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State v. Mark W. Sterling, 2009AP815-CR, District I, 5/4/10

court of appeals decision (3-judge, not recommended for publication); for Sterling: Dianne M. Erickson; BiC; Resp.; Reply

Charging Decision – Judicial Involvement
Increase in the charge, following trial judge’s veiled suggestion to the prosecutor that such an increase would be appropriate, wasn’t occasioned by judicial interference with prosecutorial discretion, ¶¶16-22.

Initially charged with first-degree reckless injury, Sterling was ultimately convicted on an amended charge of attempted first-degree intentional homicide. The State increased the charge not only after Sterling rejected a plea offer, but after the trial judge questioned the initial charge: “Why not attempted murder? … why isn’t that attempted murder with maybe a lesser included or an additional charge of first degree recklessly — reckless injury[?] I don’t understand that myself …,” ¶7. The judge thus merely “made an observation supported by the facts in the criminal complaint”; and, meant only “to ensure that if an additional charge was brought in a timely manner,” ¶¶19-20. Sure. Didn’t matter that the prosecutor had said not a single word about a possible amendment. To the contrary, she explicitly informed the judge, “Well, I thought under the circumstances this [the initial charge] was the best way to proceed,” ¶7. Thought so, anyway, till the judge suggested that he had a better way. If this treatment is any indication, the record will have to be awfully strong before the court finds judicial interference.

Worth noting that no contemporaneous objection was made, which constrained postconviction counsel to raise the issue under ineffective assistance of counsel — something that only added to an already stringent burden. And equally worth keeping in mind that there are indeed limits on judicial authority, even if they weren’t reached in this case, as exemplified by Judge Posner’s caustic observation in In re United States of America (“Shabaz”), 345 F. 3d 450 (7th Cir. 2003): “The government wants to dismiss the civil rights count with prejudice, and that is what Bitsky wants as well. The district judge simply disagrees with the Justice Department’s exercise of prosecutorial discretion. … The judge thus is playing U.S. Attorney. It is no doubt a position that he could fill with distinction, but it is occupied by another person.” Then, too, though we are drifting a bit from the case at hand, you might want to keep an eye on State v. Joshua D. Conger, 2008AP755-CR, before the supreme court on certification (review granted 8/17/09; oral arg 12/1/09) dealing with a Shabaz-type problem, trial court discretion to reject a plea bargain.

Judicial Bias
The trial judge’s remarks with respect to the initial charge didn’t evince objective bias with regard to sentencing (36 years out of a potential maximum of 76), ¶¶23-31.

Confrontation – Expectation of Leniency
Trial court refusal to allow cross-examination of victim-witness as to whether he expected leniency with respect to pending charge in exchange for his testimony is upheld: although evidence of pending charge is “a prototypical form of bias,” it is different where, as here, the witness is not merely one “with information of the crime charged, but the victim,” ¶37. Moreover, the victim indisputably did not have a leniency agreement, therefore any argument that hoped-for leniency would turn him against a defendant accused of trying to kill him “is simply not reasonable,” ¶39.

Sentence – Presentence Report
Sentencing judge isn’t required to explain reason for not requesting PSI, ¶¶42-46.

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