STATE оf Wisconsin, Plaintiff-Respondent, v. Allen Briggs JOHNSON, Defendant-Appellant.
No. 89-2108-CR
Court of Appeals
September 20, 1990
463 N.W.2d 352
Submitted on briefs July 18, 1990. Petition to review denied.
For the plaintiff-respondent the cause was submitted on the brief of Donald J. Hanaway, attorney general, and Paul Lundsten, assistant attorney general.
Before Eich, C.J., Dykman and Sundby, JJ.
Johnson raises several issues, all relatеd to his sentence: (1) whether the trial court may consider the victim‘s wishes in framing a sentence; (2) if so, whether the victim‘s change of mind constitutes a new factor requiring resentencing; (3) whether the trial court based its sentence on erroneous information; (4) whether the court improperly considered offenses for which Johnson
Johnson was initially charged with seven counts of second-degree sexual assault involving three young boys. He entered pleas of no contest to three counts, two involving M.H. and one involving W.L., both of whom were under the age of sixteen when the assaults occurred. He also pleaded no contest to two counts of bail jumping resulting from his attempts to contact one of the victims, W.L., in violation of the conditions of his bond. In exchange for his pleas, the prosecutor dismissed the other charges, although they were “read in” for sentencing purposes.
Our review of sentencing decisions is limited to determining whether the trial court abused its discretion. State v. Harris, 119 Wis. 2d 612, 622, 350 N.W.2d 633, 638 (1984). “[S]uch questions will be treated in light of a strong policy against interference with the discretion of the trial court in passing sentence.” Elias v. State, 93 Wis. 2d 278, 281, 286 N.W.2d 559, 560 (1980) (citations omitted). The trial court is presumed to have “acted reasonably [unless] the defendant [can] show some unreasonable or unjustified basis . . . for the sentence. . . .” Harris at 622-23, 350 N.W.2d at 638-639.
Johnson argues first that the trial court abused its discretion when it considered the victims’ “wishes” as to the length of his sentence. He points to a comment in the presentencе report that W.L. had told the investiga-
Johnson offers no authority for the proposition he advances. Instead, he argues that because cases such as State v. Jones, 151 Wis. 2d 488, 495, 444 N.W.2d 760, 763 (Ct. App. 1989), which refer to and compile permissible sentencing factors, do not mention “victim wishes” in their lists, it must be an improper factor. We disagree.
It is well established that in sentencing a defendant the court should consider the gravity of the offense, the need for protection of the public and the character of the offender. Elias, 93 Wis. 2d at 284, 286 N.W.2d at 561. In its discretion, the court may also consider a variety of other factors. See Jones, 151 Wis. 2d at 495, 444 N.W.2d at 763, for an illustrative list of relevant factors.
Neither Jones nor any of the other cases discussing factors which may be considered in sentencing1 purport tо set forth exclusive or preemptive listings, and we have no doubt that trial courts may consider the recommendations of interested parties in framing a sentence. Indeed, trial courts are routinely provided with sentencing “recommendations” from prosecutors, probation and parole agents and others who prepare presentence reports—including persons privately retained by defendants to do so—as well as expert witnesses such as psychiatrists and psychologists. Nor is it uncommon for a defendant‘s friends and relatives to appear and testify at the sentencing hearing, often urging the court to impose a light or nonincarcerative sentence.
We agree, too, that the fact that victims may not be objective in the matter is of little import. If bias or personal interest were a ground for rejecting sentencing arguments and recommendations, few defendants (or members of their families) or defense attorneys would be competent to comment.
We believe that consideration of the comments—even the “wishеs“—of a victim is within the sentencing court‘s prerogatives. Courts are entitled—even encouraged—to consider the rights and interests of the public in imposing a sentence in a particular case. Jones, 151 Wis. 2d at 495, 444 N.W.2d at 763. Indeed, we held in Jones that consideration of the victim‘s “rehabilitative needs” was a “logical extension” of the universally accepted practice of considering the rights and interests of thе public in sentencing offenders. Id. at 496, 444 N.W.2d at 764.2
Johnson next argues that even if the victim‘s statements were properly considered, the court erred in denying his request for resentencing in light of the victim‘s change of heart since the original sentencing. He asserts that W.L., who had, as we have indicated, told a presentence investigator that he felt Johnson should be severely punished, now believes he should receive only counseling. Johnson contends this is a “new factor” entitling him to be resentenced.
Whether a fact is a new factor warranting resentencing is a question of law. State v. Hegwood, 113 Wis. 2d 544, 547, 335 N.W.2d 399, 401 (1983). A new factor is one which is “highly relevant to the imposition of sentence, but not known to the trial judge at the time of the original sentencing, either because it was not then in existence or because, even though it was then in existence, it was unknowingly overlooked by all of the parties.” Rosado v. State, 70 Wis. 2d 280, 288, 234 N.W.2d 69, 73 (1975). The new factor must be an event or development that “frustrates the purpose of the original sentencing.” State v. Michels, 150 Wis. 2d 94, 97, 441 N.W.2d 278, 279 (Ct. App. 1989).
We also note the supreme court‘s comment in State v. Macemon, 113 Wis. 2d 662, 668, 335 N.W.2d 402, 406 (1983) (citation omitted), that a court “should not reduce a sentence on ‘reflection’ alone or simply because it has thought the matter over and has second thoughts. It must base its modification on ‘new factors’ brought to its attention.” We agree with the state‘s comment that “if a change of heart by the sentencing court itself is not a new factor supporting resentencing, it can hardly be argued that resentencing is required every time a victim [or a member of a defendant‘s family, or anyone else addressing the court at sentencing] has a change of heart.”4
Defendants have a due process right to be sentenced on the basis of accurate information. United States v. Tucker, 404 U.S. 443 (1972). However, a defendant who requests resеntencing based on inaccurate information must show both that the information was inaccurate, and that the court actually relied on the inaccurate information in the sentencing. United States ex rel. Welch v. Lane, 738 F.2d 863, 865 (7th Cir. 1984).
The record supports the trial court‘s statement that the victims suffered emotional damage. M.H., with whom Johnson had as many as six hundred episodes of sexual contact over a two-yeаr period, wrote a letter to the court explaining the damage he sustained from the assaults:
I don‘t know where to begin telling you how this crime has affected myself and my family . . . I have suffered from low self-esteem, tremendous guilt, haunted days, and sleepless nights . . . I didn‘t like myself very much . . . I was so confused that I even questioned my sexual orientation . . . I felt so unsafe and so unclean . . . I now see many рoor career choices I have made due to my lack of self-confidence because of the assaults.
Johnson next asserts that the court improperly considered criminal activity for which he was not charged. We reject this contention as well. The supreme court hаs expressly held that uncharged offenses may be considered by a sentencing court because they indicate whether the crime was an isolated act or a pattern of conduct. State v. McQuay, 154 Wis. 2d 116, 126, 452 N.W.2d 377, 381 (1990); Elias, 93 Wis. 2d at 284, 286 N.W.2d at 562. As the trial court noted, the uncharged assaults indicate a pattern of sexually victimizing young boys.
Equally unpersuasive is Johnson‘s argument that the trial court erred when it failed to explain why it dеviated from the recommendation in the presentence report. Such a recommendation may be a relevant factor in determining type and length of sentence, but it is not binding on the sentencing court. Ocanas v. State, 70 Wis. 2d 179, 188, 233 N.W.2d 457, 462 (1975). As long as “[t]he trial judge [exercises] discretion [and] sentence[s] within the permissible range set by statute,” id. at 185, 233 N.W.2d at 461, the court need not explain why its sentence differs from any partiсular recommendation.
In a similar vein—and with similar results—Johnson contends that it was error for the trial
Finally, Johnson asserts that the presentence report incorrectly stated that he had five prior felony convictions for indеcent liberties with a minor, when, in reality, his record included only three counts of contributing to the delinquency of a minor (a misdemeanor), one felony count of indecent behavior with a child, and one felony count of enticing a child for immoral purposes.
Johnson‘s attorney reviewed the presentence report prior to sentencing and did not note any objeсtion to it or point the court to any purported inaccuracies. In a similar situation, the supreme court held that where the facts stated in a presentence report “were not challenged or disputed by the defendant at the time of sentencing, we find no abuse of discretion by the sentencing judge [in considering them].” Handel v. State, 74 Wis. 2d 699, 704, 247 N.W.2d 711, 714 (1976).
In addition, we note that while Johnson‘s presentenсe report does note “5 counts” of indecent liberties with minors, the narrative portion of the report states that he “was charged with five counts,” not that he had been convicted of them. We note, too, the trial court, in its sentencing remarks, referred to a single conviction for indecent liberties, noting that it had been “a
By the Court.—Judgment and order affirmed.
SUNDBY, J. (concurring). I concur in the majority‘s opinion in all respects except I do not believe we should decide that the victim‘s recommendation as to the appropriate sentence may be considered by the sentencing court. There is nothing in the record of the sentencing hearing to support Johnson‘s argument that the trial court gave any weight to the victim‘s wishes or opinions as to the appropriate sentence for the defendant. The trial court simply stated that it was aware of the presentence report in which the preparer described how the victims felt about the matter.
When the sentencing hearing record is considered in its entirety, it is evident that the trial court was considering the contents of the pre-sentence report insofar as that report related how the victims were severely emotionally damaged. There is no evidence that the trial court considered any of the victims’ views as to the appropriate sentence for Johnson. Accordingly, when we approve for trial courts’ consideration the “wishes” of a victim as to the appropriate sentence, we prematurely place our imprimatur on a practice not followed in this case.
Further, before we approve for trial courts’ sentencing discretion the wishes of a victim as to the appropriatе sentence, we should require that the issue be thoroughly briefed. First, we should inquire whether the victim‘s opinion or wish as to the appropriate sentence may properly be included in a presentence investigation report under
The person preparing the presentence investigation report shall attempt to contact the victim to determine the economic, physical and psychological effect of the crime on the victim. The person preparing the report may ask any appropriate person for information. This subsection does not preclude the person who prepares the report from including any information for the court concerning the impact of a crime on the victim. [Emphasis added.]
Second, we should be concerned as to the constitutionality of the use of victim impact statements generally and particularly those which can be considered as invading the province of the trial court. At least thirty-six states permit the use of victim impact statements in some context. Booth v. Maryland, 482 U.S. 496, 509 n.12 (1987)1 (citing National Organization for Victim Assistance, Victim Rights and Services: A Legislative Directory, 32-33 (1985) (chart); and McLeod, Victim Participation at Sentencing, 22 Crim. L. Bull. 501, 507 and n.22 (1986)). Congress has also provided for victim participation in federal criminal cases. See
Third, if we allow victims to recommend sentences, we raise the speсter of a victim challenging a sentence if the judge does not consider the victim‘s recommendation. See McLeod, 22 Crim. L. Bull. at 517.
If the trial court‘s consideration is limited to the effects upon the victims, as I believe the record in this case requires, I see no error. The defendant waived any objection to the trial court‘s considering the impact of his acts upon the victims. He advised the court: “I feel very badly about what I have done to these people. I‘ve hurt not only them but their families and friends and my family and friends. I hope that they can get on with their lives, lead productive lives.”