On Point

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.

State v. Craig A. Swope, 2008 WI App 175
For Swope: Dianne M. Erickson

Issue: Whether an FBI agent’s expert opinion, that the simultaneous deaths of an elderly couple were the result of homicide rather than natural causes, was improperly based on hearsay, namely the opinions of two non-testifying experts who thought the likelihood of natural causes so remote as to be impossible.

Holding:

¶35      In State v. Watson, 227 Wis. 2d 167, 195, 595 N.W.2d 403 (1999), the supreme court explained: “In Kolpin v. Pioneer Power & Light, 162 Wis. 2d 1, 37, 469 N.W.2d 595 (1991), we stated that ‘even if [the expert] arguably relied on hearsay in forming [the expert’s] opinion, [the expert’s] opinion is still admissible.’” We note, however, that

[Wisconsin Stat. §] 907.03 is not a hearsay exception. Hearsay data upon which the expert’s opinion is predicated may not be automatically admitted into evidence by the proponent and used for the truth of the matter asserted unless the data are otherwise admissible under a recognized exception to the hearsay rule. (Citation omitted.)

State v. Weber, 174 Wis. 2d 98, 107, 496 N.W.2d 762 (Ct. App. 1993).

¶36      Safarik was asked to analyze all of the evidence from the Recob home to determine if their simultaneous death was naturally or criminally caused—the medical examiner had ruled out accident or suicide. Naturally, he would seek out information on simultaneous death by natural causes to test his hypothesis that the deaths were the result of a crime. The statistics relied upon by Christakis of Harvard and Anderson of the CDC were not admitted into evidence; rather, they served to illustrate the basis for the opinion they shared that it was statistically impossible for a couple to suffer simultaneous death from natural causes—an opinion Safarik took into consideration when reaching his conclusion that death was by a criminal act. See Nachtsheim v. Beech Aircraft Corp., 847 F.2d 1261, 1270-71 (7th Cir. 1988) (The trial court may, in its discretion, allow an expert to testify to otherwise inadmissible facts for the limited purpose of serving as a basis of the expert’s opinion.). The trial court did not err in permitting Safarik to rely upon the opinions of Christakis and Anderson.

Nor, the court adds, does the underlying hearsay violate confrontation, ¶37, citing State v. Barton, 2006 WI App 18 (overarching principle summarized as: “confrontation rights were not impinged because the hearsay opinions of others were not admitted for the truth of the matter asserted but as the basis of the expert’s testimony”).

State v. Todd E. Peterson, 2008 WI App 140
For Peterson: Ralph Sczygelski

Issue/Holding: The trial court erroneously disqualified retained postconviction counsel from litigating an ineffective-assistance claim against his former law partner, the trial attorney:

¶21      Our review of the transcripts reveals little about what the circuit court feared would happen at the Machner hearing; specifically, what risk Petit’s representation posed to Peterson or to the integrity of the judicial system. ……

¶23      A sua sponte disqualification inquiry presents a palpable risk of unfairly denying a party the right to retain counsel of his or her choosing. “The right to retained counsel of choice is supported by three basic tenets of our adversary system: trust, autonomy, and fairness.” Janet C. Hoeffel, Toward a More Robust Right to Counsel of Choice, 44 San Diego L. Rev. 525, 540 (Summer 2007). “Basic trust between counsel and defendant is the cornerstone of the adversary system ….” Linton v. Perini, 656 F.2d 207, 212 (6th Cir. 1981). Notwithstanding the importance of preserving the integrity of the courts and the confidence of the public, attorney disqualification should not be imposed cavalierly. Here, the court did not explain what problem it anticipated if Petit continued, the court did not describe any potential ethical violation that might arise, and the court did not engage in any sort of dialogue with Peterson before deciding to disqualify Petit. Moreover, the circuit court would have had the same opportunity to rule on the admissibility of the evidence and to control the tenor of the proceedings regardless of whether Petit continued as Peterson’s advocate or another attorney stepped in. Accordingly, the court’s decision to disqualify Petit was an erroneous exercise of discretion.