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COURT OF APPEALS DECISION DATED AND RELEASED June 15, 1995 |
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. |
Nos. 94-0050-CR
94-0051-CR
94-0052-CR
94-0053-CR
94-0054-CR
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT IV
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
SHAWN D. KNAPP,
Defendant-Appellant.
APPEAL from judgments
and an order of the circuit court for Wood County: JAMES M. MASON, Judge. Affirmed.
Before Eich, C.J.,
Gartzke, P.J., and Dykman, J.
PER CURIAM. Shawn D. Knapp appeals from judgments and a
postconviction order denying his motion for resentencing. The issue is whether the trial court
violated Knapp's First Amendment rights by considering his aspirations to
affiliate with a racist prison gang that requires Knapp to "pick a fight
with a black person." We conclude
that the court's sentence, partially combined with probationary terms, was
designed to deter disruptive behavior, not mere association with a racist
gang. Because the court explicitly
based Knapp's revocation exposure on his anticipated disruptive conduct as
required by gang membership and not on membership alone, we affirm.
Knapp pled no contest to
five burglary charges.[1] The trial court imposed a nine-year sentence
and imposed but suspended, probationary terms to run concurrently to the
sentence.[2] Knapp moved for resentencing contending the
court extended his sentence based on his aspirations to affiliate with the
Aryan Brotherhood, a racist prison gang.
The court denied the motion.
Knapp appeals.
At sentencing, the trial
court was concerned about Knapp's statement to a psychologist reported in the
Presentence Investigation Report. The
presentence investigator reported that Knapp commented to the psychologist
that,
the
swastika [tatoo] on his shoulder blade which is an emblem of the gang he wants
to hang out with in prison and how in order to be accepted into that gang, he
will have to pick a fight with a black person.
He mentions doing this when they tried to put a black person as his
roommate while at Eau Claire Academy and winding up in the Crisis Intervention
Center.
Based
on that remark, the court reminded Knapp that "[he is] the one who offers
the comment about you'd like to get with the Aryan Brotherhood so you could
tease some black person into a fight and so that you can establish your
relationship with the Aryan Brotherhood, mentioned on a couple of occasions ...." It then warned Knapp that by imposing
concurrent probationary terms with the imposed sentences,
[t]hat whether you
join the Aryan Brotherhood or not in prison is up to you. But I warn you if you do and you
violate there, you're going to find yourself extended for a longer term in
prison because I'm going to put you on probation while you're in prison; and so
your behavior there is going to be monitored according to probation, too; and
you're going to have the opportunity to extend your time for longer and longer
and longer periods. It's going to be up
to you.
(Emphasis added.)
Knapp moved for
resentencing based primarily on a violation of his First Amendment rights to
free speech and association but also on an erroneous exercise of
discretion. The trial court
acknowledged that it had considered Knapp's interest in affiliating with the
Aryan Brotherhood during sentencing, but denied the motion for resentencing
because "[it] imposed the probation term to control his behavior, not his
beliefs."
Knapp contends that the
trial court violated his First Amendment rights to free speech and
association. We disagree. The court explained that probation was
designed to deter Knapp's conduct, not his beliefs. However, Knapp's beliefs and associational rights to become a
member of the Aryan Brotherhood, included disruptive conduct by Knapp's own
admission. The court expressly warned
Knapp that if his affiliation with the Aryan Brotherhood included disruptive
conduct such as "pick[ing] a fight
with a black person," his sentence would be extended. It mentioned association only as it related
to future conduct. The probation
structure imposed was designed to deter his conduct, not his association,
unless association necessarily included disruptive conduct, which Knapp claimed
it would. There is nothing improper
about imposing probation to deter improper conduct.
By the Court.—Judgments
and order affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)5, Stats.