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, 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, 

 v. 

Dennis Franklin and Shane Sahm, 

 Defendants-Appellants. 

FILED 

JUN 6, 2019 

Sheila T. Reiff 

Clerk of Supreme Court 

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 

 

1 All subsequent references to the Wisconsin Statutes are to 

the 2017-18 version unless otherwise indicated. 
No. 2018AP1346-CQ 

2 

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 

 

2 While 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). 
No. 2018AP1346-CQ 

3 

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 
No. 2018AP1346-CQ 

4 

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 
No. 2018AP1346-CQ 

5 

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: 
No. 2018AP1346-CQ 

6 

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). 
No. 2018AP1346-CQ 

7 

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) 
No. 2018AP1346-CQ 

8 

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). 
No. 2018AP1346-CQ 

9 

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. 
No. 2018AP1346-CQ 

10 

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 plainmeaning 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 
No. 2018AP1346-CQ 

11 

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: 
No. 2018AP1346-CQ 

12 

(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 

 

7 The statute has remained virtually the same with only 

minor changes made by the legislature since 1955. 
No. 2018AP1346-CQ 

13 

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 

 

8 The 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). 
No. 2018AP1346-CQ 

14 

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. 
No. 2018AP1346-CQ 

15 

§ 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. 
No. 2018AP1346-CQ.ssa 

1 

¶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. 
No. 2018AP1346-CQ.ssa 

2 

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. 

 

3 Kalal, 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. 

5 Kalal, 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. 
No. 2018AP1346-CQ.ssa 

3 

¶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 

 

9 Adversarial 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). 
No. 2018AP1346-CQ.ssa 

4 

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. 

 

 

11 Adam 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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