author: BROWN, J.

text:
    State of Wisconsin, Plaintiff-Respondent, v. Christopher D. Anson, Defendant-Appellant.
    Court of Appeals

      No. 01-2907-CR.

      Oral argument August 22, 2002.

    Decided October 9, 2002.

    2002 WI App 270
    (Also reported in 654 N.W.2d 48.)

      On behalf of the defendant-appellant, there were briefs and oral argument by Steven J. Watson of Steven J. Watson Law Office of Elkhorn.
    On behalf of the plaintiff-respondent, the cause was submitted on the brief of James E. Doyle, attorney general, and David H. Perlman, assistant attorney general. There was oral argument by David H. Perl-man.

    Before Brown, Anderson and Snyder, JJ.
   BROWN, J.

¶ 1. In Patterson v. Illinois, 487 U.S. 285, 292 (1988), the United States Supreme Court observed that a waiver of a Sixth Amendment right to counsel is valid only when it reflects "an intentional relinquishment or abandonment of a known right or privilege." The Court held that since Patterson had been informed that he had been indicted and had been given his Fifth Amendment Miranda warnings and chose to speak with the police and prosecutors anyway, he waived his Sixth Amendment right to counsel. Here, when police investigators initiated a conversation with Christopher D. Anson they did not tell him that charges had been filed or that an arrest warrant had been issued. In fact, when he asked the investigators if he was under arrest, the investigators informed Anson that he was not under arrest. The investigators also did not read Anson his Miranda warnings. Under these circumstances, Anson could not have made a "knowing" choice to relinquish his Sixth Amendment rights. We therefore reverse the judgment and remand with directions as hereafter described.

¶ 2. The following facts are relevant to this appeal. On July 26, 2000, the State issued an arrest warrant for Anson. On July 26, the State charged Anson with three counts of sexual contact with a child under the age of sixteen in violation of Wis. Stat. § 948.02(2) (1999-2000). Each count of the complaint is distinguished by time and place. Counts one and two relate to an incident allegedly occurring "on a glider type chair" on the "porch of the home." Count three relates to the allegation that "the defendant later came back downstairs" and "touched [the victim's] vagina while she was lying on a couch."

¶ 3. In early August, an officer from the Fontana police department contacted the Orange County California sheriff and asked for assistance in getting a statement from Anson. On August 3, the Orange county investigator who initiated the discussion with Anson first learned about the warrant for Anson's arrest. On August 7, the officer sent a fax that contained an eight-page narrative, a copy of the criminal complaint, and a Xerox of a photo of Anson and the victim to the investigator. On August 8, the investigator and his partner went to Anson's workplace, both to get a statement from him regarding an alleged sexual assault that had occurred in Wisconsin and ultimately to arrest Anson. Anson agreed to speak with the investigators.

¶ 4. At the beginning of the interrogation, Anson asked, "I haven't been charged with anything yet," and the investigator responded, "Right." The investigator then asked Anson, "You understand you are not under arrest right now?" Anson responded affirmatively.

¶ 5. After a preliminary discussion, the interrogation turned to the circumstances surrounding the alleged contact between Anson and the alleged victim of the sexual assault. The investigator asked Anson why the victim would make up such a story and Anson stated that she had some grounds for the allegation. Anson then admitted to the investigators that the victim took his hand and placed it over her clothes on her vagina and he left his hand there for a period of time. Anson told the investigators that from his point of view nothing happened on the porch swing. After the interview, the investigators placed Anson under arrest.

¶ 6. Prior to trial, Anson filed a motion to suppress the statements he made to the investigators. The trial court denied the motion. At trial, the inculpatory statements were introduced through the testimony of one of the investigators. Anson also took the stand at trial and testified, as he had told the investigators, that the victim had taken his hand and placed it on her vagina. Anson denied ever having put his hands up the victim's shirt or touching her breasts on the porch swing.

¶ 7. A jury convicted Anson on count three of the information, second-degree sexual assault of a child in violation of Wis. Stat. § 948.02(2). The jury found An-son not guilty on counts one and two of the information. Anson now appeals the judgment of conviction for count three of the information..

¶ 8. This appeal involves the application of facts to federal constitutional principles. We review the trial court's application of constitutional principles to historical facts de novo. State v. Hornung, 229 Wis. 2d 469, 475, 600 N.W.2d 264 (Ct. App. 1999). However, historical factual determinations made by the trial court will be affirmed unless clearly erroneous. Id. at 475-76.

¶ 9. This case implicates Anson's Sixth Amendment right to counsel in a pretrial, post-charge setting. The Sixth Amendment right to counsel offers constitutional safeguards to the accused after the State initiates adversarial proceedings. State v. Dagnall, 2000 WI 82, ¶ 29, 236 Wis. 2d 339, 612 N.W.2d 680. The Sixth Amendment protects the unaided layperson at critical confrontations with his expert adversary, the government, after the adverse positions of government and defendant have solidified. Id. This is because "[i]t is then that a defendant finds himself faced with the prosecutorial forces of organized society, and immersed in the intricacies of substantive and procedural criminal law." Kirby v. Illinois, 406 U.S. 682, 689 (1972).

¶ 10. The Sixth Amendment right to counsel extends to pretrial interrogations. Dagnall, 2000 WI 82 at ¶ 30. The Sixth Amendment right thus protects a defendant during the early stages of the adversarial process "where the results might well settle the accused's fate and reduce the trial itself to a mere formality." Id. (citation omitted). Police and prosecutors have an affirmative duty not to circumvent or exploit the protections guaranteed by the right. Id.

¶ 11. In Wisconsin, the right to counsel arises after the State initiates adversarial proceedings by the filing of a criminal complaint or the issuance of a warrant. Id. Although the right to counsel attaches at the time a charge is made, it is not self-executing. A charged defendant who does not have counsel must invoke, assert or exercise the right to counsel to prevent the interrogation. Id. at ¶ 46. The attachment of the Sixth Amendment right to counsel, coupled with the accused's invocation of the right, prohibit the State from initiating any contact or interrogation concerning the charged crime and any subsequent uncounseled waivers by a defendant during police-initiated contact or interrogation are deemed invalid. Hornung, 229 Wis. 2d at 476.

¶ 12. A defendant can waive the right to counsel as long as the waiver is "knowing and intelligent." Patterson, 487 U.S. at 292. If a defendant "knowingly and intelligently" decides to face the State's officers during questioning without the aid of counsel, then the uncounseled statements the defendant makes can be admitted at trial. Id. at 291. If the waiver is invalid, however, any uncounseled statements elicited from the accused after the right to counsel has attached violate the accused's Sixth Amendment rights and cannot be admitted at trial. See Hornung, 229 Wis. 2d at 480. Thus, at the onset of a post-charge, pretrial interrogation, the accused must make a determination as to whether he or she will assert the right to counsel and terminate the questioning until an attorney is present or waive the right to counsel and proceed with the interrogation without the assistance of counsel.

¶ 13. The State concedes that Anson's Sixth Amendment right to counsel attached at the time the State issued a warrant for his arrest. On appeal, one dispute between the parties is whether Anson invoked his right to an attorney when he stated early in the interrogation, "I have my side of the story, but I want to talk to my lawyer on my side of the story." The degree of clarity with which a defendant must invoke the Sixth Amendment right to counsel during interrogation remains an unsettled area of law. For the purposes of the Fifth Amendment, the Supreme'Court has held that a defendant must invoke the right to counsel "unambiguously." See Davis v. United States, 512 U.S. 452, 459 (1994). When analyzing the Sixth Amendment, however, the Court has determined that it must broadly interpret an accused's request for counsel because the Court presumes that the accused requests the lawyer's services at every critical stage of the prosecution. See Michigan v. Jackson, 475 U.S. 625, 633 (1986). Because we must decide cases on the narrowest possible ground, State v. Blalock, 150 Wis. 2d 688, 703, 442 N.W.2d 514 (Ct. App. 1989), we do not address whether the requirements for an invocation of the Sixth Amendment right to counsel are identical to or less stringent than the requirements for a Fifth Amendment invocation. Cor-relatively, we also do not decide whether Anson's statement constituted an invocation of counsel.

¶ 14. Rather, there exists another issue with which we are squarely presented and that is whether Anson knowingly waived his right to counsel. Stated another way, the issue is whether a defendant must be sufficiently aware of the right to have counsel present during police questioning and of the possible consequences of a decision to forgo the aid of counsel in order to make the "choice" to knowingly waive the right. Our supreme court has recognized that a defendant must be aware of the right to counsel in order to be able to make the decision to invoke the right. In Dagnall, the court determined that the Sixth Amendment protected the defendant from police interrogation because the State had filed charges and the police were aware that the defendant had retained an attorney. Dagnall, 2000 WI 82 at ¶ 4. In the process of reaching its conclusion, the court noted that after the right to counsel has attached,

[t]he right must be "invoked" by the accused to terminate police questioning before an attorney has been retained or appointed for those specific charges, provided the accused has been fully alerted to the right to have an attorney and the right not to answer questions. This normally would entail Miranda warnings.

Dagnall, 2000 WI 82 at ¶ 52 (emphasis added). Although Miranda warnings may not be necessary at the onset of all noncustodial police interrogations, the court logically concluded that an accused must be aware that the right to counsel is available in order to decide whether to invoke it and request the presence of counsel or to waive it and proceed without counsel.

¶ 15. As we stated at the outset of our opinion, a waiver of the Sixth Amendment right to counsel is valid only when it reflects "an intentional relinquishment or abandonment of a known right or privilege." Patterson, 487 U.S. at 292 (citation omitted). In other words, the defendant must "kno[w] what he is doing" so that "his choice is made with eyes open." Id. (quoting Adams v. United States ex rel. McCann, 317 U.S. 269, 279 (1942)). In Patterson, the Court announced a "pragmatic approach" to the waiver question — asking what purposes a lawyer can serve at the particular stage of the proceedings in question and what assistance he or she could provide to an accused at that stage — to determine the scope of the Sixth Amendment right to counsel and the type of warnings and procedures that should be required before a waiver of that right will be recognized. Patterson, 487 U.S. at 298. The proper inquiry for determining the validity of a waiver is whether "the accused, who waived his Sixth Amendment rights during postindictment questioning, [was] made sufficiently aware of his right to have counsel present during the questioning, and of the possible consequences of a decision to forgo the aid of counsel[.]" Id. at 292-93. An accused's waiver of the right to counsel is "knowing" when he or she is made aware of these basic facts. Id. at 298.

¶ 16. The Patterson Court addressed the issue of whether a defendant, whose Sixth Amendment right to counsel had attached, could waive the right to counsel at post-arraignment questioning after receiving Miranda warnings. Patterson, 487 U.S. at 292. The Court held that a waiver of Miranda rights adequately satisfied the requirements for a valid waiver under either the Fifth or Sixth Amendments because "[a]s a general matter, then, an accused who is [given Miranda warnings] has been sufficiently apprised of the nature of his Sixth Amendment rights, and of the consequences of abandoning those rights, so that his waiver on this basis will be considered a knowing and intelligent one." Patterson, 487 U.S. at 296. Because the defendant knew that the government had filed charges, the Court expressly declined to tackle the question of whether an accused must be told that he has been indicted before a post-indictment Sixth Amendment waiver will be valid. Id. at 295 n.8.

¶ 17. Since the Patterson decision, several courts have addressed the question of whether an accused must be informed of an indictment before a post-indictment Sixth Amendment waiver will be valid. The courts have relied on the holding in Patterson to support the conclusion that a valid waiver of Sixth Amendment rights requires no more than Miranda warnings. Norman v. Ducharme, 871 F.2d 1483, 1486-87 (9th Cir. 1989) (accused's waiver knowing after police showed-the accused a copy of his arrest warrant, read him the Miranda warnings, and the accused signed a Miranda waiver form); Riddick v. Edmiston, 894 F.2d 586, 591 (3rd Cir. 1990) (accused's waiver valid where accused had been read Miranda warnings and had signed a waiver of extradition that had mentioned the charge against him even though authorities had not specifically informed him of his indictment); Quadrini v. Clusen, 864 F.2d 577, 587 (7th Cir. 1989) (accused understood right to have counsel present and fully intended to waive it where accused had been repeatedly advised of his Miranda rights and repeatedly waived them, and had spoken with a public defender who advised the accused not to speak with the police and accused chose to disregard the advice); United States v. Carrasco, 887 F.2d 794, 818 (7th Cir. 1989) (accused's waiver valid because Miranda warnings were given); United States v. Charria, 919 F.2d 842, 848-49 (2nd Cir. 1990) (accused's waiver valid where he understood he was under arrest and the authorities had read him Miranda warnings).

¶ 18. In each of these cases in. which the court affirmed a waiver of the defendant's Sixth Amendment right to counsel, the defendants had been read the Miranda warnings and had been aware that they were in custody, under arrest, or that charges had been filed. By virtue of the Miranda warnings, these defendants understood their right to counsel and the consequences of abandoning their right. Even if they did not know they had been formally charged with a crime, these defendants had sufficient information so that they could comprehend the gravity of their situation and the nature of their Sixth Amendment right to counsel.

¶ 19. From the above cited waiver cases, coupled with our supreme court's observation in Dagnall, we reach the following conclusion: At the onset of post-charge pretrial police interrogations, the accused must be made aware that the adversarial process has begun and that he or she can request the assistance of counsel at the onset of post-charge pretrial police interrogations. This can be accomplished by informing the accused that he or she has been formally charged with a crime, by reading to the accused the Miranda warnings, or by anything else that would inform the accused that the adversarial process has begun. By giving Miranda warnings, the Patterson Court reasoned that an individual is told that he or she has the right to an attorney and any statement he or she makes can be used in subsequent criminal proceedings. Patterson, 487 U.S. at 293. Or, by telling the accused that a complaint has been filed or that an arrest warrant has been issued, a reasonable layperson would comprehend that the government has committed itself to prosecute and the positions of the adversaries have solidified. See Kirby, 406 U.S. at 689. As a result, any further interrogation can only be designed to buttress the government's case; authorities are no longer simply attempting "to solve a crime." United States v. Mohabir, 624 F.2d 1140, 1148 (2nd Cir. 1980), overruled on other grounds by Patterson, 487 U.S. at 297. Any voluntary, uncounseled statements made after such knowledge or after a Miranda warning can constitute a valid waiver of the Sixth Amendment right to counsel.

¶ 20. In direct contrast to the defendants in both Dagnall and the waiver cases, the police did not read Anson the Miranda warnings nor was Anson made aware that the State had filed charges and issued an arrest warrant. The investigators went to Anson's workplace with the purpose of interrogating him and then arresting him. Prior to beginning the questioning, the investigators misled Anson into believing the State had not yet filed charges. The investigators told Anson that he was not under arrest. Because he was not under arrest, the officers did not read Anson the Miranda warnings. According to the State, Anson remained calm and relaxed throughout the interrogation because he was not aware that the State had filed charges and he was not in custody. At the onset of the interrogation, Anson did not know nor could he have known that the adversarial process had begun and he had the right to choose to terminate the interrogation until he had an attorney present.

¶ 21. The State should not be permitted to circumvent the Sixth Amendment protections by undertaking a pretrial post-charge interrogation of a defendant who had not been read Miranda warnings, had not been informed of the charges filed against him or did not have sufficient information to know that he had the right to have an attorney present. We hold that the State violated Anson's Sixth Amendment right to counsel when it undertook its interrogation, and accordingly, the trial court erred when it failed to suppress Anson's statements.

¶ 22. While the State concedes that Anson's Sixth Amendment right to counsel attached on July 26, 2000 when the State filed its complaint, the State argues that Anson did not need to be informed of his right to counsel because the setting in which Anson made his statement was noncustodial. The State seems to reason that noncustodial settings are not adversarial in nature, but instead foster more of a voluntary dialogue. The State apparently contends that Anson did not need to know that the State's position had solidified because of the nonconfrontational setting in which the statement was given.

¶ 23. We must reject this argument. The Sixth Amendment right to counsel attaches upon the initiation of adverse judicial proceedings and does not depend upon whether police questioned the defendant in a custodial or noncustodial setting. The Supreme Court has explicitly declined to read a custody requirement, a prerequisite to the attachment of Miranda rights, into the Sixth Amendment. United States v. Henry, 447 U.S. 264, 273 n.11 (1980). The clear rule governing the Sixth Amendment right to counsel is that once adversarial judicial proceedings have commenced against an individual, which in Wisconsin is at the time the State files charges or issues a warrant, the individual has a right to legal representation when the State interrogates the individual. See Brewer v. Williams, 430 U.S. 387, 400-01 (1977).

¶ 24. The State also raises another argument. It points out that in Patterson, the Court viewed the Sixth Amendment right as a spectrum that at one end recognizes the enormous importance and role an attorney plays at trial, and at the other end acknowledges that there are proceedings for which an attorney provides little aid or assistance. See Patterson, 487 U.S. at 298. According to Patterson, the assistance of an attorney during questioning is less important because the dangers and disadvantages of self-representation during questioning are less substantial and more obvious to an accused than they are at trial. Id. at 299-300. The State seems to argue that counsel's services were not important when the investigators questioned Anson.

¶ 25. While it is true that the Patterson Court commented about the rather limited role that attorneys play during questioning, as compared to during trial, the Court did note that the accused must be made "aware of the 'dangers and disadvantages of self-representation' during postindictment questioning." Id. (citation omitted). This makes perfect sense. Even if an attorney's role is limited, once the State has initiated formal proceedings against an accused, the adversarial process has begun and the accused is entitled to rely on an attorney to act as a medium between himself or herself and the adversary, the State. We reject this argument by the State.

¶ 26. In this case, Anson took the stand on his own behalf. Therefore, our next task is to consider whether, by taking the stand, Anson waived his right against self-incrimination, thereby rendering any error harmless.

¶ 27. This issue is governed by Harrison v. United States, 392 U.S. 219 (1968). Harrison teaches us that when a defendant takes the stand in order to overcome the impact of illegally obtained and used statements, his or her testimony is tainted by the same illegality that rendered the statements themselves inadmissible. See State v. Middleton, 135 Wis. 2d 297, 302, 399 N.W.2d 917 (Ct. App. 1986). If such is the case, the defendant does not waive his or her right against self-incrimination and the testimony should be suppressed. See id. at 316-17. The factual basis for such a finding, however, is for the trial court. See id. at 322.

¶ 28. Even where the trial court finds that the defendant would have decided to testify regardless of whether or not his or her statements had been suppressed, Harrison tells us it does not necessarily follow that the defendant's testimony is purged of the taint of the underlying illegality. On the contrary, Harrison teaches us that the natural inference is that the defendant would not have taken the stand and repeated the damaging statements if the prosecutor had not already placed the statements before the jury. See Harrison, 392 U.S. at 225-26.

¶ 29. We direct the trial court on remand to hear evidence and make findings of historical fact concerning whether Anson testified in order to overcome the impact of the incriminating statements he made to the investigators. The State bears the burden of showing that its use of the unlawfully obtained statements did not induce Anson's testimony. See id. at 225. Further, even if the trial court finds that Anson would have testified anyway, Harrison dictates that for the State to meet its burden of proving that Anson's testimony was obtained by means sufficiently distinguishable from the underlying constitutional violation, it must dispel the natural inference that Anson would not have repeated the inculpatory statements when he took the stand. See id. at 225-26. If the trial court finds that a link in fact exists between the State's constitutional violation and Anson's subsequent decision to take the stand and repeat the inculpatory statements, Anson has not waived his right against self-incrimination and is entitled to a new trial.

¶ 30. The State asserts that even if the statement is suppressed, the error is harmless. A constitutional error is harmless if it is "clear beyond a reasonable doubt that a rational jury would have found the defendant guilty absent the error." State v. Harvey, 2002 WI 93, ¶ 49, 254 Wis. 2d 442, 647 N.W.2d 189 (citation omitted). Thus, we must consider whether a rational jury would have found Anson guilty had his statements been excluded.

¶ 31. We cannot conclude that the error was harmless beyond a reasonable doubt. As the State pointed out during its opening statements, it had no physical evidence to present to the jury. The State's case rested heavily on Anson's inculpatory statements to the investigators. The State's case, exclusive of Anson's testimony, was built primarily on the testimony of the victim, her family and her friends in whom she had confided about the alleged incidents. We cannot say with confidence how the jury weighed this testimony against the unlawfully obtained statements and Anson's own testimony. Without Anson's inculpatory statements, the jury could have assessed the testimony of the State's witnesses and returned a verdict of not guilty. In reaching our conclusion, we note that the only count on which the jury convicted Anson is the count involving the incident about which he had made the incriminating statements. In the two other counts, where the sole evidence consisted of testimony, the jury found Anson not guilty. Based on our reading of the record, we cannot conclude that a rational jury would have found Anson guilty absent his statements. We therefore reverse the judgment of conviction and remand to the trial court for further proceedings consistent with this decision.

By the Court. — Judgment reversed and cause remanded with directions.

        Miranda v. Arizona, 384 U.S. 436 (1966).

       The State also charged Anson with three counts of incest for the same conduct in violation of Wis. Stat. § 948.06(1). Anson's appeal does not involve these charges.

       All references to the Wisconsin Statutes are to the 1999-2000 version unless otherwise noted.


source: Caselaw Access Project

author: LUNDSTEN, J.

license: Public Domain

text:
    In re the Commitment of Ervin Burris: State of Wisconsin, Petitioner-Respondent, v. Ervin Burris, Respondent-Appellant.

    Court of Appeals

      No. 00-1425.

      Submitted on briefs October 5, 2001.

    Decided October 10, 2002.

    2002 WI App 262
    (Also reported in 654 N.W.2d 866.)

      On behalf of the respondent-appellant, the cause was submitted on the brief of Joseph L. Sommers, Madison.

      On behalf of the petitioner-respondent, the cause was submitted on the brief of Warren D. Weinstein, assistant attorney general, and James E. Doyle, attorney general.
    Before Vergeront, EJ., Dykman and Lundsten, JJ.

       Petition to review granted 1-14-03.

   LUNDSTEN, J.

¶ 1. Ervin Burris, presently committed under Wis. Stat. ch. 980 (1999-2000), appeals an order revoking his supervised release to the community and committing him to the Wisconsin Resource Center. The order followed an evidentiary hearing on allegations that Burris violated his rules of supervised release. On appeal, Burris contends that (1) one of the rules of his supervised release is unconstitutionally vague; (2) the petition provided insufficient notice of the allegations against him; and (3) the circuit court did not adequately consider alternatives to revoking his supervised release. Each of these errors or omissions was, in Burris's view, a due process violation. We affirm.

Background

¶ 2. In 1997, Burris was committed as a sexually violent person. He was subsequently released on supervision to the Rock Valley Community Corrections Program (halfway house) in Janesville. The Department of Health and Family Services imposed numerous rules on Burris, including the following:

1. You shall avoid all conduct that is a violation of federal or state statute, municipal or county ordinances or that is not in the best interest of the public's welfare or your rehabilitation.
4. You shall inform your agent of your whereabouts and activities as she/he directs.
13. You shall provide true and correct information orally and in writing in response to inquiries by the agent.
15. ... The specific rules imposed at this time are:
a) You shall not consume or possess alcohol, illegal drugs or drug paraphernalia.
18. You shall notify your agent of any involvement in an intimate relationship at its beginning and you shall introduce the person to your agent to disclose your past sexual offenses prior to engaging in any type of sexual activity with that person.

In mid-December 1999, the department petitioned to revoke Burris's supervised release, alleging that Burris obtained a Viagra prescription without his supervising agent's knowledge or consent (an alleged violation of Rule 1), that Burris refused to sign a release form allowing the department to interview the prescribing physician (an alleged violation of Rule 1), that Burris refused to provide his supervising agent with a written statement about the events leading to Burris obtaining the Viagra prescription (an alleged violation of Rules 1, 4, and 13), and that Burris involved himself in an intimate relationship without informing his supervising agent (an alleged violation of Rules 1, 4, and 18). An amended petition, filed on December 30, 1999, added the allegation that Burris consumed alcohol and shared it with another resident at the halfway house between November 3 and November 24, 1999 (an alleged violation of Rules 1 and 15a).

¶ 3. An evidentiary hearing on the revocation petition was held on January 8, 2000. After finding that Burris violated the rules of his release as well as several uncharged minor halfway house rules, the circuit court revoked Burris's supervised release and concluded that the protection of the public required Burris's indefinite commitment to the Wisconsin Resource Center. The circuit court's decision from the bench included the following comments:

I conclude that this compulsive behavior which makes him unable to control his own action coupled with the fact that he has this history of violent sexual activity and sex with children creates a high likelihood that his compulsive behavior will manifest itself in sexually violent behavior which is harmful to the public in the future if there are not significant more controls imposed upon him. And I do not think that the public can be protected in his present placement because of his, number one, refusal to obey the directives of his agent; number two, his refusal to be candid in sex offender treatment; number three, his refusal to follow the rules during temporary releases which were designed to transition him into the community; and, number four, his refusal to be candid with his agent particularly involving matters of his sex life.
... I believe that the safety of the public requires his commitment to a secure facility, and I am going to order that the prior order of this Court is modified to provide that he is committed to the Wisconsin Resource Center for commitment and treatment until such time as it's safe to release him into the public.

Discussion

A. Whether One of the Rules of Supervised Release is Unconstitutionally Vague

¶ 4. Rule 1 of Burris's supervised release states, in relevant part: "You shall avoid all conduct. .. that is not in the best interest of the public's welfare or your rehabilitation." Burris allegedly violated this rule by obtaining a Viagra prescription without informing his agent. Burris argues that Rule 1 is unconstitutionally vague because it failed to give him notice that obtaining a prescription for Viagra was prohibited conduct. We disagree.

¶ 5. "The concept of vagueness rests on the constitutional principle that procedural due process requires fair notice and proper standards for adjudication." State v. Courtney, 74 Wis. 2d 705, 709, 247 N.W.2d 714 (1976) (footnote omitted). We must determine whether the rule " 'read as a whole [is] so indefinite and vague that an ordinary person could not be cognizant of and alerted to the type of conduct, either active or passive, that is prohibited.'" Id. at 710 (quoting State v. Woodington, 31 Wis. 2d 151, 181, 142 N.W.2d 810 (1966)). This court will not hear a vagueness challenge from one whose conduct is clearly within the prohibited zone. See Courtney, 74 Wis. 2d at 713 ("Where . . . conduct is clearly within the prohibited zone, the defendant will not be heard to hypothesize other factual situations which might raise a question as to the applicability of the statute or regulation.").

¶ 6. We acknowledge that the language of Rule 1 is broad, but Burris's challenge fails because his behavior so plainly falls within the language of the rule. Burris had a history of thirty serious sex offenses, including first-degree sexual assault of a nine-year-old child. Burris was found to be a sexually violent person under Wis. Stat. ch. 980. We conclude that an ordinary person would have been cognizant that obtaining a prescription for a sexual-performance-enhancing drug would not be in the public's or in Burris's best interest.

B. Whether Burris was Afforded Notice of Allegations Sufficient to Satisfy Due Process

¶ 7. Burris asserts he did not receive adequate notice of the allegations against him in violation of his due process rights. Specifically, he contends: (1) he received insufficient information regarding the allegation in the petition that he had intimate relations with a woman; (2) he was given untimely and insufficiently specific notice of the allegation that he consumed alcohol; and (3) he was required to defend himself against alleged violations of the halfway house rules when such allegations were not contained in the petition for revocation. We shall address each in turn.

1. Intimate Relations Allegation

¶ 8. Burris argues that the revocation petition failed to provide him with adequate notice because it did not include the name of the woman with whom he allegedly had intimate relations. The proper inquiry with any notice challenge is whether "the notice requirement is such that is 'reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.'" State ex rel. Mess-ner v. Milwaukee County Civil Serv. Comm'n, 56 Wis. 2d 438, 444, 202 N.W.2d 13 (1972) (quoting Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950)). In the absence of formal notice, actual notice generally satisfies due process requirements. See, e.g., State v. Flakes, 140 Wis. 2d 411, 421-22, 410 N.W.2d 614 (Ct. App. 1987).

¶ 9. Burris received actual notice. It is undisputed that Burris's attorney discovered the woman's name prior to the revocation hearing either from Burris's supervising agent or from the woman herself. Burris does not argue that actual notice deprived him of due process. Moreover, even assuming that the lack of formal notice violated due process, Burris has not alleged resulting prejudice. Prior to the hearing, Burris's attorney interviewed the woman Burris was alleged to be involved with.

¶ 10. We conclude the omission of the woman's name in the petition did not violate due process.

2. Alcohol Use Allegation

¶ 11. Burris next argues that he did not receive timely notice of the allegation that he used alcohol while at the halfway house. Burris states that the alcohol allegation was added "in the eleventh hour," and complains that the allegation refers to a three-week period, making it "impossible for anyone to defend himself against" the allegation.

¶ 12. The notice standard we apply in this context is not disputed. "Notice to comply with due process requirements must be given sufficiently in advance of scheduled court proceedings so that a defendant will have a reasonable opportunity to prepare." State v. VanBronkhorst, 2001 WI App 190, ¶ 15, 247 Wis. 2d 247, 633 N.W.2d 236.

¶ 13. Burris received notice of the amended allegation nine days before the hearing. Apart from the "eleventh hour" assertion, Burris does not argue why nine days' notice was insufficient for him to prepare an adequate defense. For example, he does not point to anything he would have done differently to prepare if only he had been given more time. Regarding the three-week window in which the State alleged the alcohol violations occurred, Burris similarly makes a general assertion that the long window prevented him from mounting a defense, but fails to specify how he was prevented from mounting an adequate defense. We conclude Burris suffered no due process violation as a result of the amendment to the revocation petition nine days prior to the hearing.

3. Halfway House Rules Violations

¶ 14. Burris argues that he was forced to defend against alleged violations of the halfway house rules that were not alleged in the petition. Burris contends that the circuit court's reliance on these violations denied him due process. However, the State did not rely on the halfway house rules violations as evidence that Burris violated the terms of his supervised release. The halfway house rules violations were introduced only insofar as they related to the allegations contained in the petition. For example, the State presented evidence that Burris went to a motel to have sex when he was supposed to be- on a pass at his mother's house. In addition, the State presented evidence that Burris had been found in the parking lot of the halfway house, in violation of the house rules, in order to support the inference that halfway house staff could not always monitor whether Burris had been drinking or been having unauthorized intimate relations.

¶ 15. Even if we were to determine that Burris should have received notice of alleged halfway house rules violations, any error in this regard would be harmless.

¶ 16. Lack-of-notice violations in Wis. Stat. ch. 980 revocation proceedings are subject to harmless error analysis. See VanBronkhorst, 2001 WI App 190 at ¶ 19. Recently, in State v. Harvey, 2002 WI 93, 254 Wis. 2d 442, 647 N.W.2d 189, the supreme court adopted the formulation of the harmless error test used by the United States Supreme Court: "error is harmless if it is 'clear beyond a reasonable doubt that a rational jury would have found the defendant guilty absent the error.'" Id. at ¶ 49 (quoting Neder v. United States, 527 U.S. 1, 18 (1999)). There is nothing in Harvey to suggest that this language constitutes a substantive change in Wisconsin's harmless error test. The court's prior articulation of the test was frequently summarized as follows: "whether there is a reasonable possibility that the error contributed to the conviction. A reasonable possibility is a possibility sufficient to undermine our confidence in the conviction." State v. Williams, 2002 WI 58, ¶ 50, 253 Wis. 2d 99, 644 N.W.2d 919 (citations omitted). When determining whether error is harmless, the reviewing court considers the entire reqord. State v. Patricia A.M., 176 Wis. 2d 542, 556-57, 500 N.W.2d 289 (1993).

¶ 17. Burris does not explain how the circuit court's consideration of minor halfway house rules violations contributed to the revocation decision. Apart from finding that Burris violated halfway house rules, the circuit court found that: Burris obtained a prescription that Burris believed was prohibited; Burris had contact with a woman in violation of his supervising agent's order; Burris had sexual intercourse with the woman in violation of his rules of release; Burris drank alcohol in violation of the terms of his supervised release; Burris did not participate in sex offender treatment while on supervised release; and Burris failed to cooperate with his supervising agent. In addition, the court concluded:

And I do not think that the public can be protected in his present placement because of his, number one, refusal to obey the directives of his agent; number two, his refusal to be candid in sex offender treatment; number three, his refusal to follow the rules during temporary releases which were designed to transition him into the community; and, number four, his refusal to be candid with his agent particularly involving matters of his sex life.

The circuit court did not expressly rely on the halfway house rules violations in reaching its decision and we see no reason why those violations would have affected the court's decision. Our confidence in the outcome of the revocation hearing is not undermined.

C. Whether the Circuit Court was Required to Consider Alternatives Other than Revocation

¶ 18. Burris argues that the circuit court was required to consider alternatives to secure detention and reject those alternatives before revoking his supervised release and returning him to an institution. Burris contends that the requirements contained in State ex rel. Plotkin v. DHSS, 63 Wis. 2d 535, 217 N.W.2d 641 (1974), should apply to a revocation hearing under Wis. Stat. § 980.06(2)(d).

¶ 19. The parties assert that the question presented is the same one we certified to the supreme court in State v. Keding, 2002 WI 86, ¶ 1, 254 Wis. 2d 334, 646 N.W.2d 375, which the supreme court did not answer because it was evenly divided on the question. However, the question before us is narrower than the one we certified in Keding. In Keding, we asked the supreme court to answer the following question: Is "a circuit court. .. required to consider alternatives to revocation before revoking a sexually violent person's supervised release under Chapter 980"? Id. Here, we need not address whether a circuit court is ever required to consider alternatives to revocation. Rather, we need only address whether the court must consider alternatives after finding that revocation is required for the safety of others.

¶ 20. "Whether a circuit court is required to consider alternatives to revocation before revoking supervised release ... is a question of law subject to independent review . . . ." Id. at ¶ 13. At the same time,

the revocation decision itself is a discretionary one, subject to a deferential standard of review. We will uphold a circuit court's exercise of discretion if the court employs a process of reasoning based on the facts of record and reaches "a conclusion based on a logical rationale founded upon proper legal standards."

Id. (quoting State ex rel. J.H. Findorff & Son, Inc. v. Milwaukee County Circuit Court, 2000 WI 30, ¶ 21, 233 Wis. 2d 428, 608 N.W.2d 679).

¶ 21. We must construe Wis. Stat. § 980.06(2)(d) to determine whether the circuit court was required to consider alternatives to revocation in this case. The construction of a statute is a question of law which we review without deference to the trial court. DeMars v. LaPour, 123 Wis. 2d 366, 370, 366 N.W.2d 891 (1985). We first look to the language of the statute and attempt to interpret it based on "the plain meaning of its terms." State v. Williquette, 129 Wis. 2d 239, 248, 385 N.W.2d 145 (1986). Only when statutory language is ambiguous may we examine other construction aids, such as legislative history, context and subject matter. State v. Waalen, 130 Wis. 2d 18, 24, 386 N.W.2d 47 (1986). A statute is ambiguous if reasonable persons could disagree as to its meaning. Williquette, 129 Wis. 2d at 248.

¶ 22. The applicable subsection of Wis. Stat. ch. 980 reads, in pertinent part:

If the court determines after hearing that any rule or condition of release has been violated, or that the safety of others requires that supervised release be revoked, it may revoke the order for supervised release and order that the released person be placed in an appropriate institution until the person is discharged from the commitment under s. 980.09 or until again placed on supervised release under s. 980.08.

Wis. Stat. § 980.06(2)(d). Under this statute, a circuit court must first determine whether any rule or condition of release has been violated or whether the safety of others requires revocation. If either of these conditions is met, the circuit court "may" revoke an order for supervised release. However, upon a finding that the safety of others requires revocation, the plain language of the statute removes any discretion from the circuit court. Simply stated, it is irrational to require consideration of alternatives to revocation after a court has found that the safety of others requires revocation. Moreover, a review of the record here reveals that the circuit court found that the safety of others required Burris's revocation.

¶ 23. The circuit court, in its vfindings, stated:

I believe that the safety of the public requires his commitment to a secure facility, and I am going to order that the prior order of this Court is modified to provide that he is committed to the Wisconsin Resource Center for commitment and treatment until such time as it's safe to release him into the public.

(Emphasis supplied.) The circuit court explained that Burris's compulsive behavior, as evidenced by the rules violations, and his history of sexually violent behavior made him an unacceptable risk. Although the circuit court did not use the statutory language ("safety of others requires that supervised release be revoked"), it is obvious that this was the court's finding.

¶ 24. Burris's argument that the circuit court was required to consider alternatives to revocation is based on Plotkin, 63 Wis. 2d 535. Plotkin approved and adopted standards, recommended by the American Bar Association, used during administrative proceedings regarding probation revocations. Id. at 544. Burris argues that these standards should be applied to Wis. Stat. ch. 980 supervised release revocations because persons committed under ch. 980 are entitled to the same constitutional protections that criminal defendants receive when contesting probation revocations. Burris relies on the following language from Van-Bronkhorst, 2001 WI App 190 at ¶ 9: "procedural due process protections afforded in probation or parole revocation proceedings apply to supervised release revocation proceedings under ch. 980."

¶ 25. However, Plotkin was decided based on a statute giving the circuit court the discretion to revoke probation. See Plotkin, 63 Wis. 2d at 542. As explained above, the circuit court has no such discretion when it finds that the safety of the public requires that supervised release be revoked. See Wis. Stat. § 980.06(2)(d).

By the Court. — Order affirmed.

       All further references to the Wisconsin Statutes are to the 1997-98 version unless otherwise noted.

       Wisconsin Stat. § 980.06(2)(d) reads:
      An order for supervised release places the person in the custody and control of the department. A person on supervised release is subject to the conditions set by the court and to the rules of the department. Before a person is placed on supervised release by the court under this section, the court shall so notify the municipal police department and county sheriff for the municipality and county in which the person will be residing. The notification requirement under this paragraph does not apply if a municipal police department or county sheriff submits to the court a written statement waiving the right to be notified. If the department alleges that a released person has violated any condition or rule, or that the safety of others requires that supervised release be revoked, he or she may be taken into custody under the rules of the department. The department shall submit a statement showing probable cause of the detention and a petition to revoke the order for supervised release to the committing court and the regional office of the state public defender responsible for handling cases in the county where the committing court is located within 48 hours after the detention. The court shall hear the petition within 30 days, unless the hearing or time deadline is waived by the detained person. Pending the revocation hearing, the department may detain the person in a jail or in a hospital, center or facility specified by s. 51.15(2). The state has the burden of proving by clear and convincing evidence that any rule or condition of release has been violated, or that the safety of others requires that supervised release be revoked. If the court determines after hearing that any rule or condition of release has been violated, or that the safety of others requires that supervised release be revoked, it may revoke the order for supervised release and order that the released person be placed in an appropriate institution until the person is discharged from the commitment under S. 980.09 or until again placed on supervised release under s. 980.08.

        Section 980.06(2)(d) was subsequently renumbered Wis. Stat. § 980.08(6m) and amended by 1999 Wis. Act 9, § 3223L. The amendment did not alter the relevant language at issue here.


author: LUNDSTEN, J. DYKMAN, J.

text:
    State of Wisconsin, Plaintiff-Respondent, v. Curtis E. Gallion, Defendant-Appellant.

    Court of Appeals

      No. 01-0051-CR.

      Submitted on briefs October 5, 2001.

    Decided October 10, 2002.

    2002 WI App 265
    (Also reported in 654 N.W.2d 446.)

      On behalf of the defendant-appellant, the cause was submitted on the briefs of Howard B. Eisenberg, Milwaukee.
    On behalf of the plaintiff-respondent, the cause was submitted on the brief of Eileen W. Pray, assistant attorney general, and James E. Doyle, attorney general.
    Before Vergeront, PJ, Dykman and Lundsten, JJ.

       Petition to review granted 2-19-03.

   LUNDSTEN, J.

¶ 1. Curtis Gallion appeals a judgment convicting him of homicide by use of a motor vehicle with a prohibited alcohol concentration in violation of Wis. Stat. § 940.09(l)(b) (1997-98). Gallion entered a guilty plea and was sentenced under truth-in-sentencing to twenty-one years of incarceration followed by nine years of extended supervision. Gallion asserts the sentencing court committed three errors: (1) the court violated Gallion's rights to procedural due process and equal protection of the law when it failed to provide adequate reasons for the specific sentence imposed under truth-in-sentencing; (2) the court considered two improper factors: the victim's good character and the contrast between Gabion's character and the character of his victim; and (3) the court imposed a sentence that is "too harsh" considering Gabion's age, history, and crime. We affirm on all issues.

Background

¶ 2. At about 1:30 a.m. on March 3, 2000, nineteen-year-old Curtis Gabion was drunk and was driving his car at a high rate of speed westbound on West Locust Street in Milwaukee. At the intersection of West Locust and 35th Street, Gallion ran a red light and broadsided another car traveling through the intersection on 35th Street. A reconstruction of the collision indicated that Gabion's car was traveling between forty-five and fifty-four miles per hour and made no attempt to slow or stop before impact. The collision caused extensive passenger-side damage to the car struck by Gabion's car. Vanessa Brown was in the front passenger seat of the other car, and the collision killed her.

¶ 3. Police officers were on the scene almost immediately. They found Gallion lying across the front seat of his car. Gallion's breath smelled strongly of alcohol, and a blood test within three hours of the collision showed his blood alcohol content was .237.

¶ 4. Gallion agreed to plead guilty to homicide by intoxicated use of a motor vehicle. Pursuant to the plea agreement, the district attorney recommended prison, but did not recommend any particular amount of incarceration. Following a lengthy sentencing hearing and extended comments by the sentencing court on Gallion's history, character, and the harm caused by his crime, the court sentenced Gallion under truth-in-sentencing to thirty years: twenty-one years in prison and nine years on extended supervision. On December 4, 2000, Gallion asked the sentencing court to modify his sentence, alleging an erroneous exercise of discretion. The court denied the motion.

Discussion

Whether Constitutional Considerations Require a New Approach to Sentencing Under Truth-in-Sentencing

¶ 5. Gallion argues that his rights to procedural due process and equal protection of the law were violated when the sentencing court failed to provide reasons for the specific sentence imposed. Gallion states he has a constitutional right to have the court explain why it imposed twenty-one years of incarceration rather than a shorter or longer period of incarceration, such as ten, fifteen, twenty, or twenty-five years. Gal-lion contends the reasons given by the sentencing court here were inadequate because they were general enough to support "virtually any sentence."

¶ 6. We are unsure whether Gallion is asserting that the requirements imposed on sentencing courts have long been constitutionally deficient. However, he clearly argues that, under truth-in-sentencing, it is constitutionally required that sentencing courts justify with great specificity the reason for the particular sentence imposed. Gallion speculates that Wisconsin appellate courts have consistently affirmed harsh sentences prior to truth-in-sentencing — sentences imposed without the sort of detailed explanation he demands— because appellate courts knew the "parole board was there to ameliorate sentence disparity or excessive sentences." He asserts that more demanding requirements must be imposed under truth-in-sentencing because now, "[i]f the judge says 21 years of confinement, the defendant will serve every day of that period unless the Governor (or death) commutes the sentence." This greater finality and certainty, Gallion reasons, requires that a sentencing court explain with specificity the reason behind the particular amount of time it chooses to impose.

¶ 7. The State acknowledges that truth-in-sentencing confers on sentencing courts significantly greater control over sentence length and thereby confers increased sentencing discretion, but the State argues there is no indication that the legislature intended to rein in judicial discretion. More to the point, the State contends, and we agree, that Gallion has failed to demonstrate that the existing rules governing sentencing discretion are unconstitutional when applied to sentences imposed under truth-in-sentencing.

¶ 8. Gallion acknowledges that cases such as McCleary v. State, 49 Wis. 2d 263, 282, 182 N.W.2d 512 (1971), and State v. Stubbendick, 110 Wis. 2d 693, 699, 329 N.W.2d 399 (1983), already require sentencing courts to state reasons for imposing a particular sentence. Nonetheless, he contends that with the advent of truth-in-sentencing, the bar must be raised. Gallion does not, however, support this claim with persuasive legal authority or reasoned argument.

¶ 9. In support of his contention that, under truth-in-sentencing, procedural due process requires a more detailed sentencing rationale, Gallion relies on two federal cases, United States ex rel. Scott v. Illinois Parole and Pardon Board, 669 F.2d 1185 (7th Cir. 1982), overruled on other grounds, Heidelberg v. Illinois Prisoner Review Board, 163 F.3d 1025 (7th Cir. 1998), and Parker v. Corrothers, 750 F.2d 653 (8th Cir. 1984), for the proposition that a "decision maker must explain in more than boilerplate generalities why it concludes that the seriousness of the offense requires the deprivation of freedom." However, Wisconsin law already requires more than "boilerplate generalities." As stated long ago in McCleary, 49 Wis. 2d at 277:

[T]here must be evidence that discretion was in fact exercised. Discretion is not synonymous with decision-making. Rather, the term contemplates a process of reasoning. This process must depend on facts that are of record or that are reasonably derived by inference from the record and a conclusion based on a logical rationale founded upon proper legal standards. As we pointed out in State v. Hutnik (1968), 39 Wis. 2d 754, 764, 159 N.W.2d 733, "... there should be evidence in the record that discretion was in fact exercised and the basis of that exercise of discretion should be set forth."

Moreover, Gallion asserts that more specificity is required but does not articulate a new workable standard. How does a sentencing court explain why it is imposing twenty rather than fifteen years? We suspect Gallion has not offered a standard because the task is impossible. Sentencing decisions are not amenable to the sort of precise explanation Gallion seeks.

¶ 10. Gallion's combined due process and equal protection argument is similarly unavailing. Relying on Bush v. Gore, 531 U.S. 98 (2000), Gallion states: "Due Process and Equal Protection of Law under the Fourteenth Amendment to the United States Constitution require the adoption of 'specific standards' so that all persons are dealt with fairly and equally." Gallion asserts: "If 'specific standards' are required — as a matter of Due Process and Equal Protection — when counting ballots, a priori such standards should be applied to the deprivation of the most basic of human right— liberty." Bush, however, provides no support for Gallion's position. The determination of voter intent based on "marks or holes or scratches on an inanimate object, a piece of cardboard or paper," id. at 106, is a far cry from individualized sentencing. As the Bush Court explained, the "formulation of uniform rules to determine intent based on these recurring circumstances is practicable." Id. Individualized sentencing is much different; whatever the number of variables involved in ascertaining voter intent based on a cardboard or paper ballot, that number pales in comparison with the vast number of variables involved in sentencing.

¶ 11. Gallion asserts that some form of sentencing guidelines are "constitutionally required." He contends a constitutional sentence cannot be imposed if the sentencing court has no comparative "information on sentencing and incarceration practices." Gallion states that without comparative information, "sentencing in Wisconsin has become arbitrary and violative of Due Process and Equal Protection of Law."

¶ 12. We do not quarrel with the proposition that comparative data or sentencing guidelines provide helpful information to sentencing courts. But the question here is whether such information is constitutionally mandated. In this respect, Gallion has not provided anything approaching a convincing legal analysis. For example, although Gallion asserts that comparative information was constitutionally required before truth-in-sentencing, he does not provide any authority for that remarkable proposition. Also, Gallion's argument that comparative information is required under truth-in-sentencing is limited to the following: "This problem is all the more serious now that 'truth in sentencing' has come to the State." Because Gallion does not present a developed legal argument that comparative sentencing information is constitutionally required, we address this claim no further. See State v. Pettit, 171 Wis. 2d 627, 646, 492 N.W.2d 633 (Ct. App. 1992) ("We may decline to review issues inadequately briefed.").

¶ 13. Nor are we persuaded by Gallion's contention that new sentencing standards must be imposed because there is no parole under truth-in-sentencing. Gallion asserts that the Wisconsin Parole Board reduces sentence disparity and ameliorates excessive sentences for non-truth-in-sentencing sentences. This may be true, but this court has no way of knowing the extent to which it is true. In any event, with or without parole, differences in imposed sentences have a dramatic effect on defendants. Finally, Gallion's elimination-of-parole argument contains the same flaw as his other related arguments: he has not articulated a new workable standard to replace the one he claims is inadequate.

¶ 14. Accordingly, Gallion has failed to show that truth-in-sentencing requires new rules governing sentencing discretion. He has not only failed to show that a court must now explain why it imposed a specific sentence instead of other possible sentences within the applicable sentencing range, he has also failed to explain how this feat could be achieved.

Whether the Sentencing Court Considered Improper Factors

¶ 15. In two closely related arguments, Gallion contends the sentencing court considered improper factors. First, Gallion contends the sentencing court improperly considered the victim's good character. In this respect, Gallion argues both that the court placed too much emphasis on the victim's character and that the court should not have considered the victim's character at all because Gallion did not intend to harm the victim. Second, Gallion contends the sentencing court improperly increased his sentence because his character was poor when compared with the victim's character. We reject both propositions. We conclude the sentencing court was entitled to consider the victim's good character in the context of assessing the harm caused by Gallion's crime. Further, assuming, without deciding, that a sentencing court may not consider the victim's character as an isolated sentencing factor and may not increase a sentence because of an unfavorable comparison between a defendant's and a victim's character, we conclude the sentencing court did neither in this case.

¶ 16. An improper sentencing factor is a factor that is "totally irrelevant or immaterial to the type of decision to be made." Elias v. State, 93 Wis. 2d 278, 282, 286 N.W.2d 559 (1980). We find no Wisconsin decision directly addressing whether a homicide victim's character, standing alone, is a proper sentencing factor. However, the authority we do find supports the view that a victim's character may be considered as part of one of the three primary sentencing factors: gravity of the offense.

¶ 17. The gravity of an offense encompasses harm caused by the offense. See State v. Carter, 208 Wis. 2d 142, 156, 560 N.W.2d 256 (1997) (gravity includes effect of crime on victim). The harm caused by a homicide encompasses the loss suffered by surviving family and friends. This view is in keeping with our state's victim rights legislation. Crime victims have the right "[t]o have the court provided with information pertaining to the economic, physical and psychological effect of the crime upon the victim and have the information considered by the court." Wis. Stat. § 950.04(1v)(pm); see also State v. Voss, 205 Wis. 2d 586, 595-96, 556 N.W.2d 433 (Ct. App. 1996). Victim impact statements are authorized by Wis. Stat. § 972.14(3)(a). The logical corollary to these rights is that prosecutors, and surviving family and friends of homicide victims, may inform sentencing courts of a victim's character, including his or her traits and activities, in order to convey the loss caused by the homicide. A sentencing court, in turn, may consider this information. Taking this case as an example, it is impossible to convey the loss suffered by Vanessa Brown's family members, friends, employer, and the community generally without commenting on Brown's fine character. It is precisely because of her outstanding character that the loss is so great.

¶ 18. Gallion argues: "A defendant does not deserve more or less time in prison because of the character of the person he killed when driving while drunk." Gallion asserts that a criminal sentence should not be affected by whether the offender "killed a homeless person with a long rap sheet... or . . . the most productive and important member of the community." However, even assuming, without deciding, that victim character alone is not relevant at sentencing, such an assumption does not mean that sentencing courts may not consider the effect of a homicide on the victim's family and friends. We observe that in State v. Spears, 227 Wis. 2d 495, 596 N.W.2d 375 (1999), Chief Justice Abrahamson's dissent quotes the following from the circuit court's decision, with apparent approval:

"The court should... not attempt to measure the relative value of the victim's life. While the defendant may benefit when no one appears to mourn the deceased, there is no corresponding right to argue that 'since nobody else cares, why should we' or to otherwise seek to diminish the value of the victim's life.
"Even though there might he circumstances in which the court could weigh the positive contributions and worth of the victim in assessing the harm caused by the crime, it does not follow that there is a right to have the court consider that a victim was a terrible burden on society."

Id. at 516 (Abrahamson, C.J., dissenting) (emphasis added).

¶ 19. Gallion argues that the character of a victim, even as that character bears on the loss suffered by friends and family, is irrelevant where, as here, a defendant does not intend to harm the particular victim. We disagree. It is well established in criminal law that severe sentencing consequences often flow from unintended results. For example, regardless of intent, far different consequences flow from a conviction for simply operating a vehicle with a prohibited alcohol concentration and a conviction for homicide by use of a vehicle with a prohibited alcohol concentration. See Booth v. Maryland, 482 U.S. 496, 519 (1987) (Scalia, J., dissenting) ("If a bank robber aims his gun at a guard, pulls the trigger, and kills his target, he may be put to death. If the gun unexpectedly misfires, he may not. His moral guilt in both cases is identical, but his responsibility in the former is greater."), overruled on other grounds, Payne v. Tennessee, 501 U.S. 808 (1991).

¶ 20. We conclude that a sentencing court may consider the effect of a homicide on the victim's family and friends, and that such consideration may include the character traits of the victim. Our review of the sentencing transcript leads us to conclude that that is what occurred here. For example, the court explained:

You killed an innocent woman. A' good woman. A good mother, a good daughter, a good friend. You extinguished her life, and you have forever affected the life of her three-year-old son and all of her family members ....
You have [inflicted] so much hurt on so many people. You have affected so many lives.

Accordingly, we are satisfied that the sentencing court considered Vanessa Brown's character in the context of assessing crime severity and did not punish Gallion simply because Brown was an extraordinary person.

¶ 21. In a closely related argument, Gallion asserts that the sentencing court improperly increased his sentence based on a comparison of his character with that of his victim, Vanessa Brown. Gallion notes that four people attended his sentencing hearing to speak about Brown: her mother, her father, an employer, and a teacher. The court also received eight written letters from Brown's friends and relatives. Both speakers and writers described Vanessa Brown as a warm, caring friend and mother, who was dedicated to her job and was full of potential. Gallion points to comments made by the sentencing court which compare Gallion with Brown. Gallion asserts that these comments reflect the improper consideration of the relative value of his character and the character of his victim. He relies on the same dissent we have referred to above, Chief Justice Abrahamson's dissent in Spears, 227 Wis. 2d 495. There, the Chief Justice expressed concern about the "improper balancing of the 'comparative worth' of the defendant and the victim." Id. at 515-16. While we share the Chief Justice's concern, we conclude that the sentencing record does not show that "improper balancing" occurred in this case.

¶ 22. Sentencing courts are required to consider the character of offenders. State v. Sarabia, 118 Wis. 2d 655, 673, 348 N.W.2d 527 (1984). And, as we have held in this decision, a sentencing court in a homicide case may consider the character of a victim in the context of assessing the gravity of the offense. We conclude it is unreasonable to permit sentencing courts to consider a defendant's character and the character of a homicide victim, and then also require that the court not notice and not comment on the difference between the two. Prohibiting such observation and comment would impose a semantic trap for sentencing courts with no corresponding benefit to defendants.

¶ 23. In the case before us, the sentencing court never said it was imposing more time because of the contrast between Gallion and Brown. Rather, Gallion asks this court to infer reliance on the contrast from comments made by the sentencing court about the contrast. However, it is self-evident that sentencing courts do not increase or decrease sentences based on every observation they make. In the absence of some clear indication that the sentencing court imposed additional incarceration time because of the contrast in character between Gallion and Brown, we will not infer as much, especially where, as here, it was proper for the court to consider the character of both people.

¶ 24. Sentencing courts are "presumed to have acted reasonably," and the defendant has the burden of showing that the "sentence was based on clearly irrelevant or improper factors." See State v. Wickstrom, 118 Wis. 2d 339, 354-55, 348 N.W.2d 183 (Ct. App. 1984); State v. Haskins, 139 Wis. 2d 257, 268, 407 N.W.2d 309 (Ct. App. 1987). Gallion has shown that the sentencing court commented on the contrast between his character and that of Vanessa Brown, but he has not met his burden of showing that the court imposed a more harsh sentence because of that contrast.

Whether Gallion's Sentence Shocks Public Sentiment

¶ 25. In a single paragraph, Gallion presents the alternative argument that his sentence was "too harsh, with or without consideration of Ms. Brown's character." Gallion notes that he was nineteen years old at the time of the crime and that, in the preceding five years, he had only two adjudications: one juvenile and one adult misdemeanor. Gallion states his serious drug and alcohol abuse problem is at the root of his misconduct. He concludes: "This sort of background in a person so young does not-warrant locking him up for the next 21 years." However, Gallion's brief minimizes the severity of his conduct prior to this offense. When we look at Gallion's history, his current offense, and the range of potential incarceration time, and apply the well-established standard of review applicable to sentencing decisions, we cannot agree that Gallion is entitled to. resentencing.

¶ 26. The principles governing sentencing discretion are well established. Sentencing courts have been given "great discretion." State v. Jackson, 110 Wis. 2d 548, 552, 329 N.W.2d 182 (1983). Sentencing decisions are generally accorded "a strong presumption of reasonableness because the circuit court is best suited to consider the relevant factors and assess the defendant's demeanor." State v. Setagord, 211 Wis. 2d 397, 418, 565 N.W.2d 506 (1997). "We may not substitute our preference for a sentence merely because, had we been in the trial court's position, we would have meted out a different sentence." State v. Spears, 147 Wis. 2d 429, 446, 433 N.W.2d 595 (Ct. App. 1988). A sentencing court must consider three primary sentencing factors: "(1) the gravity of the offense, (2) the character and rehabilitative needs of the offender, and (3) the need for protection of the public." Sarabia, 118 Wis. 2d at 673. The weight to be given each factor is within the sentencing court's discretion. Wickstrom, 118 Wis. 2d at 355.

¶ 27. Sentencing courts are "presumed to have acted reasonably, and the defendant can only rebut the presumption by showing an unreasonable or unjustifiable basis for the sentence in the record." Id. at 354. A sentencing court "misuses its discretion when it fails to state the relevant and material factors .that influenced its decision, relies on immaterial factors, or gives too much weight to one factor in the face of other contravening factors." State v. Steele, 2001 WI App 160, ¶ 10, 246 Wis. 2d 744, 632 N.W.2d 112. In addition:

[A] trial court exceeds its discretion as to the length of the sentence only when 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."

Id. (quoting State v. Thompson, 172 Wis. 2d 257, 264, 493 N.W.2d 729 (Ct. App. 1992)).

¶ 28. When the sentencing court fails to set forth the reasons for the sentence imposed, "we are obliged to search the record to determine whether in the exercise of proper discretion the sentence imposed can be sustained." McCleary, 49 Wis. 2d at 282. Therefore, "it is . . . our duty to affirm the sentence on appeal if from the facts of record [the sentence] is sustainable as a proper discretionary act." Id.

¶ 29. Gallion does not assert that the sentencing court failed to exercise discretion or that the court failed to consider appropriate sentencing factors, including aggravating and mitigating factors in his background. Rather, his assertion that his sentence is "too harsh" amounts to an assertion that his sentence was " '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.'" Thompson, 172 Wis. 2d at 264 (quoting Ocanas v. State, 70 Wis. 2d 179, 185, 233 N.W.2d 457 (1975)). Under this highly deferential standard, Gallion's claim fails.

¶ 30. The legislature has classified homicide by use of a motor vehicle with a prohibited alcohol concentration as a Class B felony carrying a maximum term of incarceration of forty years followed by a possible twenty years of extended supervision. Wxs. Stat. §§940.09(l)(b), 973.01(2), and 939.50(3)(b). Thus, Gallion's twenty-one years of incarceration and nine years of extended supervision are about half that authorized by the legislature.

¶ 31. There is no dispute that Gallion's crime called for a lengthy term of incarceration. Gallion's own counsel suggested something in "a range of five to 10" years of incarceration followed by "10 years or so" of extended supervision. The presentence report recommended thirteen to sixteen years of incarceration.

¶ 32. We cannot say that proper sentencing considerations do not support a sentence in the middle range of that authorized by the legislature. This is not a case where the offender has no criminal history and where the offender caused the collision by failing to respond appropriately to an unexpected situation. At the same time, Gallion does not present the worst case scenario. For example, he has not previously injured or killed people while driving drunk. Rather, Gallion's situation presents something in the middle ground.

¶ 33. Gallion's appellate brief is factually wrong when it asserts he had "two adjudications — one juvenile and one adult — for carrying a concealed weapon." In fact, Gallion had three juvenile adjudications in addition to his adult conviction. From the age of fourteen until the time of the homicide in this case, Gallion was almost continually in trouble and in and out of group homes and.secure detention.

¶ 34. When Gallion was fourteen, he was apprehended in possession of 1.58 grams of crack cocaine and 36.7 grams of marijuana. The car he was riding in at the time he was apprehended had an assault rifle in the trunk. Gallion was adjudicated delinquent based on one count of possession with intent to deliver cocaine and one count of possession with intent to deliver marijuana. The juvenile court imposed one year of "intensive probation," but Gallion failed to cooperate with rules and treatment.

¶ 35. Seven months after his first arrest, Gallion was again arrested for possession of cocaine with intent to deliver. Gallion had twenty-eight "individually wrapped corner cuts" of crack cocaine with a total weight of 1.65 grams. He was adjudicated delinquent on this charge and given one year probation, with placement in a group home. Gallion again failed to cooperate and absconded. In November of 1995, three months after turning fifteen, Gallion was committed to Ethan Allan for one year.

¶ 36. In 1997, after having been back in the community for about fifteen months, Gallion was arrested for carrying a concealed weapon, a handgun. Gallion said he was carrying the gun for protection and, when arrested, was pursuing a person who had robbed him. In August of 1997, just prior to his seventeenth birthday, Gallion was again committed to Ethan Allen, this time for nine months.

¶ 37. In February of 1998, Gallion left Ethan Allen and was placed in a group home, where he remained until May of 1998. In December of 1998, when Gallion was eighteen years old, he was again arrested for carrying a concealed weapon and in July of 1999 was convicted of that charge as an adult. Gallion said he was carrying the gun for protection. He received a six-month jail sentence. We find no place in the record indicating when Gallion was actually released from jail, but if he served his full six-month jail sentence, the drunk driving homicide offense in this case occurred about three months after his release.

¶ 38. At the time of sentencing, Gallion had a one-year-old son with his girlfriend, who was pregnant with their second child. A psychological report prepared for the defense revealed a history of drug and alcohol abuse in Gallion's family. Gallion began drinking alcohol at age fourteen and has used marijuana in the past. Gallion was diagnosed with a cognitive disability at age thirteen, and scored in the mildly retarded range.

¶ 39. As the sentencing court observed, Gallion failed to avail himself of opportunities to deal with his drug and alcohol problems. At the time of the collision, Gallion's blood alcohol content was almost two and a half times the legal limit. Gallion drove with reckless abandon, oblivious to or disregarding traffic signals. Moreover, his crime deprived a child of his mother, deprived devoted parents of their child, and deprived family and friends alike of an exceptional young woman with a bright future.

¶ 40. We also observe that the sentencing court hoped to send a message to potential drunk drivers, even if the audience might be small. The court's message was: Don't drive drunk or you might end up in prison for a long, long time. Plainly, the legislature had deterrence in mind when it authorized forty years of incarceration for this crime, and we will not second guess the sentencing court's deterrence rationale.

¶ 41. Considering all of the circumstances, we affirm the sentence imposed because it was 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.'" Thompson, 172 Wis. 2d at 264 (quoting Ocanas, 70 Wis. 2d at 185).

By the Court. — Judgment and order affirmed.

DYKMAN, J.

¶ 42. (concurring). I concur in the majority mandate because I agree that constitutional considerations do not require a new approach to sentencing under truth-in-sentencing, and I agree that the sentencing court did not consider improper factors when sentencing Gallion. I also agree that Gallion's sentence does not shock public sentiment.

¶ 43. But removing the parole board from the sentencing equation raises other issues which we do not address today. Using common law principles, courts have for many years maintained the right to alter imposed sentences, albeit within restrictive boundaries. Truth-in-sentencing has not, and perhaps could not prevent courts from correcting what they subsequently conclude was error. We will have to address those issues when they arise.

       All other references to the Wisconsin Statutes are to the 1999-2000 version unless otherwise noted.

        State v. Spears, 220 Wis. 2d 720, 585 N.W.2d 161 (Ct. App. 1998) (Spears I), and State v. Spears, 227 Wis. 2d 495, 596 N.W.2d 375 (1999) (Spears II), involve victim character information presented at sentencing, but neither address the general question of the propriety of victim character information. In Spears I, this court assumed that there was no error when the prosecutor put on evidence of the victim's good character, Spears, 220 Wis. 2d at 725-26, but this court did not need to decide the issue. Rather, the question presented in Spears I was the propriety of the sentencing court considering the victim's criminal record as a counter-point to good character testimony from the victim's family. Id. at 726-28. In Spears II, the supreme court affirmed the admission of the victim's criminal record, but on the narrow ground that the character evidence was relevant to the seriousness of the crime itself. The supreme court said:
      Because we hold that a defendant has the right to present evidence supporting her view of the crime, we decline to address the defendant's additional arguments that the victim's criminal record was relevant to rebut "good" character evidence with evidence of the victim's "bad" character and that the record was relevant to the three sentencing factors that a circuit court must consider when making its sentencing determination.

        Spears, 227 Wis. 2d at 499 n.1.

       We note that the United States Supreme Court has held that evidence of the impact of a victim's death on the victim's family is admissible at a capital sentencing hearing. Payne v. Tennessee, 501 U.S. 808, 823-26 (1991). In Payne, the Court acknowledged that in prior cases it had expressed concern that "the admission of victim impact evidence permits a [capital sentencing] jury to find that defendants whose victims were assets to their community are more deserving of punishment than those whose victims are perceived to be less worthy." Id. at 823. Nonetheless, the Court approved the admission of such victim impact evidence, stating:
      As a general matter, however, victim impact evidence is not offered to encourage comparative judgments of this kind — for instance, that the killer of a hardworking, devoted parent deserves the death penalty, but that the murderer of a reprobate does not. It is designed to show instead each victim's "uniqueness as an individual human being," whatever the jury might think the loss to the community resulting from his death might be.

        Id.; see United States v. McVeigh, 153 F.3d 1166, 1216-17 (10th Cir. 1998) (impact of murder on victim's family relevant to determination of whether death penalty should be imposed).

       The sentencing court observed:
      This is a case that involves two very, very different people, Curtis Gallion and Vanessa Brown, who were exact opposites.
      Curtis Gallion and Vanessa Brown lived in the same community but they really lived in different worlds. We have Curtis Gallion who came from a family that wasn't as warm and loving as Vanessa Brown's. We have a man, Curtis Gallion, who was educationally limited. And on the other hand, Vanessa Brown, who worked and struggled to get her education, to get her diploma with honors and to go beyond . .. high school.
      We have Curtis Gallion who as a younger man was involved in a lot of criminal activity. And on the other hand, Vanessa Brown who lived a crime free, exemplary life. Two very opposite people who unfortunately cross paths and came together on March 3rd, 2000, which brings everyone who is here into this courtroom.
      The court also noted:
      [W]ho really is Curtis Gallion? .. . Curtis Gallion is a 19-year-old man. A young, young man who educationally is limited. Read about the problems you had in school, the problems you caused in school. So educationally your life was the opposite of Vanessa Brown.