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COA says trial court didn’t sentence on improper factors

State v. Dion Lashay Byrd, 2017AP1968, 6/26/18, District 1 (not recommended for publication); case activity (including briefs)

Byrd was convicted of making a bomb threat to the Fox 6 TV station in Milwaukee. He claims the sentencing court relied on two improper factors in imposing the maximum sentence for this Class I felony. First, he says the court coerced him into making self-incriminating statements during his sentencing allocution–statements that could not be used against him at sentencing under the Fifth Amendment. Second, he contends the court should not have based its sentencing decision on its stated dissatisfaction with the statutory maximum.

The court of appeals turns back both arguments. It allows that the trial court may have “goad[ed]” Byrd into making some admissions when, during his allocution, it interrupted him to ask “why the hell [he] would do this?” (Byrd’s counsel had already informed the court Byrd would not be addressing the “why question” because he planned to appeal several issues.) The opinion also notes that Byrd’s mental health status at the time of sentencing called into question his ability to knowingly and voluntarily waive the right to remain silent at all. (¶¶21-23).

But, says the court, the trial judge actually sentenced Byrd twice–Byrd successfully moved for resentencing after the first hearing on the basis that the court should have been given information about his mental health. And, at the second sentencing, the court did not cite or refer to the statements it had elicited from Byrd at the first hearing. So, though the statements may have been compelled, they were not used against Byrd in imposing the sentence he is now serving. (¶¶24-27).

As to the court’s comments on the statutory maximum being too low (which were made at both hearings) the court of appeals essentially assumes without deciding that frustration at the legislature is an improper sentencing factor. It concludes, though, that Byrd hasn’t shown the trial court “actually relied on its opinion” about the max in deciding on the penalty.

Really? How does a defendant show the sentencing court “relied” on an improper factor beyond pointing out that the judge discussed the factor during its sentencing remarks? And how could it be that the judge’s expressed view that he ought to have been able to go over the statutory maximum didn’t influence his decision to go as far as he could and impose the maximum?

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