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COA: “Do you think that is a manly thing to do” didn’t reflect improper sentencing factor of gender

State v. Edward L. Body, Sr., 2019AP836, 1/22/20, District 2 (one-judge decision; ineligible for publication); case activity (including briefs)

Body appeals the sentence he received after the revocation of his probation. He claims the circuit court erred in considering his gender and unproven allegations contained in the PSI. He also argues the sentence–one year in jail for a repeater disorderly conduct–is unduly harsh. The court of appeals rejects all three claims.

The unproven-offenses claim–the PSI recited that he’d battered a woman and tried to prevent her and her son from calling the police–runs headlong into a wall of case law:

[O]ur supreme court has repeatedly made clear that “[t]he scope of the information that a court may consider includes ‘not only uncharged and unproven offenses but also facts related to offenses for which the defendant has been acquitted.’” State v. Salas Gayton, 2016 WI 58, ¶23, 370 Wis. 2d 264, 882 N.W.2d 459 (quoting State v. Frey, 2012 WI 99, ¶47, 343 Wis. 2d 358, 817 N.W.2d 436).

(¶14). Likewise legally troubled is his harshness argument; the court of appeals gives it the old “sentence well within the maximum” parry. (¶18).

Body’s last argument is not foreclosed by case law, and it’s worthy of more consideration than the court gives it. He says the court improperly considered his gender in deciding the sentence. The whole exchange was:

THE COURT: So now he is back again, and his most recent episode for which he was revoked is punching a woman repeatedly.

Do you think that is a manly thing to do?

MR. BODY: No.

THE COURT: What do you think other men think of someone who slaps a woman around?

MR. BODY: I don’t think they think highly of them.

THE COURT: Do you think that is the limit of what they think?

MR. BODY: I can’t presume to know what somebody else knows. I can only assume they don’t think highly of them.

THE COURT: What do you think I think right now?

MR. BODY: I don’t know. I won’t know until you tell me, sir.

(¶10).

The parties and the court agree that consideration of Body’s gender would be improper. Even if you think the circuit court’s remarks–“a manly thing to do, other men”–unobjectionable, is it really because they reflect no consideration of Body’s gender? The court of appeals reframes the claim as being about “gender bias,” which it finds absent, but that’s not precisely the same as asking whether the court “relied” on gender as a sentencing factor.

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