State v. Alec D. Alford

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.
March 23, 2022
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. 2020AP2072-CR Cir. Ct. No. 2020CM1192

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT II

STATE OF WISCONSIN,

PLAINTIFF-APPELLANT,

V.

ALEC D. ALFORD,

DEFENDANT-RESPONDENT.

APPEAL from a judgment of the circuit court for Waukesha County:
JACK A. MELVIN, III, Judge. Reversed and cause remanded.

¶1 GUNDRUM, P.J.1 The State appeals from a judgment of the circuit
court dismissing Waukesha County case No. 2020CM1192. It contends the court

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This appeal is decided by one judge pursuant to WIS. STAT. § 752.31(2)(f) (2019-20).
All references to the Wisconsin Statutes are to the 2019-20 version unless otherwise noted.
No. 2020AP2072-CR

erred in granting Alec Alford’s motion to dismiss case No. 2020CM1192 based on
its previous dismissal with prejudice of an earlier, related case, Waukesha County
case No. 2019CF597. For the following reasons, we reverse and remand.

Background

¶2 Alford was charged in case No. 2019CF597 with one count of
delivery of cocaine, second and subsequent offense, contrary to WIS. STAT.
§§ 961.41(1)(cm)1r. and 961.48(1)(b). On January 9, 2020, the circuit court
dismissed that case with prejudice due to the State’s failure to promptly prosecute
it following Alford’s request for prompt disposition under WIS. STAT. § 971.11(2).

¶3 The State subsequently filed charges against Alford in case
No. 2020CM1192 for five counts of possession of drug paraphernalia, as a
repeater, pursuant to WIS. STAT. §§ 961.573(1) and 939.62(1)(a). The drug
paraphernalia underlying the charges was the packaging for the cocaine that
formed the basis for the delivery of cocaine charge in case No. 2019CF597.
Alford moved to dismiss case No. 2020CM1192 on the basis that the charges
violated WIS. STAT. § 939.71, which establishes a “limitation on the number of
convictions.” The circuit court granted the motion, and the State appeals.

Discussion

¶4 This appeal requires us to decide whether the State is barred by WIS.
STAT. § 939.71 from charging the five drug paraphernalia counts in 2020CM1192
because of the prior dismissal with prejudice of the delivery of cocaine charge due
to the State’s failure to timely prosecute that charge. To make this decision, we
must interpret and apply § 939.71. The interpretation and application of statutes

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No. 2020AP2072-CR

are matters of law we review de novo. See Century Fence Co. v. American Sewer
Servs., 2021 WI App 75, ¶8, 399 Wis. 2d 742, 967 N.W.2d 32 (citation omitted).

¶5 As indicated, Alford’s arguments before the circuit court focused on
WIS. STAT. § 939.71, which reads:

Limitation on the number of convictions. If an act forms
the basis for a crime punishable under more than one
statutory provision of this state … a conviction or acquittal
on the merits under one provision bars a subsequent
prosecution under the other provision unless each provision
requires proof of a fact for conviction which the other does
not require.

(Emphasis added.) On appeal, Alford makes no attempt to respond to the State’s
brief-in-chief argument that the dismissal with prejudice of case No. 2019CF597
does not constitute an “acquittal on the merits,” as required for § 939.71 to even
come into play.2 By failing to contest the State’s argument, Alford concedes it.
See Charolais Breeding Ranches, Ltd. v. FPC Secs. Corp., 90 Wis. 2d 97, 109,
279 N.W.2d 493 (Ct. App. 1979) (Unrefuted arguments are deemed admitted.).
Furthermore, Alford develops no legal argument in support of the circuit court’s
ruling, but in conclusory fashion just states that the circuit court “should be
affirmed.” This is insufficient. While we could reverse based solely on Alford’s
failure to respond to, and thus concession of, the State’s argument, we will add
some additional observations in support of our reversal.

¶6 As indicated, WIS. STAT. § 939.71 could only come into play for the
case now before us, case No. 2020CM1192, if case No. 2019CF597 had resulted
in a “conviction or acquittal on the merits.” Clearly it did not result in a

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Alford also fails to respond to the State’s specific multiplicity of charges and Double
Jeopardy arguments.

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No. 2020AP2072-CR

conviction. But, the circuit court’s dismissal with prejudice based solely on the
State’s failure to timely advance the case also did not constitute an “acquittal on
the merits.”

¶7 In its brief-in-chief, the State relies on the United States Supreme
Court’s ruling in Evans v. Michigan, 568 U.S. 313 (2013), in arguing that the
dismissal with prejudice of case No. 2019CF597 did not constitute an “acquittal
on the merits.” Despite the State’s persuasive arguments, Alford makes no
attempt to respond to these arguments and does not even reference Evans. We
find Evans to be quite instructive, as it lays out which types of “dismissals” of a
criminal case constitute an “acquittal” and which do not.

[O]ur cases have defined an acquittal to encompass any
ruling that the prosecution’s proof is insufficient to
establish criminal liability for an offense. Thus an
“acquittal” includes “a ruling by the court that the evidence
is insufficient to convict,” a “factual finding [that]
necessarily establish[es] the criminal defendant’s lack of
criminal culpability,” and any other “rulin[g] which
relate[s] to the ultimate question of guilt or innocence.”
These sorts of substantive rulings stand apart from
procedural rulings that may also terminate a case midtrial,
which we generally refer to as dismissals or mistrials.
Procedural dismissals include rulings on questions that “are
unrelated to factual guilt or innocence,” but “which serve
other purposes,” including “a legal judgment that a
defendant, although criminally culpable, may not be
punished” because of some problem like an error with the
indictment.

Evans, 568 U.S. at 319-20 (first alteration added; citations omitted).

¶8 The Evans Court further noted that “a ‘termination of the
proceedings against [a defendant] on a basis unrelated to factual guilt or innocence
of the offense of which he is accused,’ i.e., some procedural ground, does not pose
the same concerns” as an acquittal based on factual guilt or innocence because an

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No. 2020AP2072-CR

acquittal based on the latter carries with it an “expectation of finality.”3 Id. at 319-
20 (alteration in original; citation omitted). Unlike a “determination that the State
ha[s] failed to prove its case,” “a dismissal on a procedural ground ‘unrelated to
factual guilt or innocence,’ like the question of ‘preindictment delay,’” for
example, does not constitute an “acquittal.” Id. at 320 (citation omitted).

¶9 Black’s Law Dictionary’s definitions of “acquit” and “acquittal”
comport with the understanding of “acquittal” highlighted in Evans. “Acquit”
means “[t]o clear (a person) of a criminal charge; specific., to give an official
decision in a court of law that someone is not guilty of a crime.” Acquit, BLACK’S
LAW DICTIONARY (10th ed. 2014) (emphasis added). Similarly, “acquittal” means
“[t]he legal certification, usu. by jury verdict, that an accused person is not guilty
of the charged offense; an official statement in a court of law that a criminal
defendant is not guilty.” Acquittal, BLACK’S LAW DICTIONARY (10th ed. 2014)
(emphasis added). Furthermore, “merits”—as in an “acquittal on the merits” in
WIS. STAT. § 939.71—is defined as “the substantive considerations to be taken
into account in deciding a case, as opposed to extraneous or technical points, esp.
of procedure.” Merits, BLACK’S LAW DICTIONARY (10th ed. 2014).

¶10 Turning to the case now before us, case No. 2020CM1192, there is
no way in which the circuit court’s dismissal with prejudice of case
No. 2019CF597—based solely on the State’s failure in that case to diligently and
timely prosecute the matter—could be reasonably viewed as an “acquittal” much

3
The “concerns” the Evans Court noted as related to a retrial following an acquittal are
that a retrial “would upset a defendant’s expectation of repose, for it would subject him to
additional ‘embarrassment, expense and ordeal’ while ‘compelling him to live in a continuing
state of anxiety and insecurity.’” Evans v. Michigan, 568 U.S. 313, 319 (2013).

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No. 2020AP2072-CR

less an “acquittal on the merits.” There was not even a consideration, much less a
determination, of “factual guilt or innocence.” See Evans, 568 U.S. at 319; see
also State v. Alvarado, 2017 WI App 53, ¶9, 377 Wis. 2d 710, 903 N.W.2d 122
(“acquittals ‘resolve factual elements of the offense’” (quoting State v. Turley,
128 Wis. 2d 39, 49, 381 N.W.2d 309 (1986))). The dismissal of 2019CF597 with
prejudice was strictly “a dismissal on a procedural ground ‘unrelated to factual
guilt or innocence,’ like a question of ‘preindictment delay.’” See Evans, 568
U.S. at 320 (citation omitted). As a result, WIS. STAT. § 939.71 does not come
into play and provides Alford no help.

¶11 For the foregoing reasons, we reverse the judgment of dismissal in
case No. 2020CM1192 and remand to the circuit court for further proceedings on
that case.

By the Court.—Judgment reversed and cause remanded.

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

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