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Judicial bias — sentencing after revocation

State v. Anthony M. Teller, Jr., 2013AP502-CR, District 3, 8/13/13; court of appeals decision (1-judge; ineligible for publication); case activity

The sentencing court exhibited objective bias in the form of the appearance of bias based on its statements at the original sentencing hearing:

¶21      …. The court told Teller he had “bad news” in the form of “a two-year prison sentence coming [his] way,” and, if he came back to court, he would receive the “bad news.” Similar to the statements in [State v.Goodson, [2009 WI App 107, 320 Wis. 2d 166, 771 N.W.2d 385], the court’s statements in this case amounted to an unequivocal promise to sentence Teller to two years’ prison if he was revoked from probation. See Goodson, 320 Wis. 2d 166, ¶13. A reasonable person would conclude that the court had made up its mind before the sentencing after revocation hearing and that the court intended to keep its promise at the sentencing after revocation hearing.[5] See id. Accordingly, we conclude the circuit court demonstrated the appearance of bias, which establishes objective bias. See id.

[5]  We also observe that, before the sentencing after revocation hearing, the State advised the court that “[t]he Court said that the defendant would serve two years in prison if he screwed up[,]” and, “unless [Teller] has a very good excuse as to why he [did] not show up [to court], we would ask that the Court impose the sentence that the Court said would occur if the defendant didn’t do what he was supposed to do.” Therefore, the State, at some point, also believed the sentence had already been predetermined.

Goodson recognized that objective judicial bias may appear in one of two alternative forms: the appearance of bias; and actual bias. The judge in Goodson was found to exhibit both forms, id., ¶¶13, 16, but only one is necessary to get relief. Because the sentencing judge in this case exhibited the appearance of bias, the court does not decide whether he also was actually biased, though it notes the record in this case “does not support actual bias to the extent it did in Goodson.” (¶25).

The sentencing judge rejected Teller’s recusal and postconviction motions based on State v. Terrence E. Boswell, 2011AP2750-CR (Wis. Ct. App. Aug. 21, 2012) (unpublished), which the judge construed as permitting him to advise the defendant he will receive the maximum if revoked as long as he does not reference that statement at a subsequent sentencing after revocation hearing. (¶¶6, 10). The court of appeals finds two problems with this reasoning: It essentially eliminates the appearance of bias as a form of objective bias; and “Boswell is an unpublished per curiam decision that should not have been relied on for any purpose, even persuasive value. See Wis. Stat. Rule 809.23(3)(b).” (¶18).

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