State v. Marvin Lee Rogers

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 18, 2023
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. 2022AP785-CR Cir. Ct. No. 2020CF4102

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT I

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

MARVIN LEE ROGERS,

DEFENDANT-PETITIONER.

APPEAL from an order of the circuit court for Milwaukee County:
JEAN M. KIES, Judge. Affirmed and cause remanded for further proceedings.

Before Brash, C.J., Donald, P.J., and White, J.

Per curiam opinions may not be cited in any court of this state as precedent

or authority, except for the limited purposes specified in WIS. STAT. RULE 809.23(3).
No. 2022AP785-CR

¶1 PER CURIAM. Marvin Lee Rogers appeals from the non-final
order of the circuit court denying his motion to dismiss a criminal weapon
possession charge on the basis of double jeopardy.1 We conclude that the circuit
court acted within its discretion to declare a mistrial and that there was manifest
necessity to restart the proceedings. Accordingly, we affirm the circuit court’s
decision to deny Rogers’s motion to dismiss and we remand the case to the circuit
court for further proceedings.

BACKGROUND

¶2 Although this case arises out of a firearms possession charge, the
issue before us is to review the court’s discretion to order a mistrial. The record
reflects that the parties and the court agreed to resolve Rogers’s charge in an
“unorthodox” manner, attempting to rely only on a stipulated record in a court trial
without sworn witnesses. The circuit court realized after agreeing to this method
that it was not sound under Wisconsin law. To understand our resolution of the
case, we now recite the basic underlying facts of the charge against Rogers and the
procedural process employed before the circuit court.

¶3 According to the criminal complaint, on August 23, 2020, a
Milwaukee Police Department officer stopped a vehicle on North 18th Street in
Milwaukee due to incorrect registration. While speaking with Rogers, the driver
and sole occupant of the vehicle, the officer observed a firearm in the center

1
As discussed later in this opinion, this court grants Rogers’s leave to appeal the order.
See WIS. STAT. RULE 809.50(3) (2019-20).

All references to the Wisconsin Statutes are to the 2019-20 version unless otherwise
noted.

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No. 2022AP785-CR

console. Rogers told the officer he did not have a concealed carry (CCW) license;
he further admitted he purchased the firearm and it belonged to him. Upon
examining court records, the police ascertained that Rogers had been adjudicated
delinquent for an offense that if committed by an adult would be a felony. On
November 19, 2020, Rogers was charged with possession of a firearm by an
adjudicated delinquent, contrary to WIS. STAT. § 941.29(1m)(bm).

¶4 The case proceeded against Rogers. At a July 1, 2021 hearing,
Rogers’s counsel informed the court that he had identified a possible defense, and
Rogers wished to pursue a trial, rather than a plea hearing. Prior to the pretrial
conference, Rogers’s counsel informed the court by letter that he specifically
requested a court trial. He contended that there was a triable issue in the case,
namely whether there was a mens rea defense to the question of law presented by
a possession of a firearm by an adjudicated delinquent charge. He asserted it was
a matter of first impression under Wisconsin law whether WIS. STAT. § 941.29
requires a person to know about a prior felony conviction or adjudication in order
to satisfy this element of the charge.

¶5 At the pretrial conference on September 2, 2021, the court conducted
a thorough colloquy with Rogers before finding that he was making a “knowing,
willing, and voluntary decision to waive his right to go forward” with a jury trial.
The court found that Rogers instead chose to go forward with a bench trial to the
court. The court stated it would approve Rogers’s decision to pursue a court trial
decision because he was presenting a question of law for the court to resolve.
Trial counsel told the court that “there will probably be a stipulation to most facts.
I think the [c]ourt may require Mr. Rogers’ testimony about his state of mind.”

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No. 2022AP785-CR

¶6 On October 6, 2021, trial counsel and the prosecutor submitted to the
court stipulated record materials comprised of: the criminal complaint in the
current case; the report of the MPD officer who interviewed Rogers in the current
case; the dispositional order and circuit court record in his 2003 juvenile matter;
the criminal complaint in Rogers’s 2017 Dane County charges; the reports of City
of Verona police officers who arrested and interviewed Rogers in the 2017 Dane
County matter; and the judgment and court minutes in the 2017 Dane County case.
That same day, the circuit court began the proceedings, noting that the court trial
was “a little unusual.” The court stated that it understood that the “the parties have
a stipulated factual basis that they’re relying upon that’s contained [in] and based
upon documents that were provided to [the court] in a stipulated record.”

¶7 The court first addressed Rogers:

THE COURT: So you understand that—Mr.
Rogers, that, instead of presenting witnesses who would
come up here on the witness stand, as well as other
evidence, that we’re gonna have facts that are just
presented by the lawyers, and I’m gonna rely upon them in
making a determination in this case?

[ROGERS:] Yes, Your Honor.

THE COURT: You could have [trial counsel] call
witnesses for you. You understand that?

[ROGERS:] Yes, Your Honor.

THE COURT: And you could also have him cross-
examine the State’s witnesses. You understand that?

[ROGERS:] Yes, Your Honor.

THE COURT: All right. Instead, we're gonna
proceed in this unorthodox manner, if that’s okay with you.

[ROGERS:] Yes, Your Honor.

The court then addressed trial counsel:

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No. 2022AP785-CR

THE COURT: All right. [Trial counsel], turning to
you, did you discuss with your client his right to proceed to
a jury trial in this case?

[TRIAL COUNSEL:] I have.

THE COURT: Did you also offer him the benefit
of going forward with a court trial wherein I would hear
evidence from witnesses?

[TRIAL COUNSEL:] We’ve discussed both a jury
trial and a court trial, and we’ve discussed in detail
alternative ways of accomplishing both. And after
conferring with him multiple times … I can inform the
[c]ourt that he is understanding his rights and what could
have happened, even in a bench trial, and … he believes
this is … an appropriate way to move forward, given the
nature of the issue and the nature of the facts in this case.

….

THE COURT: Furthermore, after talking to your
client about having a court trial, where we would present
evidence, and the [c]ourt would have to listen to the
testimony and weigh the credibility of the witnesses after
seeing them, do you believe that your client is also making
a knowing, willing, and voluntary decision to go forward in
that regard?

[TRIAL COUNSEL:] Yes, Your Honor.

THE COURT: And finally, after carefully talking
to Mr. Rogers, do you believe that he, after consulting with
you, is making a knowing and voluntary decision to
proceed on the stipulated record?

[TRIAL COUNSEL:] Yes, Your Honor.

Finally, the court addressed the State:

THE COURT: All right. Does the State have any
objection to proceeding? …. [A]re you okay not going
forward with a court [sic] trial wherein witnesses would be
presented?

[THE STATE:] The State is comfortable with that.
Yes.

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No. 2022AP785-CR

THE COURT: And you consent, or agree, to
proceeding to trial on the stipulated record?

[THE STATE:] Yes.

¶8 The proceedings then continued with statements from both trial
counsel and the prosecutor. Trial counsel framed the question of law as whether
to be convicted of a WIS. STAT. § 941.29 violation, a person must know about a
prohibition on firearms in a previous felony conviction or felony-equivalence
delinquency adjudication. Trial counsel asserted that the stipulated record showed
that Rogers was adjudicated delinquent at age thirteen, which included a firearm
admonishment, and that about twenty years later, he was charged in Dane County
with carrying a concealed weapon. However, the Dane County case was resolved
by amendment to an ordinance violation after the police there determined that
there was no criminal record that would bar him from possessing a firearm. The
State argued that under State v. Phillips, 172 Wis. 2d 391, 394-96, 493 N.W.2d
238 (Ct. App. 1992), a conviction under § 941.29 is not conditional on notification
of a felony conviction or felony-equivalence adjudication. Trial counsel stated
that previous cases with regard to §941.29 had only answered the question of the
requirement of knowledge of possession—not knowledge of a felony status.

¶9 The court reviewed the contents of each of the documents in the
stipulated record with the parties. The court then set a briefing schedule for the
parties. Finally, the court set a date for a decision, but then reconvened the
proceedings, stating:

To clean up the record, I went through each and every one
of the pieces of evidence that the parties are stipulating or
agreeing can be considered for purposes of the trial on this
stipulated record; so, at this time, do the parties join in
moving all of those pieces of evidence into the record,
State?

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No. 2022AP785-CR

Trial counsel and the prosecutor agreed with the moving of the evidence into the
record. The court then continued, “Then the [c]ourt will receive that evidence, and
the record will be closed. And then I will await the closing arguments, briefs, of
the State[,] the [d]efense, and we’ll see you on the decision date.”

¶10 Five days later, on October 11, 2021, the court contacted the parties
and called them into a hearing because of the court’s concern upon reflection
about the “unorthodox” procedure. The court concluded that upon the basis of
State v. Beyer, 2021 WI 59, 397 Wis. 2d 616, 960 N.W.2d 408, a recent case in
which:

[T]he Wisconsin Supreme Court considered whether or not
the guilty plea waiver rule applies when a defendant pleads
not guilty to an offense, but, then, stipulates to the
inculpatory facts supporting each element of the offense
and explicitly asks the Court to make a finding as to guilt or
innocence at the close of the hearing where no witness has
testified.

The Beyer court concluded that a stipulated finding of guilt is not permissible in
Wisconsin. Id., ¶24. The circuit court described that there, Beyer “could not be
held to the stipulation he entered into. He entered into it relying on a procedure
that the Supreme Court of Wisconsin has concluded is invalid.” The case was
remanded to the circuit court so the defendant could decide whether “to enter a
plea or proceed to a trial in a valid manner.” Id., ¶29.

¶11 The circuit court decided that from reading the Beyer decision, it
“concluded that what we did in court was the same or similar process as what had
happened in” Beyer. The court, on its own motion, granted a mistrial, and “put the
parties back to where they were,” and expressed that in “the interests of justice,”
the court would need to take some testimony to make a decision. The circuit court
concluded that manifest necessity for a new proceeding existed because the prior

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No. 2022AP785-CR

procedure did not give Rogers a “fair and full trial.” The court vacated the prior
procedure and granted a mistrial over the defense objection.

¶12 After the hearing, Rogers filed a motion to dismiss the charge
against him on the grounds of double jeopardy. He argued that jeopardy attached
when the court received evidence against Rogers in the October 6 hearing, that the
court closed the evidentiary record, and that the court declared a mistrial on its
own motion, “over the specific objection of the defendant, without requiring the
State to carry its burden to show manifest necessity, and without seeking
alternatives to mistrial[.]” Therefore, he asserted that the court’s plan to begin the
process again would subject Rogers to jeopardy a second time, in violation of his
constitutional rights.

¶13 The court conducted a decision hearing on the motion to dismiss in
January 2022. Trial counsel posited that the Beyer case was not on point and
urged the court to reconsider its decision to grant a mistrial. The State argued that
Rogers was “attempt[ing] to relitigate the [c]ourt’s decision to declare a mistrial.”
The circuit court stated that jeopardy attached in a court trial under WIS. STAT.
§ 972.07 when a witness has been sworn. Because in this case, there had been no
sworn witness testimony and “we proceeded only on documents and a written
stipulation,” it concluded “that jeopardy has not attached.” The court then
reviewed various situations of manifest necessity to stop a trial, ultimately
concluding that the prior proceedings did not follow Wisconsin law. Because the
stipulated record procedure was not fair to the State or Rogers, the court believed
there was manifest necessity to start over. The court vacated the prior
proceedings.

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No. 2022AP785-CR

¶14 In May 2022, Rogers filed a petition for leave to appeal the non-final
order denying his motion to dismiss on double jeopardy grounds. Under this
court’s procedures, that same day, we ordered the production of transcripts
pertinent to the double jeopardy arguments.

¶15 In June 2022, Rogers sought clarification of the petition for leave to
appeal. Rogers and the State provided briefing on the issue of whether the petition
should be granted and whether double jeopardy was at issue. Upon review of the
briefing and record, we have decided to grant Rogers’s petition for leave to appeal
and we will now discuss the merits of his appeal.

DISCUSSION

¶16 Rogers argues that jeopardy attached at the October 6, 2021 hearing
when the stipulated record was received and evidence was closed. He contends
that the circuit court’s sua sponte decision to declare a mistrial was not supported
by manifest necessity. Therefore, Rogers asserts that the circuit court erred when
it denied his motion to dismiss on the grounds of double jeopardy. Conversely,
the State argues that the double jeopardy analysis is not needed because jeopardy
did not attach at the October 6 hearing because that proceeding was not a trial, but
was akin to a plea. The State asserts that the circuit court could not properly
declare a mistrial because no trial took place.2

2
In its briefing, the State initially argued that Rogers waived his right to a court trial.
Rogers refuted this idea, which the transcript of the October 6 hearing confirms. Further, the
State submitted a clarification letter after briefing that Rogers was “correct that the context of the
court’s colloquy shows that the waiver discussion concerned the fact that no witnesses would be
called at the proceeding.”

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No. 2022AP785-CR

¶17 Upon review, we conclude that there was manifest necessity for the
mistrial because the proceedings on October 6 did not constitute a legal form
recognized by Wisconsin. Therefore, the circuit court acted within its discretion to
declare a mistrial and to deny Rogers’s motion to dismiss on double jeopardy
grounds.

¶18 A mistrial may be warranted for a “spectrum of trial problems[.]”
Arizona v. Washington, 434 U.S. 497, 510 (1978). “[G]iven the importance of
the constitutional protection against double jeopardy, the State bears the burden of
demonstrating a ‘manifest necessity’ for any mistrial ordered over the objection of
the defendant.” State v. Seefeldt, 2003 WI 47, ¶19, 261 Wis. 2d 383, 661 N.W.2d
822. A manifest necessity is “a ‘high degree’ of necessity.” Id. (citation omitted).
“If a trial is terminated without manifest necessity and over the defendant’s
objection, the State is not permitted to commence a second trial against the
defendant.” Id.

¶19 “The [circuit] court’s determination of ‘manifest necessity’ is
discretionary and is entitled to considerable deference on review.” State v. Reid,
166 Wis. 2d 139, 145, 479 N.W.2d 572 (Ct. App. 1991). “[O]n review the test is
whether, under all the facts and circumstances, giving deference to the [circuit]
court’s first-hand knowledge, it was reasonable to grant a mistrial under the
‘manifest necessity’ rule.” State v. Copening, 100 Wis. 2d 700, 710, 303 N.W.2d
821 (1981).

¶20 The record reflects that Rogers requested a court trial—he expressly
waived his right to a jury trial and trial counsel reiterated that he was not entering
a guilty plea to the charge. During the colloquy with the court, Rogers and trial
counsel both affirmed that Rogers understood he was waiving his right to a court

10
No. 2022AP785-CR

trial that included testimony by witnesses. However, this was a waiver of a right
to a non-existent process, one that did not allow the court to satisfy the “fact-
finding mission” of a trial. City of Cedarburg v. Hansen, 2020 WI 11, ¶35, 390
Wis. 2d 109, 938 N.W.2d 463, opinion modified on reconsideration, 2020 WI 45,
391 Wis. 2d 671, 943 N.W.2d 544. The “purpose of a trial is to ascertain a
defendant’s guilt or innocence[.]” State v. Zamzow, 2017 WI 29, ¶25, 374
Wis. 2d 220, 892 N.W.2d 637.

¶21 The circuit court considered Beyer to drive the court to issue a
mistrial. Trial counsel objects that the facts of Beyer were unlike the facts in
Rogers’s case. In Beyer, our supreme court examined the substance of the
proceedings and concluded that rather than a trial, it more closely resembled a
guilty plea. Id., 397 Wis. 2d 616, ¶17. However, we conclude that the
commonality with Beyer arises not from the procedure employed—Rogers was
not stipulating to a de facto guilty plea. Rather, Beyer instructs us that not all
proceedings constitute a trial merely because the proceeding is so labeled. See id.,
¶16.

¶22 Trial counsel argues that Rogers was not stipulating to the status
element of the felony-equivalent weapons possession charge, and it is in fact
Rogers’s right to require the State to prove the elements of the crime with which
he was charged. Our review of this matter, however, considers whether the circuit
court had a manifest necessity to declare a mistrial in an exercise of discretion.
Therefore, we are not reviewing the merits of the underlying issue of whether the
stipulated record of Rogers’s juvenile adjudication would compel the court to find
that the State had proven his status under WIS. STAT. § 941.29 of a felony-
equivalence conviction, regardless of Dane County’s conclusions in 2017. The
circuit court recognized it could not rely upon a stipulated record as offered here

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No. 2022AP785-CR

and consider the proceedings a court trial. See Beyer, 397 Wis. 2d 616, ¶¶19-20.
We conclude that the circuit court acted under manifest necessity to declare a
mistrial in order to ensure that the court satisfied its fact-finding mission and
Rogers would receive a fair and full court trial, as requested.3

CONCLUSION

¶23 For the reasons stated above, we conclude that the circuit court acted
within its discretion to declare a mistrial and that there was manifest necessity to
restart the proceedings. Therefore, the circuit court did not err when it denied
Rogers’s motion to dismiss. We remand to the circuit court for further
proceedings consistent with this decision.

By the Court.—Petition for leave granted; order affirmed and cause
remanded for further proceedings.

This opinion will not be published. See WIS. STAT. RULE
809.23(1)(b)5.

3
Although we review this case under the posture of the court’s discretion to grant a
mistrial, we consider as well that if these proceedings did not constitute a trial, then jeopardy
would not have attached. As Rogers’s trial counsel stated and the State echoed on appeal: “How
can [the court] declare a mistrial if we hadn’t had a trial?” Under that paradigm, without an
attachment of jeopardy, there would be no risk of double jeopardy.

12