State v. Schwebke
242 Wis. 2d 585, 627 N.W.2d 213, 2001 WI App 99 (2001)
Rule of Law:
Conduct not explicitly enumerated in a disorderly conduct statute can constitute "otherwise disorderly conduct" if, under the circumstances, it is significantly disturbing to an average person and tends to cause or provoke a disturbance. Additionally, Wisconsin statutes do not authorize the imposition of consecutive terms of probation; probation is an alternative to a sentence, not a sentence itself.
Facts:
- In May 1996, Roberta Twohig received two anonymous manila envelopes with stenciled addresses and thirtieth birthday greetings, containing numerous newspaper clippings about her high school and college activities and unsigned, stenciled letters expressing "I will always love you."
- In September 1996, Twohig received another anonymous envelope at her workplace containing two 45 RPM records, one titled "Roberta" and the other "Every Breath You Take" (known for its 'I'll be watching you' lyrics), with flip-side titles blackened out.
- Between January and February 1997, Twohig received two more anonymous envelopes containing 45 RPM records with suggestive titles like "I Wonder What She's Doing Tonight" and "Hot For Teacher," along with a silk rose and a note stating "I will always love you Robbie."
- Twohig testified that she felt "completely violated," "extremely" upset and disturbed by the mailings, particularly the message of being watched, leading her to feel frightened and take precautions.
- In July 1996, Twohig's former boyfriend, Thomas Lamke, an investigator, received unsolicited gay cruise literature and later an envelope with two 45 RPM records titled "Where The Boys Are" and "San Francisco (Be Sure To Wear Some Flowers In Hair)," which he inferred as references to homosexuality and found disturbing.
- In February 1997, Twohig's sister, Patty Marcinko, a teacher, received two anonymous manila envelopes on her thirty-fourth birthday, containing stenciled letters referencing her life events (wedding, academics, jobs) and numerous newspaper clippings about her high school and college years.
- Lamke felt a "much greater heightened sense of awareness" and experienced "problems at work" due to the mailings, while Marcinko felt threatened, and her husband and parents were very concerned and distraught.
- Twohig, Lamke, and Marcinko had all experienced prior, undisclosed harassment, which added to their fear and disturbance from these new mailings.
Procedural Posture:
- On November 18, 1998, the State of Wisconsin filed an amended criminal complaint against Glenn F. Schwebke in a Wisconsin trial court, charging him with six counts of disorderly conduct.
- Prior to trial, Schwebke signed a stipulation acknowledging that he had compiled and mailed each of the mailings referred to in the complaint.
- At the close of the State's case, Schwebke moved for dismissal, arguing that the State's evidence was insufficient to prove disorderly conduct, which the trial court denied.
- A jury in the trial court convicted Schwebke on all six counts of disorderly conduct.
- The trial court imposed consecutive ninety-day jail sentences on each of the first three counts (staying execution on counts four, five, and six) and ordered probation of four years for counts four, five, and six, to run consecutively to the jail sentences and to each other.
- Glenn F. Schwebke appealed his conviction and sentencing to the Court of Appeals of Wisconsin.
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Issue:
Does sending repeated, unwelcome, anonymous mailings containing personal information, stalking-like song lyrics, and suggestive content, under circumstances of prior harassment, constitute "otherwise disorderly conduct" that tends to cause or provoke a disturbance? And, do Wisconsin statutes permit a trial court to impose consecutive terms of probation for multiple misdemeanor convictions?
Opinions:
Majority - Anderson, J.
Yes, sending repeated, unwelcome, anonymous mailings containing personal information, stalking-like song lyrics, and suggestive content, under circumstances of prior harassment, does constitute "otherwise disorderly conduct" that tends to cause or provoke a disturbance. The court affirmed Schwebke's disorderly conduct conviction, finding that his conduct met the two elements of disorderly conduct: (1) conduct similar to that enumerated in the statute and (2) circumstances tending to cause a disturbance. The court reasoned that Schwebke's repeated, unwelcome, and anonymous mailings, which intimated an obsessive interest and meticulous tracking of the victims' lives, would reasonably offend an average person, especially with the clear message of being watched conveyed by specific song lyrics and personal details. The mailings were indeed sent under circumstances that not only tended to, but actually did, cause a significant disturbance, permeating the lives of the recipients and those close to them. The court emphasized that the combination of conduct and circumstances is crucial, and given the context of prior harassment and the widespread fear caused among the victims and their families, Schwebke's actions constituted "significantly disturbing" demeanor. No, Wisconsin statutes do not permit a trial court to impose consecutive terms of probation for multiple misdemeanor convictions. The court reversed the imposition of consecutive terms of probation, holding that a court's authority in sentencing must derive from statutes. Wis. Stat. § 973.09(2) accommodates multiple misdemeanor convictions by allowing for an extended single term of probation (up to four years for five or more misdemeanors, as in this case) but does not authorize consecutive terms. Furthermore, Wis. Stat. § 973.15(2) permits consecutive "sentences," but probation is not considered a "sentence" under Wisconsin law, but rather an alternative to a sentence. Precedent, including Prue v. State and State v. Pierce, has consistently held that probation cannot be made consecutive to probation. The trial court's reliance on State v. Thompson was misplaced because that case concerned a sentence made consecutive to a previously imposed and stayed sentence, not consecutive terms of probation. Therefore, the excess portion of Schwebke's sentence, the consecutive probation terms, was void and commuted to the maximum allowable single term of four years.
Analysis:
This case significantly broadens the interpretation of "disorderly conduct" in Wisconsin, confirming that non-physical, indirect forms of harassment, particularly through mail, can meet the statutory definition when they are persistent, contextually threatening, and demonstrably cause significant disturbance to an average person. It highlights that the cumulative impact and prior history of harassment are crucial factors in evaluating such conduct. The case also provides a clear and firm directive on judicial sentencing authority, underscoring that courts must strictly adhere to statutory provisions, establishing that probation terms cannot be served consecutively in Wisconsin, even for multiple convictions, unless explicitly authorized by statute.
