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COURT OF APPEALS
DECISION
DATED AND RELEASED
February 4, 1997
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NOTICE
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A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals. See § 808.10 and
Rule 809.62(1), Stats.
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This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports.
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No. 96-1712-CR
STATE
OF WISCONSIN IN
COURT OF APPEALS
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
DAVID W. SUCHOCKI,
Defendant-Appellant.
APPEAL from a judgment
and an order of the circuit court for Kewaunee County: DENNIS J. MLEZIVA, Judge. Affirmed.
Before Cane, P.J.,
LaRocque and Myse, JJ.
MYSE, J. David W. Suchocki appeals his sentence
for one count of possession with intent to deliver marijuana and two counts of
simple possession of marijuana and an order denying his motion to strike a
presentence report prepared by an agent of the Division of Corrections who was
married to the prosecuting attorney.
Suchocki contends that the marital relationship between the agent who
prepared the presentence investigation report (PSI) and the prosecuting
attorney renders the report invalid and requires a resentencing with a
presentence report prepared by an independent and neutral agent. Suchocki also contends that the presentence
report writer was actually prejudiced against him because of Suchocki's sexual
preference and a new presentence report and resentencing are required on that
ground as well.
Although the marital
relationship is sufficient to demonstrate bias and it is improper for a biased
writer to prepare a PSI, we conclude Suchocki was not prejudiced because the
sentencing process was not improperly influenced by the presentence
investigation report. In addition, the
evidence was insufficient to conclude that the PSI writer was biased against
Suchocki because of Suchocki's sexual preference. Accordingly, we affirm the sentence and the order denying the
motion for a new presentence investigation.
This case arises from a
series of drug-related charges filed against Suchocki in Kewaunee and Oconto
Counties. The charges were consolidated
into one count of possession with intent to deliver and two counts of simple
possession of marijuana to which Suchocki pled no contest.
A presentence
investigation report was prepared by Rebecca Neveau, an agent of the Division
of Corrections. Neveau is married to
the Kewaunee County District Attorney, Jackson Main, who was the prosecutor in
this case. Upon learning of the
relationship between the presentence writer and the prosecutor, Suchocki filed
a motion to strike the presentence investigation report and to order a new PSI
prepared by a different agent. Suchocki
claimed that the marital relationship between Neveau and Main created a
conflict of interest that compromised the PSI because of the lack of
objectivity in the author. In addition,
the motion alleged that Neveau was biased against him because he is homosexual
and that her bias influenced the PSI and, as a result, the sentencing
process.
The trial court heard
and denied the motion, but allowed the defense to file its own sentencing
recommendations. The defense retained
Clark Clermont, a social worker, to prepare an alternative PSI. The trial court considered both the Neveau
PSI and the Clermont PSI at sentencing.
Neveau's PSI recommended
three years' probation with six months' confinement in jail as a condition of
probation and an additional two months consecutive in jail for the simple
possession convictions. The alternative
PSI prepared by Clermont recommended probation for three years with thirty
days' confinement as a condition of probation and a recommendation for further
occupational training.
The court ordered three
years of probation with six months in jail as a condition of probation, but
stayed ninety days of jail time and allowed community service in lieu of an
additional sixty days of jail time. The
result was a probationary sentence with thirty days to be served in jail with
Huber law privileges.
Suchocki claims that the
relationship between the PSI writer and the prosecutor compromised the
objectivity of the PSI and tainted the sentencing process. This issue raises a question of law, which
we determine without deference to the trial court. See Bantz v. Montgomery Estates, Inc., 163 Wis.2d
973, 978, 473 N.W.2d 506, 508 (Ct. App. 1991).
Whether Neveau was actually prejudiced against Suchocki because of his
sexual preference raises a mixed question of fact and law. In reviewing mixed questions, the trial
court's factual determinations relevant to the issue are reviewed under a
clearly erroneous standard. We accept
all factual determinations made unless no reasonable finder of fact could have
reached the conclusions reached by the trial court. State v. Smith, 170 Wis.2d 701, 714, 490 N.W.2d 40,
46 (Ct. App. 1992). Propositions of law
applied to the factual determinations made by the court, however, are applied
without deference to the trial court's determination. Id.
The use of a PSI is a
matter within the court's discretion.
The court has discretion to order a PSI and to determine the extent to
which it will rely upon the information in the PSI. State v. Skaff, 152 Wis.2d 48, 52 n.3, 447 N.W.2d
84, 86 n.3 (Ct. App. 1989). The
determination of relevant facts and the weight given to those facts in the
sentencing process are matters uniquely within the discretion of the trial
court. State v. Evers,
139 Wis.2d 424, 452, 407 N.W.2d 256, 268 (1987). In the event the defendant wishes to contest any of the factual
matters set forth in a PSI, the defendant is entitled to an evidentiary hearing
where evidence regarding the issue in controversy may be presented by the State
or the defendant. State v. Perez,
170 Wis.2d 130, 140-41, 487 N.W.2d 630, 634 (Ct. App. 1992). In the absence of any claimed factual error,
the information presented by a PSI may be considered by the court in its
sentencing determination. State
v. Peters, 192 Wis.2d 674, 696, 534 N.W.2d 867, 876 (Ct. App. 1995).
We first address
Suchocki's assertion that Neveau was actually biased against him as a result of
his confessed homosexuality. In support
of his claim, Suchocki cites a decision and order in Neveau's divorce proceeding
where she asked for a change in her child's placement because of her concern
over the child's safety based on her former husband's homosexuality. The decision refers to Neveau's anxiety for
her child due to her former husband's sexuality and her concern that he would
influence their son into a homosexual lifestyle. Relying on these expressed concerns, Suchocki contends that
Neveau was biased against homosexuals and that his avowed homosexuality created
actual prejudice in Neveau's mind which was reflected in the PSI.
Suchocki claims that his
due process right to a fair sentencing hearing was violated. Accordingly, he must demonstrate both bias
in the PSI writer and that the sentencing process was prejudiced by such bias. See State v. Coulthard,
171 Wis.2d 573, 591, 492 N.W.2d 329, 337 (Ct. App. 1992); see also State
v. Littrup, 164 Wis.2d 120, 127, 473 N.W.2d 164, 168 (Ct. App.
1991). Suchocki has failed to show bias
in the PSI writer or that the alleged bias influenced the sentencing process.
The trial court
concluded that there was no evidence of any actual bias by Neveau toward
Suchocki because of his sexual preference.
Neveau expressly denied any bias towards homosexuals. The court noted that Suchocki did not
contest the accuracy of the objective information contained in the report. Also, the court found the subjective
portions of the report reasonable, consistent with Suchocki's background and
the nature of the offenses for which he was convicted, and uninfluenced by his
sexual preference. The evidence of
record is sufficient to support the trial court's findings. The court may consider the reasonableness
and accuracy of the PSI in question in determining whether the writer was
biased. See Littrup, 164
Wis.2d at 132-34, 473 N.W.2d at 168-69; see also Coulthard,
171 Wis.2d at 591, 492 N.W.2d 329 at 337.
Even if we were to
conclude the PSI writer was biased against Suchocki based upon his
homosexuality, the sentencing process was not influenced by that bias. The trial court found Suchocki's sexual
preference to be irrelevant to the sentencing process and specifically
declared:
I
certainly find that any reference to Mr. Suchocki's sexual orientation has
nothing to do with these proceedings.
That is not part of this and need not be considered, and I am not
considering that.
Further,
the court's sentence was much closer to the thirty days of confinement
recommended in the PSI submitted by the defense than to the eight-month
recommendation of Neveau. This fact
belies any argument that the PSI writer's bias toward Suchocki's sexual
orientation influenced the sentencing process.
Suchocki failed to
demonstrate bias in the PSI writer and that the sentencing process was
inappropriately influenced by Neveau's PSI.
Further, the court specifically rejected any consideration of Suchocki's
sexual preference in sentencing.
Accordingly, we conclude that Suchocki has failed to demonstrate a
violation of his due process right to a fair sentencing process because of his
homosexuality. This assertion of error
is therefore without merit.
We next address
Suchocki's contention that the marital relationship between the PSI writer and
the prosecuting attorney alone is sufficient to strike the PSI. Once again, Suchocki must show actual bias
in the PSI writer and that the sentencing process was influenced by that
bias. See Littrup,
164 Wis.2d at 132, 473 N.W.2d at 168.
The State argues that Suchocki has failed to demonstrate actual bias
from this relationship.
Our supreme court has
acknowledged the importance of the PSI to the sentencing process. See State v. McQuay,
154 Wis.2d 116, 130-31, 452 N.W.2d 377, 383 (1990). The integrity of the sentencing process demands that the report
be accurate, reliable and above all, objective. See Perez,
170 Wis.2d at 140-41, 487 N.W.2d at 633-34.
The Division of Corrections does not function as an agent of either the
State or the defense in fulfilling its role as an agent of the trial court in
gathering information relating to a specific defendant. Id. at 140-41, 487 N.W.2d at
634. Because of the requirement that
the report be objective, it is of vital importance that the author of the
report be neutral and independent from either the prosecution or the
defense. McQuay, 154
Wis.2d at 130-31, 452 N.W.2d at 383; Perez, 170 Wis.2d at 140,
487 N.W.2d at 634.
The purpose of a PSI is
to do more than simply compile the factual background regarding a specific
defendant. The report contains a
variety of areas where the PSI writer is able to make discretionary
determinations. For example, the report
has a section involving the "agent's impressions." This portion of the PSI involves the
writer's subjective feelings regarding the defendant to be sentenced. Many PSIs contain a writer's specific
sentencing recommendations to the court as well.
The State argues that
the relationship between the PSI writer and the prosecuting attorney is
irrelevant and provides no basis upon which the PSI should be struck. In support of its position, the State notes
that the author is entitled to consult with both the prosecution and the
defense in the preparation of the report and that such consultation necessarily
involves contact with counsel from both sides.
The State therefore concludes that because the PSI author could consult
with the prosecuting attorney, the marital relationship is irrelevant. We are not persuaded.
It is not the mere
existence of contact between the prosecuting attorney and the PSI writer that
is at issue. It is whether the PSI
writer may be subconsciously influenced by this relationship in forming impressions
regarding the defendant and in making recommendations to the court. The defense does not suggest, nor does the
evidence demonstrate, that Neveau was in fact influenced by the marital
relationship in her impressions and recommendations portion of the report
submitted to the court. Nonetheless,
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.
The State also suggests
that Suchocki must prove that the bias of the PSI author actually influenced
the PSI before the trial court can strike the PSI. The State relies on Littrup and Coulthard
as authority requiring Suchocki to show actual prejudice in the PSI. We do not agree.
Requiring any defendant
to demonstrate that the marital relationship actually influenced the writer's
impressions and recommendations would present an insurmountable hurdle to any
defendant attempting to challenge a PSI.
The reasons for an agent's impression may operate at a subjective level
of which the report's author is unaware.
The information, attitude and impressions received from an author's
spouse may influence the author's impressions at either a conscious or
subconscious level. Because the
author's impressions could be subconsciously influenced, the writer may not
even be aware of the relationship's influence.
It would be difficult, if not impossible, for a defendant to challenge a
PSI when the writer is not even conscious of the influence the marital
relationship had on the preparation of the PSI. Further, the marital relationship draws the PSI's objectivity
into question and, at the least, raises serious questions as to the fairness of
the sentencing process to the defendant.
Because forcing a
defendant to demonstrate actual bias in the writer from a relationship between
the prosecutor and the presentence writer would be imposing an impossible
burden on the defendant, we conclude that bias in the writer will be implied as
a matter of law by the existence of the marital relationship. We, therefore, conclude that the marital
relationship is sufficient in itself to draw into question the objectivity of
the PSI without a demonstration of actual bias by the report's author. As a result the trial court erred in not
striking the PSI.
Once a defendant has
established bias in the writer, the defendant need not show that the PSI was
influenced by that bias. As stated
above, the writer's impressions may be formulated at both a conscious and
subconscious level. A biased writer
could unknowingly shape a PSI in even subtle ways that affect the defendant's
right to a fair sentencing process.
Therefore, establishing bias in the writer also establishes bias in the
PSI as a matter of law.
Suchocki, however, still
must show that this report prejudiced the sentencing process. Due process entitles the defendant to a fair
sentencing process. Skaff,
152 Wis.2d at 55, 447 N.W.2d at 87. The
process is not fair if the sentencing court relied upon a PSI from a biased
writer. We conclude, however, that
Suchocki's sentencing process was not unfairly influenced by the presentence
report. Suchocki, therefore, was not
prejudiced by the trial court's refusal to strike the presentence report. We reach this conclusion for several
reasons.
First, the ultimate
sentence imposed by the court closely paralleled the recommendations of the
alternate PSI submitted by the defense.
While this recommendation consisted of probation with thirty days'
confinement as a condition of probation and the trial court imposed six months'
confinement in the county jail as a condition of probation, we note that all
but one month of that condition was either stayed by the trial court or allowed
to be substituted with community service.
The court even acknowledged that it had "given equal or greater
weight" to the defense prepared PSI.
Consequently, the net effect of the sentence imposed closely tracked the
recommendation made in the defense offered PSI.
In addition, the court
expressly relied on Suchocki's uncontroverted conduct rather than on
recommendations contained in the PSI reports in imposing sentence. Therefore, the court's reasons for imposing
the sentence suggest that Neveau's recommendation and impressions did not
affect the sentence.
An even more compelling
reason for concluding that the sentencing process was not prejudiced by virtue
of the court's refusal to strike this PSI was the court's clear commitment to a
sentencing process sufficiently removed from any influence by the tainted
PSI. We note that the trial court
delayed the sentencing hearings for a sufficient period of time to permit the
defense to prepare its own PSI. The
court was fully aware of the relationship that might have influenced the
preparation of the PSI submitted by the Division of Corrections and proceeded
to treat the two PSIs received as submissions from each of the parties. Because the court was aware of the potential
lack of objectivity in the PSI, Suchocki was allowed to submit his own PSI, and
the court focused on Suchocki's conduct in sentencing, we conclude the
sentencing process was not prejudiced by the court's failure to strike the
tainted PSI.
By the Court.—Judgment
and order affirmed.
