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State v. Salas Gayton, 2013AP646-CR, petition for review granted 11/4/15

Review of an unpublished court of appeals decision; case activity (including briefs)

Issue (composed by the order granting review)

Whether a sentencing court may rely on a defendant’s illegal immigrant status as a factor in fashioning a sentence; and if such reliance is improper, whether it is structural error or subject to harmless error analysis.

Salas Gayton pled guilty to homicide by intoxicated use of a vehicle and operating without a licensing-causing death. At sentencing, the court repeated over and over that Salas Gayton was from Mexico and an illegal immigrant.  At one point the court said: “You’re from the nation of Mexico . . . You’ve got sporadic employment, trying to better yourself. That’s why you’re in this country. Although you’re here illegally, it’s a factor, a minor factor, but it goes to your character.”

Salas Gayton’s petition for review posed three issues. The two most interesting were these: (1) To what extent, if any, may a circuit court rely upon a defendant’s national origin and/or illegal immigrant status as an aggravating factor in sentencing him? If a circuit court improperly relies upon these factors, then is the error structural or is it amenable to a harmless error analysis?

(2) Under McCleary v. State, 49 Wis. 2d 263, 182 N.W.2d 512 (1971) and State v. Gallion, 2004 WI 42, 270 Wis. 2d 535, 678 N.W.2d 19, circuit courts must: (a) impose the minimum amount of custody or confinement which is consistent with the protection of the public, the gravity of the offense and rehabilitative needs of the defendant, and (b) explain why the duration of confinement and extended supervision are expected to advance its sentencing objectives. Are circuit courts required to address these matters explicitly, or only implicitly, at sentencing? If explicitly, then how?

The order granting review trimmed and reformulated the first issue. Justice Bradley Sr. filed a concurrence which objected to this editing. She would have granted the issue as stated in the petition. She also urged the SCOW to stop using the term “illegal immigrant” because the word “illegal” is derogatory. It should be used to define conduct, not a person. Justice Abrahamson joined in Bradley’s concurrence and added her own.  She would have granted review on all three issues–including the request for clarification of McCleary and Gallion. The real problem here was identified by Judge Kessler in her concurrence to the court of appeals opinion: too many sentencing courts refer to a defendant’s race, national origin or immigration status and that creates a perception of bias. See our prior post here.

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