COURT OF APPEALS DECISION DATED AND FILED December 9, 2008 David R. Schanker Clerk of Court of Appeals |
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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 |
IN COURT OF APPEALS |
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DISTRICT I |
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State of Plaintiff-Respondent, v. Cameron Deshawn Johnson, Defendant-Appellant. |
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APPEAL
from a judgment and orders of the circuit court for
Before Curley, P.J., Fine and Kessler, JJ.
¶1 PER CURIAM. Cameron Deshawn Johnson appeals from a judgment of conviction and from two postconviction orders, one denying suppression of his custodial statements and the other modifying his sentence. We affirm.
BACKGROUND
¶2 Warren Douglas was shot twice and died from his wounds. The State charged Johnson and a co-actor, Chino
Moore, with felony murder. Johnson gave
both written and oral statements while in custody. In his written confession of July 16, 2006,
Johnson admitted that he and Moore made plans to rob Douglas, whom they were
meeting for a drug transaction. Johnson
described taking the pistol offered to him by
¶3 The criminal complaint includes both of Johnson’s statements. Additionally, the complaint includes a
summary of
¶4 Johnson moved to suppress his statements and the circuit court conducted a Miranda-Goodchild hearing.[1] Two police detectives testified on behalf of the State. Johnson called no witnesses and personally waived his right to testify. Based on the testimony of the detectives, the circuit court denied the motion to suppress, concluding that Johnson knowingly, intelligently, and voluntarily waived his Miranda rights.
¶5 Johnson decided to plead guilty to an amended charge of first-degree reckless homicide while armed. During the plea colloquy, Johnson agreed that the criminal complaint established a factual basis for his plea. However, he explained through his counsel that “as … to Mr. Johnson’s statement in the complaint, [Johnson] agrees with that, but there’s a substantial difference in what Mr. Moore had indicated about the defendant. So the basis for the plea is as it relates to Mr. Johnson’s statement in the criminal complaint …” The court accepted the plea.
¶6 The matter proceeded to sentencing. The circuit court imposed a thirty-year term
of imprisonment, bifurcated as twenty years of initial confinement and ten
years of extended supervision. In its
sentencing remarks, the circuit court noted that Johnson had taken a life and
made “a forever decision … when you did subsequently pull that trigger.” The circuit court explained to Johnson that
it did not view his culpability as identical to
¶7 Johnson filed two postconviction motions. First, he moved for sentence modification,
arguing that the circuit court imposed its sentence in reliance on a factual
basis that Johnson disputed, namely, that Johnson fired two shots. At the hearing, Johnson asserted that he
entered his plea on the basis that he fired one shot and
¶8 Johnson filed a second postconviction motion, in which he sought suppression of his custodial statements. In support, he submitted a letter and affidavit asserting that he had not been properly advised of his Miranda rights and that he gave his statements involuntarily without knowingly and intelligently waiving his rights. The circuit court denied this motion without a hearing.
¶9 Johnson appeals. He contends that the circuit court erroneously denied his suppression motion and that he should have received a more substantial modification of his sentence.
DISCUSSION
¶10 We first consider Johnson’s claim that the circuit court erred
by refusing to suppress his custodial statements.[2] When the State seeks to admit a defendant’s
custodial statements into evidence, the State must show, first, “that the
accused was adequately informed of the Miranda
rights, understood them, and knowingly and intelligently waived them.” State v.
¶11 At the suppression hearing, Detective John Wesley testified that he questioned Johnson on July 16, 2006, and Detective Christopher Blaszak testified that he questioned Johnson on July 17, 2006. Both officers described reading Johnson his Miranda rights and securing Johnson’s assurances that he understood his rights and wanted to talk. Both officers denied making any threats or promises to induce Johnson’s statements, and both officers testified that Johnson did not appear to be under the influence of any intoxicants or drugs.
¶12 Detective Wesley testified that Johnson asked for an attorney during the July 16, 2006, interview but then withdrew the request and asked to continue talking without an attorney present. According to Detective Wesley, Johnson eventually indicated that he wanted to write out a statement himself, and he was permitted to do so. Detective Blaszak testified that Johnson never asked for an attorney during the interview on July 17, 2006.
¶13 After the officers testified, Johnson’s trial counsel told the
court that Johnson would not present any witnesses. The circuit court conducted a colloquy with
Johnson, and Johnson confirmed that he chose not to testify after discussing
the matter with counsel.
¶14 “We give deference to the circuit court’s findings regarding
the factual circumstances that surrounded the making of the [custodial] statements.” State v. Hoppe, 2003 WI 43, ¶34, 261
¶15 The admissibility of a defendant’s custodial statement must be
resolved by an evidentiary hearing before the circuit court. See
Wis. Stat. § 971.31(3); see also State v. Armstrong, 223
74
¶16 In its order denying Johnson’s motion, the circuit court found
that Johnson could have testified at the suppression hearing but that he
knowingly, intelligently, and voluntarily waived his right to do so. The circuit court therefore concluded that
Johnson’s belated proffer “c[ould] not be heard.” Johnson did not argue in his postconviction
or appellate submissions that his waiver of the right to testify was
invalid. Indeed, he did not mention the
waiver. On this record, we conclude that
the circuit court appropriately exercised its discretion in refusing to hear
additional evidence. See State v. McDonald, 50
¶17 The evidence presented at the suppression hearing is the only
testimony in the record as to the circumstances surrounding Johnson’s custodial
statements. That testimony fully
supports the circuit court’s factual findings.
In light of those findings, we agree with the circuit court’s conclusion
that Johnson made his custodial statements voluntarily after receiving proper Miranda
warnings.
¶18 We next consider the propriety of the circuit court’s decision to modify Johnson’s sentence. At the postconviction hearing, Johnson argued that the circuit court gave undue weight to statements identifying Johnson as the sole shooter because Johnson’s guilty plea was premised on his admission that “[Johnson] did the one shot. Chino Moore did the second shot.” The circuit court agreed, and reduced the length of Johnson’s extended supervision from ten years to eight years. Johnson maintains that the circuit court “did not fully consider” his motion and afforded him inadequate relief.
¶19 We must first determine the basis of Johnson’s appellate
challenge. Johnson argues in his
brief-in-chief that the sentence imposed “remains unduly harsh and
unconscionable.” The State responds that
Johnson failed to show a new factor justifying sentence modification. A new factor is a fact or set of facts highly
relevant to sentencing but not known to the sentencing judge at the time of
sentencing, either because the fact was not in existence or because it was
unknowingly overlooked. Rosado
v. State, 70
¶20 This does not end our inquiry, however, because Johnson’s reply
brief includes an argument that “the trial court actually relied on inaccurate
information at [the original] sentencing.”
A defendant has a due process right to be sentenced on the basis of
accurate information. State
v. Tiepelman, 2006 WI 66, ¶9, 291
¶21 Sentencing
decisions are vested in the circuit court’s discretion and a defendant who challenges a sentence has the burden of showing that the sentence was unreasonable.
¶22 In this case, the circuit court discussed the gravity of the offense, describing it as “horrific.” The court considered Johnson’s character, noting that Johnson failed to exercise the intelligence and capacity for leadership that his friends and family described during the sentencing proceeding. The court discussed the effect of the crime on the community and noted the importance of conveying the consequences of taking a life. The court determined that the appropriate purpose of the sentence was punishment because the victim was shot in the head at close range in furtherance of a robbery. Thus, the court considered proper factors and chose a reasonable objective in its original sentencing decision.
¶23 A circuit court may reduce a defendant’s sentence upon
concluding that the original sentence was unduly harsh or unconscionable. Cresci v. State, 89
¶24 We will not reverse a sentencing court’s decision based on appropriate factors unless
the sentence is “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
By the Court.—Judgment and orders affirmed.
This opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)5.
[1] See Miranda v.
[2] A circuit court’s order denying a suppression motion may be reviewed on appeal notwithstanding the defendant’s guilty plea. See Wis. Stat. § 971.31(10) (2005-06). All references to the Wisconsin Statutes are to the 2005-06 version unless otherwise noted.
[3]
We observe that, even in his reply brief, Johnson does not show that the
circuit court relied on inaccurate information when imposing the original
sentence. Johnson gave a custodial
statement admitting that he fired two shots.
Johnson now repudiates that statement in favor of a different custodial
statement in which he admitted firing only one shot. Johnson does not point to objective data in
the record demonstrating that his repudiated confession is false. A circuit court may rely on disputed evidence
at sentencing, including unproven criminal conduct.
[4]
It is unsurprising that the circuit court sentenced Johnson as the sole shooter
because Johnson’s trial counsel explicitly conceded the point. At sentencing, counsel argued: “I do think though, Mr. Johnson even though
he is the shooter, even though he was the person that is the actual cause of
the death, I think both Chino Moore and Cameron Johnson were probably equal
even though Mr.