Inside Track: Wisconsin and U.S. Supreme Courts Clarify Burglary Provisions:

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  • Wisconsin and U.S. Supreme Courts Clarify Burglary Provisions

    Recent decisions by the Wisconsin and the U.S. supreme courts provide additional layers to state and federal law on burglary and the impact of prior convictions.

    Joe Forward

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    June 19, 2019 – Both the U.S. Supreme Court and the Wisconsin Supreme Court clarified what constitutes “burglary” for purposes of the federal Armed Career Criminal Act (ACCA), which imposes harsher penalties for repeat violent offenders.

    Four days after the Wisconsin Supreme Court decided U.S. v. Franklin,1 a rare certification from the U.S. Court of Appeals for the Seventh Circuit, the U.S. Supreme Court decided Quarles v. U.S.2 Both decisions examine how state burglary statutes interact with the ACCA and a generic definition of “burglary” from a 1990 decision.

    In the Franklin case, the Wisconsin Supreme Court examined a question involving Wisconsin’s burglary statute, Wis. Stat. section 943.10(1m), which makes it a felony to intentionally enter any of the following places without the consent of the person in lawful possession and with intent to steal or commit a felony in such place:

    a) Any building or dwelling;

    b) An enclosed railroad car;

    c) An enclosed portion of any ship or vessel;

    d) A locked enclosed cargo portion of a truck or trailer;

    e) A motor home or other motorized type of home or a trailer home, whether or not any person is living in the home; or

    f) A room within any of the above.

    Mandatory Minimum

    Prosecutors charged Dennis Franklin and Shane Sahm for possessing firearms as felons and sought enhanced penalties under the federal ACCA, 18 U.S.C. section 924(e)(1), based on three previous Wisconsin burglary convictions.

    Joe Forwardorg jforward wisbar Joe Forward, Saint Louis Univ. School of Law 2010, is a legal writer for the State Bar of Wisconsin, Madison. He can be reached by org jforward wisbar email or by phone at (608) 250-6161.

    They faced a mandatory minimum of 15 years in prison under the ACCA, which allows for enhanced penalties if someone has three previous convictions for violent felonies or serious drug offenses, committed on occasions different from one another. The ACCA says “burglary” is counted for enhancement purposes but does not define “burglary.”

    In Taylor v. United States, 495 U.S. 575 (1990), the U.S. Supreme Court adopted a “generic” definition of burglary: “an unlawful or unprivileged entry into, or remaining in, a building or other structure, with intent to commit a crime.”

    For purposes of the ACCA analysis, courts compare the generic definition with the burglary statute in a particular state to determine if the offense counts as an ACCA predicate offense, a “categorical approach.” It’s not an ACCA predicate offense if the crime of conviction “covers more conduct than the generic offense.”

    The defendants argued that the Wisconsin burglary statute is too broad to fall within the generic definition of burglary, as applied under the ACCA. That is, they argued that their prior burglary convictions did not count as violent offenses for ACCA purposes.

    A three-judge panel for the Seventh Circuit Court of Appeals3 ruled that the defendants were career criminals under the ACCA. The panel said Wisconsin’s burglary statute is broader than “generic burglary” under Taylor because it extends to boats and several types of vehicles (not just buildings or other structures), but found the statute “divisible.”

    “That allows the court … to determine whether the defendant was convicted under a portion of the statute within the scope of generic burglary,” wrote Judge David Hamilton. “If he was, then the conviction may count as a violent felony under the ACCA.”

    The panel said the Wisconsin statute was divisible and defendants could be prosecuted under the ACCA since their prior burglary convictions related to buildings or dwellings.

    Upon reconsideration,4 the court vacated its prior opinion and certified the case to the Wisconsin Supreme Court to decide how the ACCA should apply to Wisconsin law.

    “[T]his is at bottom a controlling question of State criminal law,” noted the Seventh Circuit Appeals Court, stating that a statute is “indivisible” if it lists alternative means for committing one crime, because “the actual facts of the underlying case are off-limits.”

    In other words, the courts are looking at the statutory language, and whether it is broader than Taylor’s generic burglary definition, not the actual facts of the case.

    Thus, the certified question was “whether the different location subsections of the Wisconsin burglary statute ... identify alternative elements of burglary, one of which a jury must unanimously find beyond a reasonable doubt to convict, or whether they identify alternative means of committing burglary, for which a unanimous finding beyond a reasonable doubt is not necessary to convict.”

    Wisconsin Supreme Court Decides

    “The categorical approach can be difficult to apply if a statute is phrased alternatively, like Wisconsin’s burglary statute,” wrote Justice Rebecca Dallet. For instance, a burglary can occur for unlawful entry, with criminal intent, into a house or a vehicle.

    But the Wisconsin Supreme Court unanimously concluded that Wisconsin’s burglary statute “identifies alternative means of committing one element of the crime of burglary.” That one element is the locational space that the defendant has entered unlawfully.

    “The straightforward language of § 943.10(1m) creates one offense with multiple means of commission,” Justice Dallet wrote. “Burglary can be broken down into the following elements: intentional entry, without consent, and with intent to steal or commit a felony.”

    Thus, the court ruled that it is not necessary for a jury to unanimously find guilt beyond a reasonable doubt as to a locational alternative. If all jurors believe, beyond a reasonable doubt, that the defendant entered some prohibited space, a conviction can stand.

    “The crime is the act of the burglarious entry into one of the listed locations, regardless of which particular location is entered,” Dallet explained.

    The Wisconsin Supreme Court rejected the federal government’s argument that each locational alternative is a separate element, which would allow the defendant to be convicted of multiple burglaries for entering a home, then each of home’s rooms.

    “The plain text of § 943.10(1m) thus supports the conclusion that the statute creates a single crime of burglary with multiple means of commission, rather than multiple separate offenses,” Justice Dallet wrote.

    “If we adopt the position of the federal government, a defendant could receive multiple punishments for the same act in violation of the double jeopardy clauses of the federal and Wisconsin constitutions.”

    The Wisconsin Supreme Court decision likely meant that Franklin and Sahm could not be considered career criminals under the ACCA, because their prior burglary convictions would not count, but the U.S. Supreme Court weighed on the very same issue, four days after the Wisconsin Supreme Court decided the Franklin case.

    U.S. Supreme Court

    The U.S. Supreme Court, in Quarles v. United States, examined whether Michigan’s burglary statute was too broad for ACCA’s enhanced penalty purposes. However, the case focused on alternative modes of forming the intent element of the crime.

    The defendant said Taylor’s generic definition of burglary is: “an unlawful or unprivileged entry into, or remaining in, a building or other structure, with intent to commit a crime,” suggesting that criminal intent must be formed at the moment the entry is taking place.

    On the other side, the government argued that a defendant can form criminal intent at any time, because burglary occurs so long as the defendant “remains in” the building.

    “Put simply, for burglary predicated on unlawful entry, the defendant must have the intent to commit a crime at the time of entry,” wrote Justice Brett Kavanagh in an almost unanimous opinion. Justice Clarence Thomas wrote a concurring opinion. 

    “For burglary predicated on unlawful remaining, the defendant must have the intent to commit a crime at the time of remaining, which is any time during which the defendant unlawfully remains.”

    The issue is not directly on point with Franklin, but Quarles provides some hints on how the U.S. Supreme Court might approach the Franklin issue, namely, in deciding whether Michigan’s burglary statute was broader than Taylor’s generic burglary definition.

    Specifically, the opinion notes Congress’s rationale for specifying burglary as a violent felony under the ACCA: it “creates the possibility of a violent confrontation between the offender and an occupant, caretaker, or some other person who comes to investigate.”

    “[T]o interpret remaining-in burglary narrowly, as Quarles advocates, would thwart the stated goals of the Armed Career Criminal Act,” Justice Kavanagh wrote.

    However, the decision reiterated that state burglary laws must “substantially correspond” to or be narrower than generic burglary, which is clearly limited to buildings and dwellings. The Wisconsin burglary statute goes well beyond those places, extending to ships and vessels, trucks and trailers, and unoccupied motor homes.

    In his concurring opinion, though, Justice Thomas questioned the current precedent for analysis under Taylor. “[A]ny state burglary statute with a broader definition than the one adopted in Taylor is categorically excluded simply because other conduct might be swept in at the margins. It is far from obvious that this is the best reading of the statute.”

    Endnotes

    1 2019 WI 64.

    2 587 U.S. ____ (2019).

    3 U.S. v. Franklin, 884 F.3d 331 (7th Cir. 2018).

    4 U.S. v. Franklin, 895 F.3d 954 (7th Cir. 2018) (per curiam).




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