State v. StaffordState v. Stafford
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¶ 1. Randy D. Stafford appeals from the judgment of conviction for second-degree sexual
¶ 2. The facts in this appeal are as follows. In June 2000, Stafford was charged with three counts of second-degree sexual assault of a child, in violation of
¶ 3. At the sentencing hearing, Stafford‘s attorney informed the court of several corrections to the PSI, which she had obtained from the presentencing meetings that she and her paralegal had held with Stafford. Stafford and his attorney did not make any objections or corrections to the portions of the PSI referring to the Nooe assessment, or to the assessment itself. In addition to the PSI and Nooe‘s written assessment, the court considered several victim impact statements filed by the victim and her parents, letters from concerned members of the community and from Stafford‘s wife, and the transcripts of interviews both with another adolescent girl who had been involved with Stafford and with her parents. Stafford also submitted a brief letter report prepared by a psychologist who had conducted an evaluation and performed some short-term treatment of Stafford at the behest of his attorney. The court heard testimony from the victim and her father; Stafford did not allocute. The court sentenced Stafford to ten years in prison. This was contrary to the recommendations of the parties and the presentence investigator, all of whom had recommended probation of varying lengths.
¶ 4. Stafford filed a postconviction motion. Stafford argued that he had been sentenced on the basis of inaccurate information in violation of his due process rights, that his attorney had been constitutionally ineffective with respect to Stafford‘s exercise of his allocution right, and that new factors justified resentencing. Both the due process and new factors arguments were based on what Stafford asserted were inaccuracies in Nooe‘s written assessment.
¶ 6. On appeal, Stafford alleges, inter alia, that his sentence should be modified on the basis of a new factor. Stafford contends that Nooe‘s treatment of the victim for the six months prior to his assessment created a conflict of interest that “hopelessly compromised” her objectivity and, hence, her assessment of Stafford. Stafford maintains that Nooe‘s conflict of interest was not revealed to him or the court prior to sentencing and the bias from Nooe‘s assessment tainted the sentencing court‘s consideration of his character and its need to protect the public from Stafford and, therefore, modification of his sentence is warranted. The State contends that Stafford failed to demonstrate that Nooe had a conflict of interest and, as a result, we need not even address Stafford‘s new factor claim.
¶ 7. The State contends that Stafford did not demonstrate that Nooe had conducted her assessment for forensic sentencing purposes instead of for the purpose of treatment. According to the State, there is simply no conflict in assessing the suitability of treatment for the offender.
¶ 8. The State, however, misses Stafford‘s point. Stafford is arguing that Nooe‘s assessment was compromised because she was serving two masters — the victim and the court — and she failed to disclose her dual service to anyone. The precise reason why Nooe undertook the assessment is irrelevant. The fact remains that Nooe‘s report, regardless of whether it was for the purpose of treatment or for forensic sentencing purposes, was intended to be before the trial court at sentencing. As a sentencing tool, the report must be accurate, reliable and objective.
¶ 9. While we acknowledge that the case is not directly on point, we addressed a related concern in
State v. Suchocki,
208 Wis. 2d 509, 561 N.W.2d 332 (Ct. App. 1997), and we find the reasoning in that case persuasive. In
Suchocki,
the presentence investigation report writer was married to the prosecuting attorney.
Id.
at 513. The defendant argued that this relationship compromised the objectivity of the PSI and, thus, violated his due process right to be sentenced on reliable and accurate information.
See id.
at 518. We held that the marital relationship was sufficient to call into question the objectivity of the PSI as a matter of
¶ 10. We reasoned that the core issue in the case was whether the PSI writer could have been influenced by the relationship in forming impressions regarding the defendant and in making recommendations to the court, “the attitudes of a prosecutor are likely to operate differently upon a PSI writer who has a marital relationship with the prosecutor than upon a PSI writer having no significant relationship with the prosecutor.” Id. at 519. We explained that the reasons for an agent‘s impressions could operate at a subjective level of which the report‘s author is unaware. Id. at 520. We then acknowledged the importance of the PSI to the sentencing process and recognized that the integrity of the sentencing process demands that the report be accurate, reliable and, above all, objective and concluded that the PSI should have been struck. See id. at 518, 520.
¶ 11. These same principles apply to the facts of this case. Here, the purpose of Nooe‘s assessment, like the purpose of the PSI, was to provide the trial court with information it could use at sentencing. As
Su-chocki
teaches, in order to protect the integrity of the sentencing process, the court must have a reliable and accurate information base. The hallmark of accuracy is objectivity. Hence, it is not merely the existence of contact between Nooe and the victim that concerns us. It is that Nooe could have been influenced by her extensive treatment relationship with the victim in forming her impressions regarding Stafford and in making her recommendations to the court that we find so troublesome. The information, attitude and impres
¶ 12. We now turn to the application of the two-step new factor test. To obtain sentence modification, a defendant must establish that (1) a new factor exists, and (2) the new factor justifies sentence modification.
State v. Franklin,
148 Wis. 2d 1, 8, 434 N.W.2d 609 (1989). Whether a fact or set of facts constitutes a new factor presents a legal issue which we decide de novo.
Id.
Whether a new factor justifies sentence modification, however, presents an issue for the trial court‘s
¶ 13. A new factor is a fact or set of facts 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 (1975). Further, a new factor is “an event or development which frustrates the purpose of the original sentence. There must be some connection between the factor and the sentencing— something which strikes at the very purpose of the sentence selected by the trial court.” State v. Michels, 150 Wis. 2d 94, 99, 441 N.W.2d 278 (Ct. App. 1989).
¶ 14. Hence, to be a new factor, Nooe‘s treatment of the victim must have been unknown to both the parties and the court at the time of sentencing and must frustrate the intent behind the original sentence. We address these two elements in turn.
¶ 15. It is clear that Nooe‘s potential conflict of interest was unknown to all of the parties prior to sentencing. A thorough review of the record reveals that the information pertaining to Nooe‘s treatment of the victim was not disclosed in Nooe‘s written assessment, nor was it called to Stafford‘s or the court‘s attention prior to sentencing. It was not until after sentencing, at the postconviction motion hearing, when Stafford‘s attorney in the civil matter established that Nooe had treated the victim and assessed Stafford at the same time. The State argues that there are serious
¶ 16. Furthermore, it is beyond question that the court relied on Nooe‘s assessment during sentencing. In the course of its discussion of Stafford‘s character, the sentencing court repeatedly referred to and directly quoted from Nooe‘s assessment. Specifically, the court highlighted the portion of Nooe‘s opinion explaining that Stafford demonstrated little victim empathy. The court also quoted her clinical impressions virtually verbatim, emphasizing Nooe‘s determinations that Stafford had a well-developed defense system, which included dishonesty and placing subtle and overt blame on others for his situation, and that his grooming of his victim was extensive. In addition, the court noted Nooe‘s conclusion that Stafford was a pedophile, a conclusion which, the State now concedes, was error.
¶ 17. The State contends that Nooe‘s conflict of interest does not frustrate the purpose of Stafford‘s sentence because it is not directly connected to the length of the sentence imposed. However, our review of the trial court‘s sentencing remarks demonstrates that the trial court factored Nooe‘s assessment of Stafford‘s character and danger to the community into the length of Stafford‘s sentence. While the court did not refer to Nooe‘s assessment by name in explaining its reasons for rejecting the recommendation of the parties and the PSI agent that Stafford receive probation, the court, once again, clearly turned to Nooe‘s assessment for support. The court explained that it was concerned
¶ 18. Having established that Nooe‘s conflict of interest constitutes a new factor, we now turn to the second part of the test: whether the new factor mandates modification of Stafford‘s sentence. In concluding that Nooe‘s conduct did not constitute a new factor justifying modification of Stafford‘s sentence, the trial court noted that it had applied the three primary sentencing criteria — severity of the offense, character of the defendant, and public safety — and then stated that in considering those factors it had not “placed substantial reliance” on Nooe‘s assessment. The court recalled that it had primarily relied on all of the documents that had been filed prior to sentencing in addition to the Nooe assessment. The State makes a similar argument on appeal. However, as we explained above, the trial court‘s own words at the sentencing hearing belie these assertions.
By the Court. — Judgment and orders reversed and cause remanded with directions.
Notes
All references to the Wisconsin Statutes are to the 2001-02 version unless otherwise noted.
We believe that it is important to note that Nooe is not a licensed independent family counselor, social worker, psychologist or psychiatrist. Had Nooe been licensed, she would have been subject to a code of ethics or conduct that would have prohibited her from engaging in the dual relationship. See, e.g., Wis. Admin. Code § MPSW 20.02(13) (prohibiting social workers from engaging in dual relationships that may impair the credentialed person‘s objectivity or create a conflict of interest); Wis. Admin. Code § PSY 5.01(17) (providing that a failure of psychologists to avoid dual relationships or relationships that may impair one‘s, objectivity or create a conflict of interest constitutes unprofessional conduct). While we are not in a position to tell the trial courts what to do in this particular circumstance, this case provides a good example of why licensing in general and a code of ethics in particular should be a condition precedent to any professional observation the trial court may take into account.