State v. Keith C. Kenyon

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.
September 16, 2025
A party may file with the Supreme Court a
Samuel A. Christensen 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. 2022AP2228-CR Cir. Ct. No. 2019CF2917

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT I

STATE OF WISCONSIN,

PLAINTIFF-APPELLANT,

V.

KEITH C. KENYON,

DEFENDANT-RESPONDENT.

APPEAL from order of the circuit court for Milwaukee County:
DAVID L. BOROWSKI, Judge. Reversed and cause remanded for further
proceedings.

Before Colón, P.J., Donald, and Geenen, JJ.
No. 2022AP2228-CR

¶1 GEENEN, J. The State alleges that Keith C. Kenyon had sexual
intercourse with his eight-year-old niece, Leah.1 WISCONSIN STAT. § 948.02(1)(b)
(2023-24)2 states: “[w]hoever has sexual intercourse with a person who has not
attained the age of 12 years is guilty of a Class B felony.” Section 948.02(1)(e)
states: “[w]hoever has sexual contact or sexual intercourse with a person who has
not attained the age of 13 years is guilty of a Class B felony.” Both statutes are
classified as Class B felonies and carry a maximum of 60 years of imprisonment,
but only § 948.02(1)(b) imposes a mandatory minimum sentence, specifically, a
mandatory minimum of 25 years of initial confinement. WIS. STAT. § 939.616(1r).

¶2 Kenyon was charged in an information for violating WIS. STAT.
§ 948.02(1)(b), and therefore, he faced a mandatory 25 years of initial confinement
if convicted, even though his alleged conduct necessarily violated § 948.02(1)(e),
which carries no mandatory minimum. He moved to dismiss the information,
arguing that the statutory scheme was unconstitutional as applied to him.
Specifically, he asserted that the statutory scheme violated due process, equal
protection, and separation of powers because the statutes unconstitutionally allow
prosecutors to determine the defendant’s sentence and enable the arbitrary
enforcement of the law. Kenyon also contrasted the facts of his case with over 30
other cases charged in Milwaukee County under § 948.02(1)(b) to support his
argument that he is being arbitrarily and inconsistently charged as compared to

1
We use the pseudonym “Leah” to refer to the victim in this case. We also note that the
parties’ briefs on appeal differ with respect to Leah’s age at the time of the alleged sexual assault,
with the State writing that she was ten years old and Kenyon writing that she was eight years old.
This disagreement has no effect on the issues presented on appeal, but we observe that the record
supports the conclusion that Leah was eight years old at the time of the alleged sexual assault.
2
Because the relevant statutes have not changed between the date of the alleged offense
and the release of this opinion, all references to the Wisconsin Statutes are to the 2023-24 version.

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No. 2022AP2228-CR

significantly more aggravated cases. The circuit court agreed with Kenyon,
dismissed the information, and the State appealed.

¶3 Kenyon raises important constitutional questions. In particular, we
are concerned that the record in this case lends merit to Kenyon’s argument and the
circuit court’s conclusion that the decision to charge Kenyon under WIS. STAT.
§ 948.02(1)(b) was made exclusively because Kenyon insisted on going to trial and
was not motivated by legitimate concerns for the public welfare. See State v.
Edwardsen, 146 Wis. 2d 198, 203, 430 N.W.2d 604 (Ct. App. 1988). Nonetheless,
Kenyon does not adequately distinguish his case from the overwhelming weight of
controlling authority that has previously considered and rejected Kenyon’s
arguments in similar contexts. Examining other instances of overlapping and
identical criminal statutes with different penalty schemes, the United States
Supreme Court, the Wisconsin Supreme Court, and this court have rejected
arguments identical to those Kenyon makes now, and we are bound to apply those
cases here. Accordingly, we reverse the circuit court’s order granting Kenyon’s
motion to dismiss the information and remand the cause for further proceedings.

BACKGROUND

¶4 The criminal complaint alleges that Leah stayed the night at Kenyon’s
house after he took her to a Disney on Ice show. She pretended to be asleep so that
he would carry her to her cousin’s room. Kenyon picked her up, carried her into the
room, and laid her on the bed. Kenyon then unzipped Leah’s onesie pajamas, moved
her underwear to the side, wiped her vagina with a cloth, and licked her vagina. A
few months later, after Leah’s mother told Leah about plans for another sleepover
at Kenyon’s house, Leah disclosed the assault to her mother and then to police.

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No. 2022AP2228-CR

¶5 The State filed an information charging Kenyon with one count of
first-degree sexual assault of a child, sexual intercourse with a person who has not
attained the age of 12. WIS. STAT. § 948.02(1)(b). Kenyon filed a motion to dismiss
the information, arguing that § 948.02(1) was unconstitutional as applied to him.
He observed that the legislature created two subsections of first-degree sexual
assault of a child which cover the same conduct alleged in the complaint and have
the same maximum penalty, but only § 948.02(1)(b) carries a mandatory minimum
penalty. Kenyon argued that the statutory scheme violated his due process right to
be sentenced by a neutral magistrate because the statutory scheme amounted to
“sentencing by prosecutor.” Once the prosecutor decided to charge Kenyon under
§ 948.02(1)(b), the circuit court was deprived of the discretion to impose anything
less than 25 years of incarceration regardless of the presence of mitigating factors
and the absence of aggravating factors. Kenyon also argued that the statutes were
unconstitutionally vague because there was no guidance in the statutory scheme that
would prevent a prosecutor’s arbitrary and discriminatory enforcement of one
subsection versus the other.

¶6 The State argued that United States v. Batchelder, 442 U.S. 114, 123-
24 (1979), confirmed that when a defendant’s conduct violates more than one
criminal statute, the State has the discretion to decide under which statute to charge
the defendant, even if the two offenses have identical elements but carry different
penalties. In his reply brief, Kenyon argued that none of the cases cited by the State,
including Batchelder, dealt with a statutory scheme where one of the two
overlapping statutes carried a mandatory minimum penalty. Kenyon claimed that
when two criminal statutes overlap and one carries a mandatory minimum penalty,
due process requires the legislature to establish “some factors to constrain the

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No. 2022AP2228-CR

discriminatory and arbitrary application of the law.” The circuit court did not
immediately decide Kenyon’s motion, and the parties litigated other matters.

¶7 Before the circuit court decided his motion, Kenyon filed an amended
motion to dismiss, adding a third argument. Kenyon asserted that the statutory
scheme violated the separation of powers doctrine under the Wisconsin
Constitution. He observed that the legislature has established mandatory minimum
sentences for other crimes, but none of those offenses permit a prosecutor to charge
the same conduct under a different statute that does not carry a mandatory minimum
penalty. He claimed that by enacting two statutes that proscribe the same conduct,
one of which carries a mandatory minimum of 25 years in prison and the other
carrying no mandatory minimum at all, the legislature unconstitutionally delegated
to the executive branch its exclusive power to set the penalty for the crime and its
manner of enforcement. Additionally, Kenyon argued that the statutory scheme
encroaches on a core function of the judiciary by delegating the court’s sentencing
power to prosecutors. He argued that by granting prosecutors the power to prescribe
the ultimate sentence by its charging decision, the legislature also empowered
prosecutors to coerce plea agreements and impose penalties on defendants who
choose to exercise their constitutional right to a trial.

¶8 The State, in opposition, highlighted that statutes establishing
mandatory minimum sentences are not unlawful. In fact, the State pointed out that
in State v. Lindsey, 203 Wis. 2d 423, 440-41, 554 N.W.2d 215 (Ct. App. 1996), this
court held that even when the legislature sets a particular punishment for a crime,
e.g., life without parole, the statute still does not violate the constitutional separation
of powers, even though it entirely eliminates a circuit court’s sentencing discretion.

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No. 2022AP2228-CR

¶9 Prior to the circuit court’s ruling on the motion, Kenyon filed a chart
he compiled from CCAP3 data showing all 34 cases where the Milwaukee County
District Attorney’s Office charged a violation of WIS. STAT. § 948.02(1)(b) between
January 1, 2018, and July 1, 2022. Kenyon asserted that the facts of his alleged
crime were the least aggravated of any of the cases charged under § 948.02(1)(b).
For example, he states that all 34 cases involved penetration of some kind (e.g.,
digital or penile penetration of the victim’s mouth, vagina, or anus, or involving
penetration of those areas by an object), many cases involved children as young as
four to six years of age, and some involved ejaculation by the defendant. Thirty of
the 34 cases were amended pursuant to a plea agreement to offenses that carried no
mandatory minimum, and of those 30 cases, one defendant received probation, five
were sentenced to three-to-seven years of imprisonment, 13 defendants received
between eight and 12 years, five received between 13 and 15 years, and three
received 16 to 22 years.

¶10 In contrast to these cases, Kenyon is alleged to have licked the outside
of his eight-year-old niece’s vagina on one occasion for a matter of seconds. In
short, Kenyon argued that the facts alleged in the criminal complaint are the least
aggravated of all the cases detailed in the chart he filed, and no rational basis exists
to explain why Kenyon is being charged inconsistently as compared to the other
cases.

3
Wisconsin’s Consolidated Court Automation Programs are commonly known as CCAP.
The term is used to refer to the internal electronic system used by the courts and clerks, the
electronic filing system used by the lawyers and litigants, and the website of court records
accessible to the general public. “The online website reflects information entered by court staff.”
Kirk v. Credit Acceptance Corp., 2013 WI App 32, ¶5 n.1, 346 Wis. 2d 635, 829 N.W.2d 522. We
may take judicial notice of the CCAP records. Id.

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No. 2022AP2228-CR

¶11 The circuit court granted Kenyon’s motion to dismiss, concluding that
the statutory scheme violated due process and separation of powers. It highlighted
the amendments to WIS. STAT. § 948.02(1) over the past 20 years, noting that
§ 948.02(1)(e) did not explicitly include “sexual intercourse” at the time
§ 948.02(1)(b) and WIS. STAT. § 939.616(1r) were created, and the court concluded
that the current version of § 948.02(1), as applied to Kenyon, “gives the State
unfettered discretion to choose between a prosecution under § 948.02(1)(b), which
requires imposition of the mandatory minimum of 25 years of initial confinement
under [§] 939.616(1r), and § 948.02(1)(e), which has no mandatory minimum term
of confinement.” It stated that “[t]he total absence of standards to govern the
prosecutorial decision results in an arbitrary charging standard and deprives the
court of its discretionary authority to consider mitigating factors and impose a
sentence of less than 25 years of initial confinement.”

¶12 Further, the circuit court took issue with the State’s decision to charge
Kenyon under WIS. STAT. § 948.02(1)(b) given the significant mitigating factors in
the case, observing that no penetration of Leah’s vagina is alleged, Kenyon did not
expose his private parts, no threats were made, and Kenyon has no prior criminal
record. It asserted that even the State was aware of the presence of mitigating factors
because it offered to recommend a sentence of five-to-seven years of initial
confinement if Kenyon agreed to forego his right to a trial and plead guilty to a
charge under § 948.02(1)(e). The circuit court believed that the State uses the
statutory scheme “as a bargaining chip to motivate defendants … to waive their right
to a trial” and therefore “avoid a wholly disproportionate mandatory minimum
penalty.” The circuit court distinguished Batchelder, noting that Batchelder dealt
with two overlapping statutes with different maximum penalties, whereas here, the
two overlapping statutes have different minimum penalties.

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No. 2022AP2228-CR

¶13 The State appeals.

DISCUSSION

¶14 Although framed as a challenge to due process, equal protection, and
separation of powers, the issues presented on appeal can be distilled to the following
question: whether the legislature can create two or more criminal statutes that
prohibit the same conduct but only one of which carries a mandatory minimum
penalty, and if so, what guidelines (if any) must the legislature include to limit a
prosecutor’s discretion to charge a violation of one statute as opposed to the other.4
Kenyon argues that the legislature cannot establish such a scheme, at least without
providing meaningful guidance to help prosecutors determine when it is appropriate
to charge the offense with the mandatory minimum and when to charge the offense
without the mandatory minimum. To the extent such guidance exists, Kenyon
argues that the decision to charge him under WIS. STAT. § 948.02(1)(b) violates both
the legislative guidance and Milwaukee County’s historical charging practices.

¶15 The seminal case on this issue is United States v. Batchelder.
Presented in Batchelder were two overlapping provisions of the Omnibus Crime
Control and Safe Streets Act of 1968. Id., 442 U.S. at 115. Although not identical
in every respect, both provisions prohibited convicted felons from receiving
firearms, but one provision carried a maximum sentence of two years of
imprisonment while the other carried a maximum sentence of five years of
imprisonment. Id. at 116-18. The defendant argued that the statutes: (1) offended

4
The Pennsylvania Supreme Court correctly observed that “[w]here it is alleged that a
statute fails to provide sufficient guidelines to limit a prosecutor’s discretion in enforcing the
statute, there is frequently much overlap between the various constitutional challenges that are
typical in such cases, i.e., equal protection, due process/vagueness, and improper delegation.”
Com. v. Parker White Metal Co., 515 A.2d 1358, 1366 n.11 (Pa. 1986). Thus, our analysis of any
one of those three constitutional challenges will be relevant and applicable to the others.

8
No. 2022AP2228-CR

due process and equal protection interests by affording excessive prosecutorial
discretion, (2) were void for vagueness, and (3) constituted an impermissible
delegation of congressional authority. Id. at 122-23.

¶16 With respect to vagueness, the Supreme Court acknowledged that
“vague sentencing provisions may pose constitutional questions if they do not state
with sufficient clarity the consequences of violating a given criminal statute.” Id.
at 123. However, it concluded that the two provisions “unambiguously specify the
activity proscribed and the penalties available upon conviction.” Id. The Supreme
Court reasoned that “[a]lthough the statutes create uncertainty as to which crime
may be charged and therefore what penalties may be imposed, they do so to no
greater extent than would a single statute authorizing various alternative
punishments.” Id. Thus, “[s]o long as overlapping criminal provisions clearly
define the conduct prohibited and the punishment authorized, the notice
requirements of the Due Process Clause are satisfied.” Id.

¶17 With respect to equal protection, the Supreme Court reiterated the
well-established rule “that when an act violates more than one criminal statute, the
Government may prosecute under either so long as it does not discriminate against
any class of defendants.” Id. at 123-24. It rejected the argument that the statutory
scheme at issue granted “unfettered” discretion to prosecutors because “[s]electivity
in the enforcement of criminal laws is, of course, subject to constitutional
constraints,” e.g., if the enforcement is “based upon an unjustifiable standard such
as race, religion, or other arbitrary classification.” Id. at 124-25, 125 n.9 (citation
omitted). The Court also observed that a decision to prosecute under the five-year-
maximum statute did not empower prosecutors “to predetermine ultimate criminal
sanctions” because the decision to charge under the five-year-maximum statute
“merely enables the sentencing judge to impose a longer prison sentence” than the

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No. 2022AP2228-CR

two-year-maximum statute would allow. Id. at 125. In other words, in Batchelder,
the power to determine the ultimate criminal sanctions still rested with the
sentencing judge, and in fact, prosecuting under the five-year-maximum provision
allowed more sentencing discretion, not less.

¶18 Finally, the Supreme Court concisely rejected the argument that the
statutory scheme impermissibly delegated to the executive branch the legislature’s
responsibility to fix criminal penalties. Id. It explained:

The provisions at issue plainly demarcate the range of
penalties that prosecutors and judges may seek and impose.
In light of that specificity, the power that Congress has
delegated to those officials is no broader than the authority
they routinely exercise in enforcing the criminal laws.
Having informed the courts, prosecutors, and defendants of
the permissible punishment alternatives available under each
Title, Congress has fulfilled its duty.

Id. at 126.

¶19 Wisconsin courts have both followed Batchelder and expanded it. In
State v. Karpinski, the Wisconsin Supreme Court dealt with challenges to a
statutory scheme where the same conduct was prohibited under both a state criminal
statute and a civil municipal ordinance. Id., 92 Wis. 2d 599, 601, 285 N.W.2d 729
(1979). The court observed that this was not a situation similar to Batchelder
because the county district attorney did not have the option of choosing between
criminal and civil enforcement. Karpinski, 92 Wis. 2d at 612-14. Rather, if the
district attorney chose to proceed with a criminal prosecution, the case would remain
with the district attorney. Id. at 612. If the district attorney chose not to prosecute,
the case would be referred to the municipal city attorney, who would then
independently determine whether there should be a prosecution under the city
ordinance. Id. at 613. Thus, the defendant’s argument related to prosecutorial

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No. 2022AP2228-CR

discretion was inapposite. However, the court cited favorably to Batchelder in its
decision, reaffirmed the well-settled rule “that when an act violates overlapping, but
not identical, criminal statutes the government may prosecute under either criminal
statute so long as there is no discriminatory prosecution,” and quoted WIS. STAT.
§ 939.65 which states: “If an act forms the basis for a crime punishable under more
than one statutory provision, prosecution may proceed under any or all such
provisions.” Karpinski, 92 Wis. 2d at 610-11.

¶20 In State v. Cissell, our supreme court expanded the analysis in
Batchelder to situations in which the criminal statutes are identical, not just
overlapping, and concluded that the reasoning in Batchelder applied to the
Wisconsin Constitution as well as the United States Constitution. State v. Cissell,
127 Wis. 2d 205, 218-24, 378 N.W.2d 691 (1985). The court reasoned that although
the two statutes at issue in Batchelder were overlapping and not identical, the focus
of the decision was on the parts that overlapped, i.e., the parts that were identical.
It explained: “[T]he fact that the statutes were identical at the point of overlap and
as applied to the facts of that case was decisive. The issues considered by the
Supreme Court, including vagueness, excessive prosecutorial discretion, and
impermissible delegation, all focused on the point of identity between the statutes.”
Cissell, 127 Wis. 2d at 219. “Overlapping statutes thus present the same issues as

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No. 2022AP2228-CR

identical statutes because the point of overlap essentially creates an identical statute
situation.”5 Id.

¶21 In State v. Lindsey, the defendant was convicted of second-degree
sexual assault of a child as a persistent repeater. Id., 203 Wis. 2d at 429-31. Being
charged as a persistent repeater exposed the defendant to Wisconsin’s “three-
strikes” law, which mandated life imprisonment without parole for third-time
serious felony offenders. Id. at 429-30. The defendant argued that the persistent
repeater penalty enhancement statute violated the separation of powers and equal
protection doctrines. Id. at 429-31. This court rejected the defendant’s arguments.

¶22 With respect to separation of powers, the defendant claimed that the
persistent repeater statute “remov[ed] all trial court sentencing discretion” in

5
The dissent in Cissell, written by Justice Shirley Abrahamson, acknowledged that “broad
prosecutorial discretion is an accepted part of our criminal justice system,” but concluded “that the
legislature’s adoption of criminal statutes identical except for penalty is an unlawful delegation of
power to the executive branch of government contrary to the separation of powers doctrine
encompassed in the Wisconsin Constitution.” State v. Cissell, 127 Wis. 2d 205, 227, 378 N.W.2d
691 (1985) (Abrahamson, J. dissenting). “[R]esting such unbridled discretion in the prosecuting
attorney violates our concept of fundamental fairness and equal protection of the laws.” Id. Justice
Abrahamson criticized the majority for permitting “the legislature to adopt two or more criminal
statutes identical in every respect except for the penalty provision without establishing criteria to
guide the prosecutor in deciding under which statute an accused should be prosecuted.” Id. She
described such a statutory scheme as “delegation running riot.” Id. at 230 (quoting Schecter
Poultry Corp. v. United States, 295 U.S. 495, 553 (1935) (Cardozo, J. concurring)).

Justice Abrahamson also criticized the majority on equal protection grounds, stating that
the majority incorrectly discusses equal protection “as though the constitutional command protects
only against discriminatory prosecution based upon race, gender, or other suspect classification.”
Cissell, 127 Wis. 2d at 231 (Abrahamson, J. dissenting). “The equal protection guarantee is broader
than the majority acknowledges,” she says, because “[e]qual protection shields persons not only
from ‘suspect classifications’ but from classifications that are not rational.” Id. Justice
Abrahamson concluded that the statutes at issue in Cissell violated equal protection because the
legislature did not set forth in those statutes any rational basis to guide the prosecutor in determining
when to charge one statute over the other. Id. “[F]airness requires that people should not arbitrarily
be treated differently.” Id.

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No. 2022AP2228-CR

violation of the doctrine. Id. at 439. However, we observed that “‘[i]t is within the
legislative power to give the courts discretionary powers, when certain conditions
have been judicially determined to exist, or to direct the court’s action in the
premises without discretion.’” Id. at 441 (quoting Jones v. Manesewitz, 267 Wis.
625, 633, 66 N.W.2d 732 (1954)) (emphasis in Lindsey).6 Thus, where the
legislature has prescribed a specific punishment for a crime, the doctrine of
separation of powers not only permits, but requires that the court sentence the
defendant accordingly. Lindsey, 203 Wis. 2d at 441.

¶23 With respect to equal protection, we explained that the Equal
Protection Clause “does not deny a state the power to treat persons within its
jurisdiction differently … so long as the classifications have a reasonable basis.”
Id. at 443. The defendant in Lindsey was not claiming that it was unreasonable for
the legislature to prescribe more severe punishments for repeat offenders, but
instead, complained that the prosecutor had sole discretion to decide whether to
charge a defendant as a persistent repeater without meaningful guidance about when
to do so. Id. at 444. We rejected the defendant’s argument, explaining:

[T]he prosecutor had the discretion to charge Lindsey as a
persistent repeater, as a repeater, without the repeater
enhancers, or with no crime at all. Just as there is no equal
protection violation where prosecutors have the discretion to
charge a defendant as a repeater … there is no equal
protection violation where prosecutors have the discretion to
choose which repeater statute to charge. In the absence of
any allegation that the prosecutor in Lindsey’s case
exercised his discretion under circumstances that would
constitute an abuse of discretion or discriminatory
prosecution, we reject Lindsey’s equal protection challenge.

6
But see Oehler v. State, 202 Wis. 530, 536, 232 N.W. 866 (1930) (asserting that the
legislature cannot fully divest a court of its sentencing discretion); State v. Radke, 2002 WI App
146, ¶16 n.12, 256 Wis. 2d 448, 647 N.W.2d 873 (acknowledging the tension between Lindsey and
Oehler).

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No. 2022AP2228-CR

Id. at 445-46.

¶24 In our view, Kenyon has not distinguished these cases from his own.
Although one could argue about whether WIS. STAT. § 948.02(1)(b) and (1)(e) are
overlapping or identical crimes given that it is impossible to violate § 948.02(1)(b)
without violating § 948.02(1)(e), Cissell held that it does not matter whether the
challenged statutes are identical; Batchelder still controls. Cissell, 127 Wis. 2d at
218-24.

¶25 As we explained above, all of Kenyon’s arguments have been
previously considered and rejected in functionally identical contexts. WISCONSIN
STAT. § 948.02(1) cannot be unconstitutionally vague because it “clearly define[s]
the conduct prohibited and the punishment authorized[.]” Batchelder, 442 U.S. at
123. “Although the statutes create uncertainty as to which crime may be charged
and therefore what penalties may be imposed, they do so to no greater extent than
would a single statute authorizing various alternative punishments.” Id.
Section 948.02(1) cannot be held unconstitutional for violating the separation of
powers doctrine when, in Lindsey, we acknowledged that the legislature is allowed
to eliminate entirely a circuit court’s sentencing discretion by setting forth a fixed
punishment for a crime. Id., 203 Wis. 2d at 441. Cissell and Batchelder likewise
prohibit the conclusion that § 948.02(1) constitutes an unconstitutional delegation
of legislative power to the executive branch because “‘there is no appreciable
difference between the discretion a prosecutor exercises when deciding whether to
charge under one of two statutes with different elements and the discretion he
exercises when choosing one of two statutes with identical elements.’” Cissell, 127
Wis. 2d at 217 (quoting Batchelder, 442 U.S. at 125).

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No. 2022AP2228-CR

¶26 With respect to his equal protection argument, Kenyon relies heavily
on the chart he filed in the circuit court detailing 34 recent cases where the
Milwaukee County District Attorney’s Office charged a violation of WIS. STAT.
§ 948.02(1)(b). On appeal, Kenyon included a supplemental chart detailing 89 cases
charged as violations of § 948.02(1)(e) between January 1, 2018 and December 31,
2022, where the victim was younger than 12 years old. Approximately half of those
cases could have been charged as violations of § 948.02(1)(b) because they involved
sexual intercourse with a victim under 12, and in 21 of those cases, penetration was
alleged. Almost all of these cases involved repeated assaults, and several involved
more than one victim.

¶27 From these 89 cases, Kenyon highlighted three to illustrate the
inconsistent and arbitrary decision to charge him under WIS. STAT. § 948.02(1)(b).
In one case charged under § 948.02(1)(e), the defendant bribed the victim, licked
her vagina repeatedly over five years beginning when she was five years old, and
penetrated her anus with his penis. In another case charged under § 948.02(1)(e),
the defendant “got on top” of the eight-year-old victim and “moved up and down”
until he ejaculated. The defendant in that case also admitted to penetrating the
victim’s vagina with his penis. Finally, the third case involved the forced penile
penetration of an 11-year-old victim during a home invasion.

¶28 These comparisons notwithstanding, Kenyon does not argue that the
charging decision was made based on a suspect classification. Cissell made clear
“that overlapping criminal statutes with different penalty schemes do not violate
constitutional principles unless the prosecutor selectively bases the charging
decision upon an unjustifiable standard such as race, religion, or other arbitrary
classification.” Id., 127 Wis. 2d at 215; see also id. at 222. The record contains no
evidence of discriminatory prosecution.

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No. 2022AP2228-CR

¶29 Instead, Kenyon argues that the Milwaukee County District
Attorney’s Office is using the discretion granted to it by the statutory scheme in
order to impose “trial penalties” on defendants like Kenyon who refuse to plead
guilty and instead choose to exercise their constitutional rights. There is very little
controlling authority discussing what constitutes a “trial penalty.”7 In United States
v. Jackson, the Supreme Court examined the Federal Kidnapping Act, which
imposed the death penalty “only to those defendants who assert[ed] the right to
contest their guilt before a jury.” United States v. Jackson, 390 U.S. 570, 581
(1968). It opined that “[t]he inevitable effect of any such provision, is of course, to
discourage assertion of the Fifth Amendment right not to plead guilty and to deter
exercise of the Sixth Amendment right to demand a jury trial,” and “[i]f the
provision had no other purpose or effect than to chill the assertion of constitutional
rights by penalizing those who choose to exercise them, then it would be patently
unconstitutional.” Id. (footnote omitted).

¶30 This case is not like Jackson, which involved a statute with a trial
penalty set forth explicitly in the text of the statute. Instead, we find guidance in
State v. Edwardsen. In Edwardsen, we acknowledged that factors other than
“legitimate concerns for the public welfare” might motivate a vindictive
prosecutorial response to a defendant’s exercise of a constitutional right—in
Edwardsen’s case, exercising his right to appeal and obtaining a retrial on previously
decided issues. Id., 146 Wis. 2d at 203. We recognized that “to punish a person
because he has done what the law plainly allows him to do is a due process violation

7
The National Association of Criminal Defense Lawyers defines a “trial penalty” as “the
discrepancy between the sentence offered during plea negotiations and the sentence a defendant
will face after trial[.]” The Trial Penalty: The Sixth Amendment Right to Trial on the Verge of
Extinction and How to Save It, NACDL (July 10, 2018), https://www.nacdl.org/getattachment/
95b7f0f5-90df-4f9f-9115-520b3f58036a/the-trial-penalty-the-sixth-amendment-right-to-trial-on-
the-verge-of-extinction-and-how-to-save-it.pdf.

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No. 2022AP2228-CR

of the most basic sort.” Id. Accordingly, we stated “that a presumption of
vindictiveness attaches to a prosecutor who increases charges when, as in the instant
case, the [S]tate is pursing a second conviction for the same course of conduct
following a defendant’s successful appeal.” Id.

¶31 It is difficult to understand why such a presumption would attach after
a defendant’s successful appeal and not during pretrial plea negotiations. We see
very little practical difference in a prosecutor increasing the severity of the charges
after a successful appeal and a prosecutor increasing the severity of the charges
based on a defendant’s refusal to plead guilty and insistence on taking the case to
trial. There is no readily apparent reason why a presumption of vindictiveness
would attach when a prosecutor increases the severity of charges based on a
defendant’s successful appeal and not during the original prosecution, where the
threat of a harsher punishment for the same conduct is used to leverage a guilty plea.
In both instances, it appears that the prosecutor penalizes a defendant by filing
charges authorizing harsher punishment in direct response to a defendant exercising
a constitutional right.

¶32 We do not have a satisfactory answer as to why a prosecutor’s
decision to increase the severity of the charges after a successful appeal would carry
a presumption of vindictiveness while the same motivation (i.e., avoiding trial)
would not carry this presumption if it was done prior to the first trial. Nonetheless,
we find no case that stands for or even implicitly supports the proposition that a trial
penalty is imposed when the State chooses to charge a defendant under the harsher
of two identical or overlapping statutes prior to trial. This conclusion appears to
contradict the overwhelming number of cases that hold that prosecutors have
absolute discretion to decide what charge to bring when a defendant’s alleged

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No. 2022AP2228-CR

conduct violates two or more identical or overlapping criminal statutes.
Accordingly, we must reject Kenyon’s equal protection argument.

CONCLUSION

¶33 For the foregoing reasons, we reverse the circuit court’s order granting
Kenyon’s motion to dismiss the information. We remand the cause for further
proceedings.

By the Court.—Order reversed and cause remanded for further
proceedings.

Recommended for publication in the official reports.

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