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Presentence Report — Bias, Demonstration of — Defendant’s Homosexuality

State v. David W. Suchocki, 208 Wis. 2d 509, 561 N.W.2d 332 (Ct. App. 1997)
For Suchocki: Martha A. Askins, SPD, Madison Appellate

Issue/Holding:

Suchocki claims that his due process right to a fair sentencing hearing was violated. Accordingly, he must demonstrate both bias in the PSI writer and that the sentencing process was prejudiced by such bias. See State v. Coulthard, 171 Wis.2d 573, 591, 492 N.W.2d 329, 337 (Ct. App. 1992); see also State v. Littrup, 164 Wis.2d 120, 127, 473 N.W.2d 164, 168 (Ct. App. 1991). Suchocki has failed to show bias in the PSI writer or that the alleged bias influenced the sentencing process.The trial court concluded that there was no evidence of any actual bias by Neveau toward Suchocki because of his sexual preference. Neveau expressly denied any bias towards homosexuals. The court noted that Suchocki did not contestthe accuracy of the objective information contained in the report. Also, the court found the subjective portions of the report reasonable, consistent with Suchocki’s background and the nature of the offenses for which he was convicted, and uninfluenced by his sexual preference. The evidence of record is sufficient to support the trial court’s findings. The court may consider the reasonableness and accuracy of the PSI in question in determining whether the writer was biased. See Littrup, 164 Wis.2d at 132-34, 473 N.W.2d at 168-69; see also Coulthard, 171 Wis.2d at 591, 492 N.W.2d 329 at 337.

Even if we were to conclude the PSI writer was biased against Suchocki based upon his homosexuality, the sentencing process was not influenced by that bias. The trial court found Suchocki’s sexual preference to be irrelevant to the sentencing process and specifically declared:

I certainly find that any reference to Mr. Suchocki’s sexual orientation has nothing to do with these proceedings. That is not part of this and need not be considered, and I am not considering that.

Further, the court’s sentence was much closer to the thirty days of confinement recommended in the PSI submitted by the defense than to the eight-month recommendation of Neveau. This fact belies any argument that the PSI writer’s bias toward Suchocki’s sexual orientation influenced the sentencing process.

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