State v. Kenneth J. Heinrich

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
January 9, 2020
A party may file with the Supreme Court a
Sheila T. Reiff petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.

Appeal No. 2018AP2124-CR Cir. Ct. No. 2017CF76

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT IV

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

KENNETH J. HEINRICH,

DEFENDANT-APPELLANT.

APPEAL from a judgment and an order of the circuit court for
Dodge County: STEVEN G. BAUER, Judge. Affirmed.

¶1 GRAHAM, J.1 Heinrich pleaded no contest to three misdemeanor
counts of bail jumping, and he now seeks to withdraw his plea on grounds that the

1
This appeal is decided by one judge pursuant to WIS. STAT. § 752.31(2)(f) (2017-18).
All references to the Wisconsin Statutes are to the 2017-18 version unless otherwise noted.
No. 2018AP2124-CR

charges are without a factual basis and multiplicitous. I reject Heinrich’s
arguments and affirm the judgment and order entered by the circuit court.

BACKGROUND

¶2 Heinrich stole a cash register from a family restaurant in Mayville,
Wisconsin, on February 26, 2017. When a customer chased him into a parking lot,
Heinrich threatened the customer with a knife. Law enforcement later
apprehended Heinrich and found a crack pipe on his person. The State charged
Heinrich with one felony count of theft from a person or corpse, one misdemeanor
count of carrying a concealed knife, and one misdemeanor count of possession of
drug paraphernalia. The State also charged Heinrich with three counts of bail
jumping for violating the “no new crimes” condition of his release on bond in an
earlier criminal case.

¶3 Heinrich agreed to plead no contest to the paraphernalia charge and
the three counts of bail jumping, leaving the remaining charges to be resolved at
trial. During the plea hearing, Heinrich stipulated to the truth and accuracy of the
facts in the complaint. The State explained that the bond from Dodge County
Case No. 2016CM247 was the basis of the bail jumping charges and that the three
charges were based on Heinrich’s commission of theft, carrying a concealed knife,
and possession of paraphernalia.

¶4 The circuit court found a factual basis for the paraphernalia and bail
jumping charges and accepted Heinrich’s no contest plea. The court conducted a
bench trial the following week and found Heinrich guilty of one misdemeanor
count of theft of movable property and one misdemeanor count of carrying a
concealed knife. Heinrich’s postconviction motion was denied, and he now
appeals.

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DISCUSSION

¶5 Heinrich argues that he should be allowed to withdraw his bail
jumping pleas because there was no factual basis for the charges and also because
the three counts were multiplicitous. I address each argument in turn.

I.

¶6 A defendant who seeks to withdraw his plea after sentencing must
establish by clear and convincing evidence that “refusal to allow withdrawal of the
plea would result in manifest injustice.” State v. Brown, 2006 WI 100, ¶18, 293
Wis. 2d 594, 716 N.W.2d 906. A manifest injustice occurs “if a circuit court
fail[ed] to establish a factual basis” for a plea as required by WIS. STAT.
§ 971.08(1)(b). State v. Thomas, 2000 WI 13, ¶17, 232 Wis. 2d 714, 605 N.W.2d
836. The purpose of the factual basis requirement is to protect a defendant from
unwittingly pleading to charges without realizing that his conduct does not
constitute the charged crime. Id., ¶14.

¶7 Heinrich’s factual basis argument centers around the effect that he
contends WIS. STAT. § 969.13(1) had on the bond issued in his prior criminal case.
The bond in Case No. 2016CM247 was signed on July 19, 2016, and among other
things, it prohibited Heinrich from committing any new crimes. See WIS. STAT.
§ 969.02(4) (“As a condition of release in all cases, a person released under this
section shall not commit any crime.”). But according to Heinrich, after he was
released from custody in Case No. 2016CM247, he committed additional crimes

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No. 2018AP2124-CR

on December 20, 2016, January 5, 2017, and February 7, 20172—all prior to the
events of February 26, 2017, which are the subject of this criminal case.

¶8 Heinrich argues that it was “legally impossible” for him to commit
bail jumping on February 26, 2017, based on the language of WIS. STAT.
§ 969.13(1). Section 969.13(1) provides: “If the conditions of the bond are not
complied with, the court having jurisdiction over the defendant in the criminal
action shall enter an order declaring the bail to be forfeited.” Heinrich
acknowledges that the circuit court did not actually enter any order forfeiting the
bail in Case No. 2016CM247; however, he contends that because the statute uses
the word “shall” and prescribes a mandatory duty, his criminal acts prior to
February 26, 2017, revoked the conditions of his release “by operation of law.”
According to Heinrich, he could not have “intentionally failed to comply” with the
terms of the bond on February 26, 2017, because there were no longer any terms
with which he had to comply.

¶9 Heinrich’s argument fails for at least three reasons. First, as
Heinrich acknowledges, the court did not actually enter any order declaring bail
forfeited pursuant to WIS. STAT. § 969.13(1). Even if § 969.13(1) prescribes a
mandatory duty,3 that would not mean the statute is self-executing.

2
The record does not reveal whether these additional crimes were investigated or
charged prior to the February 26, 2017 events at the family restaurant in Mayville.
3
Heinrich does not discuss WIS. STAT. § 969.13(2), which contains language
undercutting his assertion that § 969.13(1) prescribes a mandatory duty. Section 969.13(2) states
that the court may “set aside” an order issued pursuant to § 969.13(1) “if it appears that justice
does not require the enforcement of the forfeiture.”

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No. 2018AP2124-CR

¶10 Second, Heinrich does not identify any authority for the proposition
that a defendant who is made to forfeit cash bail is also relieved from the
conditions of his release. Heinrich appears to argue that “bail” and “bond” are
synonymous for the purposes of WIS. STAT. § 969.13(1), and therefore an order
forfeiting “bail” pursuant to § 969.13(1) also nullifies the defendant’s bond
conditions. This is plainly contrary to the language of the statute. See WIS. STAT.
§ 967.02(1h) (defining “bond” for the purposes of WIS. STAT. chs. 967 to 979 as
“an undertaking either secured or unsecured entered into by a person in custody by
which the person binds himself or herself to comply with such conditions as are
set forth therein”); WIS. STAT. § 969.001(1) (defining “bail” for the purposes of
WIS. STAT. ch. 969 as “monetary conditions of release”). Bond is an agreement by
the defendant to abide by certain conditions, and bail is the money the defendant
puts up as security for the agreement.

¶11 Finally, Heinrich’s interpretation would lead to the absurd result that
a defendant can unilaterally nullify the conditions of a bond by violating those
very conditions. See Madison Metro. Sch. Dist. v. Evers, 2014 WI App 109, ¶22,
357 Wis. 2d 550, 855 N.W.2d 458 (we avoid statutory interpretations that would
produce absurd results). Accordingly, I reject Heinrich’s argument that there was
no factual basis for the bail jumping charges.

II.

¶12 I now turn to Heinrich’s argument about multiplicity. Multiplicity is
a double jeopardy claim and is defined as charging “a single criminal offense in
more than one count.” State v. Grayson, 172 Wis. 2d 156, 159, 493 N.W.2d 23
(1992). Heinrich argues that the three bail jumping charges should have been
charged as just one count because they were “based on a single bond, a single bail

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No. 2018AP2124-CR

condition, and a single criminal episode.” In response, the State argues that
Heinrich forfeited his multiplicity argument by pleading no contest to the charges.
See State v. Kelty, 2006 WI 101, 294 Wis. 2d 62, 716 N.W.2d 886.

¶13 I need not decide whether Heinrich’s multiplicity argument was
forfeited, since I conclude that the bail jumping charges are not multiplicitous.
Charges are multiplicitous either when (1) the charges are identical in law and in
fact, or (2) the legislature intended the charges to be brought as a single count.
Grayson, 172 Wis. 2d at 159. Multiplicity is a question of law subject to
independent review. State v. Davison, 2003 WI 89, ¶15, 263 Wis. 2d 145, 666
N.W.2d 1.

¶14 Heinrich asserts that “of course” the bail jumping charges are
identical in law because they are based on a violation of the same statutory
section, which criminalizes an intentional failure to comply with the terms of a
bond. But I am not fully persuaded that the three bail jumping offenses can be
said to be identical in law since the jury would be separately instructed on the
elements of each of the three underlying crimes. See WIS JI—CRIMINAL 1795.
That is, for one count the jury would be instructed on the elements of theft, for the
second count the jury would be instructed on the elements of carrying a concealed
knife, and for the third count the jury would be instructed on the elements of
possession of drug paraphernalia.

¶15 In any event, even if the charges could be said to be identical in law,
they are not identical in fact for similar reasons. The test for whether charges are
identical in fact is whether each count requires proof of an additional fact that the
other count does not, and whether each requires “a new volitional departure in the
defendant’s course of conduct.” See State v. Anderson, 219 Wis. 2d 739, 750, 580

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No. 2018AP2124-CR

N.W.2d 329 (1998). Here, the facts needed to prove the underlying charges of
theft, possession of a weapon, and possession of drug paraphernalia are
significantly different.

¶16 Turning to the second part of the multiplicity test, charges may still
be multiplicitous if the legislature intended that the multiple offenses be brought as
a single count. Id. at 752. But Heinrich does not make any developed argument
about the legislature’s intent, nor does he attempt to apply the four-factor analysis
set forth in Anderson.4 I need not consider arguments that are unsupported by
adequate factual and legal citations or are otherwise undeveloped. See State v.
Pettit, 171 Wis. 2d 627, 646-47, 492 N.W.2d 633 (Ct. App. 1992). Accordingly, I
conclude that the three bail jumping charges were not multiplicitous.

¶17 My analysis is supported by Anderson, 219 Wis. 2d 739, and also by
State v. Eaglefeathers, 2009 WI App 2, 316 Wis. 2d 152, 762 N.W.2d 690 (2008).
In Anderson, our supreme court determined that two charges of bail jumping
based on two separate violations of the same bond were not multiplicitous.
Anderson, 219 Wis. 2d at 742. In Eaglefeathers, this court determined that two
charges of bail jumping were not multiplicitous when they were based on the
defendant’s failure to appear at preliminary hearings in two separate criminal
matters, even though the defendant was only out on a single bond. Eaglefeathers,
316 Wis. 2d 152, ¶1. Heinrich attempts to distinguish these cases on the grounds
that he was charged with violating a single “no new crimes” condition in a single

4
See State v. Anderson, 219 Wis. 2d 739, 751–53, 580 N.W.2d 329 (1998) (“We use
four factors to determine legislative intent in a multiplicity analysis: 1) statutory language;
2) legislative history and context; 3) the nature of the proscribed conduct; and 4) the
appropriateness of multiple punishments.”).

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No. 2018AP2124-CR

bond. However, the defendant in Eaglefeathers also violated a single condition
that he “appear on all court dates” which was contained in a single bond.5 Id., ¶2;
see also id.,¶13 (“[T]he existence of one bond here rather than multiple bonds is a
red herring …. Eaglefeathers’ case turns on the fact that ‘[e]ach count would
require proof of facts for conviction which the other two counts would not
require.’” (quoting State v. Richter, 189 Wis. 2d 105, 109, 525 N.W.2d 168 (Ct.
App. 1994))). Heinrich’s attempt to distinguish these cases fails.

For the reasons stated above, I affirm the circuit court.

By the Court.—Judgment and order affirmed.

This opinion will not be published. See WIS. STAT.
RULE 809.23(1)(b)4.

5
Heinrich inaccurately asserts that the defendant in Eaglefeathers had three separate
bonds.

8