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COURT OF APPEALS DECISION DATED AND RELEASED February 19, 1997 |
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, Stats. |
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports. |
No. 96-0405-CR
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT II
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
MARK H. PRICE,
Defendant-Appellant.
APPEAL from a judgment
and an order of the circuit court for Winnebago County: BRUCE SCHMIDT, Judge. Affirmed.
Before Snyder, P.J.,
Brown and Nettesheim, JJ.
BROWN, J. Mark
H. Price pled no contest to a charge of delivering a controlled substance as a
repeat offender and a charge of threatening to injure a public official, the
Winnebago county district attorney.
Price raises challenges to the conviction and to the repeat offender
portion of the sentence. He first
argues that the trial court judge should have recused himself because the judge
had a close working relationship with the district attorney. Because of the trial judge's alleged bias,
Price argues that his due process right to appear before a neutral and detached
judge was violated. Second, Price argues
that the repeat offender portion of the sentence is void because the prosecution
did not adequately prove that he had a prior conviction, nor did the trial
court make a finding to that effect.
We reject both
challenges. With regard to recusal, we
note that the only proceeding of substance was sentencing. Further, we conclude that the record from
this proceeding contains nothing which suggests that the trial judge acted
impartially. And with regard to Price's
repeat offender sentence, we conclude that there was adequate proof of his earlier
conviction; the presentence investigation (PSI) report contained a complete
record of Price's earlier offenses.
Moreover, since this PSI report was presented to the trial court, we are
satisfied that this penalty enhancer is legally valid even though the trial
court never made an express finding that Price was a repeat offender.
In August 1994, Price
was charged as being a party to the crime of drug delivery and a related drug
tax stamp violation, both as a repeat offender. See §§ 139.88, 139.95, 161.41(1)(h)1, 939.05 and
939.62(1)(b), Stats.,
1993-94. The penalty enhancer was based
on Price's first-degree homicide conviction in January 1991. Although Price was incarcerated when the
drug charges were filed, he was accused of arranging marijuana sales outside
the prison.
Subsequently, in
February 1995, an amended criminal complaint was filed. The amended complaint added an allegation
that Price solicited someone outside the prison to kill the district attorney. See § 939.30(2), Stats.
The district attorney had prosecuted Price for the intentional homicide
sentence which he was then serving.
By June 1995, Price
accepted a plea agreement. The drug tax
stamp charge would be dropped and the solicitation charge would be changed to a
charge of threatening to injure a public official. See § 943.30, Stats. Price pled no contest to the two charges on
June 2, 1995. The trial court sentenced
Price to nine years of imprisonment on the drug count and five years of
imprisonment on the threat to injure an official count. Price now appeals this conviction and the
order denying postconviction relief.
We first turn to Price's
claim that the trial judge was not impartial.
Two standards apply when gauging if there was a violation of a
defendant's due process right to an impartial trial judge. See State v. Rochelt, 165
Wis.2d 373, 378, 477 N.W.2d 659, 661 (Ct. App. 1991). One is termed the “subjective test” and measures the judge's own
perception of his or her impartiality. See
id. In this case, however,
the trial judge determined that he was impartial and Price properly concedes
that this declaration ends this line of inquiry.[1] See id. at 379, 477 N.W.2d at
661.
The alternative manner
for gauging the impartiality of the trial judge is termed the “objective test.” As its name implies, this test requires that
we review the record de novo and make a determination of “whether impartiality
can reasonably be questioned.” See
id.
Price outlines his
argument under the “objective test” as follows. He relies heavily on a theory that the district attorney (the
intended victim) naturally had a close working relationship with this trial
judge, as he did with the other judges in the county, and that this
relationship impacted the trial judge's ability to make impartial rulings. He then explains how other members of the
courthouse community removed themselves from these proceedings, including the
district attorney who sought and obtained a special prosecutor and two of the
other circuit court judges. Moreover,
Price notes that another judge was substituted after he refused to recuse
himself from this case, seemingly suggesting that the trial judge who stayed on
the case should have also recused himself.
Finally, Price adds that he received the maximum sentence. Price concludes that he has thus raised a
reasonable question about the trial judge's impartiality.
We begin by observing
that the central theory underlying Price's challenge, that the special working
relationship between a trial judge and the local district attorney is a strong
signal of bias, is rebutted by State v. Harrell, 199 Wis.2d 654,
546 N.W.2d 115 (1996). There, the
supreme court faced a claim that the trial judge should have recused himself
because his spouse was a local assistant district attorney. The court held, however, that the statute
governing recusal[2] did not
mandate that the judge be recused in such circumstance provided that his spouse
was not involved in the actual prosecution.
See id. at 656-57, 546 N.W.2d at 116. We believe that Harrell
illustrates that the possibility of a special working relationship developing
between a trial judge and a local prosecutor does not automatically mean
that the trial judge will be biased against criminal defendants. Cf. id.
at 662, 546 N.W.2d at 118 (“The thought that a judge would have an increased
propensity to convict criminals because of such a relationship is ...
preposterous”) ( quoted source omitted).
Moreover, after
reviewing the record, we conclude that Price has failed to satisfy the
“objective test.” Owing to Price's
decision to enter a plea agreement, the only proceeding of substance was his
sentencing. While Price argues that the
decision to give him the maximum possible sentence suggests that the judge was
not impartial, the judge arrived at this decision in a careful and objectively
reasonable manner.
The judge took steps to
ensure that there was a complete record regarding Price's criminal and personal
history as well as possible mitigating factors. The judge heard testimony on Price's behalf from five witnesses
and from Price himself. The judge also
had the results of a PSI report and heard the arguments of counsel.
Furthermore, once the
trial judge reached his sentencing decision, he was able to carefully explain
the rationales supporting his conclusion.
The judge noted that he was grounding the decision on Price's
“substantial criminal record involving very violent crimes.” And although the trial judge recognized that
Price did not have a history of drug offenses, the judge was nonetheless
concerned because Price had planned this criminal act while in prison and Price
had hoped to use the proceeds from this drug activity to finance even more
criminal activity. The judge also noted
that the PSI report recommended incarceration.
Since the judge ensured
that he had a complete record and was able to explain what aspects of the
record were utilized in his reasoning, we cannot conclude that the trial
judge's decision-making was motivated by a special relationship with the
district attorney. In addition, the
trial judge's careful attention to the facts during sentencing negates any
possible theory that this trial judge should have been recused from the case,
as his other colleagues were. We hold
that Price's right to an impartial judge was preserved.
We next turn to Price's
challenge to the repeat offender enhancer.
Although Price dissects this claim into two separate parts, his basic
contention is that this portion of his sentence is legally void because the
requirements of § 973.12(1), Stats.,
were not met. This issue
presents a question of law which we decide independently of the trial
court. See State v. Koeppen,
195 Wis.2d 117, 126, 536 N.W.2d 386, 389-90 (Ct. App. 1995).
Price first argues that
his prior conviction was not adequately proven. He directs us toward the written plea agreement and the
transcript from the plea hearing.
Although he acknowledges that the terms “as a repeater” were used in the
document and during his colloquy with the trial court, he argues that his
admission to the repeater allegation was not sufficient. See § 973.12(1), Stats. (“If prior convictions are
admitted by the defendant ....”).
Nonetheless, we are
satisfied that there was legally adequate proof of Price's prior
conviction. In State v. Goldstein,
182 Wis.2d 251, 513 N.W.2d 631 (Ct. App. 1994), this court held that a PSI
report containing the date of a prior conviction qualifies as an “official
report” which may be used to prove that a defendant has a prior conviction. See id. at 259, 513 N.W.2d at
635; see also § 973.12(1), Stats.
(“An official report ... shall be prima facie evidence of any conviction
....”). The PSI report prepared for
Price's sentencing clearly reveals the date of his prior homicide conviction
and thus, under Goldstein, it constitutes adequate proof of his
prior conviction for the purposes of sentencing enhancement.
The second argument
Price raises concerns the manner in which the prosecution presented this
information and the way in which the trial court reacted to it. He again directs us to the record and claims
that it does not reveal that he was “adjudged a repeater.”
However, as we noted at
the beginning of this discussion, whether a penalty enhancer is valid presents
a question of law which we answer independently of the trial court. See Koeppen,
195 Wis.2d at 126, 536 N.W.2d at 389-90.
We previously elaborated about what this meant in State v.
Zimmerman, 185 Wis.2d 549, 518 N.W.2d 303 (Ct. App. 1994). There, we explained that review of the trial
court's enforcement of a penalty enhancer turns on the application of
§ 973.12, Stats., to an
undisputed set of facts gathered from the record. See Zimmerman, 185 Wis.2d at 554, 518 N.W.2d
at 304-05.
Thus, contrary to
Price's contention, our assessment of whether his penalty enhancer is valid
does not turn on whether the trial court expressly found that the prosecution
met its burden of proving that the defendant was a repeater in accordance with
§ 973.12(1), Stats. In fact, in Zimmerman, we
expressly rejected the proposition that we owed deference to such a finding
during our appellate inquiry into the validity of a penalty enhancer. See Zimmerman, 185 Wis.2d at
304, 518 N.W.2d at 304. Rather, we
independently examine the record to determine if it shows either of two
things: one, that the defendant made a
sufficient admission to his or her prior crime; or two, that there was before
the court an official record showing that the defendant had a prior conviction
when a plea was accepted or when the sentence was imposed. See § 973.12.
When we apply these
standards to this case, it is clear that the requirements of § 973.12, Stats., have been satisfied. At sentencing, the court was shown Price's
PSI report which, as we explained above, properly documented his prior
conviction. Moreover, the transcript
reveals that Price (through counsel) acknowledged receiving a copy of the
report and reveals that Price made corrections to other facts within this
report, but not his prior record. We
are satisfied that the requirements of § 973.12(1) have been fulfilled and
that Price's repeater enhancer is valid.
By the Court.—Judgment
and order affirmed.
Not recommended for publication
in the official reports.