|
COURT OF APPEALS DECISION DATED AND RELEASED MAY 21, 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. 96-0070-CR
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT III
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
ALLAN P. NELSON,
Defendant-Appellant.
APPEAL from a judgment
of the circuit court for Marinette County:
CHARLES D. HEATH, Judge. Affirmed.
Before Cane, P.J.,
LaRocque and Myse, JJ.
CANE, P.J. Allan Nelson appeals his judgment of
conviction for four counts of first-degree sexual assault of a child. Nelson argues his due process right to be
sentenced by an impartial judge was violated when the judge refused to recuse
himself after indicating in another defendant's case that his experience and
belief was that pedophiles cannot be rehabilitated. Because we conclude that the trial court's impartiality cannot
reasonably be questioned, we deny Nelson's request to be resentenced by a
different judge. We affirm the
judgment.
The facts are
undisputed. Nelson was initially
charged with twenty counts of first-degree sexual assault of a child who had
not attained the age of thirteen years and with one count of intentionally
causing bodily harm to that child.
Nelson asked the judge to recuse himself on grounds the judge had
prejudged sentencing issues in the case.
Specifically, Nelson pointed to a prior case involving a different
defendant, Eugene Jensen, and the same trial judge. The judge at Jensen's sentencing stated:
A
sick, sick, sick person who preys on innocent little girls, and I'm going to
see to it that you are never given an opportunity to do that again. It's my strongest hope that you take your
la[s]t breath in prison and you will never get out of prison until you have
done that and you exit in a pine box. You
prove again what has been this Court's experience that pedophiles cannot be rehabilitated.
... There is no sense in trying to
think even in terms of rehabilitation.
But you have, as I said, re-enforced the Court's belief that there is no
rehabilitating a pedophile. ... no
chance for rehabilitation.
At a hearing on Nelson's
motion, the trial court refused to recuse himself, noting:
I
think the Court's comments in the Jensen case were appropriate for Mr. Jensen's
case, but that is not a blanket condemnation against everybody who comes into
court charged with sexually molesting juveniles. The Court does not believe that because those statements were
made in a case, the Court has to recuse itself in every other case in which
defendants are charged with molesting juveniles. So the motion for refusal is denied.
Ultimately, pursuant to
a plea agreement, Nelson pled no contest to four of the sexual assault
charges. Four of the remaining sexual
assault charges were read in for sentencing purposes, and the remaining
counts were dismissed. The trial court
adopted the recommendation of the presentence report and sentenced Nelson to
twenty-five years on each of the four counts, to be served consecutively. On appeal, Nelson argues the sentences
should be vacated and that he should be resentenced by a different judge.
There are two tests for
determining whether Nelson's due process right to an impartial and unbiased
judge has been violated. See State
v. Rochelt, 165 Wis.2d 373, 378-79, 477 N.W.2d 659, 661 (Ct. App.
1991). First, there is a subjective
test based on the trial judge's own determination of his or her own
impartiality in Nelson's case. See
State v. Walberg, 109 Wis.2d 96, 106, 325 N.W.2d 687, 692 (1982).
A trial judge's declaration that he or she was not biased satisfies the
subjective test. See Rochelt,
165 Wis.2d at 379, 477 N.W.2d at 661.
Here, the trial judge's declaration at the motion hearing that he was
not biased satisfied the subjective test.
See id.
The second test is an
objective test based on whether impartiality can reasonably be questioned. Walberg, 109 Wis.2d at 106,
325 N.W.2d at 692. Whether a trial
court's impartiality can reasonably be questioned is a question of law for our
de novo review. Rochelt,
165 Wis.2d at 379, 477 N.W.2d at 661.
We conclude that the trial judge's statements in the Jensen case do not
raise a reasonable question about his impartiality in Nelson's case.[1] First, Nelson has not identified any
Wisconsin case where a trial court's remarks in a separate, unrelated case
involving another defendant could be evidence of the trial court's bias against
other defendants that appear before the same judge in the future.
Second, even if a trial
judge's statements in a prior case can be proof that a judge is biased against
like defendants, the trial judge's statement in Jensen's case does not suggest
he has a preconceived belief that he will apply in all cases. The judge was speaking about Jensen, not
Nelson. His comments did not indicate
that he would automatically reject the possibility of rehabilitation for defendants
he sentenced for the same crimes in the future. As the judge noted at the hearing on the recusal motion, he
thought the comments in the Jensen case were appropriate for Jensen and did not
constitute "a blanket condemnation against everybody who comes into court
charged with molesting juveniles."
Third, Nelson has not
produced evidence that he has been diagnosed as a pedophile, so even if the
trial judge's statement could be termed an improper statement about pedophiles,
there is no reason the statement would apply to Nelson. Not only has Nelson failed to produce any
medical testimony or reports suggesting he is a pedophile, he told the
presentence investigator that he has had no prior sexual contacts with other
children and that he never had any connection with child pornography.
Fourth, Nelson has
produced no expert testimony suggesting he is a candidate for
rehabilitation. Although Nelson's
attorney indicated at sentencing that he thought Nelson would be a strong
candidate for long-term intensive therapy, he offered no medical testimony or
reports suggesting rehabilitation would be feasible or effective for Nelson.
Nelson argues that his
sentence should be vacated in accordance with our decision in State v.
Martin, 100 Wis.2d 326, 327, 302 N.W.2d 58, 59 (Ct. App. 1981). In Martin, the trial court
stated at the defendant's sentencing that he would never grant straight
probation to a person convicted of delivery of a controlled substance. Id. at 327, 302 N.W.2d at
59. We held the trial court's statement
evidenced a preconceived policy impermissibly tailored to fit only the crime
and not the offender that was impermissibly, at least in part, closed to individual
mitigating factors. Id. We vacated the sentence and remanded for
resentencing. Id.
Unlike the trial judge's
comments in Martin, the judge's comments in Jensen's case did not
indicate that he has a preconceived policy impermissibly tailored to fit only
the crime and not the offender. The
judge did not indicate how his doubts about rehabilitation would affect
sentencing. In contrast, the judge in Martin
stated that he would never grant straight probation to a person convicted of
the delivery of a controlled substance.
Id. In the Jensen
case, the judge simply acknowledged the court's experience with prior pedophile
offenders. He did not state that he
would never consider individual mitigating factors in other cases.
For the foregoing
reasons, we conclude that the trial court's impartiality in Nelson's case
cannot reasonably be questioned and, therefore, Nelson's due process right to
an impartial and unbiased judge has not been violated. Thus, we affirm the judgment.
By the Court.—Judgment
affirmed.
Not recommended for
publication in the official reports.