Statutory Interpretation – Burglary

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WI Supreme Court

Case Name: United States of America v. Dennis Franklin, et al.

Case No.: 2019 WI 64

Focus: Statutory Interpretation – Burglary

This case is before the court on a certified question from the United States Court of Appeals for the Seventh Circuit. United States v. Franklin, 895 F.3d 954 (7th Cir. 2018); see Wis. Stat. § 821.01 (2017-18). The question certified for determination is:

Whether the different location subsections of the Wisconsin burglary statute, Wis. Stat. § 943.10(1m)(a) -(f), identify alternative elements of burglary, one of which a jury must unanimously find beyond a reasonable doubt to convict, or whether they identify alternative means of committing burglary, for which a unanimous finding beyond a reasonable doubt is not necessary to convict?

Our answer to this certified question will aid the Seventh Circuit in determining the appropriate sentences for Dennis Franklin and Shane Sahm (together, the defendants), who had their sentences enhanced pursuant to the federal Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e)(1).  The defendants pleaded guilty to violations of 18 U.S.C. § 922(g)(1) for possessing firearms after having been previously convicted of a felony. Based upon their previous Wisconsin burglary convictions, the defendants were classified as armed career criminals and sentenced to a mandatory minimum of 15 years in prison pursuant to the ACCA. The defendants objected to their status as armed career criminals on appeal to the Seventh Circuit, where their cases were consolidated. A three-judge panel of the Seventh Circuit held that the defendants’ prior burglary convictions were predicate violent felonies under the ACCA because each of the locations set forth in Wis. Stat. § 943.10(1m)(a)-(e) identify alternative elements for the crime of burglary making them each distinct crimes. The defendants filed a petition for rehearing en banc. They asserted that because the locational alternatives in § 943.10(1m)(a)-(f) provide alternative means of committing one element of the crime of burglary, the Wisconsin burglary statute is too broad to fall within the definition of burglary as a predicate violent felony under the ACCA. The Seventh Circuit granted the petition for rehearing, vacated its prior opinion, and certified the question of Wisconsin state law to this court.

To answer the certified question, we examine the four factors set forth in Derango: (1) the statutory text; (2) the legislative history and context of the statute; (3) the nature of the conduct; and (4) the appropriateness of multiple punishments. State v. Derango, 2000 WI 89, ¶¶14-15, 236 Wis. 2d 721, 613 N.W.2d 833. We conclude that Wis. Stat. § 943.10(1m)(a)-(f) identifies alternative means of committing one element of the crime of burglary under § 943.10(1m). Accordingly, a unanimous finding of guilt beyond a reasonable doubt as to a locational alternative in subsections (a)-(f) is not necessary to convict.

Certified question answered and cause remanded

Concur:

Dissent:

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Derek A Hawkins is trademark corporate counsel for Harley-Davidson. Hawkins oversees the prosecution and maintenance of the Harley-Davidson’s international trademark portfolio in emerging markets.