STATE v. WHEELER, 2003 WI App 188

266 Wis.2d 1059, 668 N.W.2d 562

Court of Appeals of Wisconsin.
No. 01-0682-CR.
Opinion Released: July 29, 2003. Opinion Filed: July 29, 2003.

APPEAL from a judgment and an order of the circuit court for Milwaukee County: RICHARD J. SANKOVITZ and PATRICIA D. McMahon, Judges.[1] Affirmed.

¶ 1. SCHUDSON, J.[2]

Robert M. Wheeler appeals from the judgment of conviction for carrying a concealed weapon, following a jury trial, and from the order denying his motion for postconviction relief.[3] He argues that Wis. Stat. § 941.23 is unconstitutional. Consistent with the Wisconsin Supreme Court’s decisions in State v. Cole, 2003 WI 112, ___ Wis.2d ___, ___ N.W.2d ___, and State v. Hamdan, 2003 WI 113, ___ Wis.2d ___, ___ N.W.2d__, this court affirms.

¶ 2. This appeal, received by this court in 2001, was placed on hold pending the supreme court’s resolution of appeals involving constitutional challenges to Wis. Stat. § 941.23. Given the long pendency of this appeal, and given that, as the parties must realize, the supreme court’s decisions effectively dispose of the issues involved here, this court now will expeditiously address this appeal.

¶ 3. According to the factual summary in Wheeler’s brief to this court:

On February 28, 2000[,] a handgun belonging to Mr. Wheeler was seized by the police. Mr. Wheeler ran away from the police after they tried to stop him for questioning. The complaint and the evidence presented at trial indicated that Mr. Wheeler discarded a black Glock 27.20 caliber handgun during the pursuit.

(Citations omitted.)

¶ 4. Wheeler presents two facial challenges to Wis. Stat. §941.23. He contends:

First, because the plain language of [article I, § 25 of the Wisconsin Constitution] is inconsistent with the statutory restriction, the amendment supercedes and effectively repeals the statute. Second, the prohibition on carrying a concealed weapon is an unconstitutional exercise of the state’s police power because it is not narrowly tailored to serve its purpose but, instead, sweeps so broadly so as to severely impinge on the fundamental right to bear arms guaranteed by the amendment.

¶ 5. In Cole, the supreme court essentially rejected these arguments and concluded “that the CCW statute is not effectively repealed by the right to bear arms amendment and that such a prohibition is a reasonable time, place, and manner restriction upon the right.” Cole, ___ Wis.2d ___, ¶ 35.

¶ 6. Wheeler presents no “as applied” challenge. His circumstances are not akin to those presented in Hamdan and, therefore, they would not allow for any tenable defense that the application of the statute “unreasonably impair[ed his] right to keep and bear arms.” See Hamdan, ___ Wis.2d ___, ¶ 41.

By the Court. — Judgment and order affirmed.