State v. Gregory L. Rollins

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.
August 17, 2021
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. 2020AP590-CR Cir. Ct. No. 2015CF3553

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT I

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

GREGORY L. ROLLINS,

DEFENDANT-APPELLANT.

APPEAL from a judgment and an order of the circuit court for
Milwaukee County: FREDERICK C. ROSA and MICHELLE ACKERMAN
HAVAS, Judges. Affirmed.

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. 2020AP590-CR

¶1 PER CURIAM. Gregory L. Rollins appeals a judgment of
conviction and an order denying his postconviction motion.1 On appeal, Rollins
argues that his two convictions for first-degree recklessly endangering safety are
multiplicitous because he only committed one reckless act—he fired a single
bullet in the direction of two people. We disagree, and affirm. First, we conclude
that the two convictions are not multiplicitous because Rollins’ conduct
endangered two different people. Second, we conclude that Rollins has failed to
rebut the presumption that the legislature intended to allow multiple punishments.

BACKGROUND

¶2 It is undisputed that on August 4, 2015, while running from police,
Rollins fired a single bullet in the direction of an officer, R.D., and a prosecutor,
Z.W., who was sitting in a squad car.

¶3 Rollins was charged with attempted first-degree intentional homicide
while armed relating to R.D., first-degree recklessly endangering safety while
armed relating to Z.W., and felon in possession of a firearm. An amended
information added possession with intent to deliver cocaine while armed as a
second and subsequent offense and as a repeater.

¶4 Rollins entered a plea to the felon in possession of a firearm charge,
and went to trial on the other counts. The jury acquitted Rollins of attempted first-
degree intentional homicide of R.D. while armed, but found him guilty of a lesser-
included offense of first-degree recklessly endangering safety while armed. The

1
The Honorable Frederick C. Rosa presided over the jury trial and sentenced Rollins.
The Honorable Michelle Ackerman Havas denied the postconviction motion. We refer to
Judge Rosa as the trial court and Judge Havas as the postconviction court.

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No. 2020AP590-CR

jury also found Rollins guilty of first-degree recklessly endangering safety while
armed relating to Z.W.2 Rollins was acquitted of possession with intent to deliver
cocaine.

¶5 The trial court imposed a global sentence of fifteen years of initial
confinement followed by ten years of extended supervision. Because Rollins had
only fired one shot, the trial court ran the sentences on the two recklessly
endangering safety counts concurrent to each other.

¶6 Rollins filed a postconviction motion alleging that his two
convictions for first-degree recklessly endangering safety were multiplicitous
because he only “fired one bullet from his gun” and the legislature did not intend
multiple punishments “when a defendant committed only one reckless act.”
Rollins also argued that trial counsel was ineffective for failing to raise a
multiplicity objection.3

¶7 After additional briefing, a hearing was held. The postconviction
court addressed the motion on the merits and found that the two convictions for
first-degree recklessly endangering safety were not multiplicitous because Rollins’
conduct endangered two separate people, R.D. and Z.W. Thus, the court

2
At trial, the jury was instructed that the attempted first-degree intentional homicide
count and the lesser-included offense of first-degree recklessly endangering safety count related
to R.D., and the other first-degree recklessly endangering safety count related to Z.W. In
addition, in closing argument, both the State and the defense distinguished the counts between
R.D. and Z.W.
3
Rollins’ postconviction motion also alleged that trial counsel was ineffective for failing
to “present witnesses who would have supported his defense” and failing to request “an
instruction on the lesser-included offense of second-degree recklessly endangering safety on both
counts he was convicted of.” Rollins withdrew these arguments in the circuit court and does not
pursue them on appeal.

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No. 2020AP590-CR

concluded trial counsel was not ineffective for failing to raise a multiplicity
challenge.

DISCUSSION

¶8 On appeal, Rollins renews his argument that his two convictions for
first-degree recklessly endangering safety were multiplicitous. As discussed
below, we reject Rollins’ argument.4

¶9 “Multiplicity arises where the defendant is charged in more than one
count for a single offense.” State v. Rabe, 96 Wis. 2d 48, 61, 291 N.W.2d 809
(1980). “[M]ultiplicitous charges are impermissible because they violate the
double jeopardy provisions of the state and federal constitutions.” Id. Whether
two charges are multiplicitous is a question of law subject to de novo review.
State v. Brantner, 2020 WI 21, ¶8, 390 Wis. 2d 494, 939 N.W.2d 546.

¶10 When reviewing a multiplicity claim, a two-step methodology is
used. State v. Davison, 2003 WI 89, ¶¶42-45, 263 Wis. 2d 145, 666 N.W.2d 1.
First, we examine whether the offenses are identical in law and fact. Id., ¶43.
Next, we examine whether the legislature intended to allow multiple punishments.
Id., ¶45. Below, we address each step in turn.

4
The State argues that Rollins’ multiplicity claim was forfeited and should be analyzed
as an ineffective assistance of counsel claim. See Strickland v. Washington, 466 U.S. 668
(1984). Because we conclude that Rollins’ claim fails on the merits, any ineffective assistance of
counsel claim would also fail. State v. Berggren, 2009 WI App 82, ¶21, 320 Wis. 2d 209, 769
N.W.2d 110 (holding that counsel cannot be ineffective for failing to pursue a meritless motion).

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No. 2020AP590-CR

I. Whether the offenses are identical in law and fact

¶11 In this case, the State concedes, and we agree, that the two recklessly
endangering safety convictions are identical in law. The parties disagree,
however, on whether the convictions are different in fact.

¶12 Rollins argues that the convictions are identical in fact because he
only “fired … one bullet from his gun, which traveled in the direction of
Officer R.D. and Z.W.” Thus, his “conduct consisted of only one reckless act[.]”

¶13 The State responds that the convictions are different in fact because
“the jury had to separately determine whether Rollins’ conduct endangered R.D.
and endangered Z.W.”

¶14 We agree with the State. “[W]here the crime is against persons
rather than property, there are, as a general rule, as many offenses as individuals
affected.” See Rabe, 96 Wis. 2d at 66-68 (upholding four counts of homicide by
intoxicated use of a vehicle when a single negligent act caused the death of four
people); State v. Pal, 2017 WI 44, ¶¶3-4, 20, 374 Wis. 2d 759, 893 N.W.2d 848
(upholding two hit and run convictions when there was a single act and two
victims).

¶15 Although Rollins only fired one shot, it is undisputed that the bullet
traveled in the direction of two people, R.D. and Z.W. Accordingly, convicting
Rollins of two separate counts of recklessly endangering safety does not violate
double jeopardy because Rollins’ conduct endangered two different individuals.
Each conviction required proof of an “additional fact”—proof that Rollins
endangered a specific person. See Rabe, 96 Wis. 2d at 66.

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No. 2020AP590-CR

¶16 Rollins acknowledges the general rule that there are “as many
offenses … as there are victims,” but argues that recklessly endangering safety
offenses are “inherently different.” According to Rollins, recklessly endangering
safety offenses “do not require proof of a particular victim.”

¶17 Rollins’ argument, however, is contradicted by the plain language of
the recklessly endangering safety statute, WIS. STAT. § 941.30(1) (2019-20).5
Section 941.30(1) provides that “[w]hoever recklessly endangers another’s safety
under circumstances which show utter disregard for human life is guilty of a
Class F felony” (emphasis added). The use of “another’s safety” requires the State
to prove a specific person has been endangered. It would not be sufficient for the
State to simply prove that the defendant acted recklessly.

¶18 Moreover, because WIS. STAT. § 941.30(1) includes the term
“recklessly,” “criminal recklessness” is an element of the crime. See WIS. STAT.
§ 939.24(2); WIS JI—CRIMINAL 1345. “Criminal recklessness” means that “the
actor creates an unreasonable and substantial risk of death or great bodily harm to
another human being and the actor is aware of that risk[.]” Sec. 939.24(1)
(emphasis added). The use of “another human being” further supports that a
defendant’s conduct must endanger a specific person.

¶19 In addition, to support his argument, Rollins points to State v.
Lechner, 217 Wis. 2d 392, 576 N.W.2d 912 (1998). In Lechner, the defendant
argued that two counts of second-degree recklessly endangering safety were
multiplicitous. Id. at 413. The court rejected this argument because the defendant

5
All references to the Wisconsin Statutes are to the 2019-20 version unless otherwise
noted.

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No. 2020AP590-CR

had committed “at least two separate and distinct criminal acts[.]” Id. at 416. The
court observed that “[o]n at least two separate occasions, the defendant drove his
vehicle across the double yellow centerline of the highway, accelerated, and
passed a different vehicle” and “[o]n at least two separate occasions, the defendant
abruptly reentered the … traffic lane, forcing the driver of the vehicle he had just
passed to take evasive action to avoid a collision.” Id. at 415. The court further
stated that:

It is significant that the defendant here did more
than pass at one time a continuous line of cars, putting each
successive driver at risk as he passed him or her…. Each
time he pulled his vehicle out and passed a different
vehicle, the defendant commenced a separate, conscious
decision to act. Each time the defendant exited and
reentered the traffic lane, he completed a separate, distinct
act of criminally reckless conduct.

Id. at 416.

¶20 Based on Lechner’s language that “[i]t is significant that the
defendant here did more than pass at one time a continuous line of cars,” see id.,
Rollins argues that the number of recklessly endangering safety counts that can be
charged is limited to the number of acts committed, not the number of victims
affected. We disagree.

¶21 As the State observes, Lechner involved a situation where the
defendant committed multiple distinct acts. Lechner did not address a situation
where a single reckless act endangered multiple victims. Moreover, when
examining legislative intent, the court repeated the general rule that “where
different victims are involved, the legislature intends to allow a corresponding
number of punishable crimes.” Id. at 417 (citing Rabe, 96 Wis. 2d at 67-68;
Austin v. State, 86 Wis. 2d 213, 223, 271 N.W.2d 668 (1978)). The court did not

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No. 2020AP590-CR

indicate disproval of this rule or state that it was overruling it. Accordingly,
Lechner does not prohibit multiple convictions when a single act endangers
multiple victims.

¶22 Therefore, in sum, because each conviction here related to a
different victim, the convictions are not identical in fact.

II. Legislative intent

¶23 Because we conclude that the offenses are not identical in fact, we
presume that the legislature intended to permit cumulative punishments and it is
the defendant’s burden to prove otherwise. See State v. Ziegler, 2012 WI 73, ¶74,
342 Wis. 2d 256, 816 N.W.2d 238.

¶24 To determine legislative intent, we look at four factors: “(1) all
applicable statutory language; (2) the legislative history and context of the statute;
(3) the nature of the proscribed conduct; and (4) the appropriateness of multiple
punishment[s] for the conduct.” Davison, 263 Wis. 2d 145, ¶50.

¶25 Rollins argues that the placement of the recklessly endangering
safety statute in WIS. STAT. ch. 941, which concerns “crimes against public health
and safety,” demonstrates the legislature’s intent to punish a defendant for an act
that “puts a person in the public at risk as opposed to punishing a defendant for
each particular person his singular reckless act puts at risk.”

¶26 We disagree. First, as discussed above, WIS. STAT. §§ 941.30(1)
and 939.24 provide that the State must prove that the defendant endangered
“another’s safety” and the defendant created an unreasonable and substantial risk
of death or great bodily harm to “another human being.” The statutes do not state

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No. 2020AP590-CR

that the defendant endangered “the public” or that the defendant created a risk to
“the public.”

¶27 Second, “[t]he legislature is presumed to act with full knowledge of
existing case law when it enacts a statute.” Strenke v. Hogner, 2005 WI 25, ¶28,
279 Wis. 2d 52, 694 N.W.2d 296. As the State observes, and Rollins does not
dispute, when the legislature revised WIS. STAT. §§ 941.30 and 939.24, it was
presumably aware of the preexisting case law authorizing a separate penalty for
each victim. See 1987 Wis. Act 399; Rabe, 96 Wis. 2d 48 (decided in 1980). If
the legislature intended to prohibit the imposition of a separate punishment for
each victim endangered, it would have included language saying so.

¶28 Finally, “the nature of the proscribed conduct” and “the
appropriateness of multiple punishments” factors do not support Rollins’
argument. Davison, 263 Wis. 2d 145, ¶50. We do not see anything inappropriate
about convicting and punishing a defendant for each person endangered. See Pal,
374 Wis. 2d 759, ¶27. Under Rollins’ view of the recklessly endangering safety
statute, a defendant who endangered multiple people would be exposed to the
same punishment as a defendant who endangered one person. Such a result would
undermine the objectives of punishment and deterrence. See Davison, 263
Wis. 2d 145, ¶104. Therefore, we are not persuaded that when a single act
endangers multiple people that the legislature intended to limit the punishment to
one conviction.

¶29 In sum, for the reasons stated above, we conclude that Rollins’ two
convictions for first-degree recklessly endangering safety are not multiplicitous
and that Rollins has failed to rebut the presumption that the legislature intended to
allow multiple punishments.

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No. 2020AP590-CR

By the Court.—Judgment and order affirmed.

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

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