State v. Brian K. Goodson, 2009 WI App 107
For Goodson: Jefren E. Olsen, SPD, Madison Appellate
Issue/Holding: The reconfinement judge should have recused himself, given that at original disposition he threatened to impose the maximum if the defendant was returned to court on revocation; State v. Gudgeon, 2006 WI App 143, deemed controlling:
¶12 The same analysis applies here. At the initial sentencing, the court assured Goodson it was “not kidding” about its commitment to impose the maximum sentence if Goodson violated his supervision rules. Later in the hearing, the court repeated the warning: “[A]s I have told you, you do one deviation from these rules, and you are going to come back here, and you are going to get the maximum.” The court then reminded Goodson yet again at the first reconfinement hearing what would happen if he violated the rules.
¶13 Here, the court unequivocally promised to sentence Goodson to the maximum period of time if he violated his supervision rules. A reasonable person would conclude that a judge would intend to keep such a promise—that the judge had made up his mind about Goodson’s sentence before the reconfinement hearing. This appearance constitutes objective bias.
¶17 A court may certainly tell a defendant what could happen if his or her extended supervision is revoked. But telling a defendant what will happen imperils the defendant’s due process right to an impartial judge at a reconfinement hearing. Our jurisprudence eschews the notion that a court may determine a sentence without scrutinizing individual circumstances. See McCleary v. State, 49 Wis. 2d 263, 271, 182 N.W.2d 512 (1971). This prohibition is not implicated when a judge “merely express[es] a general opinion regarding a law at issue in a case before him or her.” McCaughtry, 398 F.3d at 962. But “when a judge has prejudged … the outcome,” the decision maker cannot render a decision that comports with due process. Id.
The court goes on to attempt to reconcile a seeming split in caselaw, ¶¶14-16, namely “that while some cases hold apparent bias is sufficient to show objective bias, other authority holds actual bias is required.” The court derives a synthesis by holding that either actual bias or “great risk” thereof is required. In this case, the court concludes with respect to the trial court’s statement re “the agreement you and I had back at the time you were sentenced”: “There could not be a more explicit statement confirming that the sentence was predecided. This is definitive evidence of actual bias.” Remains to seen how far the “great risk” envelope can be pushed.Point of interest: No contemporaneous request for recusal was made; in other words, the issue was first raised by appellate counsel on postconviction motion. Apparently, then, the court of appeals must have seen the need for recusal either as so compelling to require sua sponte action or as so fundamental as to not be waivable. Nonetheless, keep in mind that the court did not discuss the issue in these terms, indeed did not discuss the impact of failure to object at all. You will have to make of that what you will.