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Sentencing court’s “assumption” that defendant acted with intent to kill victim was not inaccurate information

State v. Jameil A. Garrett, 2013AP1178-CR & 2013AP1179-CR, District 2, 4/23/14 (not recommended for publication); case activity: 2013AP1178-CR; 2013AP1179-CR

The circuit court did not sentence Garrett based on an “unwarranted assumption” that Garrett acted with intent to kill the victim of a strangulation offense. Thus, Garrett is not entitled to a new sentencing hearing.

Garrett was convicted of bail jumping for committing the crime of strangulation while out on bond in another case. He was placed on probation, which was later revoked. In discussing the gravity of the offense at the sentencing-after-revocation hearing, the court said it found the acts underlying the charge “very aggravating” because it involved strangulation of the victim, an act which involves “choking off [the victim’s] breath” and, the court inferred, is therefore “[e]ssentially” an attempt to “end [the victim’s] life.” The court subsequently explained it had reviewed the criminal complaint prior to sentencing Garrett, and according to the complaint the victim had reported that Garrett “choked her until she had popped blood vessels in both eyes” and that she “had bruises on [her] shoulders, face and chest.” (¶¶2-4, 8).

The court of appeals rejects Garrett’s claim that the circuit court based its sentencing decision on inaccurate information—namely, an erroneous belief that Garrett was attempting to kill the victim when he strangled her:

¶9        While generalized statements like some of those made by the circuit court here (for example, “[w]hen you strangle someone, there is only one thing you have in your mind, that is to kill the person because the only thing strangulation can do is kill the person”) should be avoided, we are satisfied from the totality of the court’s statements at the sentencing-after-revocation and postconviction hearings that the court was properly considering Garrett’s actions underlying this bail jumping charge based on the record before the court. Further, the court was entitled to draw reasonable inferences from the record, see [State v.Taylor, [2006 WI 22,] 289 Wis. 2d 34, ¶17[, 710 N.W.2d 466], and based on the statement in the complaint that the victim reported that Garrett choked her until blood vessels popped in both her eyes, the court’s inference that Garrett was choking off the victim’s breath and essentially attempting to kill her was a reasonable inference. As a result, Garrett has not shown by clear and convincing evidence that the sentencing-after-revocation court’s “assumption” that Garrett was attempting to kill the victim was inaccurate, and thus cannot show he was sentenced based upon inaccurate information. …

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