On Point

State v. Daniel Arends, 2008 WI App 184, PFR granted 2/10/09
For Arends: Leonard D. Kachinsky

Issue/Holding:

¶24      In his petition, Arends alleged that his condition had changed such that he no longer met the definition of a sexually violent person because (1) “the passage of time demonstrated that anti-social behavior expected under an earlier diagnosis did not occur,” (2) a lower PCL -R score showed a change in Arends’ condition, and (3) his successful progress in treatment suggested a change in his condition. ^[6] Arends contends that Dr. Fields’ reexamination report did not simply reinterpret data that was present when Arends was originally committed, but relied on new research and new facts about his current condition. He distinguishes his case from that of Combs, 295 Wis. 2d 457, ¶14, where we held that Combs could not challenge the original grounds for commitment by offering new interpretations of old data. See id., ¶34. Combs, though decided prior to the effective date of the new statute, speaks to the same issue that arises under the current version: a change in the petitioner’s condition since the time of initial commitment. To provide grounds to believe a person is no longer sexually violent, “an expert’s opinion must depend upon something more than facts, professional knowledge, or research that was considered by an expert testifying in a prior proceeding ….” Id., ¶32.¶25      Here, Dr. Fields considered new observations of Arends’ behavior and interpreted the data using existing and accepted tools of the psychology profession. Her report, which was based in part on the absence of deviant sexual arousal and anti-social behavior, also incorporated new research on the topic of predicting recidivism risk for juvenile offenders as compared to adult offenders. This is sufficient for purposes of Wis. Stat. § 980.09(1) and (2). See Combs, 295 Wis. 2d 457, ¶32 (petitioner can satisfy the standard when the expert’s opinion is “based at least in part on new professional knowledge about how to predict dangerousness”). Arends is entitled to an evidentiary hearing on his discharge petition.

State v. Charles W. Mark, 2008 WI App 44; on appeal following remand in State v. Mark, 2006 WI 78, 292 Wis. 2d 1, 718 N.W.2d 90
For Mark: Glenn L. Cushing, SPD, Madison Appellate

Issue/Holding: A parolee’s statement made under grant of immunity (per State v. Evans, 77 Wis. 2d 225, 252 N.W.2d 664 (1977)), was compelled (therefore involuntary) and inadmissible at a ch. 980 trial governed by § 980.05(1m), ¶16.

As the court of appeals held in the first go-around, 2005 WI App 62, ¶14, Evans says that the statement of someone under supervision to his field agent is compelled to choose “between answers that will incriminate them in pending or subsequent criminal prosecutions and loss of their conditional liberty as a price for exercising their right to remain silent.” The compromise is that the person is granted immunity: he must then open up or else his silence will itself be a basis for revocation. And, keeping in mind that the 5^th amendment bars compelled self-incrimination, the grant of immunity in other words resolves the self-incrimination part—without the prospect of being prosecuted for the answer, the person isn’t incriminating himself. And that is indeed what the trial court ruled on remand (¶16). One slight problem, though: because the statement was compelled it isn’t admissible at a criminal trial, and further because § 980.05(1m) grants (or, rather, granted) an SVP respondent the same constitutional protections as a criminal defendant, Mark’s written statement to his parole agent under grant of immunity was no more admissible than if he had been facing a criminal charge.

Note that § 980.05(1m) was repealed as of June 6, 2006, 2005 Wis Act 434, making the impact of this holding very limited, at least with respect to the rights attaching under this statute. That doesn’t mean that there’s no potential fall-out, though. Mark argued that as a mater of constitutional law involuntary statements may not be admitted into evidence against an SVP respondent, but the court declined to reach the argument, ¶12 n. 9. The supreme court has indeed held, in excluding involuntary statements from an administrative proceeding: “As a matter of law, the coerced, involuntary confessions here extracted may not, under the circumstances, be used for any purpose,” Oddsen v. Board of FPC, 108 Wis.2d 143, 163, 321 N.W.2d 161 (1982). To be sure, the tactics used to extract Oddsen’s statement were pretty aggravated, but at least it settles the principle that the ban on evidentiary use of coerced statements isn’t limited to criminal trials.

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.

Holding:

¶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.)

State v. Stephen C. Sherman, 2008 WI App 57, PFR filed 4/16/08
For Sherman: John J. Grau

Issue/Holding: The sentencing court’s observations to the effect that the defendant was “a sick man” didn’t amount to “unsupported findings about his mental health:

¶14      At Sherman’s postconviction hearing, the court indicated that its comments did not reflect medical diagnoses, but were instead common sense observations based upon facts in the record. … The court noted, “It does not take a psychologist to look at all the facts established in this sentencing record by presentences, by other information the Court had available to it, and conclude that Mr. Sherman is a sick and maladapted man.” Upon our review of the record, we discern no error in the court’s comments.

The defense had adduced mental health expert opinion (the opinion provides no details), which the sentencing court was entitled to reject, given the principle that the weight given sentencing factors is committed to the judge’s discretion, ¶15.

State v. Stephen C. Sherman, 2008 WI App 57, PFR filed 4/16/08
For Sherman: John J. Grau

Issue/Holding:

¶15      Sherman claims the only evidence about his mental health came from his expert, Dr. Gerald Wellens. Sherman claims the court failed to consider his expert’s opinion. However, at sentencing, the court expressly considered Wellens’ opinion. The court noted that Wellens only examined Sherman for a short period of time and that his perceptions of Sherman were plainly outweighed by contradictory testimony of people who were more familiar with Sherman. See State v. Thompson, 172 Wis. 2d 257, 264-65, 493 N.W.2d 729 (Ct. App. 1992) (weight given to each sentencing factor is within the trial court’s discretion). The contention that the court failed to consider Wellens’ opinion is unsupported by the record.

¶16      Finally, Sherman claims the court erroneously exercised its discretion by failing to consider sentences given in other sexual assault cases involving teachers. Sherman provided this information to the court in a sentencing memorandum. In support of this argument, he relies upon our supreme court’s decision in Gallion, 270 Wis. 2d 535.

¶17      In Gallion, our supreme court suggested many facts that courts may consider during sentencing, including information about sentences in other cases.See id., ¶47. Here, Sherman’s argument fails because the court clearly considered Sherman’s sentencing memorandum. The court noted that other sexual assault cases “rise and fall on their own facts, and I know none of those facts so I’m not dealing with any of those cases here today.” The court also noted that it was familiar with a case not included in Sherman’s memorandum, which resulted in a sentence providing twenty years’ initial confinement. The court based its sentence on the facts of Sherman’s case: “[Y]our sentence, Mr. Sherman, rises and falls on the facts here and your character and your behavior. No one else’s.”

¶18      Individualized sentencing “has long been a cornerstone to Wisconsin’s criminal justice jurisprudence.” Id., ¶48. “No two convicted felons stand before the sentencing court on identical footing … and no two cases will present identical factors.” Id., ¶48 (quoting State v. Lechner, 217 Wis. 2d 392, 427, 576 N.W.2d 912 (1998)). Here, the court considered all the information before it, including Sherman’s sentencing memorandum. We reject any implication that the court was required to give his memorandum more weight. See Grady, 302 Wis. 2d 80, ¶¶41-42.

What if the sentencing court had refused to consider at all the data about other sentencings? Would the individualized-sentencing principle have sheltered this refusal? The court doesn’t say. But nor does the court say that this data couldn’t be considered. Refusal to give sentencing inputs “more weight” is one thing; refusal to consider them at all is another.

State v. Stephen C. Sherman, 2008 WI App 57, PFR filed 4/16/08
For Sherman: John J. Grau

Issue/Holding: Sentencing failure to consider applicable guidelines, § 973.017(2)(a), was harmless error, at least where the controlling sentence was untainted by the error:

¶9        We conclude that the circuit court’s failure to consider the sentencing guidelines for the two Wis. Stat. § 948.02(2) counts was harmless error. The sentences on all counts were concurrent, and the sentences for the two guidelines counts were less than the controlling sentence of fifteen years’ initial confinement and fifteen years’ extended supervision rendered for repeated sexual assault of a child. Because we uphold the controlling sentence by rejecting Sherman’s other claims below, Sherman ’s substantial rights were not affected by the court’s failure to consider the sentencing guidelines.

Sherman asserts a line of cases indicating that multiple counts represent a sentencing “package,” such that when one count is vacated the entire sentencing package is “unbundled” with resentencing required on all counts, even when they were unchallenged; that concept is fine in theory, the court says, but in practice applies only where consecutive sentences have been imposed:

¶11      Sherman relies upon cases holding that courts may reconsider sentences on other counts where one count has been reversed on appeal. SeeUnited States v. Shue, 825 F.2d 1111, 1113-14 (7^th Cir. 1987); United States v. Mancari, 914 F.2d 1014, 1021-22 (7^th Cir. 1990). In these cases, the justification for permitting resentencing was to allow the trial court to effectuate its original sentencing intent. Shue, 825 F.2d at 1113; Mancari, 914 F.2d at 1022. The original sentencing intent in these cases was disrupted because consecutive sentences were involved, the removal of which altered the overall sentencing structure. Shue, 825 F.2d at 1112, 1114; Mancari, 914 F.2d at 1015, 1021-22.

¶12      However, in cases involving reversed concurrent sentences, where the overall sentence structure remained intact after eliminating the reversed count, resentencing has been held to be unnecessary. See State v. Sinks, 168 Wis. 2d 245, 256, 483 N.W.2d 286 (Ct. App. 1992); State v. Church, 2003 WI 74, ¶¶19, 26, 262 Wis. 2d 678, 665 N.W.2d 141 (“Resentencing is unnecessary, and certainly not required, where, as here, the invalidation of one count on double jeopardy grounds has no affect at all on the overall sentence structure.”). Here, all of the sentences were concurrent, and the overall sentence structure was controlled by the longest sentence.\^[1][4] Because the controlling sentence remains undisturbed, the overall sentence structure remains intact. Therefore, resentencing is unnecessary, and the circuit court did not err by declining to resentence Sherman. See Church, 262 Wis. 2d 678, ¶26.

If you’re thinking this means, Heads they win, tails I lose, you’d be right. If you get partial relief on consecutive sentences, the State can seek resentencing on the unaffected counts to make sure the status quo ante is restored; if you get partial relief on concurrent sentences, that’s the end of the line (or, as this case illustrates, you don’t even get that far but instead have a harmless error bar thrown in your face).

Go: here.

Giles v. California, 554 U.S. 353 (2008) fundamentally altered the confrontation-forfeiture doctrine: There, the Court held in effect that the forfeiture doctrine “applie(s) only when the defendant engaged in conduct designed to prevent the witness from testifying,” although the Court also allowed that “(e)arlier abuse, or threats of abuse, intended to dissuade the victim from resorting to outside help would be highly relevant to this inquiry, as would evidence of ongoing criminal proceedings at which the victim would have been expected to testify.” Thus, viability of pre-Giles authority, such as State v. Mark D. Jensen, 2007 WI 26, ¶57 (“we adopt a broad forfeiture by wrongdoing doctrine, and conclude that if the State can prove by a preponderance of the evidence that the accused caused the absence of the witness, the forfeiture by wrongdoing doctrine will apply to the confrontation rights of the defendant”), is doubtful.