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Sentencing – Right to be Sentenced by Judge Who Took Plea / Heard Evidence of Guilt

State v. Kacey G. Johnson, 2010AP1263-CR, District 1, 11/23/10

court of appeals decision (1-judge, not for publication); for Johnson: James B. Duquette; Johnson BiC; State Resp.; Reply

Johnson forfeited his claim of a right to be sentenced by the judge who took his guilty plea, by failing to object contemporaneously. This is not a matter requiring the defendant’s personal assent.

¶11      Fundamental fairness is a general due process concept.  Oliveto v. Circuit Court for Crawford Cnty., 194 Wis. 2d 418, 434, 533 N.W. 2d 819 (1995) (citation omitted).  A defendant has three due process rights at sentencing:  “(1) To be present at the hearing and to be afforded the right of allocution, (2) to be represented by counsel, and (3) to be sentenced on the basis of true and correct information.”  Bruneau v. State, 77 Wis. 2d 166, 174-75, 252 N.W.2d 347 (1977) (footnotes omitted).  That Johnson was sentenced by Judge Wagner, rather than Judge Kuhnmuench, does not offend fundamental fairness concerns in this matter.  Johnson was present at the hearing with counsel, communicated directly with Judge Wagner, and does not argue that he was sentenced based upon inaccurate information.  The record is clear that Judge Wagner was familiar with Johnson’s case and considered the appropriate sentencing factors, including the gravity of Johnson’s offenses, Johnson’s character, and the need to protect both the public and the victim.  See State v. Ziegler, 2006 WI App 49, ¶23, 289 Wis. 2d 594, 712 N.W.2d 76.  Judge Wagner reviewed the transcripts of phone conversations that took place between Johnson and Hawley.  He also considered letters written by Hawley requesting leniency, Johnson’s attitude of “bravado,” as well as Johnson’s apology at the hearing.  That the appropriate sentencing factors were considered by Judge Wagner, rather than Kuhnmuench, was not a violation of the fundamental fairness principles underlying due process.

In terms of the practice of having one judge take a plea and another fashion sentence, this may be Milwaukee-centric, and explained a bit more in ¶5: “Judge Wagner denied the motion, stating in his written order that it is standard procedure in Milwaukee County for judges to accept cases from other judges to accommodate calendars and that it was not improper for him to issue Johnson’s sentence. The written decision also stated that if the parties do not consent to the reassignment, a new hearing date in front of the original judge will be given.”

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