867 N.W.2d 772
Wis.2015Background
- Herrmann seeks review of an unpublished Court of Appeals affirmation of his conviction and postconviction relief denial.
- Circuit court sentencing statements referenced a personal story about the judge’s sister’s death in a drunk-driving accident.
- Judge acknowledged societal alcohol problems and discussed mitigating and aggravating factors.
- Herrmann had prior O.W.I. and other convictions; PSI recommendations varied.
- Sentencing imposed 31 years initial confinement, followed by 40 years ES, with a 20-year hit-and-run term stayed and 15 years’ probation.
- Court held Herrmann did not establish a due-process violation based on appearance of bias when viewed in context.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the sentencing statements showed objective bias violating due process | Herrmann argues the judge’s sister’s death shows bias | State contends statements reflected concern for victims, not bias | No due-process violation; presumption of impartiality not rebutted |
Key Cases Cited
- Caperton v. A.T. Massey Coal Co., 556 U.S. 868 (U.S. 2009) (due process requires recusal only in rare, extreme cases with serious risk of bias)
- Williams-Yulee v. Florida Bar, 135 S. Ct. 1656 (S. Ct. 2015) (appearance of bias and public confidence considerations cited by Supreme Court)
- State v. Gudgeon, 295 Wis. 2d 189 (Wis. Ct. App. 2006) (appearance of partiality may violate due process when great risk of bias exists)
- State v. Goodson, 320 Wis. 2d 166 (Wis. Ct. App. 2009) (appearance of bias discussed in objective-bias analysis)
- State v. Rochelt, 165 Wis. 2d 373 (Ct. App. 1991) (objective bias analysis framework for impartiality questions)
- State v. McBride, 187 Wis. 2d 409 (Ct. App. 1994) (presumed impartiality and burden to rebut bias)
- State v. Gallion, 270 Wis. 2d 535 (Wis. 2004) (mandates stating sentencing objectives and related factors on the record)