                                                                        2019 WI 64

                  SUPREME COURT               OF   WISCONSIN
CASE NO.:                2018AP1346-CQ
COMPLETE TITLE:          United States of America,
                                   Plaintiff-Appellee,
                              v.
                         Dennis Franklin and Shane Sahm,
                                   Defendants-Appellants.

                            ON CERTIFIED QUESTION FROM THE UNITED STATES
                              COURT OF APPEALS FOR THE SEVENTH CIRCUIT

OPINION FILED:           June 6, 2019
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:           February 11, 2019

SOURCE OF APPEAL:
   COURT:
   COUNTY:
   JUDGE:

JUSTICES:
   CONCURRED:            ABRAHAMSON, J. concurs (opinion filed).
   DISSENTED:
   NOT PARTICIPATING:


ATTORNEYS:


       For the defendants-appellants, there were briefs filed by
Shelley      M.     Fite   and   Federal   Defender   Services   of     Wisconsin,
Madison. There was an oral argument by Shelly M. Fite.


       For    the       plaintiff-appellee,   there   was   a   brief    filed   by
Laura A. Przyblinski Finn, Scott C. Blader, and United States
Attorney’s Office, Madison. There was an oral argument by Laura
A. Przyblinski.


       An amicus curiae brief was filed on behalf of State of
Wisconsin by Amy C. Miller, assistant solicitor general, with
whom on the brief were Ryan J. Walsh, chief deputy solicitor
general, and Brad D. Schimel, attorney general. There was an
oral argument by Amy C. Miller.
                                                                        2019 WI 64
                                                                NOTICE
                                                  This opinion is subject to further
                                                  editing and modification.   The final
                                                  version will appear in the bound
                                                  volume of the official reports.
No.       2018AP1346-CQ


STATE OF WISCONSIN                            :            IN SUPREME COURT

United States of America,

              Plaintiff-Appellee,
                                                                      FILED
      v.                                                         JUN 6, 2019

Dennis Franklin and Shane Sahm,                                    Sheila T. Reiff
                                                                Clerk of Supreme Court

              Defendants-Appellants.




      CERTIFICATION of a question of law from the United States
Court of Appeals for the Seventh Circuit.                  Certified question
answered and cause remanded.



      ¶1     REBECCA   FRANK   DALLET,   J.       This   case    is    before     the
court on a certified question from the United States Court of
Appeals for the Seventh Circuit.         United States v. Franklin, 895
F.3d 954 (7th Cir. 2018); see Wis. Stat. § 821.01 (2017-18).1
The question certified for determination is:

      Whether the different location subsections of the
      Wisconsin burglary statute, Wis. Stat. § 943.10(1m)(a)
      -(f), identify alternative elements of burglary, one

      1All subsequent references to the Wisconsin Statutes are to
the 2017-18 version unless otherwise indicated.
                                                                       No.        2018AP1346-CQ


      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?
      ¶2      Our answer to this certified question will aid the
Seventh     Circuit     in      determining        the    appropriate        sentences       for
Dennis Franklin and Shane Sahm (together, the defendants), who
had   their    sentences          enhanced     pursuant       to     the    federal        Armed
Career Criminal Act (ACCA), 18 U.S.C. § 924(e)(1).

      ¶3      The    defendants        pleaded      guilty     to     violations       of     18
U.S.C.     § 922(g)(1)          for   possessing     firearms        after        having    been
previously convicted of a felony.                         Based upon their previous
Wisconsin burglary convictions, the defendants were classified
as armed career criminals and sentenced to a mandatory minimum
of 15 years in prison pursuant to the ACCA.                                 The defendants
objected to their status as armed career criminals on appeal to
the Seventh Circuit, where their cases were consolidated.                                      A

three-judge         panel       of    the    Seventh       Circuit         held     that    the
defendants' prior burglary                  convictions      were predicate           violent

felonies under the ACCA because each of the locations set forth
in Wis. Stat. § 943.10(1m)(a)-(e) identify alternative elements
for the crime of burglary making them each distinct crimes.2                                 The
defendants      filed       a    petition     for        rehearing    en     banc.          They

      2While the Seventh Circuit "put aside subsection (f)" of
Wis. Stat. § 943.10(1m), reasoning that the appeals "present no
issue under it," the court acknowledged that subsection (f)
overlaps each of the other subsections in § 943.10(1m). United
States v. Franklin, 884 F.3d 331, 335 (7th Cir. 2018), reh'g
granted, judgment vacated, 895 F.3d 954 (2018).


                                               2
                                                                        No.     2018AP1346-CQ



asserted        that     because           the       locational        alternatives         in
§ 943.10(1m)(a)-(f) provide alternative means of committing one
element of the crime of burglary, the Wisconsin burglary statute
is too broad to fall within the definition of burglary as a
predicate violent felony under the ACCA.                          The Seventh Circuit
granted the petition for rehearing, vacated its prior opinion,
and certified the question of Wisconsin state law to this court.
       ¶4      To answer the certified question, we examine the four
factors set forth in Derango:                     (1) the statutory text; (2) the

legislative history and context of the statute; (3) the nature
of     the   conduct;        and    (4)     the      appropriateness          of   multiple
punishments.       State v. Derango, 2000 WI 89, ¶¶14-15, 236 Wis. 2d

721,     613     N.W.2d       833.           We      conclude      that        Wis.    Stat.
§ 943.10(1m)(a)-(f) identifies alternative means of committing
one    element     of    the       crime     of      burglary     under       § 943.10(1m).
Accordingly, a unanimous finding of guilt beyond a reasonable
doubt as to a locational alternative in subsections (a)-(f) is
not necessary to convict.
                                                 I
       ¶5      Under    18   U.S.C.       § 922(g)(1),      it    is    unlawful      for   a
person who has been convicted of a felony to possess a firearm.
The sentence for unlawful possession of a firearm under § 922(g)
is a maximum of ten years in prison.                     See 18 U.S.C. § 924(a)(2).
The penalty increases, however, to a 15-year mandatory minimum
under the ACCA for certain federal defendants who have three
prior convictions for a "violent felony," including "burglary,
arson, or extortion."              18 U.S.C. § 924(e).            Section 924(e) does
                                                 3
                                                               No.    2018AP1346-CQ



not define burglary.                Consequently, for purposes of the ACCA,
the United States Supreme Court in Taylor v. United States, 495

U.S. 575 (1990), adopted the following "generic" definition of
burglary:      "an unlawful or unprivileged entry into, or remaining
in,    a    building    or    other    structure,   with   intent    to   commit   a
crime."       Id. at 598.           To determine whether a defendant's past
offense counts as an ACCA predicate, courts compare the elements
of the crime of conviction with the elements of the "generic"
definition of the crime, employing the "categorical approach."
Mathis v. United States, 136 S. Ct. 2243, 2247-48 (2016).                      The
prior offense qualifies as an ACCA predicate if its elements are
the same as, or narrower than, those of the generic offense.

Id. at 2247.           However, if the crime of conviction covers more
conduct than the generic offense, then it does not qualify as an
ACCA       predicate,        even    if   the   defendant's    actual      conduct
indisputably fits within the generic offense's boundaries.                     Id.
at 2248.
       ¶6     The categorical approach can be difficult to apply if
a statute is phrased alternatively, like Wisconsin's burglary
statute, Wis. Stat. § 943.10(1m).               As the United States Supreme
Court has explained, alternatively phrased statutes come in two
types:       (1) those that list alternative elements (defining more
than one crime within a single statute); and (2) those that list
alternative factual means of committing a single element of a
crime.       See Mathis, 136 S. Ct. at 2249.               "'Elements' are the
'constituent parts' of a crime's legal definition——the things
the 'prosecution must prove to sustain a conviction.'"                      Id. at
                                           4
                                                                       No.    2018AP1346-CQ



2248 (quoted source omitted).               In contrast, means "spell[] out
various     factual    ways      of     committing        some    component         of    the
offense," that a jury need not unanimously find.                             Id. at 2249.

The appropriate sentences for the defendants turn on whether the
locational    alternatives        set     forth     in    subsections         (a)-(f)         of
§ 943.10(1m) are alternative means of committing one element of
burglary or are alternative elements of burglary.
                                           II
      ¶7    When      faced      with     the       question       of        whether      the
legislature    "create[d]        multiple       offenses     or    a    single      offense
with multiple modes of commission," this court has analyzed the
following four factors:               (1) the language of the statute; (2)

the   legislative history and context                 of    the    statute;         (3)   the
nature of the proscribed conduct; and (4) the appropriateness of
multiple punishments for the conduct.                    Derango, 236 Wis. 2d 721,
¶¶14-15; see also State v. Hammer, 216 Wis. 2d 214, 220, 576
N.W.2d 285 (Ct. App. 1997); Manson v. State, 101 Wis. 2d 413,
422, 304 N.W.2d 729 (1981).              The objective of this inquiry is to
determine     whether      the        legislature         "intend[ed]          to    create
multiple,    separate      offenses,      or    a   single       offense      capable         of
being committed in several different ways."                       Derango, 236 Wis.
2d 721, ¶15; see also Manson, 101 Wis. 2d at 422.
      ¶8    In Derango, this court was faced with the question of
whether    Wis.    Stat.   § 948.07       "creates        multiple      offenses         or    a
single offense with multiple modes of commission."                           Derango, 236
Wis. 2d 721, ¶14.       Section 948.07 read:


                                           5
                                                                        No.    2018AP1346-CQ


       Whoever, with intent to commit any of the following
       acts, causes or attempts to cause any child who has
       not attained the age of 18 years to go into any
       vehicle, building, room or secluded place is guilty of
       a Class BC felony:

       (1) Having sexual contact or sexual intercourse with
       the child in violation of s. 948.02 or 948.095.

       (2)        Causing the child to engage in prostitution.

       (3) Exposing a sex organ to the child or causing the
       child to expose a sex organ in violation of s. 948.10.

       (4) Taking a picture or making an audio recording of
       the child engaging in sexually explicit conduct.

       (5)        Causing bodily or mental harm to the child.

       (6) Giving or selling to the child a controlled
       substance or controlled substance analog in violation
       of ch. 961.
Id.,       ¶16.         The   Derango    court       examined   the    four    factors    and
determined that the statute created one offense of causing a
child to go into a secluded place "with any of six possible
prohibited intents."              Jury unanimity as to intent was therefore
not required.            Id., ¶17.
       ¶9         The    defendants      argue       that    application      of   the   four
Derango factors leads to the conclusion that the legislature

intended to create a single offense of burglary with multiple
means of commission.3                The federal government asserts that the
Derango factors support its position that subsections (a)-(f)
identify           alternative          locational          elements    requiring        jury
unanimity yet also maintains that the holding in Derango should

       3
       The four factors were first enunciated in Manson v. State,
101 Wis. 2d 413, 422, 304 N.W.2d 729 (1981).


                                                 6
                                                                No.   2018AP1346-CQ



be limited to the child enticement statute at issue in that
case.       We analyze         the Derango factors and conclude that Wis.

Stat.       § 943.10(1m)(a)-(f)         sets    forth   alternative       means   of
committing one element of burglary.
       ¶10       We begin with an examination of the plain language of
the statute.           Wis. Stat. § 943.10(1m)(a)-(f) provides:

       Whoever intentionally enters 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 is guilty of a Class F             felony:

       (a)       Any building or dwelling; or

       (b)       An enclosed railroad car; or

       (c)       An enclosed portion of any ship or vessel; or

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

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

       (f)       A room within any of the above.
The straightforward language of § 943.10(1m) creates one offense
with multiple means of commission.                Burglary can be broken down
into       the    following     elements:         intentional   entry,      without
consent,         and    with   intent    to     steal   or   commit   a    felony.4


       4
       Wisconsin JI——Criminal 1424 (2001) lists the four elements
that the State must prove:

       1.    The defendant intentionally entered a building.

       2. The defendant entered the building without                       the
       consent of the person in lawful possession.

                                                                      (continued)
                                            7
                                                              No.    2018AP1346-CQ



Subsections (a)-(f) list "any of the following places" of entry
and thus provides the means of commission for the element of
entry.       The crime is the act of the burglarious entry into one
of the listed locations, regardless of which particular location
is entered.
       ¶11    Moreover,   similar      to     the    alternative      prohibited
intents set forth in the child enticement statute in Derango,

Wis. Stat. § 943.10(1m) does not create different penalties for
the possible locational alternatives set forth in subsections
(a)-(f).        See   Derango,   236    Wis.    2d    721,   ¶16.       Instead,
regardless of which of the six locations a burglar enters, the
punishment is determined by the offense's status as a Class F

felony.       The absence of different penalties for the locational
alternatives weighs       against   the federal government's argument
that     § 943.10(1m)(a)-(f)     contains       separate     elements.        See
Mathis, 136 S. Ct. at 2256 ("If statutory alternatives carry




       3. The defendant      knew      that   the    entry   was    without
       consent.

       4. The defendant entered the building with intent to
       commit (state felony), [that is, that the defendant
       intended to commit (state felony) at the time the
       defendant entered the building].

     While the elements include the word "building," note 2 to
the instruction indicates that "[t]he model instruction is
drafted for a case involving entry into a 'building.'   It must
be modified if entry involved any of the other places listed in
[Wis. Stat.] § 943.10(1)(a) through (f)." Wis JI——Criminal 1424
at n.2 (2001).


                                        8
                                                                   No.        2018AP1346-CQ



different       punishments,         then   under      Apprendi5    they         must   be

elements.").          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.
       ¶12    The     second    Derango     factor     instructs     the        court   to
examine the legislative history and context of the statute.                             We
recognize that Derango was decided prior to State ex rel. Kalal
v. Circuit Court for Dane Cty., 2004 WI 58, 271 Wis. 2d 633, 681
N.W.2d 110,           this      court's      seminal      case       on         statutory
interpretation.6             As this     court   stressed   in     Kalal,       statutory
interpretation begins with the language of the statute.                            Kalal,

271     Wis. 2d 633,         ¶45.        Where   the    statutory         language      is
unambiguous, we generally do not consult extrinsic sources of
interpretation like legislative history.                  Id., ¶46.           However, as
we     clarified       in    Kalal,      "legislative     history        is     sometimes



       5   Apprendi v. New Jersey, 530 U.S. 466 (2000).
       6
       At oral argument, counsel for the defendants acknowledged
that the second factor in State v. Derango, 2000 WI 89, 236
Wis. 2d 721, 613 N.W.2d 833, was "different than how this court
usually articulates statutory interpretation" since, pursuant to
State ex rel. Kalal v. Circuit Court for Dane Cty., 2004 WI 58,
271 Wis. 2d 633, 681 N.W.2d 110, "and the more modern discussion
of statutory interpretation," context and purpose are analyzed
alongside the statutory language whereas legislative history
may be consulted separately.       Therefore, the concurrence's
allegation that we resolve this issue "spontaneously, and
incautiously" sua sponte is not entirely accurate. Concurrence,
¶31. Instead of ignoring Kalal as suggested by the concurrence,
we read Derango in accordance with Kalal.


                                            9
                                                                                No.     2018AP1346-CQ



consulted to confirm or verify a plain-meaning interpretation."
Id.,     ¶51.            We    determine       that        Wis.    Stat.    § 943.10(1m)              is

unambiguous and thus as a part of the second Derango factor we
will    examine          the       legislative       history      to     confirm        our    plain-
meaning interpretation.
       ¶13        We   also        observe    that        Kalal   does     not        disturb    this
court's          ability      to    inquire        into    statutory      context        under       the
second Derango factor.                    Evaluation of the context of a statute
is part of a plain-meaning analysis and includes a review of the
language of "surrounding or closely-related statutes," id., ¶46,
as    well       as "previously enacted and repealed provisions                                  of    a
statute."          Richards v. Badger Mut. Ins. Co., 2008 WI 52, ¶22,

309     Wis. 2d 541,                749     N.W.2d 581;           see     also         Kalal,        271
Wis. 2d 633, ¶52 n.9.
       ¶14        A review of the legislative history and context of the
statute          further       supports        our        conclusion       that        Wis.     Stat.
§ 943.10(1m)           creates        one    crime        of   burglary     with       alternative
means of commission.                  The burglary statute "was created as part
of the comprehensive revision of the Wisconsin Criminal Code"
that was intended to simplify the criminal law and state each
section in "clear, concise and definite language so that the
scope of the section will be plain."                                 Champlin v. State, 84
Wis. 2d 621, 624-25 & n.1, 267 N.W.2d 295 (1978).                                     The original
draft     of       the     statute        defined         burglary      using     the     following
general locational language:                         "[w]hoever enters any structure
without the consent of the owner and with intent to steal or
commit       a    felony       therein       may    be     imprisoned      not    more        than    10
                                                    10
                                                                 No.        2018AP1346-CQ



years."      Id. at 625 (quoting 1951 S.B. 784) (emphasis added);

see also § 343.10, ch. 623, Laws of 1953.                     The comments to the
proposed section stated in part:                "As far as the basic elements
of burglary are concerned . . . There must be (1) an entry of a
structure, (2) the entry must be without consent of the owner,
and (3) the entry must be made with intent to steal or commit a
felony      in    the   structure."        See    1950    Report       of     Wisconsin
Legislative Council, Vol. VII, Report on the Criminal Code (Apr.
1951) at 81-82; see also Champlin, 84 Wis. 2d at 625.                                  This
version of the statute defined "structure" as "any [e]nclosed
building or tent, any [e]nclosed vehicle (whether self-propelled
or not) or any room within any of them."                      § 339.22, ch. 623,

Laws of 1953.
      ¶15    The legislature's advisory committee subsequently made
several changes to incorporate the various locations within the
definition of "structure" into the burglary statute:                        "building,
dwelling, enclosed railroad car or the enclosed portion of any
ship or vessel, or any room therein."                 See Wisconsin Legislative
Council, Meeting of the Criminal Code Advisory Committee at 9
(July 23, 1954).         Thereafter the committee sent the statute back
to   the    technical      staff    to   have    it    formatted   in        an    "a-b-c
fashion."           Wisconsin      Legislative    Council,       Meeting          of   the
Criminal         Code   Advisory    Committee     at     11    (July    24,        1954).
Ultimately when the law was enacted in 1955 it read:

      (1) Whoever intentionally enters any of the following
      places without the consent of the person in lawful
      possession and with intent to steal or commit a felony
      therein may be imprisoned not more than 10 years:

                                          11
                                                                     No.      2018AP1346-CQ


      (a)    Any building or dwelling; or

      (b)    Any enclosed railroad car; or

      (c)    An enclosed portion of any ship or vessel; or

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

      (e)    A room within any of the above.
§ 943.10, ch. 696, Laws of 1955.7
      ¶16    As is clear from the legislative history and context

of the statute, the legislature did not intend for the crime of
burglary to include a separate locational element.                            The statute
originally included the element of entry of "any structure,"
which was eventually replaced with the entry of "any of the
following places" listed in subsections (a)-(f).                        The locational
alternatives added to the burglary statute thus "replace[d] and
clarif[ied]" the general language and did not take what was once
a   single   crime    and     replace    it       with       multiple   crimes.         See

Derango, 236 Wis. 2d 721, ¶20.                   Examination of the legislative
history and context of Wis. Stat. § 943.10(1m) thus confirms the
conclusion     that     the     locational            alternatives      set     forth   in

subsections    (a)-(f)        are   means        of    committing    one      element    of
burglary and do not create alternative elements of burglary for
which jury unanimity is required.
      ¶17    Finally,    our        assessment          of    the    nature      of     the
proscribed     conduct        and     the        appropriateness           of    multiple


      7The statute has remained virtually the same                              with only
minor changes made by the legislature since 1955.


                                            12
                                                                     No.     2018AP1346-CQ



punishments leads us to conclude that the legislature intended
to   create    one   crime    of    burglary         with    multiple         means      of
commission.      "We have previously concluded that acts warrant
separate    punishment     when    they       are    separate        in    time    or   are
significantly different in nature."                  Derango, 236 Wis. 2d 721,

¶21 (citing State v. Sauceda, 168 Wis. 2d 486, 499-500, 485
N.W.2d 1 (1992)).          The proscribed conduct here is entering a
specified location without consent and with intent to steal or
commit a felony.      Regardless of which location is entered, there
is only one act of burglary.
      ¶18   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.           Derango, 236 Wis. 2d 721, ¶26; U.S.
Const. amend. V; Wis. Const. art. I, § 8.8                       For example, if a
defendant burglarized a houseboat, he or she could be convicted
of   four   crimes   for   one    act:        burglary      of   a    dwelling      under
Wis. Stat. § 943.10(1m)(a),             burglary       of        a        vessel    under
§ 943.10(1m)(c),     burglary      of    a    room    within     a    dwelling      under
§ 943.10(1m)(f), and         burglary of a room within a vessel under
§ 943.10(1m)(f).      The federal government disputes the frequency

      8The double jeopardy clauses of the federal and state
constitutions are "intended to provide three protections:
protection against a second prosecution for the same offense
after acquittal; protection against a second prosecution for the
same offense after conviction, and protection against multiple
punishments for the same offense."       State v. Sauceda, 168
Wis. 2d 486, 492, 485 N.W.2d 1 (1992).


                                         13
                                                                             No.    2018AP1346-CQ



of     such      overlap.          Undoubtedly,           however,      a    defendant      will
oftentimes        enter     both      a   location        specified      under      subsections
(a)-(e) and a room within that location under subsection (f),
resulting in more than one potential punishment for the same
act.
        ¶19      Recently,       in   denying        an    ineffective         assistance      of
counsel claim for failure to object to jury instructions, we
confirmed         that    the      locational         alternatives           in    Wis.   Stat.
§ 943.10(1m)(a)-(f) are alternative factual means:                                 "[w]hile the
circuit       court      could    have     used      the       phrase   'a    room    within    a
building' instead of the words 'office' or 'building,' the facts
adduced would not confuse the jury as to what it was called upon

to decide regardless of which of these words might be used."
State v. Pinder, 2018 WI 106, ¶60, 384 Wis. 2d 416, 919 N.W.2d

568.9         Ultimately,        we   upheld      the      defendant's        conviction     for
burglary         of   locked      rooms     within         a    building       regardless      of
"[w]hether one would consider that an office, a building, or a
room within a building."                  Id.     We conclude that based upon the
nature      of    the    proscribed        conduct        and    the    appropriateness        of
multiple          punishments,            the        legislature             intended       that



        9
       Pinder claimed that the building entryways were open at
the time of the alleged entry and therefore the instructions
were legally incorrect because they referred to a situation that
was not a violation of the law. State v. Pinder, 2018 WI 106,
¶¶58-59, 384 Wis. 2d 416, 919 N.W.2d 568. Pinder further argued
that   the   word  "office"  is   not  listed   in  Wis.   Stat.
§ 943.10(1m)(a)-(f). Id.


                                                14
                                                                    No.     2018AP1346-CQ



§ 943.10(1m)(a)-(f) set          forth    alternative       means     of committing
one element of burglary and not elements of distinct crimes.




                                          III
     ¶20    In    sum,   after     analysis      of   the   statutory        text,   the
legislative history and context of the statute, the nature of
the conduct, and the appropriateness of multiple punishments, we
conclude    that     the    locational          alternatives     in        Wis.    Stat.
§ 943.10(1m)(a)-(f) identify alternative means of committing one
element     of     the     crime     of     burglary        under         § 943.10(1m).
Accordingly, a unanimous finding of guilt beyond a reasonable

doubt as to subsections (a)-(f) is not necessary to convict.                          We
therefore remand the cause to the United States Court of Appeals
for the Seventh Circuit.
     By     the    Court.—Certified         question        answered        and    cause
remanded.




                                          15
                                                                         No.    2018AP1346-CQ.ssa


       ¶21       SHIRLEY      S.     ABRAHAMSON,         J.      (concurring).           I    agree
with       the    majority        that   Wis.    Stat.         § 943.10(1m)         identifies      a
single crime with multiple modes of commission.
       ¶22       I write separately, however, to address the majority's
imprudent, sua sponte decision to modify the legal test adopted
by this court in State v. Derango, 2000 WI 89, ¶¶14-15, 236

Wis. 2d 721, 613 N.W.2d 833.
       ¶23       In Derango, this court held that the following four
factors          should      be     considered          when    determining         whether       the

legislature intended to create multiple offenses or a single
offense with multiple modes of commission:                            "1) the language of
the    statute,        2)     the    legislative          history    and       context       of   the

statute, 3) the nature of the proscribed conduct, and 4) the
appropriateness of multiple punishment for the conduct."1
       ¶24       Subsequently, in State ex rel. Kalal v. Circuit Court
for    Dane        County,        2004    WI    58,       ¶46,     271     Wis. 2d 633,           681
N.W.2d 110,           this    court      limited        the    circumstances         under    which

legislative           history        could     be       consulted     in       interpreting        a
statute's meaning.                  The Kalal court announced that "extrinsic
sources          of    statutory         interpretation"            such       as     "items      of
legislative history" should not be consulted "except to resolve
an ambiguity in the statutory language . . . ."2                               "If the meaning

       1
       State v. Derango, 2000 WI 89, ¶15, 236 Wis. 2d 721, 613
N.W.2d 833 (emphasis added); see also Manson v. State, 101
Wis. 2d 413, 422, 304 N.W.2d 729 (1981); State v. Hammer, 216
Wis. 2d 214, 220, 576 N.W.2d 285 (Ct. App. 1997).
       2
       State ex rel. Kalal v. Circuit Court for Dane County, 2004
WI 58, ¶¶50-51, 271 Wis. 2d 633, 681 N.W.2d 110.


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of   the      statute   is   plain,"   the      inquiry    ordinarily       stops     and
extrinsic       sources      of   statutory     interpretation          need    not    be
consulted.3
      ¶25      The   majority     concludes      that     "[t]he       straightforward
language of § 943.10(1m) creates one offense with multiple means
of commission."4          Isn't this ordinarily the end of the inquiry
under Kalal?5

      ¶26      The majority attempts to reconcile Derango with Kalal
by   highlighting       that,     under     Kalal,      "legislative       history     is

sometimes       consulted     'to   confirm      or     verify     a     plain-meaning
interpretation'" of an unambiguous statute.6                     The majority then
examines the legislative history of Wis. Stat. § 943.10(1m) and
confirms       its   "plain-meaning       interpretation"        that     the   statute
creates a single offense with multiple modes of commission.7
        ¶27    In my view, the majority has muddied that which it
sought to clarify.           By hastily disposing of a significant legal
issue8 without the benefit of adversarial briefing,9 the majority

has raised more questions than it answered.


      3Kalal, 271 Wis. 2d 633, ¶45 (quoting Seider v. O'Connell,
2000 WI 76, ¶43, 236 Wis. 2d 211, 612 N.W.2d 659).
      4   Majority op., ¶10.
      5Kalal,  271           Wis. 2d 633,        ¶45     (quoting        Seider,      236
Wis. 2d 211, ¶43).
      6   Majority op., ¶12 (quoting Kalal, 271 Wis. 2d 633, ¶51).
      7   See majority op., ¶¶12-17.
      8   That is, the effect          of    Kalal on      Derango's four-factor
test.


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      ¶28      For example, if the "straightforward language" of a
statute creates one offense with multiple modes of commission,
but the statute's legislative history suggests otherwise, what
weight, if any, should be afforded to the legislative history?
Under      such   circumstances,      should   the   court     disregard     the
legislative history altogether?
      ¶29      Further, does it remain proper for courts to examine
and     give    analytical   weight    to   Derango's    third    and   fourth

factors?       That is, if the statute's language is plain and its

plain meaning is confirmed by the statute's legislative history
and   context,     what   possible    effect   could    the    nature   of   the
conduct or the appropriateness of multiple punishments have on
the court's analysis?
      ¶30      These are important and complicated legal questions.
The people of Wisconsin deserve careful and considered answers
to them, and in my view, "[t]he rule of law is generally best
developed when matters are tested by the fire of adversarial

briefs and oral arguments."10           "The fundamental premise of the


      9Adversarial briefing of legal issues is important for the
court to reach a sound decision.     Responding to a question at
oral argument is unlikely to supply the requisite analytical
detail to comprehensively resolve the issue.
      10
       Maurin v. Hall, 2004 WI 100, ¶120, 274 Wis. 2d 28, 682
N.W.2d 866   (Abrahamson,  C.J.,   &   Crooks,  J.,   concurring)
(overruled on other grounds by Bartholomew v. Wis. Patients
Comp. Fund, 2006 WI 91, 293 Wis. 2d 38, 717 N.W.2d 216); see
also Springer v. Nohl Elec. Prods. Corp., 2018 WI 48, ¶51, 381
Wis. 2d 438, 912 N.W.2d 1 (Abrahamson, J., dissenting); Data Key
Partners v. Permira Advisers LLC, 2014 WI 86, ¶70, 356
Wis. 2d 665, 849 N.W.2d 693 (Abrahamson, C.J., dissenting).


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adversary    process   is    that   these     advocates     will   uncover    and
present more useful information and arguments to the decision
maker than would be developed by a judicial officer acting on
his own in an inquisitorial system."11
     ¶31    Because    the   majority       makes   the   unwise   decision    to
deviate     from   adversarial       process        by    spontaneously,      and
incautiously, answering a complicated legal question on its own,
I concur.




     11Adam A. Milani & Michael R. Smith, Playing God:       A
Critical Look at Sua Sponte Decisions by Appellate Courts, 69
Tenn. L. Rev. 245, 247 (2002) (citing United States v. Burke,
504 U.S. 229, 246 (1992) (Scalia, J., concurring)); see also
Allan D. Vestal, Sua Sponte Consideration in Appellate Review,
27 Ford. L. Rev. 477, 493-94 (1958-59):

     When the appellate court considers a matter sua sponte
     for the first time it means that the litigants have
     not been given an opportunity to consider the matter
     and urge arguments in support of and against the
     position adopted by the reviewing court.       If the
     question had been raised there is at least a
     possibility that other facts or other authorities
     might have been presented which might have changed the
     court's attitude on the matter.


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