STATE v. EGNER, 03-3384-CR (Wis.Ct.App. 1-20-2005)

Court of Appeals of Wisconsin.
Nos. 03-3384-CR, 03-3385-CR, 03-3386-CR, 03-3387-CR, 03-3388-CR, 03-3389-CR, 03-3390-CR, 03-3391-CR, 03-3392-CR.
Opinion Filed: January 20, 2005.

APPEAL from judgments and an order of the circuit court for Dane County: ANGELA B. BARTELL, Judge. Affirmed.

Before Dykman, Vergeront and Lundsten, JJ.

¶ 1 PER CURIAM.

Lance Egner appeals multiple judgments of conviction and an order denying postconviction relief. The issue is whether some of Egner’s bail jumping convictions violate the double jeopardy clause. We conclude that they do not and affirm.

¶ 2 We recently discussed the methodology for reviewing claims that charges are multiplicitous. See State v. Beasley, 2004 WI App 42, ¶10, 271 Wis. 2d 469, 678 N.W.2d 600, review denied, 2004 WI 114, 273 Wis. 2d 655, 684 N.W.2d 136 (No. 02-2229-CR).

If charged offenses are identical in law and fact using the Blockburger test, there is a presumption that the legislature did not intend multiple punishments. This presumption is only overcome by a clear indication of contrary legislative intent. On the other hand, if charged offenses are not identical in law and fact using the Blockburger test, there is no potential double jeopardy problem, but there may be a due process problem if the legislature did not intend to authorize cumulative punishments. In this second situation, there is a presumption that the legislature intended to permit cumulative punishments, and the defendant has the burden of overcoming this presumption by showing a clear legislative intent that cumulative punishments are not authorized. The defendant must meet that burden in light of four factors: (1) all applicable statutory language; (2) legislative history and context of the statute; (3) the nature of the proscribed conduct; and (4) the appropriateness of multiple punishment.

Beasley, 271 Wis. 2d 469, ¶ 10.

¶ 3 Egner contends that some of his bail jumping charges were identical in fact because they were based on him having contact with Stephanie Kaatz in contravention of bond conditions imposed in different cases.[1] He contends that his contact with Kaatz constituted only one volitional act, and the charges are thus identical in fact.

¶ 4 Based on State v. Richter, 189 Wis. 2d 105, 525 N.W.2d 168 (Ct.App. 1994), which is directly on point, we reject Egner’s argument. In Richter, we concluded that multiple charges resulting from a single act that violated conditions imposed in several bonds were different in fact. Id. at 109. We explained that “[e]ach count would require proof of facts for conviction which the other two counts would not require because each bond would give rise to an individual factual inquiry.” Id.

¶ 5 Acknowledging that Richter is on point, Egner nevertheless argues that the charges are multiplicitous under the subsequent supreme court decision in State v. Anderson, 219 Wis. 2d 739, 580 N.W.2d 329 (1998). I Anderson, the supreme court held that conduct that violated two different provisions of the same bond did not violate the double jeopardy clause because the conduct involved separate volitional acts. Id. at 742, 750-51. The supreme court explained that offenses are different in fact “if each requires `a new volitional departure in the defendant’s course of conduct.'” Id. at 750 (quoting State v. Eisch, 96 Wis. 2d 25, 36, 291 N.W.2d 800 (1980)). Egner’s reliance on Anderson is misplaced. Unlike the situation in Anderson, the critical question here is not whether Egner’s conduct constituted a single volitional act. In fact, no one really disputes that it did. Instead, the dispositive question is whether the charges are not identical in fact because each count requires proof of facts that the other counts do not. We answered this question i Richter, concluding that charges based on one act that violates multiple bonds are not identical in fact because each bond requires a separate factual inquiry for conviction. That answer binds us here.

By the Court. — Judgments and order affirmed.