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COURT OF APPEALS
DECISION
DATED AND FILED
November 14, 2007
David R. Schanker
Clerk of Court of Appeals
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NOTICE
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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.
A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals. See Wis. Stat. § 808.10 and Rule 809.62.
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Appeal No.
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STATE OF WISCONSIN
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IN COURT OF
APPEALS
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DISTRICT I
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State of Wisconsin,
Plaintiff-Respondent,
v.
Jarvell Morgan Davis,
Defendant-Appellant.
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APPEAL
from a judgment and an order of the circuit court for Milwaukee County: Timothy G.
dugan, Judge. Affirmed.
Before Curley, P.J., Wedemeyer and Kessler, JJ.
¶1 KESSLER, J. Jarvell Morgan Davis appeals
from his judgment of conviction and the trial court’s order denying his motion
for postconviction relief. Davis argues
that: (1) the trial court erroneously exercised its discretion in
sentencing him when it failed to adequately consider mitigating factors;
(2) his due process rights were violated when he was sentenced based upon
information in a presentence investigation report (PSI) that was prepared with only
a telephonic interview of him by the writer; and (3) his equal protection
rights were violated when the trial court failed to properly consider his
culpability in the crime when it sentenced him to twelve years’
imprisonment. Because we conclude that Davis’s due process and equal protection rights were not
violated and that the trial court did not erroneously exercise its discretion
in sentencing Davis,
we affirm.
BACKGROUND
¶2 Davis
pled no contest
to armed robbery with threat of force, party to a crime, in violation of Wis. Stat. §§ 943.32(2) and 939.05
(2005-06). The conviction arose out of the armed robbery
of two vehicles from Jeannette Hughes and her three children, which occurred on
January 21, 2006, at approximately 10:30 p.m. outside their residence.
¶3 Earlier that evening, Davis
either joined his co-actors (Tremell L. Anderson, Brandin D. Bemley, and a
minor female), or Davis and the minor female joined the other two to ride
around in a tan car that Davis had never seen before. Davis
claims he believed at the time that the vehicle was obtained as a “hype rental”
for payment of drugs. It had actually
been stolen by Anderson, Bemley and a third adult prior to Davis joining the group. At approximately 10:30 p.m., Davis and
the others drove into an alley in the 5000 block of North 66th Street where Anderson and
Bemley exited the vehicle and confronted the Hugheses who had parked their car
in their garage and were moving toward their residence. Anderson and Bemley demanded the keys from
Hughes. Anderson displayed a gun during the
robbery. Upon obtaining the keys,
Anderson and Bemley noted that keys to a second vehicle were attached. Bemley then took one of Hughes’s sons to show
him where the vehicle was parked on the street in front of the residence. Hughes later told the PSI writer that she
feared that the perpetrators would shoot her or her children.
¶4 Bemley got the second vehicle, a white Chevy Tahoe, and drove
it into the alley where he let the Hughes boy out of the Tahoe and then left
the scene with the vehicle. Upon seeing the
Tahoe accelerate past him in the alley, Davis got
out of the tan car and saw Anderson
pointing a gun at Hughes. Davis then saw Anderson
get into the other Hughes vehicle and leave the scene in the same direction as
the Tahoe. Davis then got into the driver’s seat of the tan
car and drove from the scene, following the vehicles stolen by Anderson and
Bemley.
¶5 Davis claimed that he was
unaware of the robbery occurring until he saw the Tahoe accelerate past him in
the alley and saw Anderson
with the gun pointed at Hughes. However,
in his third statement to police, Davis stated, “When we pulled into the alley …
backed onto a concrete slab and Tremell Anderson and Brandon Bremley [sic] got
out of the front seat of the car, [the minor female present] told me that [s]he
thought that Brandon Bremley [sic] and Tremell Anderson were going to get
somebody/rob somebody.” At the
preliminary hearing, Milwaukee Police Detective David Anderson testified that
in Bemley’s statement to police, he claimed that the robbery was Davis’s idea.
¶6 Davis
did not stop to help Hughes or her children.
Davis
did not call police about the robbery, either that night or later. Davis gave
conflicting stories about how and when he got rid of the keys to the tan car
after the armed robbery (either throwing them away in a tot lot that night or keeping
them and throwing them away in Hampton
Park sometime the next
day).
¶7 While this charge was pending, Davis was adjudicated delinquent on charges
that had been pending at the time of this robbery. Davis was thereafter
placed in the custody of Ethan
Allen School.
Davis
pled no contest to one count of armed robbery with threat of force, party to a
crime and the court ordered a PSI report.
¶8 The PSI writer interviewed Davis
telephonically and personally spoke with Davis’s
mother, Hughes and the victim of the first robbery in which the tan car was
stolen. In the report, the PSI writer
noted that the writer’s impressions of Davis
were based upon the telephonic interview. At the sentencing hearing, Davis’s
counsel objected to the PSI report because the writer’s only contact with Davis was a telephonic interview and requested that a
second PSI be completed, this time with Davis
being interviewed in person. After
argument by the defense and the State, the trial court denied the request.
¶9 At sentencing, the trial court stated that it must consider
various factors when determining a defendant’s sentence, including “the nature
of the offense,” the defendant “as an individual” and “the interest of
society.” The trial court specifically noted,
relating to the nature and effect of the crime:
Here you were a part of approaching a woman and her
children. And they were – you may have
been the driver of the car, you were there involved with it. And I’m fully convinced under the description
you knew what was going on and you were a part of it.
And although you didn’t get
out of the car, your co-actors approached a woman and her children. They pointed guns at her. And as she’s described it, she was terrified
for her children. She thought that they
were going to die. At one point one of
her children started to run and she told them to stop because she thought he’d
get shot. And then she had to stand
there and watch one of her sons be walked off with somebody with a gun not
knowing whether or not he’d return.
These people have guns.
And one of them announces the phrase was “go into this, bitch,” I
believe the phrase was. And it has two
connotations. Whether or not they should go in the residence and steal more or
should they do something sexual to her under that circumstance.
And this wasn’t a momentary
event where somebody ran up to this woman and snatched her purse and jumped
back in the car. They were there for
a prolonged period of time.… And so
I’m not convinced at all that you were an innocent bystander not knowing what
was happening.
Best case scenario? You didn’t plan it, it happened ….
(Emphasis added.) The trial court went on to note that Davis,
even upon seeing what was happening, chose not to help the woman, chose not to
contact police, but rather, left the scene and followed the other two
co-actors.
¶10 The trial court then went on to consider Davis’s character. It noted that all the letters sent to the
court “say you’re a wonderful person,” “yet we have a juvenile background
beginning at a young age.” Specifically,
the trial court noted that “in 1997[,] there was a battery [hitting another boy
in the head with a ‘Club’ steering wheel anti-theft device] for which there was
a consent decree and an operating a motor vehicle without owner’s consent in
2004 for which there was a deferred prosecution agreement.” The court also noted that Davis
had been expelled from Washington High School the previous fall for participation in a
riot and that, most recently, Davis
had been charged with taking his mother’s vehicle without permission, being in
possession of a dangerous weapon (a short-barreled shotgun) as a juvenile and
with possession of marijuana. The court also
noted that Davis
was on supervision at the time of the offense at issue here. The court observed that Davis
claimed use of marijuana for the past two years, one to three blunts per week,
and that Davis
considered this to not be “problematic.”
The court concluded that this pattern of behavior demonstrated that Davis “ha[s]
rehabilitative needs … educational needs [and] drug issues that need to be
addressed.”
¶11 Finally, the trial court discussed the protection of the
community. The court explained that Davis’s conduct raised a
need to protect the community from him and that the seriousness of the offense
here required incarceration in “a prison setting.” The trial court then sentenced Davis to twelve years’
imprisonment, comprised of six years’ initial confinement and six years’
extended supervision.
¶12 Davis filed a postconviction motion for sentence modification alleging
that: (1) mitigating factors support modification of his
sentence; (2) his due process rights were violated because the PSI writer
did not interview him in person; and (3) the trial court did not
adequately consider Davis’s culpability in the crime. The trial court denied the postconviction
motion, and Davis
appeals. Additional facts are provided
in the discussion section as needed.
DISCUSSION
¶13 When a defendant challenges his or her sentence, “the defendant
has the burden to show some unreasonable or unjustifiable basis in the record
for the sentence at issue.” State v. Lechner, 217 Wis. 2d
392, 418, 576 N.W.2d 912 (1998); see also
State v. Ramuta, 2003 WI App 80, ¶23, 261
Wis. 2d 784, 661 N.W.2d 483 (defendants have the burden of establishing
that the trial court erroneously exercised its discretion in sentencing
them). This burden is a heavy one, as
“the trial court’s sentence is presumptively reasonable,” id., and there is a “consistent
and strong [public] policy against interference with the discretion of the
trial court in passing sentence,” State
v. Stenzel, 2004 WI App
181, ¶7, 276 Wis.
2d 224, 688 N.W.2d 20.
¶14 Our review is limited to whether the trial court erroneously
exercised its discretion and we will not substitute our “preference for a
sentence merely because, had [we] been in the trial judge’s position, [we]
would have meted out a different sentence.”
State v. Brown, 2006 WI 131, ¶19, 298 Wis. 2d 37, 725 N.W.2d 262 (citation
omitted). “On appeal, we will ‘search
the record to determine whether in the exercise of proper discretion the
sentence imposed can be sustained.’” Lechner, 217 Wis. 2d
at 419 (citation omitted). A court
properly exercises its discretion when it relies “on facts that are of
record or that are reasonably derived by inference from the record and
[reaches] a conclusion based on a logical rationale founded upon proper legal
standards.” McCleary v. State, 49
Wis. 2d
263, 277, 182 N.W.2d 512 (1971).
I. Consideration
of mitigating factors in determining sentence
¶15 Davis
argues that the trial court failed to “meaningfully consider and incorporate”
several mitigating factors into its sentencing decision. Specifically, Davis
argues that the trial court failed to consider Davis’s “minimal role in the robbery, [and] his
cooperation, admission and initiative in turning himself in.” Davis
further argues that the court did not assess proper weight to the many letters
provided to it by Davis’s family and community.
¶16 The State argues that the trial court “acknowledged the letters
that spoke highly of Davis [but] found that Davis had ‘a juvenile background
beginning at a young age,’” and that the trial court acknowledged, in denying
Davis’s postconviction motion, that “while Davis may have played a more minimal
role in the offense compared to the co-actors,” the court “sentenced Davis
‘based on his particular character, background, and involvement, and
culpability.’”
¶17 The trial court’s obligation is to consider the primary
sentencing factors and to exercise its discretion in imposing a reasoned and
reasonable sentence. See State v. Larsen, 141 Wis. 2d 412, 426-28, 415 N.W.2d 535
(Ct. App. 1987). The primary sentencing
factors are the gravity of the offense, the character of the offender, and the
need for public protection. McCleary, 49 Wis. 2d at 276. It is within the trial court’s exercise of
its discretion to determine those factors it believes are relevant and to
determine what weight to give each relevant factor. Stenzel, 276 Wis. 2d 224, ¶16.
¶18 During the sentencing
hearing, the trial court noted that while all the letters sent to the
court “say you’re a wonderful person,” Davis
had a significant juvenile record which included battery, possession of a
dangerous weapon, operating his mother’s car without permission and possession
of marijuana. The trial court also noted
that Davis had
recently been expelled from high school because of his participation in a riot
and was also on supervision at the time of this offense. Based upon our review of the record, we
determine that the trial court addressed those mitigating factors presented by Davis and, accordingly, did
not erroneously exercise its discretion in sentencing him.
II. PSI
¶19 Davis argues that he was denied due process when the PSI writer
failed to interview him in person and the resulting PSI report, therefore,
“reflected [a] lack of objectivity and thoroughness.” Davis argues
that the PSI “report is a cornerstone to the sentencing procedure” and that a
telephonic interview is not sufficient for the writer to accurately assess Davis’s attitude or
credibility. Finally, Davis argues that because the sentence the
trial court ultimately gave him “parallel[ed] the PSI recommendation … [i]t
cannot be said that the PSI author’s conclusions did not influence the court or
the court’s rationale and to the extent that it did, the sentence cannot be
upheld.”
¶20 The State argues that “Davis
has failed to show that the PSI was flawed or that the [writer] was biased
against him” and further, that the writer met the requirements under Wis. Admin. Code
§ DOC 328.29(4), which require only that an attempt should be made to interview
the offender, and here, the writer did interview Davis, albeit by telephone. The State argues that because Davis points to no inaccuracies in the facts set forth in
the PSI, and because the writer followed the statutory requirements, Davis was not denied due
process by the trial court’s consideration of the PSI.
¶21 “A defendant has a constitutionally protected due process right
to be sentenced upon accurate information.”
State v. Tiepelman, 2006 WI 66, ¶9, 291 Wis. 2d 179, 717 N.W.2d 1. “Whether a defendant has been denied this due
process right is a constitutional issue that an appellate court reviews de novo.” Id. The United States Supreme Court has developed
a test, the Townsend/Tucker test, to determine whether a defendant has been
denied due process in sentencing by the sentencing court’s use of a PSI
report. United
States v. Tucker, 404 U.S. 443 (1972); Townsend v. Burke,
334 U.S.
736 (1948). This test was reconfirmed as
applicable to Wisconsin courts in Tiepelman. Id., 291 Wis. 2d 179, ¶14. The Townsend/Tucker test requires that a
defendant demonstrate that the sentencing court used “false information [as]
part of the basis for the sentence. The
two elements of that showing are, first, that information before the sentencing
court was inaccurate, and second, that the sentencing court relied on the
misinformation in passing sentence.” Id.
(citation and internal quotation marks omitted). “Whether the court ‘actually relied’ on the
incorrect information at sentencing was based upon whether the court gave
‘explicit attention’ or ‘specific consideration’ to it, so that the
misinformation ‘formed part of the basis for the sentence.’” Id.
(citation omitted).
¶22 Davis,
however, does not claim that any of the factual information in the report was
inaccurate. Rather, Davis
argues that the PSI writer’s credibility determination, upon which the writer
based the recommendations, was flawed because the writer did not meet with Davis in person. However, in-person interviews are not
required. See Wis. Stat. § 972.15;
Wis. Admin. Code § DOC 328.29(4).
Additionally, in its decision on Davis’s
postconviction motion, the court noted that it “made its own determination as
to [Davis’s] claim that he did not know what was going on during the armed
robbery and, hence, the court was not reliant on the agent’s assessment of
[Davis’s] credibility in this regard.” A
trial court may, but is not required to, use a PSI in making its sentencing
determination. See Krebs v. State, 64 Wis.
2d 407, 421, 219 N.W.2d 355 (1974).
¶23 The trial court also presided over the cases involving
Anderson, Bemley and the third defendant in count one, Marquis Prescott. Accordingly, the trial court had available to
it a more complete picture of what occurred on the night of January 21, 2006,
than is reflected in the record in this case.
The trial court is permitted to use information that would not be
admissible at trial in making its sentencing decisions. See
Wis. Stat. § 911.01(4)(c). Additionally, a trial court should attempt to
ascertain all aspects of an individual’s character and actions in determining
the appropriate sentence. See State v. Gallion, 2004 WI 42, ¶36, 270 Wis. 2d 535, 678
N.W.2d 197 (To be a proper exercise of discretion, sentence should be based
upon “complete and accurate information.”); State v. McQuay, 154 Wis. 2d 116, 126,
452 N.W.2d 377 (1990) (“Evidence of unproven offenses involving the defendant
may be considered by the court” in “determining the character of the defendant
and the need for his incarceration and rehabilitation.”). To that end, a sentencing court may properly
consider unproven offenses and uncorroborated hearsay in determining an appropriate
sentence. State v. Marhal, 172 Wis. 2d 491, 502-03, 493 N.W.2d 758 (Ct. App. 1992); see also United States v. Lawrence, 934 F.2d 868, 874 (7th Cir. 1991) (“[A]
sentencing court may consider uncorroborated hearsay that the defendant has had
an opportunity to rebut, illegally obtained evidence, and evidence for which
the defendant has not been prosecuted.”), cert.
denied, 502 U.S. 938.
¶24 Davis argues that because the PSI writer acknowledged
difficulty in making credibility determinations due to the fact that the
interview with Davis was conducted telephonically, that this created a bias by
the writer. We do not agree. A simple acknowledgement that recommendations
are conditioned upon only a telephonic interview with Davis does not lead to the conclusion that
the writer’s observations were not “accurate, reliable and … objective.” See State v.
Suchocki, 208 Wis. 2d 509, 518, 561
N.W.2d 332 (Ct. App. 1997), abrogated on
other grounds by Tiepelman, 291 Wis. 2d 179, ¶31. Davis
has not identified any facts in the PSI report that he claims are inaccurate. Davis’s
conclusion that a telephonic-only interview led to a lack of objectivity and
even bias by the PSI writer constitutes mere speculation unsupported by any
facts in the record. Accordingly, Davis
has failed to meet his burden of showing that the PSI report was inaccurate or
biased, or that even if the recommendations were based upon only a telephonic
interview, that the court based its credibility and culpability determinations
on the PSI report, which the trial court, in its decision on Davis’s
postconviction motion, denies.
III. Disparate
sentences between co-actors
¶25 Davis
next argues that the trial court erroneously exercised its discretion when it
failed to “adequately factor in differing levels of culpability” between the co-actors. Davis
argues that his role in the armed robbery was much more diminished than the
other two individuals, but that his “sentence is not commensurate with the
differing levels of culpability, harm and intent.” The State argues that, in fact, Davis received a shorter sentence than Anderson
and that “Davis
has failed to establish that the [trial] court erroneously exercised its
discretion in fashioning his sentence compared with the sentences his co-actors
received.”
¶26 Individuals have an equal protection right to receive “substantially
the same sentence for substantially the same case histories.” Ocanas v. State, 70 Wis. 2d 179, 186,
233 N.W.2d 457 (1975). “A mere disparity
between the sentences of co-defendants is not improper if the individual
sentences are based upon individual culpability and the need for
rehabilitation.” State v. Toliver, 187 Wis. 2d 346, 362, 523
N.W.2d 113 (Ct. App. 1994).
¶27 Davis directs this court to compare the twelve-year sentence he
received for count two of the information, armed robbery with threat of force,
a class C felony with a maximum possible imprisonment of forty years, to the ten-year
sentence Anderson, a co-actor, received on count one, robbery, a class E
felony, with a maximum imprisonment of fifteen years. See Wis. Stat. § 939.50(c) and (e). This
is an apples and oranges comparison.
When comparing the sentences received on the same count, for the same
armed robbery, Anderson actually received twenty years’ imprisonment (ten
years’ initial confinement and ten years’ extended supervision), eight years
more than Davis received. Accordingly,
contrary to Davis’s assertion that Davis received more time
for the same crime than an allegedly more culpable co-actor, Davis actually
received a shorter sentence for the same crime.
¶28 The mere fact that Davis’s
sentence was longer than one component of another co-actor’s sentence is not
enough to support a conclusion that Davis’s
sentence is unduly disparate. See State v. Perez, 170 Wis. 2d 130, 144, 487 N.W.2d 630 (Ct. App.
1992). Davis “bears the burden of establishing that
the disparity in sentences was arbitrary or based upon considerations not
pertinent to proper sentencing.” Id. As noted above, the trial court considered all
of the McCleary factors in determining the appropriate sentence for Davis, including “his
particular character, background, and involvement, and culpability.” Because Davis did not receive a longer
sentence for the same crime, as he asserts, and because the trial court’s
reasoning as set forth in the record demonstrates that it relied “on facts that are of record or that
are reasonably derived by inference from the record and [reached] a conclusion
based on a logical rationale founded upon proper legal standards,” see Id., 49 Wis. 2d at 277,
we determine that the trial court did not erroneously exercise its discretion
in sentencing Davis
to twelve years’ imprisonment.
IV. Denial of postconviction motion
¶29 Finally, Davis
argues that the trial court erroneously exercised its discretion in denying his
postconviction motion for modification of sentence. Because we have determined that the trial
court did not erroneously exercise its discretion in sentencing Davis, it did not err in
refusing to modify the sentence where no inaccurate information was relied upon
initially and no subsequent new factors have been shown. See State v. Norton, 2001 WI App 245,
¶13, 248 Wis. 2d
162, 635 N.W.2d 656 (circumstances that constitute a new factor or trial court reliance upon inaccurate information which frustrates the purpose of the sentence
are proper grounds for sentence modification).
By the Court.—Judgment and order affirmed.
Not
recommended for publication in the official reports.