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Sentencing – Review – Factors — Defense Right to Present — Limited by Relevancy

State v. Shomari L. Robinson, 2001 WI App 127, 629 N.W.2d 810, PFR filed 5/7/01
Robinson: Joseph L. Sommers

Issue: Whether the trial court impermissibly limited the defense presentation at sentencing.

Holding:

¶19            What remains is for us to consider whether the trial court erroneously exercised its discretion by prohibiting Robinson from presenting his “car evidence” at sentencing.  As the trial court correctly noted, the only statements which a court must permit at sentencing are those of the defendant and his counsel, the victim and the prosecutor.  See Wis. Stat. § 972.14 (1999-2000).[3]  The receipt or consideration of any other statements or evidence at sentencing is within the court’s discretion, and is conditioned upon being “relevant to the sentence.”  Section 972.14(3)(b).  Here, the court concluded that the proffered “car evidence” had little or no probative value regarding the nature of the offense, and it certainly did not bear on any of the other sentencing factors.  The trial court acknowledged that evidence relating to what car Robinson was driving and whether its window was broken out on the night in question might have some bearing on the overall credibility of the victim’s description of the offense, but concluded that the evidence would have had no impact on the court’s sentencing decision.[4]  Thus, we conclude that the court committed no evidentiary error in refusing to allow the “car evidence” at Robinson’s sentencing.

¶20            Robinson, however, also argues that he has a due process right to be sentenced on the basis of accurate information.  …

¶21            In this case, however, the trial court did not refuse to consider relevant evidence regarding the nature of the offense Robinson had committed.  It simply declined to permit the sentencing hearing to be diverted into litigation of what vehicle the defendant had been driving and whether a window in the car had been broken.  Evidence that a car window had not been broken would not have made it any “more probable or less probable” that the sexual assault was consensual as opposed to forcible.  See Wis. Stat. § 904.01.  We concur with the trial court’s assessment that the “car evidence” was not relevant to the issues at sentencing ….

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