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Resentencing judge was not vindictive, did not rely on inaccurate information, and did not impose excessive sentence

State v. Quincy Lashawn Baker, 2013AP242-CR, District 1, 1/28/14; court of appeals decision (not recommended for publication); case activity

Baker was given a resentencing hearing based on inaccurate information about the maximum periods of confinement and supervision for the crime of conviction (felony murder). (¶¶4-5). At the resentencing hearing before a different judge, the state argued Baker’s profane outburst at the conclusion of his original sentencing hearing showed a lack of remorse. (¶¶3, 6). Baker submitted a defense PSI providing information about Baker’s youth and immaturity and a childhood illness that affected his brain development, and vaguely argued his outburst was a reflection of his immaturity. (¶7). The judge imposed the maximum sentence, discounting the defense PSI (“nothing more than a pile of excuses”) and concluding Baker’s outburst did show lack of remorse. (¶¶9-10). The court of appeals rejects all of Baker’s claims of sentencing error.

Inaccurate information

The resentencing court did not rely on inaccurate information by concluding that Baker’s outburst at the first hearing demonstrated a lack of remorse rather than–as Baker argued–an expression of frustration by an immature young man:

¶19      We agree with the resentencing court that Baker’s argument is nothing more than his own subjective opinion. The court made a credibility determination when it determined that Baker’s outburst was inappropriate and reflective of his overall character. The court assessed Baker’s demeanor—something we will not second-guess. Moreover .., the resentencing court considered multiple factors when sentencing Baker—not merely his outburst.

Reasons for the sentence

¶22      A review of the transcript in this case demonstrates that the resentencing court did sufficiently explain its reasons for imposing the maximum penalty. The resentencing court discussed Baker’s prior robbery attempts and the seriousness of the offense, noting that Baker’s offense was “one of the most serious sets of felony murders that I have seen.” The court also noted a lack of mitigating circumstances, the need to protect the community, and Baker’s character, stating that Baker appeared apologetic until he received his sentence. We cannot conclude that the resentencing court failed to articulate its reasons for imposing the maximum sentence.

¶23      We also disagree with Baker’s argument that the resentencing court erroneously disregarded the defense PSI. “The court has discretion to order a PSI and to determine the extent to which it will rely upon the information in the PSI.” State v. Suchocki, 208 Wis. 2d 509, 515, 561 N.W.2d 332 (Ct. App. 1997), abrogated on other grounds by [State v.] Tiepelman, [2006 WI 66,] 291 Wis. 2d 179[, 717 N.W.2d 1]. Although the PSI here was prepared by the defense, rather than by a neutral court-ordered party, the resentencing court still had the discretion to determine how much weight, if any, to give it. The court addressed the PSI, noting that it failed to consider the possibility that Baker had some control over his actions, and focused instead on all of the circumstances that may have affected Baker’s brain development. The court addressed what it considered fatal flaws in the PSI, and, as stated, discussed its rationale for imposing the maximum sentence. The court did not erroneously exercise its discretion.

Vindictiveness

¶27     …[W]e conclude that a presumption of vindictiveness did not exist when the resentencing court imposed the maximum sentence. First, both the sentencing court and the resentencing court imposed the maximum penalty—though the bifurcation configurations differed. At Baker’s original sentencing hearing, the sentencing court imposed the maximum 35 years—divided as 27 years of initial confinement and eight years of extended supervision. That same day, the sentencing court revised Baker’s sentence based on an error. It maintained Baker’s confinement term at 27 years, but reduced his term of extended supervision to seven and a half years, for a total sentence of 34.5 years. The sentencing court granted Baker’s motion for resentencing after identifying an error in the criminal complaint. At the resentencing hearing, the court again imposed the maximum 35 years, this time broken down as 26 years and three months’ initial confinement and eight years and nine months’ extended supervision. Two out of the three times Baker was sentenced, the court imposed what it thought was the maximum penalty. Baker’s sentence was reduced once, only because the sentencing court thought its original sentence was in error. In essence, both the sentencing and resentencing courts intended to sentence Baker to the maximum 35 years. In the context of all of Baker’s hearings, Baker’s sentence did not actually increase.

And in any event, the resentencing court was a different judge who had affirmative reasons for imposing more time: Baker’s outburst. (¶¶28-29).

Harsh and excessive sentence

No such thing, presumptively, when the sentence is at or within the maximum, State v. Grindemann, 2002 WI App 106, ¶¶31-32, 255 Wis. 2d 632, 648 N.W.2d 507. (¶¶31-32).

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