A Rock County Circuit Court judge who ignored an appeals court order to hold a new trial did not err when he reinstated a dismissed count and sentenced the defendant on a that charge instead, the State Court of Appeals ruled last week.
"We conclude that the circuit court had authority to take, and was not barred from taking, these ... steps," Appellate Judge Brian Blanchard wrote for a three-member District IV Court of Appeals panel. He was joined by Appellate Judges Rachel Graham and Jennifer Nashold.
"We further conclude that (defendant Carl) McAdory does not have a double jeopardy claim on these facts," Blanchard said.
Lifting from a post from the Wisconsin Justice Initiative blog (I wrote that post. Appealing Wisconsin is an entirely independent entitity).
McAdory originally was charged with eighth-offense operating under the influence and eighth-offense operating with a restricted controlled substance. Blood testing showed he had cocaine and marijuana in his system when he was arrested. A jury found him guilty on both counts. Because the counts duplicated each other and the law says McAdory could only be sentenced on one, the prosecutor moved to dismiss the latter charge.
In ordering a new trial, the Court of Appeals found that the state repeatedly misled the jury about what the state had to prove for a conviction on the under-the-influence charge. The law requires a showing that there were enough drugs in McAdory's system to actually impair his driving. That law is different than the restricted-controlled-substances law, which makes it illegal to drive with any detectable amount of drugs in the blood, whether or not it actually affects the person's driving ability.
In addition, Circuit Judge John M. Wood, who presided over the trial, eliminated part of the jury instructions that made clear what was required for conviction on the under-the-influence charge, according to court documents.
The appellate court noted that the Circuit Court prosecutor could have avoided the entire issue if she had dismissed the impaired driving offense and stuck with the easier-to-prove restricted-substances offense. The panel even held oral argument to discuss the dismissal of that charge.
When Rock County Circuit Judge Karl Hanson got the case after the first Court of Appeals decision, the prosecutor asked him to reopen the judgment of conviction and sentence McAdory on the restricted substances count. The appellate decision refers to that charge as the "RCS count" and to the impaired driving charge as the "OWI count."
McAdory opposed the motion but Hanson granted it, and sentenced McAdory to three years of incarceration followed by six years of extended supervision.
"The court reasoned that 'McAdory had no expectation of finality' in the sentence he received on the OWI count following trial, as opposed to a new sentence on the RCS count following remittitur," Blanchard wrote.
That reasoning, Blanchard wrote, was based on several things: the jury actually found McAdory guilty on the restricted substance count, the charge was dismissed only to comply with the one-count provision in the law, and McAdory won reversal on appeal on the OWI count.
"The court reached the general conclusion that 'no mechanism of law' prevented reinstatement of the RCS count under these circumstances," Blanchard wrote.
Hanson also said that "McAdory was not 'prejudiced in any way by reinstatement of the RCS conviction,' ” Blanchard said.
The single-conviction provision in statute is "somewhat sparse" in its wording, Blanchard said.
"Nothing in the language of the single-conviction provision prevents what the court did .... All the requirements of the single conviction provision were met and nothing that the court did contradicts any aspect of the provision," he wrote.
The panel also rejected McAdory's contention that Hanson overstepped when he ignored the appeals court order for a new trial on the OWI charge.
"The circuit court did not disregard or take any action inconsistent with any statement that we made or implied in McAdory, including the opinion’s mandate, and the circuit court was not obligated to hold a second trial on the OWI count under these circumstances."
McAdory's argument that he was improperly subject to double property also fails, the panel said.
McAdory could not show that there was either a second prosecution for the same offense after an aquittal or after conviction, the two relevant standards set by the U.S. Supreme Court, Blanchard wrote.
"There was neither an acquittal nor a conviction on the RCS count before the circuit court’s post-remittitur actions," he said. "The first-time conviction and sentencing on the RSC count, which was entered upon the guilty verdict only following remittitur, resulted in no prejudice to McAdory."
In sum, McAdory had one trial on the RCS count, the jury unanimously found him guilty on that charge, and he is not exposed to the risk of being subjected to a new trial. He was convicted and sentenced on the RCS count for the first time after remittitur, at which time the OWI count was dismissed. Therefore, double jeopardy protection does not present a bar.
Comments