COURT OF APPEALS DECISION DATED AND RELEASED JUNE 11, 1996 |
NOTICE |
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. |
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports. |
No. 95-3467-CR
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT III
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
RANDY O. BOHARDT,
Defendant-Appellant.
APPEAL from a judgment
and an order of the circuit court for Shawano County: THOMAS G. GROVER, Judge. Affirmed.
Before Cane, P.J.,
LaRocque and Myse, JJ.
PER CURIAM. Randy Bohardt appeals a judgment convicting
him of one count of felon in possession of a firearm and one count of felony
bail jumping and an order denying postconviction relief. Bohardt challenges the trial court's
exercise of sentencing discretion, arguing that (1) the trial court relied on
inaccurate facts to conclude that Bohardt had disrespect for the court and
thought he was above the law, and (2) the trial court punished Bohardt for his
political views, attitudes and associations.
Because the record fails to support Bohardt's claims of error, we
affirm.
After a jury found
Bohardt guilty of one count of felon in possession of a firearm, contrary to §
941.29(2), Stats., and one count
felony bail jumping, contrary to § 946.49(1)(b), Stats., Bohardt was sentenced to two years on each count, to
be served consecutively. His previous
record includes: (1) felony uttering a forged writing; (2) felony child
enticement; (3) misdemeanor fourth-degree sexual assault; (4) misdemeanor
retail theft; (5) second-degree sexual assault; (6) another separate conviction
for second-degree sexual assault; and (7) two misdemeanors of obstructing an
officer as an habitual criminal and a hit and run with injuries. At the time he committed the offenses that
give rise to this appeal, he was out on bond after a jury had found him guilty
of second-degree sexual assault of a child with threat of use of force and
child enticement, both felonies.
Bohardt filed numerous
motions before sentencing: (1) objecting to the court's jurisdiction as
"not a Common Law Court of Pleas;" (2) for a writ of prohibition,
claiming he was denied due process and equal protection because he "is
alleged to be a member of a class which is alleged as felon," and "a
member of a class which is known as the Posse Comitatus." Bohardt also "accused the Respondents
[the circuit court judge, among others] of being felons;" (3) a petition for habeas corpus pursuant to
the Northwest Treaty Ordinance 1787, alleging "judicial misconduct"
and "malfeasance in office" by Judge Grover, who knows he and the
district attorney are "criminals and continue to be criminals;" (4)
writ of error coram nobis alleging fraud and misconduct by the court; and
(5) numerous other documents and correspondence that do not appear to have
any bearing on Bohardt's prosecution, but refer to the claimed corrupt and
defective justice system in Shawano County.
At sentencing, Bohardt
asked the trial court for a ruling on his motions. The trial court asked Bohardt numerous times if he would explain
his motions to the court. Bohardt
eventually explained that the court's failure to have a forfeiture hearing on
the bond and possession of the gun renders it void as evidence. He also stated that the court was without
jurisdiction for failure to take an oath of office. The court found no ground for relief, characterized the motions
as incomprehensible and proceeded to sentencing. The court's sentencing comments included the following:
And I don't mean to over [dramatize] this, but when we see what happens
down in Oklahoma, I got to start thinking about people who are confronting the
government like you do.
And these motions that you filed really have no merit [and] leads me to
believe that you have just finally said "the heck with the system"
....
... I don't think there is any hope for
rehabilitation. I think that is what
you're telling me, "Screw you, Judge.
I am going to sue you. I am
going to sue the clerk. I am going to
play this game." ... And it makes it clear to me that there isn't
much hope of rehabilitation. Plus, you
got that prior record. Every time
somebody commits another crime it leads me to believe anyway that they are not
getting the message and they are not changed.
The court observed that
the crimes for which Bohardt was being sentenced were not so violent in
themselves as to warrant a maximum sentence.
However, the court observed: "But when you start looking at a
person's record and you start looking at their attitude, it starts getting a
little scary because you start wondering, is this person going to get the
message, any hope they are going to stop breaking the law?"
The court also
stated: "And you may not like the
system but without the system then it is going to be who is the strongest and
got the biggest bully and the biggest guns and that is the one that is going to
win." The court acknowledged that
our system was not perfect, but that it was the only thing we had to stop
people from ignoring the law, commenting: "It is a travesty when I see
what is going on in Montana, throwing it back, refusing to cooperate with law
enforcement, refusing to pay taxes."
Although a sentencing
court's remarks may be interpreted in different ways, we must presume the trial
court acted reasonably. State v.
Wickstrom, 118 Wis.2d 339, 356, 348 N.W.2d 183, 192 (Ct. App.
1984). The trial court has broad
discretion in determining the length of sentence within the permissible range
set by statute. Ocanas v. State,
70 Wis.2d 179, 185, 233 N.W.2d 457, 461 (1975). We will affirm the trial court's exercise of discretion as long
as it has a reasonable basis and was made in accordance with accepted legal
standards and the facts of record. State
v. Jenkins, 168 Wis.2d 175, 186, 483 N.W.2d 262, 265 (Ct. App.
1992). Our review is thus conducted in
light of a strong public policy against interference with the trial court's
sentencing decision. State v.
J.E.B, 161 Wis.2d 655, 661, 469 N.W.2d 192, 195 (Ct. App. 1991).
The primary factors the
court considers when imposing sentence are the gravity of the offense, the
character and rehabilitative needs of the offender, and the public's need for
protection. State v. Echols,
175 Wis.2d 653, 682, 499 N.W.2d 631, 640 (1993). Sentencing courts are obligated
to consider factors such as the defendant's demeanor and need for
rehabilitation; a defendant's attitude toward the crime may well be relevant in
considering these things. State
v. Fuerst, 181 Wis.2d 903, 916, 512 N.W.2d 243, 247 (Ct. App. 1994). A defendant's remorse, repentance and
cooperativeness are proper considerations.
J.E.B, 161 Wis.2d at 662, 469 N.W.2d at 195.
If the sentence is
premised on incorrect information, unwarranted assumptions or improper factors,
an erroneous exercise of discretion results.
Fuerst, 181 Wis.2d at 909-10, 512 N.W.2d at 245. Generally, a defendant seeking resentencing
based on inaccurate information has the burden of proving by clear and
convincing evidence that the court actually relied on inaccurate information. State v. Johnson, 158 Wis.2d
458, 468, 463 N.W.2d 352, 357 (Ct. App. 1990).
The
first issue is whether the record supports the trial court's conclusion that
Bohardt thought he was above the law and was disrespectful to the court. Bohardt came to court with a long record of
serious crimes. Bohardt's criminal
record standing alone supports an inference that Bohardt thought he was above
the law.
The record also supports
the trial court's inference that Bohardt was disrespectful of the court's authority. Bohardt filed numerous groundless attacks on
the court's authority. He offers no
factual or legally sufficient bases for these attacks. It is reasonable for a court to infer that
frivolous litigation is aimed at draining the court's resources and impeding
the administration of justice. See
Minniecheske v. Griesbach, 161 Wis.2d 743, 749, 468 N.W.2d 760,
763 (Ct. App. 1991).
The trial court stated
that Bohardt's attitude of "Screw you, Judge," combined with his
lengthy criminal record belied any hope for rehabilitation. "[A] belief that one is above the law
is insidious and bears directly upon the offender's potential for
rehabilitation." J.E.B., 161 Wis.2d at 672, 469 N.W.2d at
199. Bohardt's demeanor, remorse,
cooperativeness and attitude are permissible factors to be considered at
sentencing. See Fuerst,
181 Wis.2d at 915-16, 512 N.W.2d at 247.
On the record before it, the trial court could reasonably conclude that
Bohardt thought he was above the law, was disrespectful to the court, and
showed little prospect for rehabilitation.
Bohardt also argues the
trial court erroneously concluded that Bohardt could not be rehabilitated
because he affiliated with groups that advocate the overthrow of the
government. Bohardt contends the court
suggested that Bohardt was the same sort as those in Montana and Oklahoma
advocating violent government overthrow.
The record fails to support Bohardt's argument. The court's references to these groups
demonstrated the court's concern with lawlessness in general; the court pointed
out that a logical extension of lawless resulted in a society where the biggest
bully and the one with the biggest gun would win. The record fails to support Bohardt's argument that the trial
court relied on inaccurate or erroneous information at sentencing.
Next, Bohardt argues
that the trial court violated his first amendment rights by considering at
sentencing his political beliefs and associations. The record fails to support his contention. Generally, "a sentence based on
activity or beliefs protected by the first amendment is constitutionally
invalid." J.E.B.,
161 Wis.2d at 665, 469 N.W.2d at 196.
However, "[s]ufficient linkage between the claimed protected
activity and the criminal conduct may well render the activity
unprotected." Id. at
669, 469 N.W.2d at 198. For example, a
political belief that one could violate laws with impunity poses a danger to
the public, and may be an appropriate sentencing consideration. Wickstrom, 118 Wis.2d at 357,
348 N.W.2d at 192. However, it is error
to admit evidence of a defendant's unpopular political beliefs when they had no
relevance to the crime for which the defendant was being sentenced. See State v. Marsh, 177
Wis.2d 643, 647, 649, 502 N.W.2d 899, 900, 901 (Ct. App. 1993). Here, the record fails to support the
assertion that what the trial court considered was evidence of political
beliefs and not demeanor, attitude and cooperativeness.
Nonetheless, Bohardt
claims that: "After all, Mr.
Bohardt just went deer hunting; his offense had nothing to do with the Posse
Comitatus or fomenting insurrection.
Whatever his political beliefs may be, they had nothing to do with the
offense." Bohardt's laxity with
the record evades rather than illuminates the issue. Any meaningful comparison between the offenses and the political
beliefs must start with an accurate description of both. First, Bohardt's argument ignores the
elements of the offenses for which he was sentenced.
Second, Bohardt fails to
describe his political beliefs, if he has any.
Based upon his motions, which the trial court found
"incomprehensible," and for which no legal or factual basis is now
advanced, and Bohardt's prior record, the trial court inferred that Bohardt's
attitude was one of ignoring the law.
The trial court concluded that by his attitude and repeated offenses,
Bohardt failed to demonstrate any potential for rehabilitation. The sentencing transcript focuses on
Bohardt's demeanor, prior record and attitudes. Bohardt has failed to demonstrate that the court relied on
improper considerations.
When a defendant attacks
the judge personally, or files groundless frivolous motions, the trial court
must take care to sentence the defendant based upon appropriate
considerations. The record reveals that
the court did so here.
To the extent that
Bohardt's attitude can be interpreted to bear on a political belief, the record
reveals no error. Bohardt was convicted
for possessing a firearm when it was illegal for him to do so. The crimes evinced a belief that rejected
the court's authority to prohibit him from possessing a firearm. Bohardt's alleged political belief that the
government had no control over his conduct is related to his attitude that the
court has no authority over him. See
id. Because the record
reveals a connection between the attitude or belief and the crime, and
discloses a reasonable basis for the sentences imposed, the court properly
exercised its discretion.
By the Court.—Judgment
and order affirmed.
This opinion will not be
published. Rule 809.23(1)(b)5, Stats.