State v. Grayson

478 N.W.2d 390, 165 Wis. 2d 557, 1991 Wisc. App. LEXIS 1442

• Court: Court of Appeals of Wisconsin
• Decided: November 12, 1991
• Docket: 91-0756-CR
• Status: Published

Opinions

LAROCQUE, J.

Keith Grayson appeals a judgment of conviction for four felony counts of failing to pay child support for the calendar years 1986 through 1989 pursuant to sec. 940.27(2), Stats. (1987),¹ and a postconviction order upholding his conviction. Grayson argues that the statute contemplates only a single nonsupport charge for a violation of its terms. Grayson also accuses his trial counsel of being ineffective because he plea bargained without first seeking dismissal as a matter of law the three charges relating to 1983, 1984 and 1985, periods of time prior to the existence of the statute under which he was charged. We affirm the convictions.

Section 940.27(2), Stats. (1987), provides that it is a class E felony for "any person who intentionally fails for 120 or more consecutive days to provide . . . child support which the person knows or reasonably should know the person is legally obligated to provide . . .."

The relevant facts are undisputed. Grayson was divorced in 1977 and ordered to pay child support in the amount of $100 per week. Thereafter, he continually failed to make the child support payments. He made only one $10 payment in 1982, and by April 1990 he was delinquent $67,790 in child support. The state charged Grayson with seven felony counts of failing to pay child support, one count per year for the years 1983 through 1989. Grayson and the prosecutor plea bargained and agreed to a plea of no contest to the 1986,1987,1988 and 1989 counts in exchange for the dismissal and read-in of the earlier counts. The state also agreed to recommend probation. The court accepted Grayson's pleas of no contest, found him guilty and sentenced him to four consecutive two-year terms of imprisonment and ordered restitution. Grayson's postconviction motion challenged the conviction and restitution order on numerous grounds. The court agreed that the restitution was improperly computed but rejected the other claims and upheld the convictions, holding that multiple felony counts are permissible and that trial counsel was effective.

MULTIPLICITY

We first consider whether Grayson's no contest plea waived his right to appeal his conviction on the grounds of multiplicity. As a general rule, a guilty plea constitutes a waiver of nonjurisdictional defects and defenses including constitutional violations prior to the plea. Mack v. State, 93 Wis. 2d 287, 293, 286 N.W.2d 563, 566 (1980). Waiver also applies to no contest pleas. State v. Princess Cinema, 96 Wis. 2d 646, 651, 292 N.W.2d 807, 810 (1980). However, the guilty plea waiver rule does not deprive an appellate court of its subject matter jurisdiction. Rather, it is a rule of administration and not of power. State v. Riekkoff, 112 Wis. 2d 119, 123-24, 332 N.W.2d 744, 747 (1983). Therefore, we can in our discretion review claimed error, particularly if the issues are of state-wide importance or resolution will serve the interests of justice and there are no factual issues that need to be resolved. Mack, 93 Wis. 2d at 296-97, 286 N.W.2d at 567; Flores v. State, 69 Wis. 2d 509, 510, 230 N.W.2d 637, 638 (1975). Whether the state can prosecute multiple counts under Wisconsin's nonsupport statute is obviously an issue of statewide importance. Further, the issue is fully briefed and there are no disputed facts. We therefore address the matter on its merits.

Multiplicity is the charging of a single offense in separate counts. State v. Tappa, 127 Wis. 2d 155, 161, 378 N.W.2d 883, 885 (1985). Multiplicitous charges are impermissible because they violate the double jeopardy provisions of Article I, sec. 8, of the Wisconsin Constitution and the Fifth Amendment to the United States Constitution. Tappa, 127 Wis. 2d at 161, 378 N.W.2d at 885.

Our supreme court has employed a two-part test in determining whether a charge is multiplicitous. State v. Rabe, 96 Wis. 2d 48, 63, 291 N.W.2d 809, 816 (1980). The first part of the test is referred to as the "additional fact" test, which examines "whether each count requires proof of an additional fact which the other count or counts do not." Tappa, 127 Wis. 2d at 163, 378 N.W.2d at 886 (quoting Rabe, 96 Wis. 2d at 63, 291 N.W.2d at 816). This part concerns the issue of double jeopardy. Id. at 162, 378 N.W.2d at 886.

Multiple charging under the felony nonsupport statute meets the requirement of the "additional fact" test. Under sec. 940.27(2), Stats. (1987), it is a class E felony for any person to intentionally fail to pay child support. Therefore, the state is required to prove that the defendant formed a separate intent to violate the order that forms the basis for each individual charge.² The state is thereby required to prove additional facts because for each count charged, new intent is required as well as a different 120-day time frame.

However, even though the charging of multiple counts may not constitute double jeopardy, it may still be multiplicitous if the legislature intended only one unit of prosecution. Tappa, 127 Wis. 2d at 164, 378 N.W.2d at 887.³ Thus, the second part of the test examines the legislative intent as to the allowable unit of prosecution.

Statutory construction involves a question of law, and a reviewing court is not required to give special deference to the trial court's determination. State v. Nixa, 121 Wis. 2d 160, 163, 360 N.W.2d 52, 54 (Ct. App. 1984). Where the statute is ambiguous, in determining legislative intent, the relevant factors include the language of the statute, its legislative history and context, the nature of the proscribed conduct and the appropriateness of multiple punishment. Manson v. State, 101 Wis. 2d 413, 422, 304 N.W.2d 729, 734 (1981). While we strictly construe criminal statutes to protect a defendant's rights in cases of ambiguity, we do not do so if it contravenes legislative purpose. Rabe, 96 Wis. 2d at 70, 292 N.W.2d at 819. We conclude that the legislature intended to allow for multiple prosecutions under the nonsupport statute.

A construction that permits separate offenses for each 120-day period is consistent with the language of the statute. By using the language "120 days or more," the legislature demarcated a time period by which separate offenses could be brought.

The legislative history, however, offers us no guidance as to whether multiple counts are permissible. Grayson argues that in examining legislative history, it is appropriate to consider whether previous codifications of the criminal conduct in question have allowed multiple counts. See Tappa, 127 Wis. 2d at 165-68, 378 N.W.2d at 887-89. However, it is unclear whether the former statutory sections, 52.05 and 52.055, Stats., permitted multiple counts or only one count, because that issue was never addressed in prior cases. Further, the analysis prepared by the Legislative Reference Bureau states only that the purpose of the bill was to revise and reorganize laws relating to support dependents and to increase penalties. Thus, no reference was made to whether multiple counts were permissible.

The third fact to consider is the nature of the proscribed conduct. The issue here is that a "defendant ought not to be charged, tried, or convicted for offenses that are substantially alike when they are a part of the same general transaction or episode." Tappa, 127 Wis. 2d at 169, 378 N.W.2d at 889 (quoting State v. Eisch, 96 Wis. 2d 25, 34, 291 N.W.2d 800, 805 (1980)). The offenses are separated in time, and the state must show separate intent for each count charged. It therefore cannot be said that the offenses arose from the same episode.

Finally, multiple punishment for nonsupport is certainly appropriate. Failure to pay child support is a major problem in our society today. See Dennis v. State, 117 Wis. 2d 249, 268, 344 N.W.2d 128, 137 (1984) (Abra-hamson, J., concurring). Census data from 1986 indicates that of those custodial parents who even had a child support award, slightly more than half actually received the amount ordered. Parker v. Parker, 152 Wis. 2d 1, 4, 447 N.W.2d 64, 65 (Ct. App. 1989). The prospect of punishment for offenders like Grayson whose failure spans almost a decade is properly treated differently from the single failure to comply with an order for four months. Because of the language of the statute, the nature of the proscribed conduct and the appropriateness of multiple punishment, we conclude that the legislature intended to permit multiple prosecution for these crimes against children.

INEFFECTIVE ASSISTANCE OF COUNSEL

The trial court ruled that counsel's performance was deficient but not prejudicial. Our federal and state constitutions each guarantee a criminal defendant the right to effective assistance of counsel. Strickland v. Washington, 466 U.S. 668 (1984); State v. Moffett, 147 Wis. 2d 343, 352, 433 N.W.2d 572, 575 (1989). Although the three counts of nonsupport for the years prior to 1985 were ultimately dismissed, the state does not challenge the trial court's finding that defense counsel was deficient and fell below the standard expected of a reasonable attorney. This finding was based upon counsel's failure, prior to the plea bargain, to discover the effective date of the statute and to seek dismissal of counts charging offenses predating the existence of the statute under which the charges were brought.

The only remaining issue, therefore, is whether this defective performance changed the result of Grayson's prosecution. Grayson first argues that the federal test that places the burden of proof of showing prejudice upon the defendant instead of the government should be reversed when applying the right to counsel provisions of the Wisconsin Constitution. The state disagrees, noting that the Wisconsin Supreme Court routinely conforms its interpretation of state constitutional provisions establishing criminal defendant's rights to that accorded the comparable provisions of the federal constitution by the United States Supreme Court. We need not decide this issue. Wherever the burden falls, the record discloses that the failure to seek dismissal prior to the plea bargain was not prejudicial.

The three counts at issue were in fact dismissed and considered read-ins as part of the plea bargain. Further, had the defense sought dismissal prior to the plea bargain, the trial court made a finding that the state would have amended the complaint either to charge nonsupport under the prior statute or, alternatively, increased the number of counts based upon Grayson's numerous failures to make the payments required.

Trial counsel testified that based upon his negotiations with the prosecutor, he believed the state would have made no further concessions even if the three counts had been dismissed by the court prior to the plea bargain. Based upon this testimony and other facts, the trial court found the state would have in fact successfully pursued multiple convictions even if the original three counts had been dismissed. In addition to counsel's testimony, as additional reasons for its finding that the state would not have acted differently were Grayson's prior conviction for nonsupport, the allegation that he had absconded from probation immediately thereafter and his exceptionally long history of nonpayment. The finding that the failure to seek dismissal did not alter the ultimate sentence is not clearly erroneous. We therefore deny the claim of ineffective assistance of counsel.

By the Court. — Judgment and order affirmed.

1 The nonsupport statute has since been renumbered as sec. 948.22, Stats.

2 We need not decide the claim raised in the trial court but abandoned on appeal that the information was defective for failing to specify the particular 120-day segment encompassed within each of the four counts charged.

3 Wisconsin case law is unclear how the double jeopardy issue is to be resolved. Some case law states that the legislative intent is the only relevant concern in double jeopardy issues following the United States Supreme Court in Missouri v. Hunter, 459 U.S. (1983). See, e.g., State v. Gordon, 111 Wis. 2d 133, 137-38, 330 N.W.2d 564, 565 (1983); Tappa, 127 Wis. 2d. at 173 n.3, 378 N.W.2d at 891 n.3 (Abrahamson, J., dissenting). However, in Tappa, 127 Wis. 2d at 162, 378 N.W.2d at 886, the majority of the court stated that the "additional fact" test concerns the issue of double jeopardy. Because we conclude that multiple counts are permissible under both the "additional fact" test and the "legislative intent" test, we need not address this apparent inconsistency in the case law.