943 N.W.2d 911
Wis. Ct. App.2020Background
- Jason Marcotte pleaded no contest to delivery of methamphetamine under a plea agreement conditioned on participation in Marinette County Treatment Drug Court; Judge James A. Morrison accepted the plea and withheld sentence pending drug-court completion.
- Judge Morrison presided over Marcotte’s drug-court sessions and repeatedly told Marcotte that termination from the program would result in a prison sentence (e.g., “you get sentenced and you go to Dodge,” and “no mercy”).
- Marcotte was later terminated from drug court for multiple violations; DOC recommended 3–4 years initial confinement followed by 3–4 years extended supervision.
- At the revocation sentencing, Judge Morrison imposed a 10-year sentence (5 years initial confinement + 5 years extended supervision), longer than the State’s and DOC’s recommendations, citing personal familiarity from drug-court participation and expressing frustration with Marcotte.
- Marcotte moved for resentencing, arguing objective judicial bias based on (1) the judge’s prejudging comments and (2) the judge’s dual role as drug-court presiding judge and sentencing judge; the circuit court denied the motion.
- The Court of Appeals reversed, holding the combined prejudgment statements and the judge’s drug-court role created the appearance (and serious risk) of actual bias and remanded for resentencing by a different judge.
Issues
| Issue | Plaintiff's Argument (State) | Defendant's Argument (Marcotte) | Held |
|---|---|---|---|
| Whether the sentencing judge was objectively biased, violating due process and requiring resentencing | Judge Morrison’s motivational warnings were appropriate; prison was the only viable outcome after termination; PSI and revocation summary made drug-court info available to any judge | Judge Morrison prejudged sentence and, as drug-court judge, relied on ex parte information and personal investment, creating appearance of bias | Court found objective bias from (1) prejudgment comments and (2) dual role/ex parte information; reversed and remanded for resentencing by a different judge |
Key Cases Cited
- State v. Goodson, 320 Wis. 2d 166, 771 N.W.2d 385 (Wis. Ct. App. 2009) (promising a specific sentence on revocation creates appearance of prejudgment requiring resentencing)
- State v. Gudgeon, 295 Wis. 2d 189, 720 N.W.2d 114 (Wis. Ct. App. 2006) (predecisional communications indicating the judge had already decided an outcome give rise to appearance of bias)
- State v. Neuaone, 284 Wis. 2d 473, 700 N.W.2d 298 (Wis. Ct. App. 2005) (presumption of judicial impartiality places burden on party alleging bias)
- State v. Herrmann, 364 Wis. 2d 336, 867 N.W.2d 772 (Wis. 2015) (appearance of bias that reveals a great risk of actual bias rebuts impartiality presumption)