COURT OF APPEALS DECISION DATED AND FILED August 24, 2010 A.
John Voelker Acting 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 |
IN COURT OF APPEALS |
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DISTRICT III |
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State of
Plaintiff-Respondent, v. Tarvel Cortes Don Franklin,
Defendant-Appellant. |
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APPEAL
from a judgment and an order of the circuit court for
Before
¶1 PER CURIAM. Tarvel Franklin appeals a
judgment of conviction for first-degree sexual assault of a child and an order
denying his motion for postconviction relief.
BACKGROUND
¶2
¶3 The agent assessment and impressions portion of the PSI stated, in part:
No one can argue that living in
….
[
….
The sexual assault of a child is not just a crime but an egregious human rights violation. It is an abomination which should be granted little forgiveness. Social engineers and researchers, treatment gurus, and those who unknowingly become complicit can all provide some psycho-social explanations amid the myriad of contentions for Tarvel Franklin’s moral lapse, indulging only the naïve and vain that he is a low-risk to society. They will declare he can be redeemed. They will assert there was “no bodily harm.” However, the brain is the body’s driving life force. And, within this matter is where [the victim] will experience this pain for the remainder of her life. A sentence provides nothing for the life this child has lost. It will only briefly protect the community. Society witnesses the toll sexual assault takes on the victim and the communities in which they live. These children become promiscuous, sexually compromised, alcohol and drug abusers, criminally involved, and condemned to be perpetually victimized. Justice[,] and Mr. Franklin’s redemption[,] will come in another dimension. There is absolutely no defense for what Tarvel Franklin created. He did this because he believes he is entitled “to kick-it.”[[2]]
¶4 The circuit court imposed sixteen years’ confinement and eight years’ extended supervision. Explaining its reasons for the sentence, the court commented:
This would be an amazing world to live in, a far better place[,] if treatment could cure everything. We just need some treatment. He needs some treatment. The family needs some treatment, give them some treatment and all is better. Well, I wish it was so, but wishing doesn’t make it so.
….
The reality of it is, those of us who have been in this business long enough know that [the victim is] going to have all sorts of problems growing up, that she’s going to be victimized all her life.
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She’s going to suffer longer than you are. You’ll get out of prison some day. She’ll always be imprisoned in her mind. You took away the innocence of youth, took away the innocence of a young female child, and why? For your own pleasure, some sexual gratification.
….
I’m not sure if treatment does work at all. There is a lot of literature that indicates that people with such deviant sexual desires like that never get treated and maintain that way all through their lives. Some material indicate[s] treatment works. I’m not sure which to believe.
¶5 Postconviction counsel moved for resentencing, arguing the
PSI writer abandoned his neutrality.[3] The circuit court denied
DISCUSSION
¶6 “The integrity of the sentencing process demands that the PSI
be accurate, reliable, and, above all, objective.” State v. Howland, 2003 WI App 104, ¶36,
264
¶7 A defendant has a due process right to be sentenced on the
basis of true and accurate information. State
v. Tiepelman, 2006 WI 66, ¶9, 291
¶8
¶9 The State does not explicitly dispute that the PSI contained
inappropriate content or that it exhibits bias.
Rather, it argues there is no remedy because this case is unlike Tiepelman
or Suchocki.
The State further argues that,
regardless,
¶10 We reject the State’s first contention. While, unlike Tiepelman, this case does not involve inaccurate historical information, we recognized in Suchocki that a sentencing court’s reliance on a biased PSI could similarly violate a defendant’s due process rights. That there are different factual bases for the bias here and in Suchocki is irrelevant.[5]
¶11
¶12 We do not agree that the circuit court so closely echoed the
contested portions of the PSI as to demonstrate it relied on them. At sentencing, the court did not reference the
PSI author’s conclusions beyond the undisputed status of
¶13 Denying
Well, I’ll concede that I recall that presentence report, and I thought that was a very—I’ll call it writing style that differs from many of my presentence reports that I read. And you can tell that there was clearly emotion behind that writing style of that presentence writer, but I recognized that.
The reality of it is I’ve been here now for eighteen years on this bench, and there are some presentence writers who are just very short sentence, matter of fact, simplest objective statements. ... And there are different style of writers that you can tell maybe minored in English—heck, maybe majored in English, rather than criminal justice, but I didn’t sentence him based upon any false information or any inaccuracies contained in that report.
I fully understand that there are agent’s impressions and recommendations, and they are their opinions. ... But I recognize that is simply just one of the tools, and I recognize the difference in the style of writings, the difference in the personal concern or involvement in that type of crime by some writers.
….
And there are individual differences in writing styles. And I’ll agree that this was, in a sense, was more akin to a person that has a writing background versus a strict criminal justice, black-and-white background. But having said that, I took it for that when I read it. I took it for no more.
And I think even in my sentencing comments I talked about the different sides of the effectiveness of treatment for sexual offender defendants. And I’ve been to seminars over the years, and I’ve had speakers there ranging from individuals that are on the law enforcement side and those who are on the side of the providing treatment clinic for the individuals. So, I’ve had those that say 87 percent are a hundred percent treatable down to obviously a lower percentage on the other end, and I’ve seen the spectrum of cases, and I think I even mentioned that. So, I’m satisfied that there was no prejudicial harm to this defendant from the writing style of the presentence writer in this case, and I deny the motion based on that grounds. (Emphasis added.)
¶14 The agent’s assessment and impressions portion of the PSI
stands in stark contrast to the remainder of the PSI, which appears to be both
objective and thorough. Indeed,
¶15 We recognize the difficulty in demonstrating actual reliance
absent an explicit statement by the circuit court that it is relying on
particular information. However, had
By the Court.—Judgment and order affirmed.
This opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)5.
[1] Franklin also made a sentencing guideline argument, which, as his reply acknowledges, is disposed of by the recently decided State v. Barfell, 2010 WI App 61, 324 Wis. 2d 374, 782 N.W.2d 437.
[2] Earlier,
in the personal history section, the PSI states: “Since arriving in
[3]
[4] Our
supreme court recently held that a court of appeals decision that has been
overruled, even in part, no longer retains any precedential value. Blum v. 1st Auto & Casualty Ins. Co.,
2010 WI 78, ¶56. We
do not believe that holding bars our reliance on
[5] The
defendant in Suchocki, 208