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Sentencing – Factors – Harm to Victim: Threats While Case Pending, Inability to Attribute to Defendant

State v. Lawrence Payette, 2008 WI App 106, PFR filed 6/30/08
For Payette: Robert R. Henak; Amelia L. Bizzaro

Issue: Whether threats made to the victims, while the prosecution was pending, to try to dissuade them from testifying were relevant to sentence despite absence of evidence linking threats to the defendant himself.


¶41      The court process is a predictable consequence of conduct which results in a criminal charge. Hence, if a victim is affected specifically because the victim becomes a witness, a court can reasonably consider that effect on the victim as part of the overall sentencing calculus. Jones, 151 Wis. 2d at 496. Here, the threats both victims reported were directly related to their intent to testify in court in these proceedings; they were not involved in any other litigation. The duration of the threats was substantial; telephone calls for three months is not an isolated incident. The threats were reported to the police. The property damage followed the verbal threats and involved some damage predicted by the threats, although another victim suffered the burning of her property. Both victims reported the property damage to the police before the sentencing. The combination of these factors makes it unlikely that these events were fabricated by the victims simply to garner sympathy from the court. Thus, we are persuaded that there was no error if the sentencing court had considered the effect of these events, which were reported to the police and which directly related to the victims’ intentions to testify in these cases, for the limited purpose of considering the impact of these proceedings on the victim witnesses.

If the court had considered the effect. The trial court “made no mention whatsoever of the threats” when it imposed sentence; and, subsequently on postconviction motion, “the trial court disavowed any reliance on the threats,” ¶39. So, did the trial court actually rely on the threats? Because if not, then there’s no issue anyway. The court of appeals doesn’t say. The court either rejects the trial court’s disavowal (unlikely; see ¶44) or else sees fit to reach out for an issue that is really just an abstraction. We like to call that latter possibility judicial activism. Just saying. Besides, the court goes on to say, the “ample factual basis” for the sentence makes “any error” harmless, ¶49. To repeat the bidding just so we’re clear about this: allusions to threats against the victims weren’t considered by the sentencing court; references to the threats were relevant nonetheless because they relate to crime impact on the victim; and, the references were harmless because the defendant deserved what he got anyway. Harmless if the trial court didn’t rely, harmless if the trial court did: Neat! (Minor rhetorical quibble: what’s with “factual basis” for the sentence? It’s almost as if the court is discussing plea withdrawal in the context of challenge to sentence. ¶44.)


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