Sentencing Guidelines – Double Jeopardy – Multiplicity

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WI Supreme Court

Case Name: State of Wisconsin v. Dennis Brantner

Case No.: 2020 WI 21

Focus: Sentencing Guidelines – Double Jeopardy – Multiplicity

Fond du Lac County sheriff’s detectives arrested Mr. Brantner at the Kenosha County courthouse and transported him to the Fond du Lac County jail to face criminal charges unrelated to this case. During the booking process, a sheriff’s deputy discovered a cache of narcotics and prescription medications in Mr. Brantner’s boot, a discovery that gave rise to his trial in this case in the Fond du Lac County circuit court. Mr. Brantner says he should not have been tried in Fond du Lac County because he did not possess the drugs when the deputy discovered them——not because the drugs were not there——but because the arrest in Kenosha County terminated, as a matter of law, his ability to possess any contraband on his person. We disagree. Mr. Brantner did not lose possession of the drugs in his boot upon his arrest in Kenosha County. And because he still possessed the drugs in Fond du Lac County, venue there was proper.

Mr. Brantner also says that two of the charges on which the jury convicted him were multiplicitous. One of the charges was for possession of 20mg oxycodone pills in violation of Wis. Stat. § 961.41(3g)(am) (2017-18). The other was for possession of 5mg oxycodone pills in violation of the same statute. We agree with Mr. Brantner, and so reverse the court of appeals with respect to his multiplicity challenge.

Affirmed in part. Reversed and remanded in part.

Concur: C.J., filed a concurring opinion, in which ZIEGLER, J., joined.

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.