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SCOW holds sentencing judge didn’t rely on gun ownership in sentencing

State v. Octavia W. Dodson, 2022 WI 5, 2018AP1476, 1/26/22, affirming an unpublished per curiam court of appeals decision; case activity (including briefs)

Dodson pleaded guilty to second-degree homicide. He’d shot and killed Freeman, who he (apparently erroneously) believed had earlier rear-ended his car. Dodson had pursued Freeman’s car and Freeman pulled over. Dodson said Freeman had run at him shouting racial epithets; that’s when Dodson shot him.

Dodson claims the sentencing judge relied on an improper factor: specifically that he gave Dodson a harsher sentence because he was a lawful gun-owner with a concealed-carry permit. Dodson claims this violated his Second-Amendment rights. At sentencing, the court had said:

I can tell you this, Mr. Dodson, that in my experience as a judge, I have seen over time how individuals when they are possessing a firearm, how that in some way changes them. It changes how they view the world. It changes how they react and respond to people. I know that this is only speculation on my part, but I do strongly feel that the day that you applied for that concealed carry permit and went out and purchased that firearm, and that extended magazine, whether your rational beliefs for possessing it, whether you felt the need to somehow arm yourself and protect yourself from essentially the crime that is going on in this community I think on that day set in motion this circumstance.

It is clear to me, Mr. Dodson, that for whatever reason, and it appears that it is a distorted, misguided belief of the world that somehow Mr. Freeman was a threat that required you, in essence, to terminate his life. Makes no sense.

. . . [I]t is clear to me that you were operating under some misguided belief, some distorted view of the world that somehow [Deshun] Freeman was a threat to you when in reality it was nothing further from the truth.


Wisconsin courts address improper-factor sentencing claims using a two-prong test: a defendant must show first that the challenged factor was “irrelevant or improper” and second that the court “actually relied” on it. State v. Pico, 2018 WI 66, ¶48, 382
Wis. 2d 273, 914 N.W.2d 95.

To be improper, a factor must fail to relate to one of the legitimate sentencing objectives. (¶9). A court’s “general predisposition” may also be a legitimate consideration so long as it is not so rigid that it “ignores the particular circumstances of the individual offender.” (¶9).

As to actual reliance, this requires the defendant to show the court gave “explicit attention” to an improper factor and made it part of the “basis of the sentence.” (¶10). The court says there’s no “actual reliance” if the challenged factor has a “reasonable nexus” with a proper consideration; Justice Hagedorn concurs to point out that this makes little sense and argue the “reasonable nexus” consideration properly belongs under the “improper factor” heading of the test.

In any case, the majority concludes that in “context,” the sentencing judge’s comments were not improper. As to whether the sentencing court considered an improper factor, the majority says its remarks were not a blanket condemnation of gun owners, but an attempt to understand the mindset that allowed Dodson to kill Freeman without justification. (¶15). Turning to actual reliance, the majority assumes without deciding that the sentencing court made an improper remark when it said Dodson’s acquisition of a concealed-carry license set in motion the events leading to the homicide. But, the majority says, this statement bore a reasonable nexus to the gravity of the offense and the need to protect the public, and the transcript does not demonstrate that the sentencing court actually increased Dodson’s sentence because he had a concealed-carry permit. (¶¶16-17).

By deciding the case on narrow grounds, the majority and concurrence avoid having to say much about whether and how the Second Amendment might limit a sentencing court’s discretion. This permits both opinions together to weigh in at a merciful 14 pages. Enter Justice R.G. Bradley who, joined by Chief Justice Ziegler and Justice Roggensack, turns in 29-page dissent. The thrust is that it’s never proper for a sentencing judge to look askance at a given defendant’s lawful relationship to guns: that such a relationship is “irrelevant” to criminal culpability. The opinion begins with a paean to guns, gun owners and “virtuous citizenship”; it also includes a lengthy attack on the prosecutor’s apparent disapproval of firearms, and accuses the sentencing judge of harboring an “irrational fear of guns.”

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