State v. Hermann
164 Wis. 2d 269, 1991 Wisc. App. LEXIS 1174, 474 N.W.2d 906 (1991)
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Rule of Law:
A criminal statute enhancing penalties for drug delivery offenses committed within a certain distance of school premises imposes strict liability for the geographical element, meaning the state does not need to prove the defendant's knowledge of the proximity, and such a statute, including its mandatory minimum sentencing provisions, is constitutional and applies to offenses committed before a relevant sentencing amendment's effective date.
Facts:
- Fred L. Hermann delivered cocaine and methamphetamines on August 25, 1989.
- Fred L. Hermann again delivered cocaine and methamphetamines on October 16, 1989.
- The drug transactions leading to the charges took place between adults in a private residence.
- All offenses occurred within 1,000 feet of a school premises.
Procedural Posture:
- In February 1990, Fred L. Hermann was charged with two counts of delivering cocaine and methamphetamines on August 25, 1989, and two counts of delivering the same controlled substances on October 16, 1989, within 1,000 feet of school premises.
- On June 1, 1990, a jury convicted Hermann on all four counts and made a separate finding that each offense had occurred within 1,000 feet of a school.
- The trial court (court of first instance) sentenced Hermann pursuant to the penalty enhancer provisions of Wis. Stat. § 161.49, imposing five years' imprisonment on each count, to run concurrently.
- Hermann, as appellant, appealed the judgment of conviction to the Court of Appeals of Wisconsin, arguing several grounds for resentencing against the State, as appellee.
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Issue:
Does Wisconsin Statute § 161.49, which enhances penalties for drug delivery offenses committed within 1,000 feet of school premises, require the state to prove that the defendant knew they were within the protected zone, or is it a strict liability offense regarding the geographical element, and is the statute constitutional?
Opinions:
Majority - SCOTT, J.
No, Wisconsin Statute § 161.49 does not require the state to prove that the defendant knew they were within 1,000 feet of a school, as it establishes strict liability for the geographical enhancer, and the statute is constitutional. The court concluded that the legislature did not intend to require proof of scienter (criminal intent or knowledge) for the geographical element of Wis. Stat. § 161.49. This determination was made by examining the statute's language (which was silent on scienter), legislative history (drawing parallels to a similar federal 'schoolyard statute,' 21 U.S.C. § 845a, which also did not require knowledge of proximity), the statute's purpose (to deter drug distribution in and around schools and eliminate negative influences), the seriousness of the penalty, and the practical requirements of law enforcement (finding that requiring proof of familiarity with an area would be an onerous task). The court reasoned that since the underlying drug delivery offense already required mens rea, applying strict liability to the proximity element does not criminalize otherwise innocent activity, citing State v. Stoehr and State v. Collova. The court further held that § 161.49 is constitutional, rejecting arguments that its mandatory minimum sentence constitutes cruel and unusual punishment (citing Steeno v. State, Hutto v. Davis, and Harmelin v. Michigan), violates equal protection by creating an arbitrary classification (finding a rational relationship to deterring drug transactions near schools, as per State v. McManus), violates due process by creating an irrational irrebuttable presumption (finding a rational connection between proximity and harm to children, per Tot v. United States), or is an invalid exercise of police power (affirming regulation of controlled substances as within police power, per Bisenius v. Karns). Finally, the court ruled that Wis. Stat. § 990.04 applied, meaning the mandatory minimum penalty provisions of § 161.49, in effect at the time of the offense, applied to Hermann's sentencing, rather than the later-enacted, more lenient § 161.438, which authorized presumptive minimum sentences, because the new law was not retroactively applied.
Analysis:
This case significantly clarifies the application of penalty enhancement statutes, particularly those creating 'drug-free zones.' It establishes a strong precedent for the legislature's ability to implement strict liability elements for ancillary components of criminal offenses, provided the underlying crime requires a guilty mind. The ruling reinforces that such enhancements are generally constitutional, even when imposing mandatory minimum sentences, as long as they serve a rational government interest, such as protecting vulnerable populations. Furthermore, the decision solidifies the principle of non-retroactivity for statutory amendments that might lessen criminal penalties, ensuring that sentencing is typically governed by the law in effect at the time the offense was committed unless explicitly stated otherwise by the legislature.
