State v. David Arredondo, 2004 WI App 7, PFR filed 1/22/04
For Arredondo: James A. Rebholz
¶54. It is “‘well established that a sentencing judge may take into account facts introduced at trial relating to other charges, even ones of which the defendant has been acquitted.’” United States v. Watts, 519 U.S. 148, 152 (1997) (per curiam) (quoted source omitted, emphasis added); see also State v. Marhal, 172 Wis. 2d 491, 501-503, 493 N.W.2d 758, 763-764 (Ct. App. 1992) (“Information upon which a trial court bases a sentencing-decision, as opposed to a finding of guilt, need not, of course, be established beyond a reasonable doubt.” Thus, “a sentencing court may consider conduct for which the defendant has been acquitted.”); State v. Bobbitt, 178 Wis. 2d 11, 16-18, 503 N.W.2d 11, 14-15 (Ct. App. 1993) (recognizing validity of rule stated in Marhal).
¶55. As we have seen, the trial court “accepted” the jury’s verdict in Arredondo’s other case. But it also properly considered the facts underlying that case in gauging Arredondo’s character. See State v. Leitner, 2001 WI App 172, ¶44, 247 Wis. 2d 195, 214, 633 N.W.2d 207, 216, aff’d, 2002 WI 77, 253 Wis. 2d 449, 646 N.W.2d 341 (court may consider factual circumstances related to offenses for which the defendant has been acquitted). Simply put, the trial court did not, as the Dissent asserts, “‘replace the jury’s conclusion with its own,’” Dissent at ¶62 (quotingBobbitt, 178 Wis. 2d at 18, 503 N.W.2d at 15); rather, it properly considered Kim S.’s testimony as it reflected on what kind of a person Arredondo was and is. There was no error.
As the dissent points out, neither Leitner nor Bobbit controls on the facts. In this case the sentencing court based disposition on a prior acquittal that it didn’t preside over, and in that respect this holding extends those cases. More importantly, the dissent recites portions of the record omitted by the majority, in which the trial court expresses its belief that Arredondo “got off the hook unfairly and unjustly in the previous case,” and was “absolutely convinced that that verdict was wrong.” ¶¶ 61-62.
Does the holding survive the Booker-Blakely lines of cases? Yes, to the extent that a sentencing fact need not be proved beyond reasonable doubt, State v. James L. Montroy, 2005 WI App 230; see also U.S. v. Vaughn, 2nd Cir No. 04-6135-cr, 12/1/05, and cases cited therein (“district courts may find facts relevant to sentencing by a preponderance of the evidence, even where the jury acquitted the defendant of that conduct, as long as the judge does not impose (1) a sentence in the belief that the Guidelines are mandatory, (2) a sentence that exceeds the statutory maximum authorized by the jury verdict, or (3) a mandatory minimum sentence under § 841(b) not authorized by the verdict”). But a sentencing fact must nonetheless be “reliable” as a matter of due process, and it is hard to see how a judge can reliably “find” the existence of something merely by dint of a not guilty verdict.
As to the larger question of whether it is permissible to consider at all “relevant acquitted conduct,” see U.S. v. Faust, 11th Cir No. 05-11329, fn. 5, 7/21/06 (to effect that every circuit to consider issue holds that sentencing authority to consider acquitted conduct survives Booker; but see also concurrence for contrary view); more recent authority: U.S. v. White, 6th Cir en banc No. 05-6596, 12/24/08 (agreeing with “view expressed by each of our sister circuits that Booker did not alter the Watts position on acquitted conduct”; note, however, closeness of vote and strength of dissent); U.S. v. Mercado, 9th Cir No. 05-50624, 1/22/07 (like effect); U.S. v. Horne, 7th Cir No. 05-4049, 2/5/07.