                                                                2015 WI 72

                  SUPREME COURT            OF   WISCONSIN
CASE NO.:               2013AP1753-CR & 2013AP1754-CR
COMPLETE TITLE:         State of Wisconsin,
                                  Plaintiff-Respondent,
                             v.
                        Rogelio Guarnero,
                                  Defendant-Appellant-Petitioner.

                          REVIEW OF A DECISION OF THE COURT OF APPEALS
                         (Reported at 354 Wis. 2d 307, 848 N.W.2d 329)
                                   (Ct. App. 2014 – Published)
                                      PDC No: 2014 WI App 56

OPINION FILED:          July 9, 2015
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:          March 10, 2015

SOURCE OF APPEAL:
   COURT:               Circuit
   COUNTY:              Milwaukee
   JUDGE:               Timothy G. Dugan

JUSTICES:
   CONCURRED:
   DISSENTED:
   NOT PARTICIPATING:   BRADLEY, ABRAHAMSON, J.J., dissent. (Opinion
                        Filed.)

ATTORNEYS:
       For the defendant-appellant-petitioner, there were briefs
by Robert J. Eddington, Milwaukee, and oral argument by Robert
J. Eddington.




       For the plaintiff-respondent, the cause was argued by Sara
Lynn Larson, assistant attorney general, with whom on the brief
was Brad Schimel, attorney general.
                                                                              2015 WI 72
                                                                      NOTICE
                                                        This opinion is subject to further
                                                        editing and modification.   The final
                                                        version will appear in the bound
                                                        volume of the official reports.
No.        2013AP1753-CR & 2013AP1754-CR
(L.C. No.     2012CF2319 & 2012CF4088)

STATE OF WISCONSIN                                  :             IN SUPREME COURT

State of Wisconsin,

               Plaintiff-Respondent,                                       FILED
       v.                                                              JUL 9, 2015
Rogelio Guarnero,                                                        Diane M. Fremgen
                                                                      Clerk of Supreme Court
               Defendant-Appellant-Petitioner.




       REVIEW of a decision of the Court of Appeals.                      Affirmed.


       ¶1      PATIENCE DRAKE ROGGENSACK, C.J.                We review a decision
of    the    court   of   appeals1   that    affirmed        the    circuit      court's2

conclusion that Rogelio Guarnero's prior federal RICO3 conspiracy
conviction       served    as    a   prior       conviction       under     Wis.     Stat.



       1
       State v. Guarnero, 2014 WI App 56, 354 Wis. 2d 307, 848
N.W.2d 329.
       2
       The      Honorable       Timothy     G.    Dugan      of    Milwaukee        County
presided.
       3
       Racketeer Influenced           and    Corrupt       Organizations         Act,     18
U.S.C. §§ 1961-68 (2005).
                                                        No.    2013AP1753-CR & 2013AP1754-CR



§ 961.41(3g)(c) (2011-12)4 and therefore enhanced the penalty for
his        Wisconsin           cocaine      possession           conviction.            Under
§ 961.41(3g)(c), a court concludes that cocaine possession is a
second      offense        when      a    statute       under     which   the        defendant
previously was convicted relates to controlled substances.                                 The
circuit court considered the language of the RICO conspiracy
statute and Guarnero's RICO indictment to reach its conclusion
that       the     RICO        conspiracy     statute          related    to     controlled
substances and therefore enhanced Guarnero's cocaine possession
to a second offense under § 961.41(3g)(c).5
       ¶2        Guarnero appealed, contending that the circuit court
improperly         enhanced         the    penalty       for    conviction      of     cocaine

possession         due         to   his    prior       RICO     conspiracy      conviction.
Guarnero         also    argued     that    his       felony    bail-jumping     conviction
should      have        been    a   misdemeanor        offense     because     his    cocaine
possession          conviction            should       have      been     an     unenhanced
misdemeanor.            The court of appeals affirmed the circuit court,
concluding that RICO and 18 U.S.C. § 1962(c) and (d) (2005)6
related to controlled substances.                        State v. Guarnero, 2014 WI
App 56, ¶8, 354 Wis. 2d 307, 848 N.W.2d 329.


       4
       All subsequent references to the Wisconsin Statutes are to
the 2011-12 version unless otherwise indicated.
       5
       A second or subsequent offense is a Class I felony.                                Wis.
Stat. § 961.41(3g)(c).
       6
       All subsequent references to the United States Code are to
the 2005 version unless otherwise indicated.



                                                  2
                                                     No.     2013AP1753-CR & 2013AP1754-CR



      ¶3     We conclude that Guarnero's prior conviction, due to
the   manner       in     which     Guarnero       violated        the     RICO      conspiracy
statute,      relates        to        controlled          substances.               Therefore,
Guarnero's       prior      RICO       conviction      enhances          the     penalty       for
cocaine possession under Wis. Stat. § 961.41(3g)(c) to a second
offense     as     a     Class     I    felony.        We        further       conclude       that
Guarnero's bail-jumping offense is properly a felony conviction.
Accordingly,        we     affirm      the    court     of       appeals       decision       that
affirmed     the       circuit    court's      denial       of    Guarnero's         motion     to
dismiss and motion for postconviction relief.7
                                       I.    BACKGROUND
      ¶4     In 2005, a grand jury issued a 38-count indictment in

the United States District Court for the Eastern District of
Wisconsin, alleging that 49 members of the Milwaukee chapter of
the Latin Kings violated RICO.                       Guarnero was one of the 49
individuals indicted.               He was personally charged with five of
the 38 counts:           counts 2, 20, 24, 25 and 26.
      ¶5     Count Two of the indictment alleged that Guarnero and
others were members or associates of the Latin Kings, a criminal
racketeering       organization         that       "engaged       in   acts     of      violence,
including        murder,     attempted         murder,       robbery,          extortion       and
distribution        of     controlled        substances."              Count      Two    of    the
indictment         also      alleged          that         Guarnero        knowingly          and




      7
          Guarnero, 354 Wis. 2d 307, ¶¶12, 14.



                                               3
                                          No.    2013AP1753-CR & 2013AP1754-CR



intentionally     conspired   with     others    to   violate      18   U.S.C.
§ 1962(c):

     [T]o conduct and participate, directly and indirectly,
     in the conduct of the affairs of that enterprise
     through a pattern of racketeering activity involving
     . . . multiple acts involving the distribution of
     controlled substances including cocaine, cocaine base
     in the form of "crack" cocaine and marijuana in
     violation of the laws of the United States[.]
The indictment continued:         "It was a part of the conspiracy that
each defendant agreed that a conspirator would commit at least
two acts of racketeering activity in the conduct of the affairs
of the enterprise," and that this conduct violated 18 U.S.C.
§ 1962(d).      Guarnero was charged with four other counts that
involved possession of marijuana and firearms.

     ¶6      Guarnero pled guilty to conspiracy of violating RICO
as set out in Count Two, and the United States dismissed the
remaining     counts   of   the    indictment.        The   plea    agreement
contained a section titled "Elements," which stated:

          The parties understand and agree that in order to
     sustain the charge of Conspiracy to Commit RICO as set
     forth in Count Two, the government must prove each of
     the following propositions beyond a reasonable doubt:

          First, that the defendant knowingly conspired to
     conduct or participate in the conduct of the affairs
     of the Milwaukee Latin Kings, an enterprise, through a
     pattern of racketeering activity as described in Count
     Two;

          Second, that the Milwaukee Latin Kings were an
     enterprise; and

          Third, that the activities of the Milwaukee Latin
     Kings would affect interstate commerce.



                                      4
                                                      No.     2013AP1753-CR & 2013AP1754-CR



Guarnero's          plea      agreement          acknowledged        that     Guarnero        had
conspired to commit at least two qualifying criminal acts, but
the plea agreement did not specify which acts he had committed.
The    plea    agreement         also      contained        Guarnero's      admission        that
police       officers        found    marijuana       in    his     apartment       while    they
executed a firearm search warrant at Guarnero's residence.
        ¶7     In August 2012, Guarnero was arrested for possession
of cocaine in violation of Wis. Stat. § 961.41(3g)(c), which
contains an enhanced penalty provision.                            The provision enhances
the penalty for a cocaine possession conviction to a second or
subsequent         offense       if     the      defendant         has   previously         "been
convicted of any felony or misdemeanor under this chapter or

under any statute of the United States or of any state relating
to    controlled          substances."           § 961.41(3g)(c).             The       complaint
listed Guarnero's RICO conspiracy conviction, noted that it was
related       to        controlled      substances,         and      listed       the    cocaine
possession as a felony second or subsequent offense contrary to
§ 961.41(3g)(c).
        ¶8     Guarnero        filed        a    motion     to      dismiss       the    cocaine
possession charge, arguing that his prior RICO conviction could
not   serve        as    a   prior    conviction       to    enhance       the    penalty     for
cocaine possession conviction to a second offense under Wis.
Stat.    § 961.41(3g)(c).                  The   circuit      court      denied     Guarnero's
motion to dismiss.             The court recognized the many possible bases

for   RICO     convictions           and    concluded       that    RICO    was     related    to
controlled substances because of the specific charges in Count
Two of the indictment.                Guarnero petitioned for leave to take an
                                                  5
                                                     No.    2013AP1753-CR & 2013AP1754-CR



interlocutory appeal of the circuit court's denial of his motion
to dismiss.          The court of appeals denied leave.8
       ¶9      Subsequently, the circuit court found Guarnero guilty
of violating Wis. Stat. § 961.41(3g)(c).                       Guarnero stipulated to
the    facts    of     his     possession      of    cocaine      and    his    prior    RICO
conspiracy conviction.                Under the § 961.41(3g)(c) enhancement,
Guarnero's cocaine possession constituted a felony.                              The court
also convicted Guarnero of felony bail jumping, an offense that
occurred     while      Guarnero      was   on      bail    for    the    felony     cocaine
possession charge.
       ¶10     Guarnero      moved    for   postconviction          relief,      which    the
circuit court denied.             The circuit court concluded that a "RICO

conviction can deal with drug-related activity or not be related
to drugs or drug activity."                 The court also noted that "count
two    of    the      federal     indictment         related      to     distribution     of
controlled substances, including cocaine and other drugs."
       ¶11     The     court     of   appeals        affirmed      the     circuit      court
orders.      Guarnero, 354 Wis. 2d 307, ¶¶1, 14.                       The court referred
to    Guarnero's       guilty    plea    and       held    that   the    RICO   conspiracy
statute related to controlled substances.                         Id., ¶12.      The court
rejected Guarnero's arguments based on the rule of lenity and
due process.           Id., ¶13.        The court of appeals also affirmed
Guarnero's conviction for felony bail jumping.                          Id., ¶14.

       8
       At that time, the court of appeals also denied Guarnero's
motion to consolidate Milwaukee County Circuit Court Case Nos.
12CF2319 and 12CF4088. The court of appeals later consolidated
the cases on August 20, 2013.



                                               6
                                                                No.     2013AP1753-CR & 2013AP1754-CR



                                        II.        DISCUSSION
                                  A.        Standard of Review
        ¶12    We    review       the       court        of      appeals'         affirmance         of    the
circuit       court's       denial          of    Guarnero's            motion         to    dismiss       and
motion for postconviction relief in which Guarnero argued that
his     prior       RICO     conspiracy               conviction            was      not         related    to
controlled       substances            under          Wis.      Stat.       § 961.41(3g)(c).                In
order     to        review        the        questions                presented,            we     interpret
§ 961.41(3g)(c).             Statutory interpretation presents a question
of law that we independently review, while benefitting from the
discussions         of     the    court          of    appeals          and    the     circuit        court.
Richards v. Badger Mut. Ins. Co., 2008 WI 52, ¶14, 309 Wis. 2d
541, 749 N.W.2d 581.
                             B.    Statutory Interpretation
        ¶13    Our       review        focuses             on        whether       a        federal        RICO
conspiracy       conviction            is    related            to    controlled            substances       so
that    it    may     serve       as    a        prior     conviction           triggering           penalty
enhancement for a cocaine possession conviction under Wis. Stat.
§ 961.41(3g)(c).             When we interpret a statute, we "begin[] with
the language of the statute.                          If the meaning of the statute is
plain, we ordinarily stop the inquiry."                                     State ex rel. Kalal v.
Circuit Court for Dane Cnty., 2004 WI 58, ¶45, 271 Wis. 2d 633,
681 N.W.2d 110 (internal quotation marks and citation omitted).
We give statutory language its "common, ordinary, and accepted
meaning,       except      that        technical           or     specially-defined                words     or
phrases       are     given       their          technical             or     special        definitional
meaning."       Id.
                                                       7
                                                    No.    2013AP1753-CR & 2013AP1754-CR



        ¶14    Our focus is on "relating to controlled substances" in
Wis.     Stat.        § 961.41(3g)(c),            the     statute    that          prohibits
possession of cocaine, which provides:

             Cocaine   and  cocaine   base.     If   a  person
        possess[es] or attempts to possess cocaine or cocaine
        base, or a controlled substance analog of cocaine or
        cocaine base, the person shall be fined not more than
        $5,000 and may be imprisoned for not more than one
        year in the county jail upon a first conviction and is
        guilty of a Class I felony for a 2nd or subsequent
        offense.   For purposes of this paragraph, an offense
        is considered a 2nd or subsequent offense if, prior to
        the offender's conviction of the offense, the offender
        has at any time been convicted of any felony or
        misdemeanor under this chapter or under any statute of
        the United States or of any state relating to
        controlled substances, controlled substance analogs,
        narcotic drugs, marijuana, or depressant, stimulant,
        or hallucinogenic drugs.
        ¶15    The     statutory       phrase,           "relating      to     controlled
substances," in Wis. Stat. § 961.41(3g)(c) is undefined.                             As the
words    the    legislature        chose    are     not    technical     or    specially-
defined,       we    give   them    their     "common,      ordinary,        and    accepted
meaning."       Id., ¶45.
        ¶16    In order to determine the common meaning of "relating
to," we turn to a dictionary definition of "relate."                               Id., ¶54
(referring to the dictionary definition of statutory language
with a common meaning).              "Relate" is defined as a "connection,
relation, or reference."               The American Heritage Dictionary of
the English Language 1482 (5th ed. 2011).                       We conclude that Wis.
Stat.    § 961.41(3g)(c)           requires       that    the   prior    conviction       be
connected to controlled substances if a prior conviction is to
trigger penalty enhancement under § 961.41(3g)(c).

                                              8
                                              No.        2013AP1753-CR & 2013AP1754-CR



      ¶17   Our interpretation of "relating to" is consistent with
the court of appeals' interpretation of "relating to controlled
substances" in State v. Moline, 229 Wis. 2d 38, 598 N.W.2d 929
(Ct. App. 1999).9         In Moline, the parties advanced technical
interpretations      of     the     phrase,         "relating       to   controlled
substances," that were grounded in punctuation and grammatical
nuances.       Id.   at    41-42.       The         court     rejected     technical
interpretations in favor of a commonsense reading of "relating
to" and concluded that Moline's prior conviction for possession
of   drug   paraphernalia    was    "linked"        to    controlled     substances.
Id. at 42.    We interpret Wis. Stat. § 961.41(3g)(c) as requiring
the prior conviction, here RICO conspiracy, to be connected to

or linked to controlled substances, just as possession of drug
paraphernalia was in Moline.10




      9
       In State v. Moline, 229 Wis. 2d 38, 41-42, 598 N.W.2d 929
(Ct. App. 1999), the court of appeals interpreted "relating to
controlled substances" as used in Wis. Stat. § 961.48(3), which
includes the same penalty enhancement structure as Wis. Stat.
§ 961.41(3g)(c).
      10
        After oral argument, we ordered the parties to provide
supplemental briefs on an issue that Guarnero asserted the State
raised for the first time at oral argument. He asserted that at
oral   argument  the   State   first  argued  that   "18  U.S.C.
§ 841(b)(1)(C)" in the RICO judgment of conviction was a
scrivener's error and the correct statute was 21 U.S.C.
§ 841(b)(1)(C).    21 U.S.C. § 841(b)(1)(C) lists controlled
substances offenses and penalties.

                                                                         (continued)
                                       9
                                                  No.    2013AP1753-CR & 2013AP1754-CR



              C.     Application to Federal RICO Conspiracy
     ¶18     We     next    apply   our     interpretation         of    "relating    to
controlled        substances"       in     Wis.     Stat.     § 961.41(3g)(c)          to
Guarnero's prior conviction for a RICO conspiracy.                          Guarnero was
convicted of 18 U.S.C. § 1962(d), which causes conspiring to
violate subsections (a), (b), and (c) to be unlawful.                          18 U.S.C.
§ 1962(d).           Each     subsection,         (a)    through        (c),    involves
racketeering activity11 and serves to link RICO conspiracy with
racketeering         activities          that     could      involve           controlled
substances.12
     ¶19     The    definition      of    racketeering       activity        lists   many
qualifying        offenses,     including         "dealing     in       a      controlled

substance or listed chemical (as defined in section 102 of the
Controlled        Substances    Act)"      and    "the    felonious         manufacture,

     In supplemental briefing, Guarnero contended that the
scrivener's   error  was   the  inclusion  of  a   reference   to
§ 841(b)(1)(C), regardless of the chapter number.        Guarnero
argues that he pled guilty and was convicted of Count Two of the
federal indictment that included 18 U.S.C. § 1962(d), a RICO
conspiracy charge, and that the reference to 18 U.S.C.
§ 841(b)(1)(C) was in error.      However, neither the State's
reference at oral argument nor Guarnero's discussion in
supplemental briefing affects our approach to the issues
presented by the parties to this review.
     11
       Subsections of 18 U.S.C. § 1962 involve a pattern of
racketeering activity:    (a) deriving income from racketeering
activity; (b) acquiring interest in an enterprise through
racketeering activity; or (c) participating in an enterprise
through racketeering activity.
     12
       Count Two of Guarnero's RICO indictment clarifies that
Guarnero's conspiracy charge was based on Guarnero conspiring to
violate 18 U.S.C. 1962(c).



                                           10
                                                          No.    2013AP1753-CR & 2013AP1754-CR



importation,        receiving,            concealment,             buying,             selling,       or
otherwise dealing in a controlled substance or listed chemical
(as defined in section 102 of the Controlled Substances Act),
punishable    under       any      law    of       the    United       States."              18   U.S.C.
§ 1961(1)(A)        &    (D).          RICO        conspiracy          can        be    related       to
controlled         substances          for         the     purposes             of      Wis.       Stat.
§ 961.41(3g)(c) because RICO conspiracy in 18 U.S.C. § 1962(d)
is connected to controlled substances through the racketeering
activity definition, § 1961(1)(A) and (D).
      ¶20    However,         we     determine           which     racketeering               activity
supports     Guarnero's         RICO      conspiracy            conviction,            because      only
some of the multiple definitions of racketeering activity in 18

U.S.C. § 1961(1) are linked to controlled substances.                                             Such a
determination       is    necessary           to    ascertain          whether         the    unlawful
conduct underlying his prior conviction is related to controlled
substances.        For example, were we not to consider the unlawful
conduct     that    gave      rise       to    the       RICO    conviction,            a    defendant
convicted of RICO conspiracy based on sports bribery could have
his   or    her     penalty        erroneously            enhanced          under       Wis.       Stat.
§ 961.41(3g)(c)           because         sports          bribery          fits         within       the
definition     of       racketeering          activity,          but       is    not    related       to
controlled substances.             See 18 U.S.C. § 1961(1)(B).
      ¶21    When       the     statute            underlying          a        prior       conviction
presents alternative methods of violating the statute, it is
appropriate to consult a limited class of documents to determine
what statutory alternative formed the basis for the defendant's
prior conviction.             See Descamps v. United States, __ U.S. __,
                                                   11
                                                   No.    2013AP1753-CR & 2013AP1754-CR



133 S. Ct. 2276, 2285 (2013).                    In this case, we can glean the
necessary    information          from     Guarnero's         RICO    conspiracy      plea,
which incorporates Count Two of his RICO indictment.
     ¶22     Guarnero's       RICO    conspiracy         plea    shows     that    he   was
convicted    of       RICO   conspiracy       based      on    racketeering       activity
involving controlled substances.                  To explain further, Guarnero's
plea agreement contained his admission that as a member of the
Latin Kings he engaged in acts that included the "extortion and
distribution of controlled substances" because Count Two of the
indictment       is    attached      to    his    plea    agreement.         Count      Two
provides that, as a member of the Latin Kings, he "engaged in"
the "distribution of controlled substances."                           These documents

confirm that the method of racketeering activity that underlies
the RICO conspiracy of which Guarnero was convicted related to
controlled       substances.          Because       Guarnero's        RICO   conspiracy
conviction       was    related      to    controlled         substances     within     the
meaning     of        Wis.   Stat.        § 961.41(3g)(c),           the   penalty      for
Guarnero's cocaine possession conviction was properly enhanced.13




     13
       In a recent Supreme Court opinion, Mellouli v. Lynch, __
U.S. __, 135 S. Ct. 1980 (2015), the Court discussed whether
conviction of a state crime is a deportable offense.      Id. at
1982-83.   Mellouli focused on whether the controlled substance
that resulted in a state conviction was a controlled substance
"included in one of five federal schedules."   Id. at 1984.   It
has no application here, as it does not focus on determining
which of several statutory alternatives formed the basis for the
defendant's prior conviction.



                                             12
                                                              No.     2013AP1753-CR & 2013AP1754-CR



                                       D.       Sixth Amendment
        ¶23    Guarnero also contends that his Sixth Amendment rights
were    violated       by        the      court's        examination            of    more       than       the
elements        of     his       RICO           conviction,           rather         than     a    jury's
consideration          of       the       facts     underlying            his    RICO       conviction.
Under the Sixth Amendment, "[i]n all criminal prosecutions, the
accused shall enjoy the right to a speedy and public trial, by
an impartial jury."               U.S. Const. amend. VI.
        ¶24    The United States Supreme Court has held that "any
fact     that    increases                the     penalty        for      a     crime       beyond          the
prescribed statutory maximum must be submitted to a jury, and
proved beyond a reasonable doubt."                             Apprendi v. New Jersey, 530
U.S. 466, 490 (2000).                     The Court stated that the sole exception
is the fact of a prior conviction.                                  Id.       The Court revisited
this concern in Shepard v. United States, 544 U.S. 13 (2005).
There,    in     reviewing            a     plea,       the    Court      approved          use    of       the
charging       document,          plea          agreement        or    transcript           of    a     plea
colloquy, but only to assess whether Shepard pled to violating
the    statute        by    a    method           that    permitted           the     penalty          to    be
enhanced under the Armed Career Criminal Act.                                          Id. at 25-26.
The    transcript          was    not        to    be     used      "to       determine       'what         the
defendant and state judge must have understood as the factual
basis    of     the    prior          plea.'"            Descamps,         133       S. Ct.       at    2284
(quoting Shepard, 544 U.S. at 25).
        ¶25    In State v. LaCount, 2008 WI 59, 310 Wis. 2d 85, 750
N.W.2d 780, we considered the effect of Apprendi and Shepard on


                                                     13
                                                          No.   2013AP1753-CR & 2013AP1754-CR



a circuit court's role in determining whether a prior conviction
provided the basis for enhancing a defendant's sentence.

       The Shepard decision relaxed the holdings of . . .
       Apprendi . . . so that, when Shepard and Apprendi are
       read together, a trial court judge, rather than a
       jury, is allowed to determine the applicability of a
       defendant's prior conviction for sentence enhancement
       purposes, when the necessary information concerning
       the prior conviction can be readily determined from an
       existing judicial record.
Id.,   ¶52.14      In    our      review       of    whether       Guarnero's         prior      RICO
conspiracy conviction applied to enhance his cocaine possession
conviction,       we    rely      on    necessary         information      from           Guarnero's

existing judicial record, his guilty plea.                              Our examination of
Guarnero's        guilty       plea      did        not     violate       Guarnero's             Sixth
Amendment right because it is consistent with the principles
underlying Apprendi and Shepard as we explained in LaCount.                                       Id.
                                   E.    Rule of Lenity
       ¶26    Guarnero       further       asserts          that    the    meaning          of    the
phrase,      "relating       to    controlled             substances,"         in     Wis.       Stat.
§ 961.41(3g)(c)         is     ambiguous;           and     accordingly,            the    rule     of

lenity requires that the ambiguity be resolved in his favor.
The rule of lenity provides that when doubt exists as to the
meaning of a criminal statute, "a court should apply the rule of
lenity      and   interpret        the    statute          in   favor     of    the       accused."
State v. Cole, 2003 WI 59, ¶13, 262 Wis. 2d 167, 663 N.W.2d 700.


       14
       Descamps v. United States, __ U.S. __, 133 S. Ct. 2276,
2288 (2013) confirms our conclusion in State v. LaCount, 2008 WI
59, 310 Wis. 2d 85, 750 N.W.2d 780.



                                                14
                                                         No.    2013AP1753-CR & 2013AP1754-CR



Stated    otherwise,         the    rule      of     lenity      is   a    canon       of    strict
construction,          ensuring       fair         warning       by   applying           criminal
statutes to "conduct clearly covered."                          United States v. Lanier,
520 U.S. 259, 266 (1997); see also United States v. Castleman,
__ U.S. __, 134 S. Ct. 1405, 1416 (2014) (addressing the need
for fair warning implicit in the rule of lenity).
        ¶27    However, the rule of lenity applies if a "grievous
ambiguity" remains after a court has determined the statute's
meaning       by    considering     statutory            language,    context,          structure
and purpose, such that the court must "simply guess" at the
meaning of the statute.                   Castleman, 134 S. Ct. at 1416; see
Kalal, 271 Wis. 2d 633, ¶¶45-46.                          Here, applying the rule of

lenity    is       unnecessary.       There         is    no    "grievous        ambiguity"        or
uncertainty in Wis. Stat. § 961.41(3g)(c) that would cause a
court    to    "simply       guess"      as    to    the       meaning     of    the     statute.
Castleman, 134 S. Ct. at 1416.                       There is no grievous ambiguity
in   § 961.41(3g)(c),          in    18    U.S.C.         § 1961(1)(A)&(D),            or    in    18
U.S.C. § 1962(d).             Accordingly, we do not apply the rule of
lenity.
                                    F.     Due Process
        ¶28    As a final argument, Guarnero contends that he did not
have fair notice that his guilty plea to the RICO conspiracy
charge could subject him to sentence enhancement in a subsequent
criminal       case    because       no       Wisconsin        case       had    held       such    a
conviction         related    to    controlled           substances.            "[D]ue      process
bars courts from applying a novel construction of a criminal
statute       to    conduct    that       neither        the    statute         nor   any     prior
                                                15
                                        No.    2013AP1753-CR & 2013AP1754-CR



judicial decision has fairly disclosed to be within its scope."
Lanier, 520 U.S. at 266.
      ¶29   Guarnero's contention misses his mark in at least two
respects.    First, our construction of Wis. Stat. § 961.41(3g)(c)
is not "novel," but rather, a commonsense reading of the words
the legislature chose.      Second, Moline explained that "[i]f it
is found to be related to drugs, it is very clearly an offense
which may serve as the basis for an enhanced penalty."             Moline,
229   Wis. 2d   at   42.   Our   statutory    interpretation    herein   is
consistent with Moline where the same plain language, "relating
to controlled substances" that appears in § 961.41(3g)(c) was
interpreted in Wis. Stat. § 961.48(3), thereby giving notice of

conduct that could result in sentence enhancement.           Accordingly,
due process does not bar enhancement of Guarnero's conviction
under § 961.41(3g)(c).15
      15
       In a recent Supreme Court opinion, Johnson v. United
States, 576 U.S. __ (2015), the Court discussed whether part of
the "residual clause" of the Armed Career Criminal Act (ACCA)
that provides, "otherwise involves conduct that presents a
serious potential risk of physical injury to another," 18 U.S.C.
§ 924(e)(2)(B)(ii), is unconstitutionally vague, in violation of
the due process clause. Johnson, 576 U.S. __, at 5. Johnson is
of even passing consideration here because a line of ACCA cases
is analogous to the approach we have taken:     choosing between
examination solely in terms of how the law defines an offense,
or examination of a limited class of documents to determine what
statutory alternative formed the basis for the defendant's prior
conviction.   See United States v. Castleman, __ U.S. __, 134
S. Ct. 1405, 1413-14 (2014). The differing approaches apply to
different parts of the ACCA language.     Id. at 1409, 1413-14;
Johnson, 576 U.S. __, at 4.   The former approach applies to 18
U.S.C. § 924(e)(2)(B)(ii) and the latter applies to 18 U.S.C.
§ 924(e)(2)(B)(i).   The Court does not decide between the two
approaches.
                                                     (continued)
                                   16
                                                   No.       2013AP1753-CR & 2013AP1754-CR



                                      III. CONCLUSION
      ¶30    We conclude that Guarnero's prior conviction, due to
the   manner      in     which     Guarnero      violated          the     RICO    conspiracy
statute,      relates        to       controlled         substances.               Therefore,
Guarnero's        prior    RICO       conviction       enhances          the     penalty    for
cocaine possession under Wis. Stat. § 961.41(3g)(c) to a second
offense     as     a    Class     I    felony.         We        further       conclude    that
Guarnero's bail-jumping offense is properly a felony conviction.
Accordingly,       we     affirm      the   court      of        appeals       decision    that
affirmed    the        circuit    court's     denial        of    Guarnero's       motion    to
dismiss and motion for postconviction relief.
      By    the    Court.—The         decision    of     the      court     of    appeals   is

affirmed.




     The Court's vagueness concerns centered on the necessity of
imagining whether an "ordinary case" of a particular crime
involved sufficient risk.    Johnson, 576 U.S. __, at 5.      The
Court mentioned one of the federal analogs to our analysis in
passing,   essentially  noting   that  because   Johnson  was   a
§ 924(e)(2)(B)(ii) case, the "solely in terms of the law"
approach applied.   Johnson does not affect the validity of the
alternate approach, which mirrors the analysis here.



                                            17
                                                  No.       2013AP1753-CR       & 2013AP1754-CR.awb


        ¶31   ANN WALSH BRADLEY, J.                    (dissenting).             In reading the
five paragraphs of the majority's brief statutory analysis, one
would    never       guess    that       the    issue       presented       is       one     of   first
impression in this state.                      The petition for review states the
issue as follows: Did the court of appeals err when it looked
"beyond the statutory elements of Guarnero's prior racketeering
conspiracy conviction and conclude that his prior conviction was
a second or subsequent offense."
        ¶32   Nor     would    one       likely       guess     that       in    a     one-sentence

pronouncement, tucked away in its application discussion,                                           the
majority actually answers this question of first impression——
without any acknowledgement that it is doing so and without any
analysis whatsoever.
        ¶33   Our responsibility to develop and clarify the law is
not well served by the majority's failure to acknowledge the
issue     and    subject       it        to     analysis.             It        is     particularly
problematic          because    this          issue     is     not    only           one    of    first

impression       but    also       one    of     statewide          importance             having   the
potential       to    affect       the    interpretation             of    numerous          criminal
statutes.
        ¶34   The court of appeals forthrightly addressed the issue
and after a thorough analysis adopted an approach called the
modified      categorical          approach,           meaning       in     essence          that    in
applying      "related       to"    a    court        may    look    beyond          the    statutory
elements of the conviction to limited extraneous documents.                                         The
court of appeals, however, did not have the benefit of the most
recent United States Supreme Court decision, which, along with

                                                 1
                                            No.    2013AP1753-CR    & 2013AP1754-CR.awb


other    precedent,      appears    to    suggest      a   contrary      result.         The
majority has the benefit of Mellouli v. Lynch, 135 S. Ct. 1980
(2015), decided June 1, 2015, but its opinion fails to discuss
it, referencing the case only briefly in a single footnote.
        ¶35   Regardless of whether we adopt as a matter of first
impression     the    categorical        approach      (looking    to     the     elements
only) or a modified categorical approach (looking beyond the
elements to         extraneous documents), one thing is clear: neither
the statute, Wis. Stat. § 961.41(3g)(c), nor its legislative

history answers the question.               They are silent on the issue of
how broadly or narrowly the term "related to" should be defined.
        ¶36   Because    it    is   unclear       if    "related        to"    should     be
narrowly construed, limited to looking only at the statutory
elements,      or     more     broadly     construed,        looking          beyond     the
elements, the statute is ambiguous. Given the ambiguity, I would
apply the rule of lenity which dictates that ambiguity in penal
statutes be interpreted in favor of the defendant.                            Accordingly,

I respectfully dissent.
                                           I
        ¶37   The    majority's     statutory          analysis     of        Wis.     Stat.
§ 961.41(3g)(c)         is    truncated.          Consisting       of    a     mere    five
paragraphs, it is limited to consulting a dictionary definition
of "relate" and a case addressing the interpretation of "relate"
with respect to a different prior offense.                     Majority op., ¶¶13-
17.
        ¶38   Based on its determination that "relating to" means
"connected with" or "linked to" the majority determines that the

                                           2
                                            No.      2013AP1753-CR       & 2013AP1754-CR.awb


statutory language is clear.                Tucked away in its application
discussion,       and   without    analysis,          the    majority      makes      a    one-
sentence     pronouncement         that     answers          the        issue    of       first
impression      without     acknowledging            that    it    is    doing   so.         It
chooses the modified categorical approach, allowing for looking
beyond    the     statutory    elements         to    a     limited      class   of       other
documents:        "[w]hen the statute underlying a prior conviction
presents alternative methods of violating the statute, it is
appropriate to consult a limited class of documents to determine

what statutory alternative formed the basis for the defendant's
prior conviction."         Id., ¶21.

     ¶39     Ultimately the majority declines to follow the rule of
lenity,    which        dictates   that         ambiguous         or    uncertain         penal
statutes     be     interpreted      in         favor       of     defendants.        Having
determined that the statutory language is clear, it concludes
that the rule of lenity does not apply.                     Id., ¶27.
                                       II

     ¶40     The majority's analysis of the statutory language begs
the question.       Just as "relating to" fails to inform how broadly
or narrowly those words should be defined, so do the substitute
words "connected with" and "linked to."                      They are mere synonyms,
providing no additional insight into how broadly or narrowly the
term "relating to"         should be defined.
     ¶41     We are left to question if a reference to controlled
substances in a document relating to the conviction will suffice
to render it a conviction relating to a controlled substance, or
if the involvement of controlled substances must be an element

                                            3
                                           No.       2013AP1753-CR    & 2013AP1754-CR.awb


proved in obtaining the conviction.                     Thus, defining the words
"relating to" as "to be connected with or linked to" does not
answer the issue before us: Did the court of appeals err when it
looked      "beyond   the   statutory          elements      of      Guarnero's       prior
racketeering conspiracy conviction and conclude that his prior
conviction was a second or subsequent offense?"
      ¶42    The parties debate between two possible approaches for
answering this issue.          Guarnero contends that the categorical
approach should govern.         Under that approach, a court's inquiry

into a past conviction is limited to considering the elements of
the   statute      violated.          If   a         relationship          to    controlled
substances is not required in order for there to be a conviction
under the statute, then it could not be considered a conviction
relating to controlled substances.
      ¶43     In   contrast,    the    State         advocates       for    the    modified
categorical approach.          That approach would permit the court to
consult a limited number of extraneous documents to determine if

the prior conviction involved controlled substances.
      ¶44     This court has not previously addressed the debate
over whether to adopt the categorical approach or the modified
categorical approach.        The issue is one of first impression that
may   have    far-reaching     effects         due    to   the    host      of    Wisconsin
statutes depending on the characterization of prior offenses.
See, e.g., Wis. Stat. §§ 939.615(2)(b), 939.618(2), 939.619(2),
940.43(5), 940.45(5).
      ¶45     Ignoring the debate, the majority takes an approach
that appears to be contrary to the well-established approach

                                           4
                                          No.    2013AP1753-CR     & 2013AP1754-CR.awb


recently affirmed by the United States Supreme Court, without
any explanation why.          Without commenting on the lengthy briefing
and murky case law on this issue, and without acknowledging it
as an issue, the majority addresses it in a single sentence.                          It
announces    "[w]hen     the    statute       underlying      a   prior   conviction
presents alternative methods of violating the statute, it is
appropriate to consult a limited class of documents to determine
what statutory alternative formed the basis for the defendant's
prior conviction."          Majority op., ¶21 (citing Descamps v. United

States, 133 S. Ct. 2276, 2285 (2013)).
     ¶46     A recent pronouncement of the United States Supreme
Court suggests this is error.
     ¶47     In Mellouli v. Lynch, 135 S. Ct. 1980 (June 1, 2015),
the Supreme Court considered whether a state drug conviction
qualified as a law "relating to a controlled substance" under a
federal deportation statute, 8 U.S.C. § 1227(a)(2)(B)(i).                            The
Court observed that the definition of "controlled substance" in

the state law included at least nine substances not included in
the federal list of controlled substances.                   Id. at 1984, 1988.
     ¶48     The    Court     also   acknowledged       that      there   is   a    long
history     of     limiting    an    assessment    of    a     conviction      to    the
language of the statute and disallowing an examination of the
facts underlying the crime.             Id.      at 1986-87.         Following that
history, the Court did not use the modified categorical approach
of consulting extraneous documents.                Rather, it focused on the
words of the statutes and determined that because the definition
of controlled substances in the state law was broader than that

                                          5
                                                   No.       2013AP1753-CR          & 2013AP1754-CR.awb


in   the      federal      law,       the    state       crime       did       not     constitute      a
conviction relating to controlled substances.                                  Id. at 1988.
        ¶49    This       case   appears      analogous             to       Mellouli.        As    with
Mellouli, the statute that the defendant previously violated, 18
U.S.C. § 1962(d), contains a phrase that is broadly defined such
that a conviction under the statute may or may not be a prior
conviction relating to controlled substances.1                                     As with Mellouli,
the face of the statute Guarnero violated does not reveal which
portion       of    the    definition        was       the    basis          for    his   conviction.

Thus,       there    is    a   strong       implication         that          like    Mellouli,      the

analysis should end there with the conclusion that Guarnero's
prior       conviction         does    not    qualify          as        a    crime       relating    to
controlled          substances.         Extraneous            documents            relating    to    his
conviction should not be consulted.
        ¶50    Rather       than      analyzing         this     case         law,     the    majority
supports its approach with a single citation, "See Descamps v.
United States."            Majority op., ¶21.                  However, Descamps does not

clearly support its decision to use the modified categorical
approach because it clarifies that the approach applies only in
limited circumstances.
        ¶51    In Descamps the Court considered whether the violation
of a state statute prohibiting burglary qualified as a violent
felony under the Armed Career Criminal Act (ACCA).                                         133 S. Ct.
2276.       The state statute at issue contained a broader definition

        1
       The definition of "racketeering activity," refers to
approximately 90 different crimes, including some involving
controlled substances. 18 U.S.C. § 1961(1).


                                                   6
                                                No.    2013AP1753-CR      & 2013AP1754-CR.awb


of burglary than the definition in the ACCA.                           The Court observed
that when a state law defines a crime in the alternative, a
court may "examine a limited class of documents to determine
which of a statute's alternative elements formed the basis of
the defendant's prior conviction."                        Id. at 2284.              However, it
stressed       that    this    approach,            referred      to     as        the    modified
categorical approach, applies only to a "narrow range of cases."
Id. at 2283-84 (citing Taylor v. United States, 495 U.S. 575
(1990)).       "Our decisions authorize review of the plea colloquy

or other approved extra-statutory documents only when a statute
defines       burglary       not     (as   here)           overbroadly,            but        instead
alternatively . . . ."             Id. at 2286.

        ¶52   Ultimately       the    Descamps            Court    determined            that    the
modified      categorical       approach        was       inapplicable         to        the    state
statute it was considering because the statute merely defined
burglary      more    broadly      than    the       federal      statute          and     did    not
contain       alternative      elements.              Id.    at    2285.             Because       an

individual could violate the state statute without committing a
violent felony, the court concluded that the state conviction
could not qualify as a violent felony conviction.                              Id.
        ¶53   The majority makes no attempt to determine whether a
crime     involving      a    controlled            substance      was        an     element      of
Guarnero's      RICO     conviction        or       was     merely     part         of    a     broad
definition of "racketeering activity."                            Descamps and Mellouli
stress this is an important distinction because a court may not




                                                7
                                              No.   2013AP1753-CR    & 2013AP1754-CR.awb


apply the modified categorical approach where there is merely a
broadly defined term.2
                                          III
     ¶54     Regardless if it is determined as a matter of first
impression        that    the    categorical         approach    or     the    modified
approach controls, I determine that the rule of lenity should be
applied here.
     ¶55     As     the    United     States        Supreme     Court    has    stated,
"construction of a criminal statute must be guided by the need

for fair warning."          Crandon v. United States, 494 U.S. 152, 160

(1990).       The    rule       of   lenity       "ensures    fair    warning    by   so
resolving ambiguity in a criminal statute as to apply it only to
conduct clearly covered."               United States v. Lanier, 520 U.S.
259, 266 (1997).          Thus, when a criminal statute is ambiguous and
is not clarified by resort to legislative history, that penal
statute "should be construed strictly against the party seeking


     2
       The United States Supreme Court has also recently
reaffirmed that courts must use the categorical approach when
deciding whether a conviction constitutes a prior conviction for
a violent felony under the Armed Career Criminal Act.     Johnson
v. United States, No. 13-7120, 576 U.S. ___ (June 26, 2015).
Both the majority and the dissent in Johnson analyzed the issue
of which approach should be applied. The dissent advocated for
the modified categorical approach, but the majority of the Court
decided otherwise.   In choosing between the two approaches it
stated: "'[T]he only plausible interpretation' of the law,
therefore, requires use of the categorical approach." Id.
(quoting Taylor v. United States, 495 U.S. 575, 602 (1990).

     The analysis and discussion of the issue by both the
majority and the dissent likewise reaffirms that selecting an
approach requires a more detailed analysis than the majority's
single sentence.


                                              8
                                         No.   2013AP1753-CR   & 2013AP1754-CR.awb


to exact statutory penalties and in favor of the person on whom
statutory penalties are sought to be imposed."                 State v. Morris,
108 Wis. 2d 282, 289, 322 N.W.2d 264 (1982).
      ¶56    Here, the legislative history does not shine any light
on our inquiry.          Although Wis. Stat. § 961.41(3g)(c) has been
renumbered, the language at issue in this case has been almost
unchanged since its initial enactment in 1971.3                 It was enacted
as part of Wisconsin's Uniform Controlled Substances Act.                    That
Act was "a product of the National Conference of Commissioners

on Uniform State Laws (NCCUSL)."               State v. Hansen, 2001 WI 53,

¶16, 243 Wis. 2d 328, 627 N.W.2d 195.                 Where the legislature
enacts a uniform act provision, we consider the intent of the
drafters of the uniform law, and "will presume the intent of the
drafters is the intent of the legislature in the absence of
evidence to the contrary."              Id.     A review of the comments,
however, provides no guidance here because they do not address
how   "relating    to"    should   be    defined.       See    NCCUSL,   Uniform

Controlled Substances Act § 408, Comment (1970), in Handbook of

      3
          Wisconsin Stat. § 161.41(2r)(b) (1971) stated:

      For purposes of this subsection, an offense is
      considered a 2nd or subsequent offense if, prior to
      his conviction of the offense the offender has at any
      time been convicted under this chapter or under any
      statute of the United States or of any state relating
      to controlled substances, narcotic drugs, marijuana or
      depressant, stimulant or hallucinogenic drugs.

The only difference between this language and the current
version of Wis. Stat. § 971.41(3g)(c) is that the words "any
felony or misdemeanor under this chapter" have been inserted
into the description of a conviction.


                                        9
                                                    No.   2013AP1753-CR     & 2013AP1754-CR.awb


the National Conference of Commissioners on Uniform State Laws
and Proceedings of the Annual Conference Meeting in its Seventy-
Ninth    Year        (1970);       NCCUSL,    Uniform          Controlled    Substances       Act
§ 413, Comment (1990), in Handbook of the National Conference of
Commissioners          on    Uniform        State       Laws    and   Proceedings       of    the
Annual        Conference          Meeting     in    its    Ninety-Ninth        Year     (1990);
NCCUSL, Uniform Controlled Substances Act § 413, Comment (1994),
available                                                                                      at
www.uniformlaws.org/shared/docs/controlled%20substances/UCSA_fin

al%20_94%20with%2095amends.pdf.
        ¶57     Given       the    ambiguity        in    the    statute     which     is    left
unanswered by the legislative history, the majority should have
applied the rule of lenity.                    There       are        two     criteria        for
application of the rule of lenity: "(1) the penal statute is
ambiguous; and (2) [a court is] unable to clarify the intent of
the legislature by resort to legislative history."                                    State v.

Luedtke, 2015 WI 42, ¶73, 362 Wis. 2d 1, 863 N.W.2d 592.

        ¶58     As    discussed         above,     both    of     these     requirements      are
met.     We have oft stated that "a statute is ambiguous if it is
capable of being understood by reasonably well-informed persons
in two or more senses."                   State ex rel. Kalal v. Circuit Court,
2004 WI 58, ¶47, 271 Wis. 2d 633, 681 N.W.2d 110.                                     Wisconsin
Stat. § 961.41(3g)(c) can reasonably be interpreted in two ways:
one    that     looks       beyond      the   statutory          elements,     and    one    that
considers only the statutory elements.                            In other words, one in
which     a     reference          to    controlled         substances        in     extraneous
documents relating to a conviction could suffice to render it a

                                                   10
                                             No.   2013AP1753-CR     & 2013AP1754-CR.awb


conviction relating to a controlled substance, or one in which
the   involvement      of   controlled       substances       must    be    an   element
proved in obtaining the conviction.                   Therefore the statute is
ambiguous.
      ¶59    The legislative history is silent on the issue.                          As a
result,     the   court     is   unable      to    clarify    the     intent     of    the
legislature by resort to legislative history.                        Having met both
requirements, application of the rule of lenity is appropriate
and Guarnero's RICO conviction should not be considered a prior

conviction relating to controlled substances.
      ¶60    Accordingly,        for   the       reasons     set    forth    above,      I
respectfully dissent.
      ¶61    I    am   authorized      to    state    that    Justice       SHIRLEY     S.
ABRAHAMSON joins this dissent.




                                            11
No.   2013AP1753-CR   & 2013AP1754-CR.awb




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