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Sentencing – Factors — Refusal to Identify Accomplice

State v. Christopher Kaczynski, 2002 WI App 276, PFR filed 11/20/02
For Kaczynski: Eugene Kaluzny

Issue/Holding:

¶9. It has long been the law in Wisconsin that, unless a defendant’s rights against self-incrimination are implicated (and Kaczynski makes no claim that they are), it is “entirely proper” for a trial court “to consider on sentencing, the defendant’s cooperativeness as manifested by his refusal to name his accomplices.” Holmes v. State, 76 Wis. 2d 259, 276, 251 N.W.2d 56, 64 (1977). See also State v. Olson, 127 Wis. 2d 412, 428-429, 380 N.W.2d 375, 383 (Ct. App. 1985) (refusal to name marijuana supplier). Roberts, upon which the trial court relied, also recognized that a defendant’s refusal to cooperate with law enforcement is an appropriate sentencing consideration ….

¶10 … Here, of course, unlike Roberts and, apparently, both Holmes and Olson, where it does not appear that “fear of retaliation” was ever raised, Kaczynski presented his fears of retaliation to the trial court. As we have seen, the trial court considered what Kaczynski and his lawyer offered, but, as revealed by its comments quoted above, doubted Kaczynski’s veracity and also believed that stronger social values prevailed.

¶11 … But just as child molesters who deserve prison should not get a pass from incarceration because they may be at special risk inside the institution, we cannot, as Kaczynski urges, decree that it is an erroneous exercise of sentencing discretion for a trial court to enhance a sentence when a defendant’s refusal to cooperate is based on his or her incantation of a fear of retaliation-even when that fear might be justified. To do so, would be to enact the “Tony Soprano” “code of silence” into the substantive law of this state. This we refuse to do.

Though it might be said the holding is narrowly based on the trial court’s rejection of defendant’s sincerity (which is more finding of fact than exercise of discretion), it seems to be more broadly based on approving this factor regardless of how real the danger the danger of retaliation. See ¶11.

Kaczynski pleaded guilty and, as noted, didn’t raise a self-incrimination claim. In the distinct but potentially related instance of a defendant convicted after trial, whose sentence is aggravated for failure to express sufficient remorse, compare Scales v. State, 64 Wis.2d 485, 496, 219 N.W.2d 286 (1974) (sentencing court’s attempt to coerce confession of guilt violated 5th amendment), with State v. Baldwin, 101 Wis.2d 441, 457 304 N.W.2d 742 (1981) (consideration of lack of remorse / refusal to admit guilt proper, except when, as in Scales, it is given overwhelming weight). See also Ketchings v. Jackson, 6th Cir. No. 03-1054, 4/19/04 (sentencing court’s express linkage of potential for rehabilitation with admission of guilt was not mere expression of concern for lack of remorse but with unwillingness to admit guilt, and as such violated 5th amendment).

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