Prior Convictions – Penalty Enhancer – RICO Conspiracy

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Criminal

Supreme Court of Wisconsin

Prior Convictions – Penalty Enhancer – RICO Conspiracy

2013-AP-1753 & 2013-AP1754 State of Wisconsin v. Rogelio Guarnero

When actions under a prior conviction are related to a later violation of a related criminal statute, a defendant is rightfully subject to penalty enhancer.

“Guarnero’s contention misses his mark in at least two respects. First, our construction of Wis. Stat. § 961.41(3g)(c) is not “novel,” but rather, a commonsense reading of the words the legislature chose. Second, Moline explained that “[i]f it is found to be related to drugs, it is very clearly an offense which may serve as the basis for an enhanced penalty.” Moline, 229 Wis. 2d at 42. Our statutory interpretation herein is consistent with Moline where the same plain language, “relating to controlled substances” that appears in § 961.41(3g)(c) was interpreted in Wis. Stat. § 961.48(3), thereby giving notice of conduct that could result in sentence enhancement. Accordingly, due process does not bar enhancement of Guarnero’s conviction under § 961.41(3g)(c) . . . [D]ue to the manner in which Guarnero violated the RICO conspiracy statute, relates to controlled substances. Therefore, Guarnero’s prior RICO conviction enhances the penalty for cocaine possession under Wis. Stat. § 961.41(3g)(c) to a second offense as a Class I felony.”

Affirmed

PATIENCE DRAKE ROGGENSACK, C.J.

Dissenting: BRADLEY, ABRAHAMSON, J.J., dissent. (Opinion Filed.)

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Attorney Derek A. Hawkins is the managing attorney at Hawkins Law Offices LLC, where he heads up the firm’s startup law practice. He specializes in business formation, corporate governance, intellectual property protection, private equity and venture capital funding and mergers & acquisitions. Check out the website at www.hawkins-lawoffices.com or contact them at 262-737-8825.