State v. Carl Lee McAdory, 2023AP645-CR, 4/12/24, District IV (recommended for publication); petition for review granted 10/7/24 case activity
After McAdory persuaded the court of appeals to reverse his OWI conviction and grant him a new trial, the state pulled the “old switcheroo” on McAdory by getting the circuit court to swap his previously dismissed restricted controlled substance conviction with the OWI conviction overturned by the court of appeals. Instead of a new OWI trial, McAdory was stuck with a new sentence on his previously dismissed RCS conviction. After rejecting McAdory’s challenges to the circuit court’s post-remittitur actions and his double jeopardy claims, the court of appeals affirms.
Long story short, the court’s focus in McAdory’s present appeal is the “single conviction provision” set forth in Wis. Stat. § 346.63(1)(c), which allows the state to pursue multiple counts that arise from the same incident, but requires “a single conviction for purposes of sentencing and for purposes of counting convictions.” The court notes the statutory provision does not explicitly address the procedures to be used to accomplish the result of a single conviction, either generally or in the specific circumstances here.” Op., ¶15. However, the court relies on Town of Menasha v. Bastian, 178 Wis. 2d 191, 503 N.W.2d 382 (Ct. App. 1993), which interpreted the provision to mean the defendant is to be sentenced on one of the charges and the other charge is to be dismissed. The court notes this appears to be standard procedure. Op., ¶16.
Prior to addressing McAdory’s double jeopardy claims, the court concludes that the procedure utilized by the state and circuit court after remittitur of McAdory’s original appeal was implicitly authorized by the single conviction provision and the case law interpreting that provision. Further, the court concludes that nothing in the court’s original decision or remand order prevented the circuit court from taking the actions it took after remittitur. Op., ¶¶23-25. Next, the court rejects McAdory’s argument the circuit court’s post-remittitur decisions “improperly rescued” the state from its “crucial lapse in judgment” in deciding (inexplicably) to move the circuit court to dismiss the RCS count instead of the OWI count. The court of appeals dropped a footnote in McAdory’s original appeal observing that had the state simply moved the circuit court to dismiss the OWI count McAdory’s entire appeal might have been avoided. Op., ¶27. Nevertheless, the court holds that McAdory fails to demonstrate the circuit court did anything improper by granting the state’s post-remittitur motions.
Finally, the court holds that nothing that occurred in McAdory’s case fit within any of the three categories of prohibited practices created by the Double Jeopardy Clause: (1) a second prosecution for the same offense after acquittal, (2) a second prosecution for the same offense after conviction, and (3) multiple punishments for the same offense. Op., ¶39. McAdory’s strongest argument on this front seems to be that once the state successfully moved the circuit court to dismiss the RCS charge, he had a legitimate expectation of finality that he would never be punished for that specific charge. The court, however, finds that argument unpersuasive and concludes that the “prosecutor and the circuit court acted with all reasonable expediency following remittitur. McAdory was or should have been aware, from before the time of trial, that he could be convicted and sentenced on only one Wis. Stat. § 346.63(1) charge, and that expectation has been met.” Op., ¶44.
