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State v. Michael L. Frey, 2010AP2801-CR, rev. granted 12/14/11

on review of unpublished decision; for Frey: Devon M. Lee, SPD, Madison Appellate; case activity

Sentencing Discretion – Reliance on Dismissed Charge

Issue (composed by On Point): 

Whether sentencing discretion was erroneously exercised by undue reliance on, including unfounded inferences drawn from, a charge dismissed “outright.”

Frey was charged with sexually assaulting two girls. Both testified at the preliminary hearing. Frey ended up pleading no contest to assaulting one, but the other (“Ariel”) was dismissed “outright” (that is, without any admission of culpability). Frey argued below that the sentencing court’s reliance on the dismissed charge was an erroneous exercise of discretion – concededly,  a sentencing court can consider unproven offenses, indeed including charges dismissed outright, Elias v. State, 93 Wis. 2d 278, 282-84, 286 N.W.2d 559 (1980), but in this case, Frey argues, “the court’s consideration of the dismissed charge regarding Ariel permeated the court’s remarks” (Principal Br. in COA, p. 10). (He relatedly argues that the sentencing court drew an unfounded inference of sexual intercourse.) Frey, then, is arguing the sentencing limits that may be imposed on a dismissed charge. In sum, he argues, “a dismissed outright charge is one that a court should not consider at sentencing, except for the limited purpose of determining a defendant’s character,” Reply Br., COA, p. 1. Review therefore will likely address not whether, but the extent to which a dismissed charge, unaccompanied by any admission of culpability, may be factored into sentencing.

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