906.09 jurisprudence factored into the analysis. Carroll's purpose in mentioning these warrants to the jury was not for the purpose of providing the groundwork for a Wis JI — Criminal 325 instruction. It was not mentioned for the purpose of asking the jury to think of Bart as an untruthful person because of her outstanding warrants. Rather, Carroll mentioned the warrants for the purpose of demonstrating why Bart, on her own initiative, may have fled the scene and why she may have been motivated to testify against Seefeldt. Seefeldt had a right to raise these issues as part of his right to put on a defense. We conclude that the rationale which referenced § 906.09 was simply misplaced.

¶ 27. In sum, we assume that Carroll violated the pretrial order when he referred to the outstanding warrants. If, in fact, Carroll violated a clear and unambiguous pretrial order less than forty-five minutes after it was announced by the court, we do not condone Carroll's action. He should be sanctioned. But, the violation of the order, by itself, does not constitute a manifest necessity to overcome Seefeldt's constitutional right to have his trial completed by the first tribunal. A sanction-based mistrial that raises double jeopardy concerns will be affirmed only if the circumstances would preclude a fair trial by an impartial tribunal. Here, we have found no basis for concluding that the State would have been denied a fair proceeding; the jury heard only information concerning evidence that Seefeldt would have been constitutionally entitled to present in his defense.

¶ 28. Seefeldt makes additional arguments about constitutional violations that occurred during this case; however, our decision on the double jeopardy issue is dispositive and we need not address the remaining issues. Sweet v. Berge, 113 Wis. 2d 61, 67, 334 N.W.2d 559 (Ct. App. 1983).

CONCLUSION

¶ 29. Seefeldt's second trial violated his constitutional right against double jeopardy because the State did not demonstrate a manifest necessity for a mistrial at the first trial. We therefore reverse the judgment of conviction and order denying postconviction relief.

By the Court. — Judgment and order reversed.

SNYDER, J.

¶ 30. (dissenting). The majority opinion points out that in construing Wisconsin's prohibition against double jeopardy, we are guided by the rulings of the United States Supreme Court. State v. Barthels, 174 Wis. 2d 173, 181, 495 N.W.2d 341 (1993). The seminal United States Supreme Court double jeopardy case addressing improper opening statements by defense counsel is Arizona v. Washington, 434 U.S. 497 (1978). Because the trial court's grant of the prosecution's motion for mistrial, over Seefeldt's objection, is constitutionally firm under Washington, I respectfully dissent. I would affirm Seefeldt's conviction and the trial court's order denying double jeopardy relief.

¶ 31. In Washington, the trial judge granted the prosecutor's motion for a mistrial predicated on improper and prejudicial comment during defense counsel's opening statement to the jury. Id. at 510. A retrial of Washington was denied in response to his habeas corpus petition alleging double jeopardy protections. Id. at 498. The United States Supreme Court granted certiorari and reversed, holding that where a mistrial is granted because the defendant's attorney made improper and prejudicial remarks during his opening statement to the jury, a trial judge's mistrial determination is entitled to "special respect." Id. at 510.

¶ 32. Washington argued (as does Seefeldt) that the evidence referenced in his opening statement was proper and admissible as a matter of law, but the Supreme Court regarded the issue as foreclosed by Washington's failure to proffer sufficient support for his contention of admissibility and by the Arizona state court's interpretation of its own law. Id. at 510-11. After giving "special respect" to the trial court's determination, the Supreme Court addressed the double jeopardy issue from the premise that defense counsel's comment was improper and may have affected the impartiality of the jury. Id.

¶ 33. The Washington Court recognized that the extent of possible jury bias cannot be measured, and acknowledged that some trial judges might have proceeded with the trial after giving the jury appropriate cautionary instructions. Id. at 511. The Court then stated:

In a strict, literal sense, the mistrial was not "necessary." Nevertheless, the overriding interest in the evenhanded administration of justice requires that we accord the highest degree of respect to the trial judge's evaluation of the likelihood that the impartiality of one or more jurors may have been affected by the improper comment.

Id.

¶ 34. The Court found that the compelling reasons for allowing a trial judge broad discretion in determining "manifest necessity" in deadlocked jury cases also would apply to improper defense counsel opening statements:

We are persuaded that, along the spectrum of trial problems which may warrant a mistrial and which vary in their amenability to appellate scrutiny, the difficulty which led to the mistrial in this case also falls in an area where the judge's determination is entitled to special respect.
In this case the trial judge ordered a mistrial because the defendant's lawyer made improper and prejudicial remarks during his opening statement to the jury.

Id. at 510.

¶ 35 The Washington Court recognized that an improper opening statement unquestionably tends to frustrate the public interest in having a just judgment reached and that such statements create a risk that the entire jury panel may be tainted. Id. at 512. It related that while the trial judge may instruct the jury to disregard the improper comment or, in extreme cases, discipline counsel (as here, with the tacit approval of the majority opinion), or even remove offending counsel from the trial:

[t]hose actions, however, will not necessarily remove the risk of bias that may be created by improper argument. Unless unscrupulous defense counsel are to be allowed an unfair advantage, the trial judge must have the power to declare a mistrial in appropriate cases. The interest in orderly, impartial procedure would be impaired if [the trial judge] were deterred from exercising that power by a concern that anytime a reviewing court disagreed with his [or her] assessment of the trial situation a retrial would automatically be barred.

Id. at 513.

¶ 36. The Washington case law applicable here is that a trial court's decision to declare a mistrial on its assessment of the prejudicial impact of the content of improper defense opening statements is entitled to great deference; a trial court must exercise sound discretion in declaring a mistrial and the trial court cannot act irrationally or irresponsibly. Id. at 514. Therefore, granting the trial court great deference, we now look to this record to determine if there was an erroneous exercise of discretion.

¶ 37. The dilemma created by Carroll's opening statement to the jury is evident from the record. The prosecutor was not concerned about the jury knowing that Michelle Bart was the subject of outstanding warrants when she fled the police, telling the trial court that "the fact of the matter is that of the warrants that were outstanding, because there were, I don't deny the truth of that, but they were ordinance violations, at least the greatest number of them, okay." (Emphasis added.) Carroll knew that when Bart testified she would have to admit to six prior criminal convictions as mandated by Wis. Stat. § 906.09. Carroll informed the jury that Bart had "15 warrants for her arrest that were out there from around the state of Wisconsin, mostly from writing bad checks in places." (Emphasis added.) The prosecution objected to that statement and immediately moved for a mistrial.

¶ 38. The prosecution's motion for a mistrial was premised upon Carroll placing the State in a position of having to convince the jury that Bart, while admitting that she had six prior criminal convictions pursuant to Wis. Stat. § 906.09, was not a candidate for an additional fifteen criminal convictions based upon the existing warrants. In context, the prosecutor told the trial court:

Now I'm going to have to defend... when [Bart] testifies, have you been convicted of a crime, she would have to answer according to what the criminal record and history shows.... But it does not include any convictions for the [15] matters that [Carroll] just brought up.

¶ 39. Carroll conceded that a secondary purpose in telling the jury the number and reasons for the existence of the warrants was to suggest to the jury that the warrants impugned Bart's credibility. Carroll argued that'"[i]t's not other act evidence if she can explain on the witness stand these were had check warrants from municipalities." (Emphasis added.) In other words, Carroll's purpose was to place Bart in a position where she would have to testify extensively as to the extraneous background concerning each of the existing warrants, a purpose unnecessary to use of the outstanding warrants as defense evidence of motive to flee.

¶ 40. The trial court, after hearing extensive argument as to the impact of Carroll's jury statement to the jury, specifically found that Carroll's opening statement to the jury was improper: "Now [Mr. Carroll] what you have done is you have opened a can of worms on the State's witness by saying these warrants were outstanding for her writing bad checks, and that's improper, and you know that." (Emphasis added.)

¶ 41. In addition to finding that Carroll's opening statement was improper, the trial court found that "[t]he question is whether or not [Carroll's opening statement] so taints these proceedings at this point that the Court should grant the State's motion for a mistrial. I don't know of any way of curing this situation. I don't know of any curative instruction that the Court can give to tell [the jury] to disregard what's been said." Washington speaks to this trial court finding as well:

You will hear from Ms. Bart_She is a person who you will hear about and obviously recognize, in terms of her dress, has been held accountable for her actions. She will tell you that she saw Mr. Seefeldt sell cocaine. She will tell you that she saw Mr. Seefeldt bring five pounds of marijuana to this community.
There are compelling institutional considerations militating in favor of appellate deference to the trial judge's evaluation of the significance of possible juror bias. He [or she] has seen and heard the jurors during their voir dire examination. He [or she] is the judge most familiar with the evidence and the background of the case on trial. He [or she] has listened to the tone of the argument as it was delivered and has observed the apparent reaction of the jurors. In short, he [or she] is far more "conversant with the factors relevant to the determination" than any reviewing court can possibly be.

Washington, 434 U.S. at 513-14 (citation omitted; footnote omitted).

¶ 42. The trial court's familiarity with pretrial orders, and the prior discussions and understandings as to the production and admissibility of evidence to the jury, are part of "the background of the case on trial."

¶ 43. The majority opinion reverses the judgment and order because of a failure to demonstrate a manifest necessity for a mistrial at the first trial. Majority at ¶ 29. In Washington, the trial court failed to make an explicit finding of "manifest necessity." The United States Supreme Court held that an explicit finding of "manifest necessity" was not necessary and that "[s]ince the record provides sufficient justification for the state-court ruling, the failure to explain that ruling more completely does not render it constitutionally defective." Washington, 434 U.S. at 516-17.

¶ 44. Here, as in Washington, the trial record provides sufficient justification for the trial court's double jeopardy ruling. Because the ruling is constitutionally firm, I would affirm the judgment and order.

       When the prosecution or defense consider off-the-record discussions about other acts evidence to be of import, then it is the attorneys' obligation to request that these matters be reported in order to preserve the record for appeal. State v. Rosenfeld, 93 Wis. 2d 325, 333, 286 N.W.2d 596 (1980).

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

       WISCONSIN Stat. § 904.04(2) states:
      Evidence of other crimes, wrongs or acts is not admissible to prove the character of a person in order to show that the person acted in conformity therewith. This subsection does not exclude the evidence when offered for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.
      Although the first sentence precludes propensity evidence, the second sentence permits admission of "other acts" evidence if its relevance does not hinge on the accused's propensity to commit the act charged. State v. Sullivan, 216 Wis. 2d 768, 783, 576 N.W.2d 30 (1998). In a classic example of using "other acts" evidence to show intent or absence of accident, a hunter claims that he shot his companion by accident. Evidence that the hunter had fired at the companion on other occasions is admissible to disprove the claim of accidental shooting. Id. at 785.

       For example, in State v. Reid, 166 Wis. 2d 139, 146-47, 479 N.W.2d 572 (Ct. App. 1991), we observed that a jury was tainted by its knowledge that a defense witness committed perjury. We rejected sanctions such as recalling the witness and prosecuting for perjury because they would not have remedied the possibility that the defendant would not receive a fair trial before an impartial jury. Id. By contrast, in civil litigation the parties have no constitutional right to a trial by a particular jury, once empaneled. Therefore, in a civil case the trial court can grant a mistrial as a sanction for misconduct without deliberating over double jeopardy concerns.

       Seefeldt's successor trial counsel failed to file a motion to dismiss the second trial based upon double jeopardy principles; the State concedes, and we agree, that such failure was based upon an erroneous view of the law and Seefeldt was prejudiced by this failure. See Strickland v. Washington, 466 U.S. 668, 694 (1984).

       The trial court removed Carroll as Seefeldt's counsel and the removal is raised in Seefeldt's second appellate issue. Arizona v. Washington, 434 U.S. 497, 513 (1978), recognizes the removal option as being within the exercise of the trial court's "special respect" discretion and, therefore, it would be part and parcel of Seefeldt's double jeopardy claim under the Washington analysis.

       Contrary to the majority opinion's insistence that Bart's issuance of bad checks was not Wis. Stat. § 904.04(2) "other acts" evidence, apparently Carroll was convinced that the bad checks represented "other acts" evidence when he told the jury about them, and later when he argued the propriety of his opening statement to the trial court.

       The prosecutor had told the jury in opening statements:


author: NETTESHEIM, EJ.

text:
    State of Wisconsin ex rel. Ernie Garibay, Petitioner, v. Circuit Court for Kenosha County and the Honorable Bruce Schroeder, presiding, Respondents.
    Court of Appeals

      No. 02-0952-W.

      Submitted on petition May 6, 2002.

    Decided May 22, 2002.

    2002 WI App 164
    (Also reported in 647 N.W.2d 455.)

      On behalf of the petitioner, the cause was submitted on the petition of Denise Hertz-McGrath of Kenosha.
    On behalf of the respondents, a response was filed by Bruce E. Schroeder, Circuit Judge.
    Before Nettesheim, EJ., Brown and Anderson, JJ.
   NETTESHEIM, EJ.

¶ 1. In this original action, Ernie Garibay petitions this court for a supervisory writ of prohibition directed to the Circuit Court for Kenosha County, the Honorable Bruce E. Schroeder presiding. Garibay challenges the circuit court's order denying his timely request for a substitution of judge pursuant to Wis. Stat. § 971.20 (1999-2000). The circuit court denied Garibay's request because Garibay was charged jointly with another defendant, and that defendant, who had not. yet been apprehended, did not join Garibay's substitution request. Pursuant to § 971.20(6), "In actions involving more than one defendant, the request for substitution shall be made jointly by all defendants."

¶ 2. The dispositive issue is whether a defendant who is charged jointly with another defendant may obtain substitution of a judge pursuant to Wis. Stat. § 971.20(6) when the codefendant is not yet before the court. We conclude that the language of § 971.20(6) is plain and unambiguous and applies in a multiple defendant action even when a codefendant is unavailable to either join or refuse to join a substitution request. Accordingly, we deny Garibay's petition for supervisory writ.

Background

¶ 3. On February 11, 2002, the State filed separate criminal complaints naming Garibay and Alejandro Ceja as codefendants. The complaint against Garibay alleged conspiracy to commit first-degree sexual assault of a child pursuant to Wis. Stat. §§ 948.02(1) and 939.31. The complaint against Ceja alleged first-degree sexual assault of a child pursuant to § 948.02(1). A warrant was issued for Ceja's arrest and he has never appeared in this action. Garibay, however, did appear and on February 19, 2002, he was bound over for trial. That same day, Garibay filed a motion for substitution of Judge Schroeder, the judge originally assigned to the action, pursuant to Wis. Stat. § 971.20(4). Judge Schroeder denied the motion, stating, "Since Mr. Ceja has not filed such a request, I am required to dishonor the request made on behalf of Mr. Garibay."

¶ 4. On March 6, 2002, Garibay filed a second motion for substitution pursuant to Wis. Stat. § 971.20. Following a hearing, Judge Schroeder again denied the motion. Echoing its earlier ruling, the court noted that: (1) Wis. Stat. § 971.12 permits two or more defendants to be charged in the same complaint if they are alleged to have participated in the same act or transaction constituting one or more crimes; and (2) the legislature made no exception to the requirement that all codefendants must join in a substitution request, even when a codefendant has not yet appeared in the action.

¶ 5. On April 8, 2002, Garibay filed the instant petition seeking a supervisory writ of prohibition from this court against Judge Schroeder pursuant to Wis. Stat. Rule 809.51. Garibay also requested a stay of proceedings pursuant to Wis. Stat. Rule 809.52, and we previously granted this request. We also issued an order requesting the State to file a response to Garibay's petition. However, the State has not provided a response. Instead, we received a response directly from Judge Schroeder. For the reasons below, we deny Garibay's petition for supervisory writ.

Discussion

¶ 6. The issue in this case turns upon the interpretation and application of Wis. Stat. § 971.20(6). An issue of statutory interpretation presents a question of law, which we review de novo. State v. Isaac J.R., 220 Wis. 2d 251, 255, 582 N.W.2d 476 (Ct. App. 1998). The aim of statutory construction is to ascertain the intent of the legislature, and our first resort is to the language of the statute itself. Id. If the words of the statute convey the legislative intent, that ends our inquiry. Id. However, if the language of the statute is ambiguous or unclear, the court examines the scope, history, context, subject matter, and object of the statute in order to ascertain the intent of the legislature. Id. at 256. A statute is ambiguous when it is capable of being understood by reasonably well-informed persons in two or more different senses. Id. Whether a statute is ambiguous is a question of law. State v. Peterson, 2001 WI App 220, ¶ 13, 247 Wis. 2d 871, 634 N.W.2d 893, review denied, 2001 WI 117, 247 Wis. 2d 1036, 635 N.W.2d 784.

¶ 7. The peremptory substitution of judges is governed by Wis. Stat. § 971.20, which provides in relevant part:

(1) Definition. In this section, "action" means all proceedings before a court from the filing of a complaint to final disposition at the trial level.
(2) One substitution. In any criminal action, the defendant has a right to only one substitution of a judge, except under sub. (7). The right of substitution shall be exercised as provided in this section.
(6) Substitution of judge in multiple defendant aCtions. In actions involving more than one defendant, the request for substitution shall be made jointly by all defendants. If severance has been granted and the right to substitute has not been exercised prior to the granting of severance, the defendant or defendants in each action may request a substitution under this section.

¶ 8. Garibay argues that the State's decision to file a multiple defendant complaint against him should not defeat his statutory right of substitution where the codefendant has absconded or remains at large. Garibay contends that the circuit court's application of Wis. Stat. § 971.20(6) results in a violation of his constitutional rights to due process and equal protection.

¶ 9. We make short work of Garibay's constitutional arguments. There is no constitutional right to the peremptory substitution of a judge. See State v. Holmes, 106 Wis. 2d 31, 46, 315 N.W.2d 703 (1982). Rather, the constitution guarantees the right to an unbiased judge, see id. at n.12, and the disqualification provisions of Wis. Stat. § 757.19, not the substitution provisions of Wis. Stat. § 971.20, address this constitutional protection. While § 971.20 permits a defendant to request substitution without providing or proving reasons for the request, this right is a matter of legislative grace, not constitutional mandate. As such, the legislature may limit or qualify that right.

¶ 10. On its face, Wis. Stat. § 971.20(6) clearly and unambiguously reveals that the legislature intended to limit or qualify the right of a defendant in a multiple defendant action to obtain a judicial substitution. In such a situation, "the request for substitution shall be made jointly by all defendants." Sec. 971.20(6). In so requiring, the statute envisions situations in which a defendant in a multiple defendant action will not be able to exercise the right of substitution because the conditions attendant to that right cannot be satisfied. For example, when a codefendant does not join in the substitution request, the defendant cannot obtain a substitution of judge.

¶ 11. Garibay argues that Ceja's absence does not permit the application of Wis. Stat. § 971.20(6). However, the statute makes no exception to the requirement set forth in subsec. (6) that all defendants must join in the substitution request. It may not appear fair that Garibay cannot exercise his right of substitution based upon the flight or absence of the codefendant — a situation over which Garibay presumably has no control. But it is not the function of this court to rewrite the statutes to avoid an unfair result, so long as that result is not unconstitutional. See Bank of Commerce v. Waukesha County, 89 Wis. 2d 715, 724, 279 N.W.2d 237 (1979). "We are bound to interpret the statutory language and intent as it is written, as we are a court of review that cannot fashion remedies contrary to the express dictates of a statutory enactment." Id. We conclude that regardless of the reason for Ceja's failure to join in Garibay's request, the requirements of § 971.20(6) clearly apply to this multiple defendant action.

¶ 12. We have previously stressed the need for strict compliance with the provisions of Wis. Stat. § 971.20 as a means of preventing problems that may result from deviations. See State v. Austin, 171 Wis. 2d 251, 257, 490 N.W.2d 780 (Ct. App. 1992). For example, by requiring all defendants in a multiple defendant case to join in a substitution request, the legislature was attempting to address the problems that judicial substitutions sometimes create. If we deviated from the requirements of subsec. (6), we would contribute to the very problems the legislature was attempting to address. Strict adherence to the plain language of Wis. Stat. § 971.20(6) dictates that Garibay is not entitled to the relief he seeks before this court.

Conclusion

¶ 13. We conclude that the circuit court's decision was based upon the clear and unambiguous requirements of Wis. Stat. § 971.20(6). Therefore, the circuit properly denied Garibay's substitution request. We deny Garibay's petition for supervisory writ, and we dissolve our order staying the proceedings in the circuit court.

By the Court. — Writ denied.

       All statutory references are to the 1999-2000 version.
      Garibay also requested a stay of proceedings pursuant to Wis. Stat. Rule 809.52. We issued an order on April 10, 2002, granting a stay pending our review of the response to Garibay's petition.

       WISCONSIN Stat. § 971.20(4) provides:
      Substitution of trial judge originally assigned. A written request for the substitution of a different judge for the judge originally assigned to the trial of the action may be filed with the clerk before making any motions to the trial court and before arraignment.

       WISCONSIN Stat. § 971.12(2) provides:
      Joinder of defendants. Two or more defendants may be charged in the same complaint, information or indictment if they are alleged to have participated in the same act or transaction or in the same series of acts or transactions constituting one or more crimes. Such defendants may be charged in one or more counts together or separately and all of the defendants need not be charged in each count.

       The court also denied Garibay's alternative motion for severance.

       Prior to bringing this action, Garibay petitioned for a writ of prohibition from the chief judge of Kenosha county, the Honorable Barbara Kluka. Judge Kluka denied the petition on March 20, 2002, based on her determination that Wis. Stat. § 971.20 does not authorize a chief judge to review a denial of a substitution request and that a chief judge does not have authority to entertain a writ of prohibition.

       Although Wis. Stat. § 971.20 was enacted by the legislature, the statute originated with the Judicial Council.

       Therefore, we register a mild semantic disagreement with Judge Schroeder's contention that Garibay does not have a right of substitution under the facts of this case. Rather, Garibay has the right to substitution, but subject to the conditions and limitations spelled out by the legislature.

       Judge Schroeder's response also contends that honoring Garibay's request for substitution would eliminate Ceja's right to substitution. But this argument misses the premise of Garibay's argument. Garibay contends that we should not view this case as a multiple defendant action. Instead, Garibay contends that we should view this case as a single defendant case in light of Ceja's absence. Viewed in that light, Garibay reasons that Wis. Stat. § 971.20(6) is not implicated, and both he and Ceja have separate and discrete rights to substitution under the statute.
      However, our disagreement with Judge Schroeder on this point does not undo the common ground underpinning the ultimate rulings of this court and Judge Schroeder — the State's charging of Garibay as a codefendant required the consent of both defendants to Garibay's substitution request.


author: DYKMAN, J.

text:
    State of Wisconsin, Plaintiff-Respondent, v. Alan L. Radke, Defendant-Appellant.

    Court of Appeals

      No. 01-1879-CR.

      Submitted on briefs March 14, 2002.

      Decided May 23, 2002.

    2002 WI App 146
    (Also reported in 647 N.W.2d 873.)

      On behalf of the defendant-appellant, the cause was submitted on the briefs of William E. Schmaal, assistant state public defender.
    On behalf of the plaintiff-respondent, the cause was submitted on the brief of James E. Doyle, attorney general, and Sandra L. Nowack, assistant attorney general.
    Before Dykman, Deininger and Lundsten, JJ.

       Petition to review granted 9-26-02.

   DYKMAN, J.

¶ 1. Alan Radke appeals from a judgment of conviction for a repeated sexual assault of the same child. Because Radke had been convicted previously of another child sexual assault, the circuit court sentenced him to life in prison without parole, as required by Wxs. Stat. § 939.62(2m)(b)l and (c) (1997-98), popularly referred to as the "two strikes" law. Radke argues that the sentencing scheme is a violation of substantive due process and is therefore unconstitutional. Because we conclude that the two-strikes law is constitutional as applied to Radke, we affirm.

BACKGROUND

¶ 2. The State charged Alan Radke with engaging in repeated sexual assaults of the same child, contrary to Wis. Stat. §§ 948.025(1) and 948.02U). The information alleged that Radke had sexually assaulted the same child at least three times between January 1, 1997, and March 12, 1999. In addition, because Radke had been previously convicted of first-degree sexual assault of a child under Wis. Stat. § 940.225(l)(d) (1983-84), the State also charged Radke as a "persistent repeater" under Wis. Stat. § 939.62(2m).

¶ 3. After pleading not guilty, Radke filed a motion to dismiss the repeater charge, arguing that Wis. Stat. § 939.62(2m)(a)lm.b, (b)2 and (c) was unconstitutional because it violated his right to due process. The circuit court denied the motion, and a jury trial ensued. The jury found Radke "guilty of repeated acts of sexual assault of the same child, as charged in the information." As required by § 939.62(2m)(c), the circuit court sentenced Radke to life in prison without the possibility of parole or extended supervision. The circuit court denied Radke's motion for postconviction relief, and Radke appeals.

DECISION

¶ 4. The issue Radke raises is whether the "two strikes" provisions of Wis. Stat. § 939.62(2m), enacted by 1997 Wis. Act 326, are unconstitutional on their face. This is a question of law that we review de novo. See State v. Lindsey, 203 Wis. 2d 423, 432, 554 N.W.2d 215 (Ct. App. 1996). To succeed on a facial challenge, Radke "must establish that no set of circumstances exists under which [the two-strikes law] would be valid." United States v. Salerno, 481 U.S. 739, 745 (1987). Therefore, if the law is constitutional as applied to Radke, the law is not unconstitutional on its face. Further, Radke must overcome the statute's presumption of constitutionality and demonstrate that the provisions are unconstitutional beyond a reasonable doubt before we may invalidate them. See Safe Water Ass'n v. City of Fond du Lac, 184 Wis. 2d 365, 375, 516 N.W.2d 13 (Ct. App. 1994).

¶ 5. The relevant portions of Wis. Stat. § 939.62(2m) provide:

(b) The actor is a persistent repeater if one of the following applies:
2. The actor has been convicted of a serious child sex offense on at least one occasion at any time preceding the date of violation of the serious child sex offense for which he or she presently is being sentenced under ch. 973, which conviction remains of record and unre-versed.
(c) If the actor is a persistent repeater, the term of imprisonment for the felony for which the persistent repeater presently is being sentenced under ch. 973 is life imprisonment without the possibility of parole or extended supervision.

Under these provisions, a court must sentence a defendant to life in prison without parole upon a second conviction for a "serious child sex offense." Radke argues that this violates substantive due process.

¶ 6. Both the Wisconsin and United States Supreme Courts agree that the Due Process Clause protects more than just "fair process." Washington v. Glucksberg, 521 U.S. 702, 719 (1997); Dowhower v. West Bend Mut. Ins. Co., 2000 WI 73, ¶ 13, 236 Wis. 2d 113, 613 Wis. 2d 557. Guaranteed under the Fourteenth Amendment to the United States Constitution and article I, §§ 1 and 8 of the Wisconsin Constitution, substantive due process bars, among other things, certain arbitrary government actions, regardless of the fairness of the procedures used to implement them. Foucha v. Louisiana, 504 U.S. 71, 80 (1992); Thorp v. Town of Lebanon, 2000 WI 60, ¶ 45, 235 Wis. 2d 610, 612 N.W.2d 59. Though there are differences in the language of the state and federal due process clauses, the supreme court has held that the two are "functional[ly] equivalent," Reginald D. v. State, 193 Wis. 2d 299, 307, 533 N.W.2d 181 (1995), and that "there is no substantial difference" between the protections guaranteed by them, State ex rel. Sonneborn v. Sylvester, 26 Wis. 2d 43, 50, 132 N.W.2d 249 (1965).

¶ 7. Unless it infringes on a "fundamental right," a statute will generally survive a substantive due process challenge if it is rationally related to a legitimate government interest. Glucksberg, 521 U.S. at 728; State v. McManus, 152 Wis. 2d 113, 130, 447 N.W.2d 654 (1989). Radke does not argue for a heightened standard of review, so this is the standard that we apply.

¶ 8. As the State notes, the drafting records for 1997 Wis. Act 326, which created the "two strikes, you're out" sentencing scheme for certain child sex offenses, do not expressly indicate the purpose for which it was enacted. Undoubtedly, however, at least one of the purposes behind the act was the same as other statutes involving sexual offenders: to protect the public, in this case children, from sexual assaults. Cf. State v. Bollig, 2000 WI 6, ¶ 21, 232 Wis. 2d 561, 605 N.W.2d 199 (stating that a primary purpose of sex offender registration under Wis. Stat. § 301.45 is to protect the public); State v. Carpenter, 197 Wis. 2d 252, 271, 541 N.W.2d 105 (1995) (stating that a primary purpose of commitment for sexually violent persons under Wis. Stat. ch. 980 is to protect the public); State v. Koenck, 2001 WI App 93, ¶ 9, 242 Wis. 2d 693, 626 N.W.2d 359 (stating that aim of child enticement statute is to protect children). There is no question that protecting children from harm is a legitimate purpose.

¶ 9. Statements made by the act's sponsor, Representative Mark Green, while the legislature was considering the two-strikes law, suggest that a specific reason for the law was the perceived high recidivism rate among child sex offenders. See Amy Rinard, Life term for child sex crimes advances, Milw. J. Sent., Nov. 6, 1997, at 1 (quoting Representative Green as stating that "pedophiles have the highest rate of repeat offenses"); Mike Flaherty, Measure puts repeat sex offenders in prison for life, Wis. St. J., Nov. 6, 1997, at 1A (quoting Representative Green as stating that average pedophile claims 300 victims). We may consider these statements in determining the purpose of a statute. See State Public Defender v. Circuit Court, Branch 11, Dane County, 184 Wis. 2d 860, 868-69, 517 N.W.2d 144 (1994).

¶ 10. Although 1997 Wis. Act 326 does not contain any legislative findings supporting a view that sex offenders have high recidivism rates, this is not necessarily required. See United States v. Carotene Prods. Co., 304 U.S. 144, 152 (1938) ("Even in the absence of [legislative findings], the existence of facts supporting the legislative judgment is to be presumed."). We conclude that the legislature's interest in protecting children is rationally related to a sentencing scheme that requires a sentence of life in prison without parole upon a second conviction for sexually assaulting a child, as was the case with Radke.

¶ 11. Moreover, as we noted in Lindsey, our supreme court "has long recognized" that it is not arbitrary or irrational to impose a more severe punishment for a second or subsequent offense. 203 Wis. 2d at 444. In State v. Hahn, 2000 WI 118, 238 Wis. 2d 889, 618 N.W.2d 528, the supreme court stated that the legislature has a valid interest " 'in dealing in a harsher manner with those who by repeated criminal acts have shown that they are simply incapable of conforming to the norms of society as established by its criminal law.'" Id. at ¶ 33 (quoting Rummel v. Estelle, 445 U.S. 263, 276 (1980)). We cannot conclude that it would be irrational to believe that an individual who has committed two sexual assaults against a child is likely to do so again and unlikely to be rehabilitated. But see Post, 197 Wis. 2d at 307-11 (concluding that treatment of mental illness is a primary goal of legislature in requiring civil commitment for sexually violent persons).

¶ 12. Radke cites to Peppies Courtesy Cab Co. v City of Kenosha, 165 Wis. 2d 397, 475 N.W.2d 156 (1991), as supporting his claim that the two-strikes portion of the persistent repeater statute violates substantive due process. In Peppies, the supreme court struck down an ordinance imposing a grooming code on taxicab drivers, holding that the ordinance violated "the drivers' inherent rights of due process and liberty interests." Id. at 398-99, 404-05.

¶ 13. The facts in Peppies have little similarity to Radke's situation. At issue is the validity of a sentencing scheme, not a grooming code. We agree with Radke, however, that the methodology the Peppies court used in analyzing the substantive due process issue provides Radke some support. Although the court did not suggest that individuals have a "fundamental right" regarding how they dress or otherwise indicate it was applying a heightened standard of review, the standard that the court articulated was whether the ordinance had a "real and substantial relation" to a legitimate government purpose. Id. at 401. On its face at least, substantial relation appears more demanding than rational relation. See United States v. Virginia, 518 U.S. 515, 533 (1996) (stating that gender discrimination by the state is unconstitutional unless it is "substantially related" to an important government objective). Further, the court concluded that the ordinance lacked "substantial justification" because the city had not produced sufficient evidence that the ordinance would further the interest of "cleaning up of the image of the city." Peppies, 165 Wis. 2d at 404.

¶ 14. We first note that cases decided by the supreme court subsequent to Peppies have not mentioned the "real and substantial relation" standard articulated in that case. Rather, the standard that the supreme court has applied in substantive due process cases since Peppies has been the one set forth in ¶ 7: whether the statute bears a rational relationship to a legitimate government interest. Reginald D., 193 Wis. 2d at 307; City of Milwaukee v. Kilgore, 193 Wis. 2d 168, 189, 532 N.W.2d 690 (1995); Szarzynski v. YMCA, Camp Minikani, 184 Wis. 2d 875, 889, 517 N.W.2d 135 (1994). Under this test, a statute is not necessarily unconstitutional if the legislature has failed to support its conclusions. To the extent that Peppies is inconsistent with subsequent decisions by the supreme court, it is those decisions that we must follow. See State v. Ameritech Corp., 185 Wis. 2d 686, 700, 517 N.W.2d 705 (Ct. App. 1994), aff'd, 193 Wis. 2d 150, 532 N.W.2d 449 (1995).

¶ 15. Regardless whether Peppies is still good law, however, it is nevertheless readily distinguishable. Although legislative history does not indicate that the legislature's conclusion regarding recidivism of child sex offenders was based on any studies or empirical data, as noted in ¶ 10 n.8, there is at least some evidence supporting a conclusion that child sex offenders have a high recidivism rate. Further, even under the Peppies standard, the court suggested that it was necessary to "balance the individual's interests against those of the state." 165 Wis. 2d at 402 (citing Kelly v. Johnson, 425 U.S. 238, 249 (1976) (Powell, J., concurring)). Because the interest in protecting children from sexual assault is clearly more important than the interest in maintaining a "clean" city image, conclusive proof is not required.

¶ 16. Radke nevertheless contends that the irrationality of the two-strikes law is illustrated by the potential effects that it could have on child sex offenders' behavior. Specifically, Radke argues that the law encourages second-time offenders to kill their victims in addition to sexually assaulting them so that the child is prevented from later testifying. This same objection was made by the law's opponents in the legislature before it was passed, who also argued that the law prevents judges from making an individualized determination regarding sentencing in situations where life in prison may not be an appropriate sentence, and that it could make it more difficult for prosecutors to convict first-time offenders because they will be less likely to make plea agreements. While the wisdom of the two-strikes law can be debated, whether it is the most appropriate solution to the problem of recidivist child sex offenders is not for this court to decide. See Kahn v. McCormack, 99 Wis. 2d 382, 390, 299 N.W.2d 279 (Ct. App. 1980) (quoting Ferguson v. Skrupa, 372 U.S. 726, 731-32 (1963)). That the law might have negative side effects does not make it unconstitutional. The legislature could rationally conclude that the economic, social and legal costs of allowing individualized sentencing determinations of recidivist child sex offenders were greater than those involved with eliminating sentencing discretion and parole for those crimes upon a second conviction.

¶ 17. Radke also argues that the two-strikes portion of Wis. Stat. § 939.62(2m) is arbitrary and irrational because it is "logically inconsistent" with the "three strikes" portion of the persistent repeater statute. Radke explains that while individuals convicted of "serious child sex offenses" must be sentenced to life in prison without parole after two convictions, individuals convicted of "serious felonies," must be convicted three times before the statute requires such a sentence. Compare Wis. Stat. § 939.62(2m)(b)1 with Wis. Stat. § 939.62(2m)(b)2. This is irrational, Radke argues, because the crimes included as "serious child sex offenses" range from Class B felony offenses to Class E felony offenses while the crimes designated as "serious felonies" range from Class A to Class C felony offenses. Because it is not rational to subject someone who has committed two Class B felonies, such as child sexual assault, to "a more severe penalty" than someone who has committed two Class A felonies, such as first-degree intentional homicide, Radke concludes that the two-strikes law is unconstitutional.

¶ 18. With respect to this argument, we repeat that the standard for determining whether a statute violates substantive due process is whether it is rationally related to a legitimate government interest. We have concluded, with respect to the crimes for which Radke was convicted, that the two-strikes law is. Radke does not point to any Wisconsin or Supreme Court authority suggesting a statute violates substantive due process when it is inconsistent with other statutes. Rather, Radke's argument is essentially one of equal protection.

¶ 19. That Radke is asserting an equal protection claim is demonstrated by his reliance on State v. Asfoor, 75 Wis. 2d 411, 440-41, 249 N.W.2d 529 (1977). In Asfoor, the supreme court held that the penalty provision of Wis. Stat. § 940.24(1) violated equal protection because it made injury by negligent use of a weapon a felony, while homicide by negligent use of a weapon under Wis. Stat. § 940.08(1) was a misdemeanor. 75 Wis. 2d at 440 — 41. The court wrote: "We are unable to conceive of any reason to support the statutory discrimination of the legislature .... The irrationality of the classification results from the felony being imposed for causing injury and the misdemeanor for causing death." Id. Radke's challenge of Wis. Stat. § 939.62(2m) is similar in that he is arguing that there is no rational basis for imposing a "more severe penalty" on a defendant convicted of a "serious child sex offense" that is a Class B felony than on a defendant convicted of a "serious felony" that is a Class A felony. See also State v. Hanson, 182 Wis. 2d 481, 513 N.W.2d 700 (Ct. App. 1994) (analyzing under equal protection defendant's challenge to legislature's classification of child enticement as a Class C felony and exposure to a child as a Class A misdemeanor).

¶ 20. As with due process, the supreme court has interpreted the Equal Protection Clauses in the Wisconsin and United States Constitutions as being equivalent. Vincent v. Voight, 2000 WI 93, ¶ 80 n.26, 236 Wis. 2d 588, 614 N.W.2d 388. Equal protection applies when a statute treats differently those that are similarly situated. Wisconsin Prof'l Police Ass'n v. Lightbourn, 2001 WI 59, ¶ 221, 243 Wis. 2d 512, 627 N.W.2d 807. Radke is challenging the way the legislature has classified two groups of criminal defendants with respect to mandatory sentencing rules. Defendants convicted of two "serious child sex offenses" are thus similarly situated to defendants convicted of two "serious felonies" for the purpose of this case. See State v. Block, 222 Wis. 2d 586, 592, 587 N.W.2d 914 (Ct. App. 1998) (applying equal protection to classification of defendants convicted of "serious felonies" and those convicted of other crimes). Generally, differences in the treatment of criminal offenders are reviewed under a rational basis test. State v. Avila, 192 Wis. 2d 870, 880, 532 N.W.2d 423 (1995) (citing Hilber v. State, 89 Wis. 2d 49, 54, 277 N.W.2d 839 (1979)); see also Block, 222 Wis. 2d at 592. "Under a rational basis test, a statute is unconstitutional if the legislature applied an irrational or arbitrary classification when it enacted the statute." Lightbourn, 2001 WI 59 at ¶ 222.

¶ 21. In addition to Asfoor, Radke also relies on three cases from Illinois: People v. Wisslead, 446 N.E.2d 512 (Ill. 1983), People v. Wagner, 433 N.E.2d 267 (Ill. 1982), and People v. Bradley, 403 N.E.2d 1029 (Ill. 1980). In each of those cases the Illinois Supreme Court, similar to the court in Asfoor, declared unconstitutional a criminal sentencing law because the legislature had prescribed a greater penalty for "less serious" crimes than for "more serious" crimes. Wisslead, 446 N.E.2d at 514-15 (holding unconstitutional statute prescribing greater penalty for armed violence based on unlawful restraint than for kidnapping while armed with a dangerous weapon); Wagner, 433 N.E.2d at 270 (holding unconstitutional provision prescribing greater penalty for delivery of noncontrolled substance than for delivery of controlled substance); Bradley, 403 N.E.2d at 1032 (holding unconstitutional statute prescribing greater penalty for possession of controlled substance than for distributing a controlled substance).

¶ 22. Unlike the defendants in Asfoor and the Illinois cases, Radke does not argue that child sexual assault, which is designated as a "serious child sex offense" and thus subject to the two-strikes law, is inherently "less serious" than the crimes designated as "serious felonies," and thus subject to the three-strikes law. Rather, he argues that because the legislature has classified some of the "serious felonies" as Class A felonies, it is irrational for the legislature to then prescribe a greater penalty after a second conviction (mandatory life in prison without parole) to child sexual assaults, which are at most Class B felonies, than to Class A "serious felonies," which do not require life sentences without parole until a third conviction.

¶ 23. Radke's argument fails because, unlike the statute in Asfoor, there is a rational basis for imposing a "two strikes" sentencing scheme on defendants convicted of child sexual assault while providing "three strikes" for defendants convicted of Class A "serious felonies." In Asfoor and the Illinois cases, the penalty provisions being compared were in two statutes prohibiting different degrees of very similar crimes (negligent injury versus negligent homicide, possession of a controlled substance versus delivery of a controlled substance, etc). Because the nature of the crimes was essentially the same, there was no rational basis for imposing a greater penalty on the crime that was essentially a lesser included offense of the other.

¶ 24. Child sexual assault cannot be compared to the Class A "serious felonies" in the same way that negligent injury and negligent homicide can be compared, because there are differences in the nature of child sexual assault and Class A "serious felonies." In contending that the two-strikes sentencing scheme under Wis. Stat. § 939.62(2m) is irrational, Radke assumes that the only purpose the legislature has in excluding the possibility of parole is to punish the crime more severely. Although retribution may have been one motivating factor the legislature had in enacting the two-strikes law, as discussed above, the legislature was also likely motivated by a desire to protect children from reoffenders.

¶ 25. The crimes classified as "serious felonies" under Wis. Stat. § 939.62(2m) that are also designated as Class A felonies include: first-degree intentional homicide, taking hostages, kidnapping with intent to cause another to transfer property in order to obtain the release of the victim, intending harm and causing death by tampering with household products, and causing death by taking a vehicle without consent of the owner while possessing a dangerous weapon. These are all non-sexual violent crimes, usually resulting in the death of the victim. Although the issue can he debated, the legislature could have rationally concluded that those who have committed child sexual assaults are more likely to continue to reoffend after they are released than are those who have committed nonsexual violent crimes. Thus, the legislature could also rationally determine that the "more serious" crime of intentional homicide could be permitted a third strike while the "less serious" crime of child sexual assault could not. We therefore conclude that the two strikes law does not violate substantive due process or equal protection as it was applied to Radke and, thus, that it is not unconstitutional on its face.

¶ 26. In addition to challenging the constitutionality of the two-strikes law, Radke also argues that the crime of which he was convicted, repeated sexual assault of a child, is unconstitutional. Specifically, he contends that Wis. Stat. § 948.025 violates due process "because it authorizes the jury to return a guilty verdict even if the jury does not unanimously agree which of the alleged acts of sexual assault within the specified period of time constituted the requisite '3 or more violations' for conviction." As Radke acknowledges, the supreme court has already decided this issue against him in State v. Johnson, 2001 WI 52, 243 Wis. 2d 365, 627 N.W.2d 455, and we are bound by its decision. See Cook v. Cook, 208 Wis. 2d 166, 189-90, 560 N.W.2d 246 (1997).

By the Court. — Judgment affirmed.

       All references to the Wisconsin Statutes are to the 1997-98 version unless otherwise noted. Wisconsin Stat. § 939.62(2m) was amended slightly in 1999 to reflect a change in numbering in another statute that is cross-referenced in Wis. Stat. § 939.62(2m)(a)2m.b. See 1999 Wis. Act 188, § 16. The substance of Wis. Stat. § 939.62(2m) remains unchanged.

       Wisconsin Stat. § 948.025(1) provides: 'Whoever commits 3 or more violations under s. 948.02(1) or (2) within a specified period of time involving the same child is guilty of a Class B felony."
      Wisconsin Stat. § 948.02(1) provides: "Whoever has sexual contact or sexual intercourse with a person who has not attained the age of 13 years is guilty of a Class B felony."

       Wisconsin Stat. § 940.225 (1983-84) provides in part:

        (1) First degree sexual assault. Whoever does any of the following is guilty of a Class B felony:
      (d) Has sexual contact or sexual intercourse with a person 12 years of age or younger.

       The "serious child sex offenses" include: sexual assault of a child (a Class B felony), engaging in repeated acts of sexual assault of the same child (a Class B felony), sexual exploitation of a child (a Class C felony), causing a child to view or listen to sexual activity (a Class C or D felony), incest with a child (a Class BC felony), child enticement (a Class BC felony), soliciting a child for prostitution (a Class BC felony), sexual assault of a student by a school instructional staff person (a Class D felony), abduction of another's child (a Class B or C felony), and interference with custody (a Class C or E felony). See Wis. Stat. § 939.62(2m)(a)lm.
      In contrast to prior convictions under Wis. Stat. § 939.62(2), the State may charge an individual as a persistent repeater under § 939.62(2m) regardless how old the prior conviction is.

       The Fourteenth Amendment provides in relevant part: "[N]or shall any State deprive any person of life, liberty, or property, without due process of law."

       Article I, § 1 provides in part: "All people are born equally free and independent, and have certain inherent rights; among these are life, liberty and the pursuit of happiness."
      Article I, § 8 provides in part: "No person may be held to answer for a criminal offense without due process of law."
      In some cases, the supreme court has indicated that substantive due process is protected by article I, § 1 of the Wisconsin Constitution. See, e.g., Dowhower v. West Bend Mut. Ins. Co., 2000 WI 73, ¶ 12, 236 Wis. 2d 113, 613 Wis. 2d 557; Reginald D. v. State, 193 Wis. 2d 299, 306-07, 533 N.W.2d 181 (1995). In others, however, it has cited article I, § 8 as the location of the right. See, e.g., Thorp v. Town of Lebanon, 2000 WI 60, ¶ 45, 235 Wis. 2d 610, 612 N.W.2d 59; State v. Post, 197 Wis. 2d 279, 301 n.10, 541 N.W.2d 115 (1995). It is not clear from the court's discussions whether substantive due process protections in §§ 1 and 8 are identical or if different aspects of the right are guaranteed by both provisions. See also Peppies Courtesy Cab Co. v. City of Kenosha, 165 Wis. 2d 397, 399 n.1, 475 N.W.2d 156 (1991) (citing Wis. Const. art. I, §§ 1, 11, 13 and 22 as protecting "inherent rights of due process and liberty interests").

       The State relies on an article, written after 1997 Wis. Act 326 was enacted, that Representative Green wrote with respect to a proposed federal "two strikes" law. Ex post facto explanations from legislators, however, cannot be relied on to determine legislative intent. RURAL v. Public Serv. Comm'n, 2000 WI 129, ¶ 39 n.20, 239 Wis. 2d 660, 619 N.W.2d 888.

       Although studies have come to varying conclusions, there is at least some evidence supporting the view that child sex offenders, particularly those with prior convictions, have a high recidivist rate. See VL. Quinsey, et. al, Actuarial Prediction of Sexual Recidivism, 10 J. INTERPERSONAL Violence 85 (1995) (concluding that reoffense rate for child molesters with prior convictions is relatively high); R.K. Hanson, et. al, Long-term Recidivism of Child Molesters, 61 J. of Consulting & Clinical Psychology 646 (1993) (finding that child molesters are at risk to reoffend sexually throughout their lives). But see Lisa Ka-vanaugh, Massachusetts's Sexually Dangerous Person's Legislation, 35 Harv. C.R.-C.L. L. Rev. 509, 511 n.12 (2000) (citing studies that have concluded that recidivist rate for sexual offenders is lower than for other violent offenders); Margaret A. Alexander, Quasi-Meta-Analysis II, Oshkosh Correctional Institution, State of Wisconsin Department of Corrections/Oshkosh Correctional Institution report (1994) (finding that thirteen percent of sex offenders are rearrested).
      Other researchers have observed that "relatively little can be concluded from extant studies, primarily because of the methodological variability of these studies." Robert A. Prentky, et. al, Recidivism Rates Among Child Molesters and Rapists: A Methodological Analysis, 21 Law & Human Behavior 635, 636 (1997). Despite the uncertainty in this area, based on the importance of the interest in protecting potential victims from sexual assault, we cannot conclude that the legislature acted irrationally when it chose to err on the side of protecting the public in lieu of permitting circuit courts to make individualized determinations regarding sentencing. See State v. Post, 197 Wis. 2d 279, 310-11, 541 N.W.2d 115 (1995).

       Because the two-strikes law does not violate substantive due process as it applies to child sexual assaults, we need not determine whether a rational basis exists with respect to all of the crimes classified as "serious child sex offenses" under Wis. Stat. § 939.62(2m)(a)lm.

       Radke does not argue that the two-strikes law inflicts cruel and unusual punishment, so we do not address that issue. However, see State v. Lindsey, 203 Wis. 2d 423, 438, 554 N.W.2d 215 (Ct. App. 1996) (holding that three-strikes provision of Wis. Stat. § 939.62(2m) is not cruel and unusual punishment).

        See Mike Flaherty, Measure puts repeat sex offenders in prison for life, Wis. St. J., Nov. 6, 1997, at 1A. Representative Shirley Krug stated that she was "concerned we'll see murders increase" because offenders will not want to leave witnesses to the crime. Id.

        See Lawrence Sussman, Sex crimes bill flawed, Milw. J. Sent., Nov. 10, 1997, at 1. Representative Michael Leman stated, "Without knowing the facts of an individual case, I don't believe that we as legislators should be the judge and the jury." Id. Representative Glenn Grothman worried that the law could be applied to a sixteen-year-old boy who had consensual sex with two fifteen-year-old girls. Id.

      Radke does not argue that a statute which takes all sentencing discretion away from the circuit court violates the doctrine of separation of powers. However, compare State v. Lindsey, 203 Wis. 2d 423, 441, 554 N.W.2d 215 (Ct. App. 1996) (holding that "three strikes" sentencing provision does not violate separation of powers) with Oehler v. State, 202 Wis. 530, 536, 232 N.W. 866 (1930) ("[T]he judicial function of fixing the punishment.. . quite likely was vested in [the judiciary] by the constitution according to the practice of common law. A statute that attempted [to take this power away] would quite likely have to be held unconstitutional.").

        See Amy Rinard, Life term for child sex crimes advances, Milw. J. Sent., Nov. 6,1997, at 1. Representative William Murat stated, "If you really want to get at these cases, it's important for [district attorneys] to have the tools to get after the first offenders." Id.

       "Serious felonies" under the persistent repeater statute include first-degree intentional homicide (a Class A felony); first-degree reckless homicide (a Class B felony); felony murder; second-degree intentional homicide (a Class B felony); homicide by intoxicated use of a vehicle or firearm (a Class B felony); aggravated battery (a Class C felony); performing a "partial birth abortion" (a Class A felony); aggravated battery to an unborn child (a Class C felony); mayhem (a Class B felony); first-degree sexual assault (a Class B felony); second-degree sexual assault (a Class BC felony); taking hostages (a Class A or Class B felony); kidnapping (a Class A or Class B felony); causing death by tampering with household products (a Class A felony); arson (a Class B felony); armed burglary (a Class B felony); carjacking (a Class A or Class B felony); armed robbery (a Class B felony); assault by a prisoner (a Class C felony); soliciting a child to commit a felony (a Class B or C felony); use of a child to commit a Class A felony; and manufacture, distribution or delivery of a controlled substance, or possession with intent to manufacture, distribute or deliver, if the offense is punishable by a maximum prison term of thirty years or more. See Wis. Stat. § 939.62(2m)(a)2m.a and b. In addition, the same crimes that are classified as "serious child sex offenses" are also classified as "serious felonies." Section 939.62(2m)(a)2m.b.

        See Mike Flaherty, Measure Puts Sex Offenders in Prison for Life, Wis. St. J., Nov. 6, 1997, at 1A (quoting Representative Mark Green as referring to child sex offenders as "monsters").

       Performing a "partial-birth abortion," as defined by Wis. Stat. § 940.16, is also designated as a Class A "serious felony" under Wis. Stat. § 939.62(2m)(a)2m.b. Section 940.16, however, is unconstitutional. Hope Clinic v. Ryan, 249 F.3d 603 (7th Cir. 2001); see Stenberg v. Carhart, 530 U.S. 914 (2000). Therefore, the two-strikes law cannot be applied to this conduct.

       Radke argues only that it is irrational to inflict a more severe penalty on Class B felons than on Class A felons. He does not argue .that it is irrational to prescribe a harsher penalty for one group of Class B felons than for another group of Class B felons. We therefore do not consider, for example, whether there is a rational basis for differentiating between those convicted twice of first-degree sexual assault of an adult (a Class B "serious felony" under Wis. Stat. § 939.62(2m)(a)2m.b) and those convicted twice of first-degree sexual assault of a child (a Class B "serious child sex offense" under Wis. Stat. § 939.62(2m)(a)lm.a.).