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Defendant’s travelling to Wisconsin to commit crime was not improper sentencing factor

State v. Marshawn Terell Johnson, 2017AP2445-CR, District 3, 3/19/19 (not recommended for publication); case activity (including briefs)

In sentencing Johnson for possession of heroin with intent to delivery, the circuit court remarked that he’d traveled to Superior from Chicago to commit his crime. The sentencing court’s consideration of that fact did not violate the Privileges and Immunities Clause of the U. S. Constitution.

Johnson came with another man, Jenkins, and the two stayed with Thompson and Higgins, a couple of heroin addicts, in Superior. Johnson claimed he didn’t know anything about the heroin, most of which was found on Jenkins, but the jury didn’t believe him. (¶¶2-4).

¶8     Johnson argues he was given a harsher sentence than his accomplices received because he traveled to Superior from Chicago.² Johnson further argues that a circuit court’s consideration of whether a defendant is from another state violate[s] the Privileges and Immunities Clause of the United States Constitution, which provides as follows: “The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.” U.S. Const. art. IV, § 2, cl. 1. The Privileges and Immunities Clause “expresses the accommodation of the principle of equality of rights of citizens and non-citizens with the needs and interests of the state as a sovereign entity and helps ‘fuse into one nation a collection of independent, sovereign states.’” Taylor v. Conta, 106 Wis. 2d 321, 330, 316 N.W.2d 814 (1982) (quoting Toomer v. Witsell, 334 U.S. 385, 395 (1948)). By violating his constitutional rights, Johnson argues the circuit court relied on an unlawful and improper sentencing factor.

¶9     Johnson contends his Privileges and Immunities argument is buttressed by Buckner v. State, 56 Wis. 2d 539, 202 N.W.2d 406 (1972)…. In that case, the circuit court remarked at sentencing that the defendant and his accomplices in a murder were “from Chicago, [and] came in here to have a little fun in Madison.” Id. at 551. In commenting upon the need for the defendant’s sentence to have a deterrent effect, the court noted the apparent recent rise in the number of first-degree murder cases, and it stated, “Well, I think it’s about time that the word got around that this cannot happen in Madison, Wisconsin.” Id. Our supreme court rejected the defendant’s Privileges and Immunities argument there, remarking that there had been no showing that the court “relied, in its determination of the proper sentence, upon the fact that defendant was from Chicago.” Id. at 552. Rather, the court stated the transcript showed the court was making “a general protestation against the rise in callousness for human life.” Id.

¶10      Even if we assume without deciding that Buckner supports a general rule that a Privileges and Immunities violation occurs when a circuit court bases a defendant’s sentence on the fact that he or she resides in another state, Johnson has not shown that such a violation occurred here. The circuit court here did not show a general disdain for people from Chicago. Rather, the court focused on Johnson’s conduct in bringing prohibited substances into the Superior community from another location. In that sense, not only did Johnson deliver narcotics in Superior like his accomplices, but he also sourced the drugs from another location and brought them to be delivered. The court therefore reasonably concluded that Johnson’s conduct was more blameworthy than that of his accomplices, all of whom had cooperated with authorities and, as to the Superior residents Thompson and Higgins, were dealing narcotics as a result of their addiction.


² We note that, at times, Johnson refers to “considerable disparities” between the sentences he and Jenkins received, both of whom are African-Americans from Chicago, and the sentences Thompson and Higgins received, both of whom are Caucasian and from Superior. Johnson does not develop any argument that his race formed a basis for his sentence, nor that the sentences his accomplices received should justify resentencing independent of his Privileges and Immunities claim. Therefore, our analysis is limited to the sole issue he actually raises—whether he was sentenced in violation of the Privileges and Immunities Clause.
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