Brett Tyler Wahlgren v. State of Alabama (Appeal from Jefferson Circuit Court: CC-23-1807)

Rel: December 20, 2024

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Alabama Court of Criminal Appeals
OCTOBER TERM, 2024-2025
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CR-2024-0013
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Brett Tyler Wahlgren

v.

State of Alabama

Appeal from Jefferson Circuit Court
(CC-23-1807)

KELLUM, Judge.

Brett Tyler Wahlgren was convicted of first-degree domestic

violence, see § 13A-6-130, Ala. Code 1975. The circuit court sentenced

him to 20 years' imprisonment, but it ordered that the sentence be split
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and that Wahlgren serve 4 years in confinement followed by 5 years on

probation.

On appeal, Wahlgren contends that his conviction violates double-

jeopardy principles because, he says, he had previously pleaded guilty to

third-degree domestic violence for the same act or transaction and third-

degree domestic violence is a lesser-included offense of first-degree

domestic violence. We agree.1

The relevant facts are undisputed. Wahlgren and his wife, Michelle

Marie Holland-Wahlgren ("Michelle"), were in the process of divorcing.

When the divorce proceedings began, Michelle left the marital home and

moved in with a friend, but most of her belongings remained in the

marital home. On March 19, 2023, Michelle was at the martial home

when Wahlgren came home. A verbal dispute quickly escalated to

Wahlgren's physically attacking Michelle in the kitchen. Wahlgren

grabbed Michelle by the hair, dragged her to the floor, and began hitting

her. He then lifted her up and slammed her head against the kitchen

counter, after which he dragged her across the kitchen, grabbed a knife

1Because of our disposition of this case, we need not address the

other issues Wahlgren raises on appeal.
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from a butcher block, and tried to stab Michelle. Michelle and Wahlgren

struggled over the knife, with Michelle incurring injuries; Michelle was

able to get away, and she ran from the house. A neighbor telephoned

emergency 911.

On March 21, 2023, Wahlgren was charged by complaint in district

court with third-degree domestic violence, see § 13A-6-132, Ala. Code

1975. The complaint alleged that Wahlgren did, "with intent to cause

physical injury to another person, cause physical injury to another

person, to-wit: Michelle Holland-Wahlgren, by striking the victim about

the head before bashing her head into a granite countertop, ... with the

victim being the defendant's wife." (C. 305; capitalization omitted.) In

May 2023, Wahlgren was indicted for attempted murder, see §§ 13A-6-2

and 13A-4-2, Ala. Code 1975, and for first-degree domestic violence.2

With respect to first-degree domestic violence, the indictment charged

that Wahlgren

2The record indicates that the first-degree-domestic-violence charge

was also initially charged by complaint. The prosecutor stated that,
although "it was supposed to be transferred," the misdemeanor charge of
third-degree domestic violence "apparently did not travel with the felony"
charge of first-degree domestic violence when the case was submitted to
the grand jury for indictment, and the misdemeanor charge remained
pending in the district court. (R. 121.)
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"did, with the intent to cause serious physical injury to
another person, cause[] serious physical injury to Michelle
Marie Holland-Wahlgren, by means of a deadly weapon or
dangerous instrument, to-wit: a knife, and Michelle Marie
Holland-Wahlgren, is, to-wit: a current or former spouse."

(C. 110; capitalization omitted.)

In July 2023, Wahlgren pleaded guilty in the district court to the

third-degree-domestic-violence charge and received a 12-month

suspended sentence, with 2 years to be served on probation. In August

2023, Wahlgren filed a motion to dismiss the indictment in the circuit

court on the ground that it was barred by double-jeopardy principles.

Specifically, he argued that his third-degree-domestic-violence conviction

arose from the same act or transaction as the two charges in the

indictment and that third-degree domestic violence is a lesser-included

offense of attempted murder and first-degree domestic violence in his

case.

The circuit court conducted a hearing on the motion on August 21,

2023, at which the State argued that the third-degree-domestic-violence

charge encompassed only Wahlgren's slamming Michelle's head against

the kitchen counter and that the attempted-murder and first-degree-

domestic-violence charges were based on his use of a knife. The State

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conceded that, generally speaking, third-degree domestic violence is a

lesser-included offense of first-degree domestic violence, but it argued

that, even if the jury was to find Wahlgren guilty of third-degree domestic

violence as a lesser-included offense of first-degree domestic violence as

charged in the indictment, that conviction would be based on Wahlgren's

use of a knife and not on his slamming Michelle's head against the

kitchen counter. Thus, the State concluded, jeopardy had not attached

with respect to the charge premised on Wahlgren's using the knife during

his attack on Michelle and his prosecution under the indictment was not

barred. The day after the hearing, the circuit court issued an order

denying Wahlgren's motion to dismiss, finding "that the alleged statutory

offenses arose from 'the same act or transaction'; however, the alleged

offenses were appropriately charged separately as each offense requires

proof of an element that the other offense does not." (C. 22.)

A jury subsequently acquitted Wahlgren of attempted murder but

convicted him of first-degree domestic violence. After sentencing,

Wahlgren timely filed a motion for a new trial, reasserting his double-

jeopardy argument. The circuit court denied the motion after a hearing.

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The Fifth Amendment to the United States Constitution protects a

criminal defendant from being twice put in jeopardy for the same offense.

"The Double Jeopardy Clause 'protects against a second prosecution for

the same offense after acquittal, against a second prosecution for the

same offense after conviction, and against multiple punishments for the

same offense.' " Ex parte Blackman, 312 So. 3d 1246, 1250 (Ala. 2020)

(quoting Justices of Boston Mun. Court v. Lydon, 466 U.S. 294, 306-07

(1984)). This case involves the second protection -- a second prosecution

after conviction -- and, because Wahlgren was convicted under two

distinct statutes, the test set out in Blockburger v. United States, 284

U.S. 299 (1932), applies. See, e.g., Hopson v. State, 292 So. 3d 407 (Ala.

Crim. App. 2019). Under Blockburger, "where the same act or

transaction constitutes a violation of two distinct statutory provisions,

the test to be applied to determine whether there are two offenses or only

one, is whether each provision requires proof of an additional fact which

the other does not." 284 U.S. at 304.

"The Blockburger test is a two-pronged test," and " 'the threshold

inquiry under Blockburger is whether the alleged statutory violations

arise from "the same act or transaction." ' " Williams v. State, 104 So. 3d

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254, 256 (Ala. Crim. App. 2012) (quoting State v. Watkins, 362 S.W.3d

530, 545 (Tenn. 2012)). Wahlgren argues, and the circuit court found,

that Wahlgren's convictions for first-degree domestic violence and third-

degree domestic violence arose out of the same act or transaction, and the

State concedes in its brief on appeal that "the offenses arose from the

same act." (State's brief, p. 19.) Because there is no dispute on appeal

with respect to the threshold inquiry, we simply note that we agree.

Wahlgren's "conduct could not be separated into discrete acts. Rather,

the conduct occurred over a continuous interval." Hopson, 292 So. 3d at

416. See also Brown v. Ohio, 432 U.S. 161, 169 (1977) ("The Double

Jeopardy Clause is not such a fragile guarantee that prosecutors can

avoid its limitations by the simple expedient of dividing a single crime

into a serious of temporal or spatial units."). We now turn to the second

inquiry under Blockburger.

"[I]f the offenses did arise from the same act or transaction, then it

must be determined whether each offense requires proof of an additional

fact which the other does not, i.e., whether the two offenses are the 'same'

for double-jeopardy purposes." Williams, 104 So. 3d at 257. The Alabama

Supreme Court " 'has implicitly recognized the Blockburger test as a

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"floor" rather a "ceiling" for "same offense" definitions.' " Hopson, 292 So.

3d at 416 (quoting King v. State, 574 So.2d 921, 931 (Ala. Crim. App.

1990) (Bowen, J., concurring specially). Moreover,

"the Blockburger test is nothing more than a rule of statutory
construction. As the Alabama Supreme Court has recognized:

" '[T]he Double Jeopardy Clause, as a general rule,
prohibits the State from subjecting a defendant to
multiple punishments for the same offense....
However, this protection for criminal defendants
constrains only the judiciary to act in accordance
with the expressed will of the legislature; it does
not prohibit the legislature from authorizing the
imposition of cumulative sentences for what
amounts to the same offense, provided the
legislative intent to do so is clear and the
prosecutions and convictions occur in a single
trial.'

"Ex parte Rice, 766 So. 2d 143, 148 (Ala. 1999) (emphasis
added). 'The assumption underlying the [Blockburger] rule is
that Congress ordinarily does not intend to punish the same
offense under two different statutes. Accordingly, where two
statutory provisions proscribe the "same offense," they are
construed not to authorize cumulative punishments in the
absence of a clear indication of contrary legislative intent.'
Whalen v. United States, 445 U.S. 684, 691-92 (1980)
(emphasis added). Because '[t]he Blockburger test is a "rule
of statutory construction," and because it serves as a means
of discerning congressional purpose the rule should not be
controlling where, for example, there is a clear indication of
contrary legislative intent.' Albernaz v. United States, 450
U.S. 333, 340 (emphasis added)."

Hutcherson v. State, 243 So. 3d 855, 877-78 (Ala. Crim. App. 2017).

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"It is well settled 'that a lesser included and a greater offense are

the same under Blockburger.' " Williams, 104 So. 3d at 257 (quoting

Brown, 432 U.S. at 166 n.6). "[T]he Fifth Amendment forbids successive

prosecution and cumulative punishment for a greater and lesser included

offense." Brown, 432 U.S. at 170. In Williams, this Court recognized

that, " ' " '[t]o be a lesser included offense of one charged in an indictment,

the lesser offense must be one that is necessarily included, in all of its

essential elements, in the greater offense charged ... unless it is so

declared by statute.' " ' " 104 So. 3d at 264 (citations omitted; emphasis

added). See also § 13A-1-8(b)(1), Ala. Code 1975 ("When the same

conduct of a defendant may establish the commission of more than one

offense, the defendant may be prosecuted for each such offense. He may

not, however, be convicted of more than one offense if ... [o]ne offense is

included in the other, as defined in Section 13A-1-9[, Ala. Code 1975].").

Section 13A-1-9(a), Ala. Code 1975, provides the following definitions of

a lesser-included offense:

"(a) ... An offense is an included one if:

"(1) It is established by proof of the same or
fewer than all the facts required to establish the
commission of the offense charged; or

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"(2) It consists of an attempt or solicitation to
commit the offense charged or to commit a lesser
included offense; or

"(3) It is specifically designated by statute as
a lesser degree of the offense charged; or

"(4) It differs from the offense charged only
in the respect that a less serious injury or risk of
injury to the same person, property or public
interests, or a lesser kind of culpability suffices to
establish its commission."

(Emphasis added.)

In Hutcherson, supra, this Court held that, even though first-

degree robbery and second-degree robbery each required an element that

the other did not and, therefore, convictions for both arising out of the

same act or transaction involving the same victim would pass the

Blockburger test, such convictions nonetheless violate double-jeopardy

principles because second-degree robbery is a lesser-included offense of

first-degree robbery pursuant to the definition in § 13A-1-9(a)(3). We

explained:

"Section 13A-1-9(a)(3), Ala. Code 1975, states that '[a]n
offense is an included one if ... [i]t is specifically designated by
statute as a lesser degree of the offense charged.' The
legislature specifically designated the offense in § 13A-8-42,
Ala. Code 1975, as second-degree robbery, a lesser degree of
the offense in § 13A-8-41, Ala. Code 1975, specifically
designated as first-degree robbery. Therefore, legislative

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intent is clear: a person may not be convicted of both first-
degree robbery and second-degree robbery for a single robbery
of a single victim."

243 So. 3d at 878.

Similarly, here, the legislature specifically designated the offense

in § 13A-6-132 as third-degree domestic violence, a lesser degree of first-

degree domestic violence as defined in § 13A-6-130. Legislative intent is

clear that a person may not be convicted of both first-degree domestic

violence and third-degree domestic violence arising out of the same act or

transaction involving the same victim. Because third-degree domestic

violence is a lesser-included offense of first-degree domestic violence and

because Wahlgren's conviction for third-degree domestic violence arose

from the same act or transaction as his subsequent prosecution and

conviction for first-degree domestic violence, the circuit court erred in

denying Wahlgren's motion to dismiss the indictment on double-jeopardy

grounds. "[A] conviction on a lesser-included offense bars subsequent

trial on the greater offense." Illinois v. Vitale, 447 U.S. 410, 421 (1980).

Based on the foregoing, the judgment of the circuit court is

reversed, and this cause remanded for proceedings consistent with this

opinion.

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REVERSED AND REMANDED.

Windom, P.J., and McCool, Cole, and Minor, JJ., concur.

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