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COURT OF APPEALS
DECISION
DATED AND FILED
June 17, 2008
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.
Marlin A. Dixon,
Defendant-Appellant.
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APPEAL
from a judgment and an order of the circuit court for Milwaukee County: JOHN
A. FRANKE and William w. bRash,
III, Judges. Affirmed.
Before Curley, P.J., Wedemeyer and Fine, JJ.
¶1 PER CURIAM. After a trial to the court,
Marlin A. Dixon was convicted of first-degree reckless homicide for his
involvement in the beating death of Charlie Young, Jr. The circuit court imposed a forty-year prison
sentence on Dixon. Dixon was a
fourteen-year-old juvenile at the time of the crime, and he was initially
incarcerated at the Ethan
Allen School,
a juvenile facility. When he turned
sixteen, the Department of Corrections (DOC) transferred him to an adult
institution where he was sexually assaulted by his cellmate. Dixon
sought sentence modification, arguing that his premature transfer to an adult
institution and subsequent rape constituted a new factor warranting sentence
modification. The circuit court rejected
Dixon’s motion, and Dixon appeals. We reject Dixon’s arguments and affirm the judgment of
conviction and postconviction order.
¶2 At the age of fourteen years, Dixon was involved along with about twenty
others in the beating death of Charlie Young, Jr. Dixon
was originally charged as an adult, but sought a “reverse waiver” to juvenile
status. The request was denied,
Dixon waived
his right to a jury trial, and the circuit court found him guilty and sentenced
him for his role in Young’s death.
¶3 Although Dixon was originally housed at Ethan Allen
School, the DOC
transferred him to Green Bay Correctional Institution, an adult prison, when
he turned sixteen, in apparent violation of Wis.
Stat. § 938.183(3) (2005-06),
which prohibits transferring a juvenile younger than seventeen-years-old to an
adult institution. Dixon
was repeatedly sexually assaulted and abused by his cellmate at Green Bay.
¶4 Dixon
filed a postconviction motion seeking sentence modification. As a basis for the motion, Dixon argued that his transfer to an adult
prison in violation of statute and his subsequent rape constituted new factors
warranting sentence modification. He
maintained that the improper transfer and assault were highly relevant to
sentencing because they resulted in the imposed sentence being “vastly more
punitive” than the sentencing court intended.
¶5 The circuit court denied the postconviction motion, reasoning
that Dixon’s
presumably improper transfer was not a new factor because it was without
“jurisdiction to designate that a defendant be placed in a particular
facility,” and therefore sentencing courts do not consider the place of a
defendant’s incarceration “when deciding the appropriate amount of
punishment.” It concluded that “even if
the sentencing court had known that the defendant in this case could be transferred from Ethan Allen
School to an adult prison
upon reaching the age of sixteen, the sentence would likely have been no
different based upon the various factors that the court considered.”
¶6 Similarly, the circuit court concluded that the prison
assaults were not a new factor warranting sentence modification because the
risk of violence in prison is one “many offenders face.” The circuit court noted that when sentence is
imposed, the circuit court does so “based upon the nature of the offense, the
character and rehabilitative needs of the defendant and the need for community
protection.” The court noted that it is
not obliged to consider the possibility of a prison assault at sentencing, and
that possibility is not highly relevant to imposition of sentence.
¶7 On appeal, Dixon
argues that his allegedly improper transfer to adult prison and the subsequent
abuse by his cellmate together constitute a new factor warranting sentence
modification. In addition, Dixon argues for the first
time that it was a violation of the constitutional prohibition against cruel
and unusual punishment to sentence a fourteen-year-old offender to eighteen
years of initial confinement in an adult prison. We reject Dixon’s arguments.
¶8 In order to obtain sentence modification based on a new
factor, a defendant must show that a new factor exists and that the new factor
warrants sentence modification. State
v. Crochiere, 2004 WI 78, ¶14, 273 Wis. 2d 57, 681 N.W.2d 524. A new factor is a fact or set of facts highly
relevant to sentencing, but not known to the sentencing judge either because it
was not then in existence or because it was in existence, but was unknowingly
overlooked by all of the parties. Rosado
v. State, 70 Wis. 2d
280, 288, 234 N.W.2d 69 (1975). To
be a new factor, the information or development must also “‘frustrate[] the
purpose of the original sentence.’” Crochiere,
273 Wis. 2d
57, ¶14 (citation omitted). Whether a
fact or set of facts constitutes a new factor is a question of law, decided by
this court de novo. State v. Ralph, 156 Wis. 2d 433, 436,
456 N.W.2d 657 (Ct. App. 1990).
¶9 We assume for purposes of this appeal that Dixon’s
transfer to adult prison was improper and that Dixon was sexually and physically abused by
his cellmate. Neither fact meets the
definition of a new factor warranting sentence modification, however. As the State points out, the question of
inmate placement and program assignments are vested in the DOC by Wis. Admin. Code ch. DOC 302 (2006);
see also State v. Lynch, 105 Wis. 2d 164, 168,
312 N.W.2d 871 (Ct. App. 1981) (control over prisoner care is vested by
statute in the DOC). At sentencing, the
circuit court indicated that Dixon
was being given a long sentence due to his role in the crime, the seriousness
of the crime, and the need to protect the public. There is no indication that the place of Dixon’s confinement was a factor in the length of the
sentence, nor is there any indication that if the circuit court had known that Dixon would be moved to an
adult prison at age sixteen that fact would have affected the length of the
sentence. More significantly, the
circuit court was undoubtedly aware that the place of incarceration was within
the DOC’s purview, and it therefore received little or no consideration at
sentencing. Similarly, Dixon’s
sexual assault, although regrettable, is not a fact highly relevant to the
length of Dixon’s
sentence. See State v. Klubertanz, 2006 WI App 71, ¶41, 291 Wis. 2d 751, 713 N.W.2d 116.
¶10 Dixon’s
claim that sentencing a juvenile to a minimum of eighteen years of imprisonment
violates the constitutional prohibition against cruel and unusual punishment is
meritless. The Supreme Court cases on
which Dixon relies, Thompson v. Oklahoma, 487
U.S. 815 (1988), and Roper v. Simmons, 543 U.S. 551 (2005),
involve imposition of the death penalty on a person under the age of eighteen,
and they are therefore inapposite. Dixon’s general principle is that the sentence imposed
upon him is “incompatible with the evolving standards of decency that mark the
progress of a maturing society,” Estelle v. Gamble, 429 U.S.
97 102-03 (1976) (citation omitted), because the transfer to adult prison
resulted in “corporal punishment” by his cellmate.
¶11 We note, however, that the circuit court did not impose and the
DOC did not mandate “corporal punishment” for Dixon in the form of abuse by his
cellmate. As we noted above, Dixon’s remedies for his
brutalization are through the DOC or criminal prosecution. Dixon’s sentence, although severe, is not “so
excessive and unusual and so disproportionate to the offense committed as to
shock public sentiment and violate the judgment of reasonable people concerning
what is right and proper under the circumstances.” Ocanas v. State, 70 Wis. 2d 179, 185,
233 N.W.2d 457 (1975). This is so
because the circuit court considered Dixon
to be more culpable for Young’s death than the others who participated. Witnesses had seen Dixon inflict a savage beating on Young. At sentencing, the circuit court had noted
that it was “extremely likely that [Dixon’s]
conduct alone … would have caused [the victim’s] death or something close
to it.” Dixon’s sentence in light of his conduct is neither harsh nor unconscionable.
By the Court.—Judgment and order
affirmed.
This
opinion will not be published. See
Wis. Stat. Rule 809.23(1)(b)5.