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Sentence – Factors – Exercise of Constitutional Right; Sentence – Effective Assistance of Counsel

State v. Sabian L. Yunck, 2009AP3020-CR, District 1, 8/17/10

court of appeals decision (1-judge, not for publication); for Yunck: Byron C. Lichstein; BiC; Resp.; Reply

Sentence – Factors – Exercise of Constitutional Right

Convicted of violating a domestic abuse order forbidding contact with the mother of his child, Yunck argues that sentence was impermissibly based on his exercise of a constitutional right, namely his determination to have his child visit him while incarcerated. The court acknowledges that due process “protects the fundamental right of parents to make decisions concerning the care, custody, and control of their children,” ¶19, quoting Troxel v. Granville, 530 U.S. 57, 66 (2000). However, the facts don’t allow Yunck to benefit from this principle.

First, assuming that there is indeed a due process right of visitation while imprisoned, “the sentencing court did not base the sentence on Yunck’s decision to have his daughter visit him while he was incarcerated. There is simply no evidence in the record that the sentencing court ever expressly or implicitly based its sentencing decision on a belief that Yunck deserved to be punished for having his daughter visit him in jail,” ¶25.

Second, consideration of this factor would have been proper. Sentencing consideration of a defendant’s exercise of constitutional right isn’t absolutely prohibited but, rather, is permitted if supported by “a reliable nexus” between criminal conduct and right asserted. ¶27, quoting State v. Fuerst, 181 Wis. 2d 903, 913, 512 N.W.2d 243 (Ct. App. 1994).

¶28      Here, the sentencing court explicitly admonished Yunck about his decision to go “through [his] daughter to try to contact [Zeyen]” and to “put[] [his] five-year-old daughter in the middle” of the injunction order. Such conduct falls squarely within the spectrum of behavior Fuerst held was permissible for the sentencing court to consider. See id. at 913. Yunck’s use of his daughter to contact Zeyen was not just related to his criminal conduct, it was criminal conduct in and of itself, amounting to an additional violation of the injunction. The sentencing court acted well within its discretion when it considered that conduct, how it reflected on Yunck’s character, and how his daughter’s regular visits with Yunck would facilitate that criminal behavior in the future.

The court also rejects the State’s argument that Yunck forfeited the issue. Contrary to this claim, Yunck preserved the issue by asserting in his postconviction motion that the sentence was improperly based on his desire for visitation while incarcerated and by citing Fuerst in support of the proposition, ¶20.

Sentence – Effective Assistance of Counsel

Counsel made a reasonable tactical decision not to argue in mitigation that Yunck and the abuse-order victim had an “informal agreement” to violate the order, and he therefore didn’t perform deficiently.

¶37      We conclude that this was a reasonable strategy for trial counsel to pursue. Indeed, some courts may not look favorably upon an informal agreement between an abuser and a victim, permitting the abuser to circumvent a court ordered injunction meant to protect the victim from harm—regardless of the purported purpose. And such an informal agreement, even if one was proven, is not recognized as an exception to the mandatory enforcement of injunctions set forth in WIS. STAT. § 813.12(7)(am)1.-2., which requires a law enforcement officer to enforce an injunction provided he or she has confirmed the injunction’s existence and there is probable cause of a violation. The statute provides no exception for enforcement based on informal agreements between the parties.

Nor was Yunck prejudiced. He could have himself informed the sentencing court of the agreement during his allocution. [An odd tack, to be sure. The client, after all, trusts counsel to make reasonable tactical decisions, and if this decision was unreasonable why should Yunck be left holding the bag. Besides, wouldn’t this mitigation argument have more credibility coming from an attorney?] Moreover, an “informal agreement” would neither explain nor mitigate the offense: Yunck’s criminal conduct fell outside “the boundaries” of the alleged agreement, ¶39.

Separately, counsel’s noting Yunck’s diagnosis as depressed, and as exhibiting “some obsessive behavior” that counsel further termed “ridiculous,” was part of a reasonable “strategy to acknowledge Yunck’s mistakes and then to place them in perspective for the sentencing court, ¶44.

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