State v. Landray M. Harris
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2010 WI 79 SUPREME COURT CASE NO.: COMPLETE TITLE: OF WISCONSIN 2008AP810-CR State of Wisconsin, Plaintiff-Respondent-Petitioner, v. Landray M. Harris, Defendant-Appellant. REVIEW OF A DECISION OF THE COURT OF APPEALS Reported at: 316 Wis. 2d 412, 763 N.W.2d 560 (Ct. App. 2009-Unpublished) OPINION FILED: SUBMITTED ON BRIEFS: ORAL ARGUMENT: SOURCE OF APPEAL: COURT: COUNTY: JUDGE: JUSTICES: CONCURRED: July 14, 2010 October 20, 2009 Circuit Milwaukee Joseph R. Wall BRADLEY, J., concurs (opinion filed). ABRAHAMSON, C.J. and CROOKS, J., join the concurrence. DISSENTED: NOT PARTICIPATING: ATTORNEYS: For the plaintiff-respondent-petitioner there was oral argument by Rebecca Rapp St. John, assistant attorney general, with whom on the briefs was J.B. Van Hollen, attorney general. For the defendant-appellant there was a brief and oral argument by Michael K. Gould, assistant state public defender, Milwaukee. An amicus curiae brief filed by Kathryn A. Holtz, Madison, and Victor Goode and the National Association for the Advancement of Colored People, Baltimore, Md., on behalf of the National Association for the Advancement of Colored People. 2010 WI 79 NOTICE This opinion is subject to further editing and modification. The final version will appear in the bound volume of the official reports. No. 2008AP810CR (L.C. No. 2007CF99) STATE OF WISCONSIN : IN SUPREME COURT State of Wisconsin, FILED Plaintiff-Respondent-Petitioner, v. JUL 14, 2010 Landray M. Harris, A. John Voelker Acting Clerk of Supreme Court Defendant-Appellant. REVIEW of a decision of the Court of Appeals. ¶1 MICHAEL J. GABLEMAN, J. Reversed. Following his conviction and sentencing for drug-related crimes, Landray M. Harris moved for relief from his sentence on the grounds that the court made inappropriate comments reflecting racial and gender stereotypes during the sentencing hearing. The circuit court denied the motion, and in an unpublished opinion,1 the court of appeals reversed and held that the defendant was entitled to resentencing. 1 State v. Harris, No. 2008AP810-CR, unpublished slip op. (Wis. Ct. App. Jan. 21, 2009). No. ¶2 2008AP810CR This case concerns the proper legal principles that govern review of a sentence when a defendant claims the circuit court imposed its sentence on the basis of race or gender. The court of appeals adopted, and Harris endorses, a new "reasonable observer" test which comments suggest queries to a whether reasonable the circuit observer that court's the court improperly relied on race or gender when imposing its sentence. The State maintains that a reasonable observer's perception of the court's comments is not indicative of whether the court improperly relied on race or gender. ¶3 We observer agree test with created the by State the and court of reject the appeals. reasonable Sentencing decisions are afforded a presumption of reasonability consistent with Wisconsin's strong public policy against interference with a circuit decisions court's is discretion. therefore limited Our to review of determining circuit court erroneously exercised its discretion. sentencing whether the Discretion is erroneously exercised when a sentencing court actually relies on clearly irrelevant or improper factors, and the defendant bears the burden convincing evidence. of proving such reliance by clear and It is beyond dispute that race and gender are improper factors; they may not be relied upon at all in the imposition of a sentence. ¶4 After reviewing the sentencing transcript in context and as a whole, we conclude that Harris has not met his burden of proving by clear and convincing evidence that the circuit court actually relied on race or gender. 2 The circuit court No. 2008AP810CR considered the proper factors it evaluated the gravity of the offense, Harris's protection. for the offensive character, and the public's need for The circuit court thoroughly explained its reasons sentence it imposed, comments flagged by and both all of Harris the and potentially the court of appeals bear a reasonable nexus to proper sentencing factors. Because Harris has not shown that the circuit court erroneously exercised its discretion, we reverse the decision of the court of appeals. I. FACTS ¶5 On May 14, 2007, Landray M. Harris pled guilty to possession of cocaine with intent to deliver in violation of Wis. Stat. §§ 961.41(1m)(cm)2. and 939.05 (2005-06).2 On August 15, 2007, Harris had a sentencing hearing before the Honorable Joseph R. Wall of the Milwaukee County Circuit Court. The interaction between Harris and the court during this sentencing hearing forms the basis for the issues before us today, and will therefore be quoted at length. ¶6 The investigation attorneys. circuit court report and first other discussed related the matters presentence with the Among the items noted was a picture of Harris at a club with known gang members in which, as the court later noted, Harris appeared to be "throwing gang signs." The court then began an extended discussion with Harris. 2 All subsequent references to the Wisconsin Statutes are to the 2005-06 version unless otherwise indicated. 3 No. ¶7 Harris stated that he was not intending 2008AP810CR to make a career out of selling drugs, although he admitted he had been doing it for a number of months. Harris said that he is quick to learn from his mistakes, that he knew what he was doing was wrong, and that he did not want to hurt his daughter. The circuit court inquired further regarding Harris's daughter, who was soon to turn two. ¶8 The conversation then turned to Harris's employment, and the following exchange ensued: The Court: Where are you working now? The Defendant: The Court: You're unemployed still? The Defendant: The Court: At work. So the mother works and you sit at home, The Defendant: The Court: I just stay at home with my daughter Where is her mother? The Defendant: The Court: right? No. What do you do all day? The Defendant: and that's it. The Court: No, sir. You're kidding. The Defendant: The Court: Yes. Have you gotten a job since January? The Defendant: The Court: I'm unemployed right now. Yeah. And watch the child? 4 No. 2008AP810CR The Defendant: I got all types of things goin'. personal family. ¶9 My The court next inquired about the mother of Harris's daughter: The Court: Where does the baby's mama work? The Defendant: The Court: Did she finish school? The Defendant: The Court: Metro Market. Yes. Is she going to college, too? The Defendant: Yes. The Court: Where do you guys find these women, really, seriously. I'd say about every fourth man who comes in here unemployed, no education, is with a woman who is working full-time, going to school. Where do you find these women? Is there a club? The Defendant: The Court: No. You're sure? The Defendant: [type]. I ain't find her at she not the club The Court: Oh, she's not the club type. I need the truth now, when was the last time you smoked marijuana? The Defendant: ¶10 Yesterday. The court concluded its conversation with Harris by discussing Harris's alleged gang involvement which Harris denied and by noting his expensive clothing as reflected in the above-noted photograph, clothing which Harris admitted was partially financed by his drug dealing. ¶11 regarding After a the pants brief Harris conversation was 5 wearing with when the attorneys arrested, which No. 2008AP810CR contained a "secret pocket" designed to store drugs, the court went into a lengthy discussion of sentencing factors. The court noted that it needed to consider the gravity of the offense, the background of the defendant, and the need to protect the public. ¶12 Regarding concluded horrible that and the the gravity crime addictive was the offense, serious. nature destroys families and lives. of of crack It the court emphasized cocaine, and the how it The court discussed how this often affects women, whose drug addictions cause them to lose parental rights to their children. The court noted that "[t]he men are always out of the picture"; they are "on the street corners with Mr. Harris here smoking pot and throwing gang signs with their idiot buddies." The court further emphasized how this drug drags individuals, families, and neighborhoods down. ¶13 The court also discussed how demand for cocaine affects people around the world, noting that the vast majority of our heroin comes serving and dying. from Afghanistan where our soldiers are The court then stated: It's the same thing with cocaine. People Mr. Harris's age [are] enlisting in the Marines and Army and National Guard, putting their lives at stake while Mr. Harris sits at home, gets high while his baby mama works and goes to school. I swear there's a club where these women get together and congregate. ¶14 The background, court which it then examined called Harris's "completely character unimpressive." and The court discussed Harris's drug dealing, and noted that Harris eschewed looking for a job even though good jobs were available. The court commented: 6 No. 2008AP810CR Well, they're getting high and it's much easier to get high than work and work hard eight hours a day and make the amount of money that they pay. These are jobs that will pay benefits; paid vacation, medical care for your daughter. I'm sure your wife already is providing that not your wife, your baby mama is already providing that. The court emphasized Harris's lack of any employment history, calling it "appalling for a 21 year old person." ¶15 The court commented that Harris had not completed his education, and noted that despite the opportunity to get his GED through a government program, Harris simply stopped attending classes. ¶16 The court further noted that until he began selling drugs, Harris's mother was his source of income. The court quoted from the impressions of the agent who interviewed Harris for his presentence report (to which Harris was an hour late); the agent had written that Harris seemed to have "this absurd expectation that his mother should be supporting his marijuana habit," and that Harris "is at a minimum a gang wannabe." ¶17 Regarding Harris's daughter and his responsibility for her, the court discussed how dangerous the drug dealing business is, the likelihood of missing his daughter's childhood while in prison or dead, and how he was being a "terrible role model" for his daughter. ¶18 public. Next, the court discussed the need to protect the Harris seemed not to care about what was happening, the court found, and had not shown any inclination to change. ¶19 Finally, the court considered various goals related to sentencing: protecting the public, 7 rehabilitation of the No. defendant, deterring the defendant from offending 2008AP810CR again, and deterrence of others. ¶20 The circuit needed to be sent. court concluded that a strong message It sentenced Harris to an initial period of confinement of two years, followed by extended supervision for three years.3 II. PROCEDURAL HISTORY ¶21 On March 7, 2008, Harris filed a motion for resentencing or in the alternative, sentence modification, on the grounds that the sentencing court did not adequately consider mitigating factors, and that the court made sarcastic and inappropriate comments sentencing proceeding. based on stereotypes during the The circuit court, the Honorable Kevin E. Martens now presiding,4 denied Harris's motion, concluding that the discretion. circuit court did not erroneously exercise its The circuit court explained as follows: The court gave adequate consideration to all aspects of the defendant's character as part of the overall factors it must consider at the time of sentencing. [citation omitted] The comments concerning the defendant's unemployment status and the willingness of his child's mother to go out and work and go to school while the defendant sat home were meant to express incredulity over a 21 year old able-bodied male allowing the child's mother to go out and work instead of going out and finding a job on behalf of his family and furthering his financial prospects. The court 3 The court also made Harris eligible for boot camp and the Earned Release Program after 12 months, and imposed a fine. 4 Judge Martens took over Judge Walls' drug court docket as part of Milwaukee County's judicial rotation system. 8 No. 2008AP810CR finds this to be an appropriate consideration of the defendant's character for sentencing purposes and declines to modify the sentence or resentence the defendant on any basis set forth in the defendant's motion. ¶22 On review, the court of appeals agreed that the circuit court properly considered and weighed all appropriate factors. State v. Harris, No. 2008AP810-CR, unpublished slip op., ¶¶6, 10 (Wis. Ct. App. Jan. 21, 2009). that the circuit court because of his race."5 "did not Id., ¶16. harbor It also surmised bias against Harris Nevertheless, the court of appeals concluded that several of the circuit court's comments "suggest to a reasonable observer, or a reasonable person in the position of the defendant, that the trial court was improperly considering Harris's race when it imposed sentence." Id., ¶18. Because of this, the court of appeals held that the circuit court erroneously exercised its discretion. It vacated Harris's sentence and remanded the matter for resentencing. Id., ¶¶10, 18. 5 The court of appeals did not consider whether the circuit court improperly sentenced Harris on the basis of gender because its conclusion that the circuit court improperly relied on race was sufficient to dispose of the case. See State v. Harris, No. 2008AP810-CR, unpublished slip op., ¶10 n.4. 9 No. ¶23 2008AP810CR The State petitioned this court for review, which we accepted.6 III. DISCUSSION ¶24 In this case, Harris claims that the circuit court relied on race and gender when sentencing him, and that because it did so, discretion. the circuit Thus, Harris court erroneously maintains he is exercised entitled its to resentencing. ¶25 The crux of this case centers on how courts should analyze whether a sentencing court actually relied on race or gender.7 6 Justice Bradley's assertions to the contrary (see concurrence, ¶70), the phrase "appearance of bias" does not even appear in the State's statement of issues in its petition for review. Instead, the petition for review asked this court to resolve a specific, defined issue: whether "comments suggesting a circuit court considered a defendant's race at sentencing provide an independent basis for vacating a sentence? Or must defendants continue to establish that a circuit court actually relied on irrelevant or improper facts like race?" 7 Justice Bradley wants this case to be something it is not. It is all about "appearance of bias" she tells us. See concurrence, ¶¶68-70. She is wrong. Justice Bradley's analysis relies largely on three cases: Crawford v. United States, 212 U.S. 183 (1909) (see concurrence, ¶¶73, 88); State v. Gudgeon, 2006 WI App 143, 295 Wis. 2d 189, 720 N.W.2d 114 (see concurrence, ¶¶89-91); and State v. Goodson, 2009 WI App 107, ¶18, 320 Wis. 2d 166, 771 N.W.2d 385 (see concurrence, ¶¶93-95). Yet none of these cases were even cited by the parties in their briefs, and none are relevant. 10 No. ¶26 2008AP810CR Harris asks us to affirm the decision of the court of appeals and adopt a reasonable observer standard. In Harris's view, a circuit court is deemed to have relied on race or gender if a reasonable observer would conclude that his sentence was imposed on the basis of race or gender.8 The State counters that mere perception by a reasonable observer or defendant does not equate to actual reliance on race or gender. In Crawford, the United States Supreme Court was not reviewing a judge's alleged bias or prejudice; indeed, the "judge's mind" was of no relevance. See Crawford, 212 U.S. at 196. Instead, the Supreme Court held that a United States Post Office employee could not serve as a juror in the prosecution of a defendant charged with conspiracy to defraud the post office. Id. at 192-97. In State v. Goodson, 2009 WI App 107, 320 Wis. 2d 166, 771 N.W.2d 385, a judge promised to sentence a defendant to the maximum period of time if he violated his supervision rules. Id., ¶13. The claim in Goodson was that the circuit court prejudged the reconfinement sentence, not appearance of bias. Id., ¶6. For similar reasons, State v. Gudgeon, 2006 WI App 143, 295 Wis. 2d 189, 720 N.W.2d 114, does not indicate the adoption of an "appearance of bias" test for determining whether a judge actually relied on improper sentencing factors. That case, as well, involved a "claim[] that the court was [] biased in favor of a particular result before listening to the evidence." Id., ¶1. In addition, Justice Bradley cites Caperton v. A.T. Massey Coal Co., Inc., 556 U.S. ___, 129 S. Ct. 2252 (2009), which is distinguishable on its face. See State v. Allen, 2010 WI 10, ¶¶259-72, 322 Wis. 2d 372, 778 N.W.2d 863 (Ziegler, J., concurring). Similarly, the issues in Allen are easily distinguishable. 8 As noted above, the court of appeals did not discuss the gender issue. However, Harris appears to advocate that the reasonable observer standard should apply to gender as well as race. 11 No. ¶27 2008AP810CR In Part A, we discuss sentencing generally, review the well-settled decisions, legal and standards frame established case the law. governing applicable In Part B, review legal we of sentencing standard take up from the court our of appeals' reasonable observer test and explain why this approach does not work and why sentencing review law. standards outlined in it conflicts Finally, Part A to in with Part the our C, facts established we of apply this the case, concluding that the circuit court did not erroneously exercise its discretion in sentencing Harris. A. Sentencing and Review of Sentencing Decisions ¶28 Circuit courts must consider three primary factors in determining an appropriate sentence: the gravity of the offense, the character of the defendant, and the need to protect the public. (1984). State v. Harris, 119 Wis. 2d 612, 623, 350 N.W.2d 633 Additional related factors the court may consider include: "(1) Past record of criminal offenses; (2) history of undesirable behavior pattern; (3) the defendant's personality, character and social traits; (4) result of presentence investigation; (5) vicious or aggravated nature of the crime; (6) degree of the defendant's culpability; (7) defendant's demeanor at trial; (8) defendant's age, educational background and employment record; (9) defendant's remorse, repentance and cooperativeness; (10) defendant's need for close rehabilitative control; (11) the rights of the public; and (12) the length of pretrial detention." Id. at 623-24 (quoting Harris v. State, 75 Wis. 2d 513, 519, 250 N.W.2d 7 (1977)). Sentencing 12 courts have considerable No. 2008AP810CR discretion as to the weight to be assigned to each factor. Id. at 624. ¶29 In exercising discretion, sentencing courts must individualize the sentence to the defendant based on the facts of the case explaining by how objectives. identifying the See sentence State v. the most imposed Gallion, relevant furthers 2004 WI factors the 42, and sentencing ¶39-48, 270 "limited to Wis. 2d 535, 678 N.W.2d 197. ¶30 Review of a sentencing decision is Id., ¶17. determining if discretion was erroneously exercised." Discretion is erroneously exercised when a sentencing court imposes its sentence based on or in actual reliance upon clearly irrelevant or improper factors. Id.; State v. Tiepelman, 2006 WI 66, ¶26, 291 Wis. 2d 179, 717 N.W.2d 1. Sentencing decisions are afforded a presumption of reasonability consistent with our strong public court's policy against discretion. interference Gallion, 270 with the circuit Wis. 2d 535, ¶18. Accordingly, the defendant bears the heavy burden of showing that the circuit court erroneously exercised its discretion. See id., ¶72. ¶31 the heavy The question in this case is how a defendant must meet burden improper factors. of showing that the sentence was based on Or more to the point, how should a reviewing court determine when a circuit court has actually relied on race and gender in imposing its sentence, and therefore erroneously exercised its discretion? 13 No. ¶32 2008AP810CR This court clarified the framework in which to answer this and related questions in Tiepelman, 291 Wis. 2d 179. In that case, a defendant moved for resentencing on the grounds that the circuit court relied on inaccurate information. ¶1. Id., We noted that a defendant has a constitutional due process right to be sentenced based upon accurate information. Id., ¶9. The issue was, as here, what the correct standard of review should be. We held that a defendant must prove that the information was inaccurate, and that the court actually relied Id., ¶26; State v. Payette, on that inaccurate information. 2008 WI App 106, ¶46, 313 Wis. 2d 39, 756 N.W.2d 423. If the defendant shows this, the burden shifts to the State to prove that the error was harmless. ¶33 at bar Tiepelman, 291 Wis. 2d 179, ¶26. The application of this well-settled law in the case is straightforward. Harris constitutional due process right race9 or gender. No basis of not to similarly be Wisconsin has sentenced case has on held a the that defendants have a due process right not to be sentenced on the basis of gender. We now so hold because to do so is in conformity with our understanding of the basic tenets of due process. Everyone agrees, then, that race and gender are improper factors, and that imposing a sentence on the basis of race or gender is therefore an erroneous exercise of discretion. Consequently, Harris has the burden to prove that the circuit 9 See, e.g., United States v. Munoz, 974 F.2d 493, 495 (4th Cir. 1992) ("[S]entences imposed on the basis of race or national origin violate due process."). 14 No. court actually sentence.10 relied on race or gender in 2008AP810CR imposing its Because we determine that Harris has not met this burden (as explained in Part C), we need not determine whether the errors alleged here are subject to harmless error analysis, or whether they are structural errors not amenable to harmless error analysis.11 ¶34 Proving that the circuit court relied on race and gender may in some instances be a bit of an amorphous task. But this is true whenever attempting to show that the sentencing court actually relied on any improper factor. what has been recognized in factually We now make clear analogous standard of proof is clear and convincing evidence. cases: the See State v. Littrup, 164 Wis. 2d 120, 131-32, 473 N.W.2d 164 (Ct. App. 1991) (applying the clear and convincing evidence burden to a due process claim of improper sentencing based on inaccurate 10 Tiepelman established a two-part test: the defendant must prove that the information was inaccurate and show actual reliance on that information. State v. Tiepelman, 2006 WI 66, ¶¶26-28, 291 Wis. 2d 179, 717 N.W.2d 1. Proving inaccurate information is a threshold question you cannot show actual reliance on inaccurate information if the information is accurate. When the question relates to other improper factors like race and gender, only the second part of the test, actual reliance, is relevant. 11 For an explanation of errors subject to harmless error analysis versus structural errors, see Neder v. United States, 527 U.S. 1, 8-10 (1999); State v. Ford, 2007 WI 138, ¶¶42-43, 306 Wis. 2d 1, 742 N.W.2d 61; State v. Harvey, 2002 WI 93, ¶¶3539, 254 Wis. 2d 442, 647 N.W.2d 189. 15 No. information).12 Requiring defendants who 2008AP810CR challenge their sentence to prove their case by clear and convincing evidence "promotes the policy of finality of judgments and satisfies the purpose of sentence modification, which is the correction of unjust sentences." ¶35 Id. at 132. Harris must therefore provide evidence indicating that it is "highly probable or reasonably certain" that the circuit court actually sentence. relied on race or gender when imposing its Black's Law Dictionary 577 (7th ed. 1999) (defining "clear and convincing evidence"). B. The Reasonable Observer Test Is Not Appropriate ¶36 The court of appeals did not follow these established legal principles. Though giving lip service to its limited role of reviewing only for the erroneous exercise of discretion (see Harris, No. 2008AP810-CR, unpublished slip op., ¶¶1, 6-7), it created a new test, largely relying on two non-Wisconsin cases. The court of appeals concluded as follows: 12 This court later withdrew language from Littrup concerning whether defendants had to show "prejudicial reliance" as opposed to "actual reliance" on inaccurate information. Tiepelman, 291 Wis. 2d 179, ¶31. We did not overrule Littrup, and our withdrawal of language did not affect the Littrup court's conclusion as to the proper burden of proof. Id. ("[A] defendant must establish that . . . the circuit court actually relied on the inaccurate information. Here, the court of appeals applied the wrong test prejudicial reliance when it affirmed the circuit court. We must, therefore, reverse that affirmance, and withdraw any language [in several cases, including Littrup] to the contrary."). Only when a case is overruled does it lose all of its precedential value. See Blum v. 1st Auto & Cas. Ins. Co., 2010 WI 78, ¶56, ___ Wis. 2d ___, ___ N.W.2d ___. 16 No. 2008AP810CR Harris is entitled to resentencing because although the trial court properly considered all appropriate relevant factors, it nonetheless erroneously exercised its discretion when it made comments at sentencing that suggested to a reasonable person in the position of the defendant or a reasonable observer that it was improperly considering the defendant's race in imposing sentence. Id., ¶1. This test is not the law in Wisconsin, nor should it be. ¶37 First, applying a reasonable observer test to sentencing challenges is not supported by Wisconsin case law. The court of appeals cited only one Wisconsin case, State v. Fuerst, 181 Wis. 2d 903, 512 support of its new approach. observer test for sentencing N.W.2d 243 (Ct. App. 1994), in Fuerst did not create a reasonable evaluation, nor does any other Wisconsin case.13 13 Both Harris and the court of appeals rely largely on two non-Wisconsin cases that adopted some form of a reasonable observer test with regard to issues of race. In United States v. Leung, the Second Circuit Court of Appeals ordered resentencing because, although it was confident that the sentencing judge did not harbor bias against the defendant because of her ethnic origin, a reasonable observer might have inferred that the defendant's ethnicity and alien status played a role in her sentence. 40 F.3d 577, 586-87 (2d Cir. 1994). Similarly, in Jackson v. State, the Court of Appeals of Maryland held that the circuit court's comments gave rise to an inference that race was inappropriately considered at sentencing because a reasonable person might infer that the trial judge considered race. 772 A.2d 273, 281-82 (Md. 2001). 17 No. ¶38 2008AP810CR In Fuerst, the defendant was convicted of first degree sexual assault of a child and sentenced to six years in prison. Id. at 908. The defendant erroneously exercised improperly its considered asserted sentencing the whether the circuit court the circuit discretion defendant's convictions and church attendance.14 questioned that lack Id. in court because of it religious Importantly, no one fact had considered these factors; the record made clear that it had. The circuit court explicitly stated, and denial defendant's of the both during the hearing postconviction motion, in its that it believed the defendant's lack of church attendance and lack of religious convictions were relevant factors on which the court Other courts addressing a claim that race or national origin affected sentencing did not resort to a reasonable observer analysis. See, e.g., McCleskey v. Kemp, 481 U.S. 279, 292-93 (1987) (holding that McCleskey's evidence of general bias in capital sentencing was insufficient; "McCleskey must prove that the decisionmakers in his case acted with discriminatory purpose.") (emphasis removed); United States v. Borrero-Isaza, 887 F.2d 1349, 1355 (9th Cir. 1989) (concluding that the court sentenced the defendant because of his national origin, employing an actual reliance and not a reasonable observer analysis); Ervin v. State, 683 N.E.2d 641, 643 (Ind. Ct. App. 1997) (concluding that the defendant had failed to prove the trial court's words reflected racial prejudice and entitled him to a new sentence); State v. Houk, 906 P.2d 907, 909 (Utah Ct. App. 1995) (holding that the judge's comments did not prove defendant was sentenced more harshly because of his race). 14 The defendant also claimed that the circuit court improperly considered his refusal to confess his guilt. State v. Fuerst, 181 Wis. 2d 903, 908, 512 N.W.2d 243 (Ct. App. 1994). The court of appeals found that the circuit court considered the defendant's refusal to admit his guilt as an indication of his lack of remorse, and that this was permissible. Id. at 916. 18 No. was relying.15 Id. at 909. 2008AP810CR Thus, unlike the case at bar, the question in Fuerst was not whether the court actually relied on religion when imposing its sentence, but whether religious belief and church attendance constituted impermissible factors on which to base a sentence. ¶39 The court of appeals correctly stated that its review was for erroneous exercise of discretion, and that the defendant had the burden of showing that unjustifiable bases, considerations. Id. at 909-10. the i.e., sentence irrelevant was or imposed on improper Consistent with this, the court held that consideration of a defendant's religious beliefs and practices is only permissible if a "nexus exists between the defendant's criminal conduct beliefs and practices." ¶40 reasonable 15 and the defendant's religious Id. at 913. Nothing in Fuerst adopts, supports, or even hints at a observer test.16 The court of appeals in Fuerst During the sentencing hearing, the circuit court stated: [Mr. Fuerst, you] have very little religious conviction []. I say that because you don't go to church. . . . I guess I make the distinction between somebody who goes to church every Sunday and somebody who either doesn't go to church or believe in religion, and certainly those are mitigating factors. In denying postconviction relief, the court reaffirmed its belief that religion was an important and relevant sentencing factor. Id. at 909. 16 To be fair, the court of appeals stated that it found only "guidance" in Fuerst, and described the basic facts and holding of the case. See Harris, No. 2008AP810-CR, unpublished slip op., ¶17. The court of appeals did not explain how Fuerst supported its approach. 19 No. concluded render grounds that because religious upon our state and conviction which to and church enhance (or federal 2008AP810CR constitutions attendance lessen) a improper sentence, the circuit court erroneously exercised its discretion by relying on such factors. The court remanded the matter so a sentence could be imposed "based upon consideration of proper factors." Id. at 916 (emphasis added). ¶41 Neither the court of appeals nor Harris cite any Wisconsin case that purports to establish a reasonable observer test in reviewing sentencing decisions. not the law in Wisconsin. This is because that is To determine whether the circuit court imposed its sentence on the basis of race or gender, the established law in Wisconsin is that regardless of the nature of the improper factor, the defendant bears the burden of proving by clear and convincing evidence that the circuit court actually relied on that improper factor. ¶42 An additional reason we reject a reasonable observer test is that it contradicts established law on the burden of proof. Simply because a reasonable person or reasonable defendant might perceive that a circuit court actually relied on an improper factor does not make it so. Instead of requiring the defendant to prove actual reliance, the reasonable observer test requires only proof that a reasonable In his brief, Harris does not make supports the reasonable observer test. Fuerst only for the proposition that irrelevant or improper considerations is an erroneous exercise of discretion. 20 observer might any claim that Fuerst Harris correctly cites a sentence based on subject to reversal as No. perceive actual reliance. 2008AP810CR These are not the same thing. In effect, the reasonable observer test significantly lowers the burden of proof, and upends our strong public policy of leaving sentencing to the circuit court and reviewing sentencing decisions only for erroneous exercise of discretion. ¶43 Harris Finally, the reasonable observer test articulated by and the court unworkable in reasonable observer of appeals practice. test lacks First, is meant basic it is to apply clarity not to clear all and if is the improper factors, or only certain factors like race, and maybe gender. Additionally, it is unclear how widely shared this perception needs to be to pass this test. Must a sentence be thrown out if even one intelligent person listening to the sentencing hearing might think a judge relied on race? In short, this test lacks the clarity and workability necessary to be a sound rule of law. See Horst v. Deere & Co., 2009 WI 75, ¶71, 319 Wis. 2d 147, 769 N.W.2d 536 ("One of the basic requirements of a coherent legal test is that it offer a framework for analyzing claims that provides some measure of predictability."). ¶44 In short, the reasonable observer test articulated by the court of appeals and endorsed by Harris (1) is not supported by Wisconsin case law; (2) contradicts and guts established law by lowering the defendant's burden of proof; and (3) lacks basic clarity and workability. C. Application to Harris ¶45 As explained above, Harris has the burden to prove by clear and convincing evidence that the circuit court actually 21 No. relied on race or gender in imposing its 2008AP810CR sentence. Our obligation is to review the sentencing transcript as a whole, and to review potentially inappropriate comments in context. ¶46 Harris and the court of appeals point to the phrase "baby mama" and the references to "you guys" and "these women" by the circuit court based on race. as evidence that Harris's sentence was In order to substantiate his claim that the circuit court relied on gender, Harris points to the circuit court's criticism of his alleged child care arrangement with the child's mother. We address each of these in turn. 1. Racial Stereotyping ¶47 Harris alleges that the references to "you guys" and "these women" are very similar to the more clearly offensive "you people," and that in combination with the sarcastic use of "baby mama," these comments suggest that the circuit court relied on race. ¶48 The court initially used the phrases "you guys" and "these women" during a conversation with Harris regarding the child's mother. Upon finding out that the child's mother works, completed high school, and was attending college, the following exchange occurred: The Court: Where do you guys find these women, really, seriously. I'd say about every fourth man who comes in here unemployed, no education, is with a woman who is working full-time, going to school. Where do you find these women? Is there a club? The Defendant: The Court: No. You're sure? 22 No. The Defendant: [type]. The Court: ¶49 2008AP810CR I ain't find her at she not the club Oh, she's not the club type. During its explanation of the sentence and reproof of Harris, the circuit court similarly stated, "I swear there's a club where these women get together and congregate." ¶50 The circuit court used during the sentencing hearing.17 the term "baby mama" twice Both occurrences were during the circuit court's discussion of the proper factors and the explanation of its reasons for the sentence. ¶51 The first occurrence was during the court's discussion of the dangers of drugs internationally; this led the court to contrast individuals Harris's age who were in the armed forces and "putting their lives at stake," with Harris, who "sits at home, gets high while his baby mama works and goes to school." ¶52 The discussion of second occurrence Harris's listless was during efforts to the court's obtain employment during the seven months since his arrest. gainful The court admonished Harris for choosing the easy route of getting high rather than working hard and obtaining a job that would provide money and benefits for his daughter. It then stated, "I'm sure your wife already is providing that not your wife, your baby mama is already providing that." ¶53 "you In the context of the court's comments, the phrases guys" and "these women" 17 clearly have no racial The court also used the term "baby's mama" once earlier in the hearing. 23 No. connotations. The court stated exactly what 2008AP810CR it meant immediately following their usage by referring to the frequency with which the court sees unemployed and uneducated fathers come into court with mothers working full-time and going to school. The court was observing a common scenario, a reality the circuit court found maddening, and not without reason. ¶54 The parties phrase "baby mama." dispute the racial connotations of the Citing several popular sources, including urbandictionary.com and an article on the subject on salon.com, Harris maintains that the phrase evokes a racial stereotype. The State maintains that "baby mama" has been popularized in American culture connotations. and does not necessarily have racial The State also disputes the reliability of the sources cited by Harris, and notes that none of the definitions on urbandictionary.com and wikipedia.com define the term with reference to race. ¶55 At best, this term reflects popular slang, referring to a mother who is not married to and may or may not have a continuing relationship with the father of children. Even Harris acknowledges this phrase is sometimes used with reference to non-African Americans. that both parties agree the phrase, at a the child or It also appears minimum, can be offensive depending on the context of its use. ¶56 Looking at the hearing transcript as a whole, we do not believe that the circuit court's use of the phrase "baby mama" makes it highly probable or reasonably certain that the 24 No. circuit court actually relied on race when 2008AP810CR imposing its sentence. ¶57 court We would be more inclined to conclude that the circuit intended sentencing racial hearing so disparagement reflected. if They other do parts not. of the Beyond the references to "you guys" and "these women," which in our view do not have a racial component as used by the circuit court, Harris cites nothing else in the entire 32-page sentencing transcript that suggests his sentence was based on race. In fact, nothing in the transcript mentions Harris's race at all. ¶58 Additionally, both uses of the phrase "baby mama" accord with the general popular understanding of the mother of a child who is not married to and may or may not have a continuing relationship with the father. The court's first use of the phrase compared Harris's choices to those of men his age serving in the military overseas and to those of the mother of Harris's child. The second occurrence came in the context of Harris's lack of effort at securing gainful employment to support his daughter, even though jobs were available. The presentence investigation report in this case also indicates that Harris was not married to the mother of his child, and was in fact dating another woman. ¶59 The court clearly found that Harris was acting irresponsibly, and appears to have used this phrase to chide Harris for reasonable character, his nexus poor choices. These observations to relevant factors, including education, employment, 25 and need for bear a Harris's close No. rehabilitative control. 2008AP810CR The court's comments bear on relevant factors and do not, in context or as a whole, implicate race. ¶60 In sum, Harris has not met his burden of proving by clear and convincing evidence that the circuit court actually relied on race when it imposed its sentence. 2. Gender Stereotyping ¶61 its To support his claim that the circuit court imposed sentence on the basis of gender, Harris points to the court's criticism of the fact that Harris stayed at home while his child's mother worked. father stay at home is Harris maintains that having the a perfectly acceptable child-care arrangement, and the court's statements make clear that it used this fact as an aggravating factor. ¶62 If it were clear that Harris's decision to stay home was the result of a mutually agreed-upon child-care arrangement with the child's mother, and that Harris was doing this as a responsible father, Harris's argument would have some merit. But that is not what the record reveals. ¶63 The record reveals that Harris used the money from dealing drugs to support his daughter, and that following his arrest, he made no efforts to replace that revenue stream. There is also no evidence that Harris was his daughter's stayat-home primary caretaker. not being a responsible provide for his daughter, The court concluded that Harris was father, and was not making instead any efforts spending his to time smoking pot and hanging out with known gang members, even when not dealing drugs. The court gave Harris ample opportunity to 26 No. 2008AP810CR clarify and demonstrate responsible behavior, but the court did not find it. Harris's character, the court concluded, was "completely unimpressive." ¶64 Regarding reliance on gender, then, Harris has not met his burden of proving by clear and convincing evidence that the circuit court actually relied on gender as a factor in imposing its sentence. 3. The Circuit Court Did Not Erroneously Exercise Its Discretion ¶65 As explained above, Harris has not met his burden of showing that the circuit court actually relied on race, gender, or other improper factors during sentencing. Reviewing the sentencing transcript in context and as a whole, we conclude that the circuit court considered the proper factors; it evaluated the gravity of the offense, Harris's character, and the public's need for protection. The circuit court carefully explained why it imposed the sentence it did. We find nothing to suggest that the circuit court's sentence was an erroneous exercise of discretion. III. CONCLUSION ¶66 created afforded In by summary, the a Wisconsin's court we reject of presumption strong public circuit court's discretion. is therefore limited to the appeals. of reasonable observer test Sentencing decisions are reasonability policy against consistent interference with with a Our review of sentencing decisions determining erroneously exercised its discretion. if the circuit court Discretion is erroneously exercised when a sentencing court actually relies on clearly 27 No. irrelevant burden or of improper proving evidence. It is factors, and the 2008AP810CR defendant such reliance by clear and beyond dispute that race and bears the convincing gender are improper factors; they may not be relied upon at all in the imposition of a sentence. ¶67 After reviewing the sentencing transcript in context and as a whole, we conclude that Harris has not met his burden of proving by clear and convincing evidence that the circuit court actually relied on race or gender. The circuit court considered the proper factors it evaluated the gravity of the offense, Harris's protection. for the character, the public's need for The circuit court thoroughly explained its reasons sentence offensive and it imposed, comments flagged by and both all of Harris the and potentially the court of appeals bear a reasonable nexus to proper sentencing factors. Because Harris has not shown that the circuit court erroneously exercised its discretion, we reverse the decision of the court of appeals. By the Court.-The decision reversed. 28 of the court of appeals is No. ¶68 ANN WALSH BRADLEY, J. (concurring). 2008AP810-CR.awb This case squarely presents the question of how to identify and address the appearance of racial and gender stereotyping in the context of criminal sentencing. On the first page of its brief to this court, the State queried: "[The court of appeals concluded] that some of a sentencing judge's comments could be perceived as suggesting that the sentencing judge imposed the sentence at least in part because of race. Is that a basis for vacating the sentence?" ¶69 Since we accepted this case for review, this court has been faced with questions related to the appearance of bias in two other contexts, motions for recusal1 and amendments to the code of judicial ethics.2 Both of these questions have been difficult for the court. ¶70 We accepted Harris's petition for review to resolve how courts should address questions related to an appearance of bias. Yet, that issue does not appear in the majority opinion. 1 See e.g., State v. Allen, 2007AP795, (requesting recusal on grounds of "actual bias in favor of the prosecution . . . and the impermissible appearance of bias") (filed April 17, 2009), interim order published at 2010 WI 10, 322 Wis. 2d 372, 778 N.W.2d 863 (Feb. 11, 2010). 2 Nos. 08-16, 08-25, 09-10, 09-11, In the Matter of Amendment of the Code of Judicial Conduct's Rules on Recusal, order filed July 7, 2010 (available at http://wicourts.gov/supreme/sc_hearing_rules.jsp); see also Wisconsin Supreme Court, Open Administrative Hearing on Rules Petitions 08-16, 08-25, 09-10, and 09-11, relating to amendments to the Code of Judicial Conduct's rules on recusal and campaign contributions, October 28, 2009 (available at http://www.wiseye.org/wisEye_programming/wisEye_VideoArchive_09. html). 1 No. 2008AP810-CR.awb Aside from two footnotes dismissing this concurrence, the word "appearance" appears nowhere in the majority's discussion. ¶71 All seven members of this court agree that a defendant has a constitutional due process right not to be sentenced on the basis of race or gender. Majority op., ¶33. We all agree that stereotypes constitute improper sentencing factors, and if a circuit court considers them when imposing sentence, it has erroneously exercised its discretion. ¶72 Id. The question, then, is how a reviewing court should determine whether the circuit court considered racial or gender stereotypes when imposing sentence. The majority analogizes a sentence based on a stereotype to a sentence based on inaccurate information. Id., ¶32. It explains that a defendant "has the burden to prove that the circuit court actually relied on race or gender in imposing its sentence." ¶73 inapt The majority's and fails inaccurate ascertainable to recognize information, from analogy the to the which face Id., ¶33. of inaccurate whole will a information picture. often sentencing be is Unlike readily transcript, a sentencing decision based on a stereotype will be more difficult to identify. The problem is that it is impossible to determine what a judge was "actually" thinking. look into a sentencing judge's mind: 2 A reviewing court cannot No. 2008AP810-CR.awb Bias or prejudice is such an elusive condition of the mind that it is most difficult, if not impossible, to always recognize its existence, and it might exist in the mind of one . . . who was quite positive that he had no bias, and said that he was perfectly able to decide the question wholly uninfluenced by anything but the evidence. Crawford v. United States, 212 U.S. 183, 196 (1909). ¶74 The majority recognizes that proving that the sentencing court actually "relied on race and gender may in some instances be a bit of an amorphous task." Majority op., ¶34. Yet, it offers no solution. ¶75 The United States Supreme Court recently explained that "[t]he difficulties of inquiring into actual bias . . . simply underscore the need for objective rules." A.T. Massey Coal Co., Inc., 129 S. Ct. 2252, Caperton v. 2263 (2009). Appearance of bias is an "objective standard[] that do[es] not require proof of actual bias." Id. By focusing on actual bias and ignoring the apparent, the majority is looking at only half of the equation. ¶76 The appearance of bias in sentencing is an issue at the essence of this case. Below is the analysis of the issue that should have appeared in a majority opinion. I ¶77 I begin by examining the court of appeals decision. It provides the touchstone for our review. ¶78 In a split decision, the court of appeals concluded that "the trial court properly considered all appropriate [and] relevant factors." State v. Harris, No. 2008AP810-CR, unpublished slip op., ¶1 (Wis. Ct. App. Jan. 21, 2010). 3 The No. 2008AP810-CR.awb court of appeals determined that the circuit court "nonetheless erroneously exercised its discretion when it made comments at sentencing that suggested to a reasonable person in the position of the defendant or a reasonable observer that it was improperly considering the defendant's race in imposing sentence." Id., ¶6. ¶79 court The court of appeals did not conclude that the circuit "intended these intentionally engaged Nevertheless, it comments in was to racial concerned be offensive, or stereotyping." that the that it Id., comments ¶13. could have created "the reasonable perception . . . that the sentence was being imposed at least in part because of race." ¶80 Acknowledging important," it that determined "the that Id. appearance "resentencing of justice is was required to satisfy the appearance of justice" even though "it could not be determined that the trial court actually improperly relied on race as a sentencing factor." appeals concluded address whether traditional ¶81 the roles resentencing." that race circuit of men Id., ¶18. was dispositive, court's and Because the court of comments women it declined concerning would also to "the justify Id., ¶10 n.4. The State contends that the court of appeals erred by vacating Harris's sentence based on how the sentencing court's comments could be perceived. Further, it contends that the comments made by the circuit court at sentencing, when read in context, did not demonstrate discretion. 4 an erroneous exercise of No. ¶82 2008AP810-CR.awb In contrast, Harris argues that the court of appeals correctly applied established that the a law. He circuit asserts court that erroneously it is exercises well its discretion when it imposes a sentence based on irrelevant or improper considerations such as gender and racial stereotypes. Harris asserts that the language chosen by the court would lead a reasonable person to conclude that the court was impermissibly stereotyping Harris and the mother of his child. II ¶83 To determine whether the court of appeals correctly concluded that the sentencing court erroneously exercised its discretion, it is instructive to examine Wisconsin cases as well as cases from impermissible other jurisdictions. sentencing considerations I that first discuss constitute an erroneous exercise of discretion, including racial and gender stereotypes. Then, I apply these principles of law to the consistent and sentencing transcript at hand. ¶84 Although appellate courts follow a strong policy against interference with the discretion of the circuit court in passing sentence, the circuit court's exercise of discretion is not unfettered. State v. Schreiber, 2002 WI App 75, ¶9, 251 Wis. 2d 690, 642 N.W.2d 621. When the court imposes its sentence based on irrelevant or improper factors, the circuit court has erroneously exercised its discretion. Id.; State v. Gallion, 2004 WI 42, ¶17, 270 Wis. 2d 535, 678 N.W.2d 197. In such a case, the defendant "has the burden of 5 No. 2008AP810-CR.awb showing that the sentence was based on clearly irrelevant or improper factors." ¶85 A Id., ¶72. sentencing court's explicit reliance on an irrelevant or improper factor constitutes an erroneous exercise of discretion. For example, in State v. Fuerst, 181 Wis. 2d 903, 512 N.W.2d 243 (Ct. App. 1994), the circuit court cited Fuerst's lack of regular church attendance as a factor leading to its conclusion that probation was inappropriate. at 909, 914. circuit Responding to Fuerst's postconviction motion, the court reaffirmed its belief important consideration at sentencing. ¶86 circuit Id. that religion is an Id. at 915 On review, the court of appeals determined that the court's "weighing for sentencing purposes Fuerst's belief[] system and history of not attending church" constituted an erroneous exercise of discretion. Id. at 908. It concluded that because there was no identifiable nexus between his lack of religious conviction and his crime, the circuit court's consideration of religion violated Fuerst's right to religious freedom under the federal and state constitutions. ¶87 Id. at 912. Likewise, a court's sentence which explicitly relied upon racial or gender stereotypes would be impermissible. "A defendant's race or nationality may play no adverse role in the administration of justice, including at sentencing." States v. Leung, 40 F.3d 577, 586 (2d Cir. 1994).3 3 United Similarly, See also Martinez v. State, 961 P.2d 143, 145 (Nev. 1998) ("A trial judge may not . . . consider a defendant's nationality or ethnicity in its sentence determination."). 6 No. gender should play justice. adverse role in the administration of See, e.g., J.E.B. v. Alabama, 511 U.S. 127 (1994). ¶88 violated no 2008AP810-CR.awb Under even certain when improper factor. a circumstances, court does not due process explicitly may rely be on an This is because it is an impossible task for a reviewing court to see into a judge's mind: Bias or prejudice is such an elusive condition of the mind that it is most difficult, if not impossible, to always recognize its existence, and it might exist in the mind of one . . . who was quite positive that he had no bias, and said that he was perfectly able to decide the question wholly uninfluenced by anything but the evidence. Crawford, 212 U.S. at 196. Therefore, courts have determined that when apparent bias reveals a great risk of actual bias, due process is violated. ¶89 In State v. Gudgeon, the court of appeals grappled with the proper application of an appearance of bias standard. 2006 WI App 143, ¶¶24-26, 295 Wis. 2d 189, 720 N.W.2d 114. The court stated: "Initially, we had a difficult time discerning from [numerous state and federal cases] whether actual bias was necessary violation. or merely 295 sufficient" Wis. 2d 189, that . . . apparent bias did to ¶22. not establish "Several suffice to a due cases process indicated establish a due process violation. . . . Other precedents stated the contrary." Id. Even though the law appeared to be contradictory "on its face," the court ultimately concluded that "this divergent case law can be harmonized." ¶90 Id., ¶¶22-23. The court concluded that the appearance of bias was sufficient to establish a due process violation "only where the 7 No. 2008AP810-CR.awb apparent bias revealed a great risk of actual bias." It determined constitutional that due "the process appearance principles of Id., ¶23. bias whenever a offends reasonable person taking into consideration human psychological tendencies and weaknesses concludes that the average judge could not be trusted to 'hold the balance nice, clear and true' under all the circumstances." ¶91 Id., ¶24 Gudgeon's conclusion is consistent with jurisprudence of the United States Supreme Court. the The In re Murchison Court explained that due process "requires an absence of actual (1955). be bias in the trial of cases." 349 U.S. 133, 136 Furthermore, "even the probability" of actual bias must avoided justice." ¶92 because "justice must satisfy the appearance of Id. Similarly, in Aetna Life Insurance Co. v. Lavoie, 475 U.S. 813, 825 (1986), the Court made clear that it was "not required to decide whether in fact" there was actual bias to find a due process violation. The Withrow v. Larkin Court explained that the guarantee of due process is violated when, "under a realistic appraisal of psychological tendencies and human weakness," there exists "such a risk of actual bias or prejudgment." ¶93 421 U.S. 35, 47 (1975). Although courts have stated the standard in various ways throughout the years, I use the formulation discussed in Gudgeon, 295 Wis. 2d 189, ¶23, and State v. Goodson, 2009 WI App 108, ¶14, 320 Wis. 2d 166, 771 8 N.W.2d 385. Due process is No. 2008AP810-CR.awb violated when there exists actual bias or a great risk of actual bias. ¶94 Wisconsin appearance of courts actual have bias in previously the addressed the context. In sentencing Goodson, the court of appeals determined that the sentencing judge's earlier promise to sentence the defendant to the maximum penalty created the appearance of bias, requiring resentencing. Id., ¶13. Although the State argued that the circuit court properly based its decision on applicable sentencing factors, id., ¶15, the court of appeals concluded that there was a great risk that the sentence was based on an improper factor a promise. ¶95 Although Goodson addresses the appearance of actual bias in another sentencing context, Wisconsin courts have never specifically addressed the appearance of a sentence based on racial or gender stereotypes. Therefore, I seek guidance in the jurisprudence of other jurisdictions. ¶96 The Second Circuit reviewed a sentence of a woman of Chinese descent. district court's There, the sentencing court cited deterrence of "others in the Asiatic community" as an objective for the sentence imposed. Leung, 40 F.3d at 585. Among other comments, the sentencing court elaborated: "We have enough home-grown importing them." ¶97 On criminals in the United States without Id. review, the appellate court stated that it was "confident that the able and experienced trial judge in fact harbored no bias against [the defendant] because of her ethnic 9 No. 2008AP810-CR.awb origin, her alien status, or any other categorical factor." at 586. Id. Nevertheless, the court concluded that "there is a sufficient risk that a reasonable observer, hearing or reading the quoted remarks, ethnicity and sentence." appearance alien might infer . . . that status played Id. at 586-87. of justice," remanded for resentencing. ¶98 case in a role [the in defendant's] determining her Because "justice must satisfy the the court vacated the sentence and Id. Similarly, the Supreme Court of Maryland examined a which the sentencing court's fairness of the sentence into question." A.2d 273, 281 (Md. 2001). comments "call[ed] the Jackson v. State, 772 The judge appeared to operate under the belief that the African-American defendant came from "the city" and lived like he was "from a ghetto." The court stated: Now, unfortunately, a number of communities in the lovely city of Columbia have attracted a large number of rotten apples. Unfortunately, most of them came from the city. And they live and act like they're living in a ghetto somewhere. And they weren't invited out here to behave like animals. . . . [G]oing out of the way to go to somebody else's house and confront people with sawed-off shotguns is what they do in the city. That's why people moved out here. To get away from people like [the defendant]. Not to associate with them and have them follow them out here and act like this was a jungle of some kind. So. It's not. And our only chance to preserve it is to protect it. Id. at 275-76. ¶99 On appeal, the Maryland Court of Appeals could not "determine whether the sentencing judge was motivated by illwill or prejudice based upon his belief that [the defendant] was 'from the city' or because he was an African-American, or both, 10 No. or neither." Id. at 281. 2008AP810-CR.awb "At best," the court stated, the comments "give the appearance of bias towards persons who are raised in an urban environment." Id. at 282. comments prejudice demonstrate[d] process towards actual residents of cities or, "[A]t worst, the in the even sentencing still towards persons based upon their racial background." court determined that because "our system of law worse, Id. has The always endeavored to prevent even the probability of unfairness," due process had been resentencing. violated. legal at 281. It remanded for Id. at 282. ¶100 Although distinguished Id. the from principles facts the facts hold of the presented true. Comments above cases here, the related can be underlying to race (or gender) made at sentencing may "exceed[] the outer limit of a judge's broad discretion in sentencing and therefore amount[] to the application of impermissible sentencing criteria." Id. A sentencing court has erroneously exercised its discretion when the defendant demonstrates that the court actually relied, or there is a great risk that the court actually relied, on an improper factor, racial or gender stereotypes, when imposing sentence. ¶101 This does not mean that a sentencing record must be devoid of any reference to race or gender. however, cannot be based on stereotypes. Such reference, It must be individualized to the defendant and his criminal conduct, and it must bear a reasonable factors and objectives. nexus to the recognized sentencing If the reference is not individualized 11 No. 2008AP810-CR.awb or there is no nexus, then the reference to race or gender is irrelevant and the court may not adversely rely upon it when imposing sentence. court imposes factors, the discretion. See Fuerst, 181 Wis. 2d at 913. its sentence circuit based court on has irrelevant erroneously When the or improper exercised its transcript to Gallion, 270 Wis. 2d 535, ¶17. III ¶102 I now examine Harris's sentencing determine whether the court erroneously exercised its discretion by adversely considering or appearing to consider improper or irrelevant factors when imposing sentence. the court's conveyed comments and sexism and both impermissibly considered rhetorical racism. gender Harris asserts that questions at argues that He because it sentencing the treated court as an aggravating factor the "division of labor" between Harris and the mother of his child. Further, he highlights the court's sarcastic portrays use of what he as "code words" evincing racism: "baby mama," "you guys," and "these women." ¶103 The sentencing transcript does not establish that the court impermissibly considered gender by relying on an untraditional division of labor as an aggravating factor when imposing sentence. The record does not reflect that Harris and the mother of his child had any agreement regarding a division of labor. Although the court inquired about whether "watch[ing] the child" was Harris's primary responsibility, it was in the context of ascertaining information about his employment history and efforts toward supporting his family: 12 No. 2008AP810-CR.awb The court: So the mother works and you sit at home, right? The defendant: Yeah. The court: And watch the child? The defendant: I got all types of things goin'. personal family. ¶104 Upon arrest and again at sentencing, My Harris stated that the reason he sold drugs was to support his daughter. He told the court that he did not plan to "make a career" out of drug trafficking. Harris had formerly made made by Nevertheless, any effort selling to there was no replace the The record drugs. evidence income that that reflected he that Harris had not made any attempt to look for a job in the seven months since he had been arrested. Further, he had abandoned his attempt to get a GED, which could have improved his chances of securing legitimate employment. ¶105 At defendant's sentencing, character and the court is rehabilitative required needs to into take a account. Here, the record reflects that the court searched for evidence that Harris was seeking a legitimate way to support himself and his child, but it found none: [W]e have seven months here where this young man had the opportunity to go and get his GED, stop smoking marijuana and start working. We had seven months. He had seven months and he's done none of those things. Harris acknowledged that he had financial "responsibilities" to support his daughter, but he had taken no initiative to fulfill them. ¶106 The court concluded that "[h]e's in the business" of dealing drugs and that "[h]e's shown no inclination to make any 13 No. changes." 2008AP810-CR.awb It stated that drug dealing is "a very dangerous profession" and "if Mr. Harris is killed, his daughter never has a daddy." Based on this record, I cannot conclude that Harris has demonstrated that the court actually sentenced him, or there is a great risk that the court actually sentenced him, based on a bias that is, stereotypes about the traditional roles of men and women. Further, the court's comments bear a reasonable nexus to recognized sentencing factors and objectives. ¶107 I turn next to Harris's contention that the circuit court's use of language evinces racial bias. Harris takes issue with the following statement, coupled with the court's use of the term "baby mama": Where do you guys find these women, really, seriously. I'd say about every fourth man who comes in here unemployed, no education, is with a woman who is working full-time, going to school. Where do you find these women? Is there a club?4 This comment evinces the circuit court's frustration about the number of defendants it sees, like Harris, who have abandoned their responsibilities to their families. ¶108 In defendants isolation, could create a comment the equating perception Harris that and Harris other was not sentenced based on his own individual characteristics, but based on the court's frustration with criminal defendants generally. In context, however, it is apparent that the circuit court was focusing not on criminal defendants or drug dealers generally, but on Harris's individual characteristics. 4 The court later added: "I swear there's a club where these women get together and congregate." 14 No. 2008AP810-CR.awb ¶109 The court compared the hard-working character of the mother of Harris's child with the character of Harris himself. Harris's child's education, and mother was providing gainfully health employed, pursuing an for child. By care the contrast, the court had just determined that despite Harris's admitted support "responsibilities," Harris had taken no initiative towards fulfilling them in the seven months since his arrest. ¶110 The relied upon record by the reflects that court that the facts Harris had and inferences abdicated his responsibilities to his daughter and made no attempt to "make any changes" were reasonably derived from the record. Understood in context, there is a reasonable nexus between the court's comments and Harris's character and rehabilitative needs. ¶111 Harris also contends that the term "baby mama" was "racially offensive." The parties dispute whether the term "baby mama" has a racial connotation, but both agree that the term has recently emerged in popular culture. As the Seventh Circuit has explained, "[t]he use of slang in discharging the awesome duty of sentencing is regrettable." United States v. Schneider, 910 F.2d 1569, 1571 (7th Cir. 1990). In addition to diminishing the proper decorum of the courtroom, see id., the use of slang should be guarded against because it may be subject to unintended interpretations. ¶112 I conclude that there has been no showing of actual bias or the great risk of actual bias. 15 Generally, "baby mama" No. 2008AP810-CR.awb is a slang term referring to the unmarried mother of a man's child, and the court was considering Harris's relationship with a woman who fit that definition.5 conclude that demonstrate appeared to Harris that the consider has failed sentencing an Thus, based on the above, I to court improper meet his actually factor, burden considered racial to or stereotypes, when imposing the sentence. ¶113 Additionally, the cases discussed above that vacated a sentence because of the appearance of bias can be distinguished from the facts presented here. In Jackson, there was no nexus between the recognized sentencing factors and "rotten apples" who "came from the city" and "live and act like they're living in a ghetto" or a "jungle of some kind." there was no nexus between the Similarly, in Leung, defendant's individual characteristics and conduct and the sentencing judge's desire to "send a message to the Asiatic community." By contrast, when the court's comments in this case are read in context, there is a nexus between the comments and Harris's criminal conduct, character, and rehabilitative needs. ¶114 Harris was convicted of a Class E felony offense with a maximum imprisonment term of 15 years and a maximum initial confinement term of 10 years. Here, the court gave reasons for rejecting probation and the FDOAP program. the gravity of the offense and 5 the needs It determined that of the defendant The PSI reveals that Harris formerly dated the mother of his daughter for two years. At the time of sentencing, Harris was dating another woman. 16 No. 2008AP810-CR.awb required a period of initial confinement and imposed a two-year period of initial confinement. ¶115 Based on a review of the transcript of Harris's sentencing, I determine that Harris has not met his burden to demonstrate that the circuit court erroneously exercised its discretion by actually considering or appearing to consider an improper factor, race or gender stereotypes, when imposing the sentence. The sentencing transcript reflects that the sentence was individualized to Harris and his criminal conduct, and there was a reasonable nexus between the court's recognized sentencing factors and objectives. comments and the Accordingly, I respectfully concur. ¶116 I am authorized to state that Chief Justice SHIRLEY S. ABRAHAMSON and Justice N. PATRICK CROOKS join this concurrence. 17 No. 1 2008AP810-CR.awb
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