State v. Dodson

• Decision Date: 26 January 2022
• Docket Number: No. 2018AP1476-CR,2018AP1476-CR
• Citation: 969 N.W.2d 225,400 Wis.2d 313,2022 WI 5
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. Octavia W. DODSON, Defendant-Appellant-Petitioner.
• Court: Wisconsin Supreme Court

400 Wis.2d 313

969 N.W.2d 225

2022 WI 5

STATE of Wisconsin, Plaintiff-Respondent,

v.Octavia W. DODSON, Defendant-Appellant-Petitioner.

No. 2018AP1476-CR

Supreme Court of Wisconsin.

Oral Argument: September 13, 2021

Opinion Filed: January 26, 2022

For the defendant-appellant-petitioner, there were briefs filed by Jorge R. Fragoso, assistant state public defender. There was an oral argument by Jorge R. Fragoso.

For the plaintiff-respondent, there was a brief filed by Donald V. Latorraca, assistant attorney general; with whom on the brief was Joshua L. Kaul, attorney general. There was an oral argument by Donald V. Latorraca.

KAROFSKY, J., delivered the majority opinion of the Court, in which ANN WALSH BRADLEY, DALLET, and HAGEDORN, JJ., joined. HAGEDORN, J., filed a concurring opinion. REBECCA GRASSL BRADLEY, J., filed a dissenting opinion, in which ZIEGLER, C.J., and ROGGENSACK, J., joined.

JILL J. KAROFSKY, J.

¶1 Octavia W. Dodson seeks resentencing for his second-degree intentional homicide conviction, alleging that the Milwaukee County Circuit Court relied on an improper sentencing factor in mentioning his lawful gun ownership and conceal-carry (CCW) permit.¹ He contends such reliance contravenes his rights under the Second Amendment to the United States Constitution. The circuit court denied Dodson's postconviction motion for resentencing, and the court of appeals affirmed that denial.² We likewise affirm. Dodson fails to prove by clear and convincing evidence that the circuit court actually relied on an improper factor. Accordingly, his sentence stands.

I. BACKGROUND

¶2 On March 25, 2016, Dodson shot and killed Deshun T. Freeman. Roughly four minutes before the homicide, Dodson was involved in a minor car accident during which an unidentified driver—in what Dodson believed to be a Buick³ —collided with the rear of Dodson's car. Dodson exited his vehicle and as he walked toward the back of his car, the other driver reversed the Buick several car-lengths and sped off.

Meanwhile, Dodson unholstered his pistol, which he lawfully owned and for which he had a valid CCW permit.⁴

¶3 Dodson returned to his car and attempted to follow the Buick but lost sight of it. While searching for the Buick, Dodson swapped out his pistol's ten-round magazine for an extended 17-round magazine. Soon thereafter Dodson spotted a second Buick driven by the victim, Deshun Freeman. Believing it to be the car that rear-ended him, Dodson pursued Freeman's vehicle. When Freeman pulled over to the side of the road, Dodson parked his car about two car-lengths behind.

¶4 According to Dodson, Freeman began "fumbling around" by his driver-side door before starting to walk toward Dodson. At that point, Dodson exited his vehicle and stood between the open driver-side door and his car. Dodson told officers that Freeman, with his hands either in his pockets or underneath his sweatshirt, began running toward Dodson, and shouted an obscenity at him. Dodson responded by firing six rounds from his pistol, three of which hit and killed Freeman. After witnessing Freeman's body fall to the ground, Dodson fled the scene. Hours later, Dodson surrendered himself to the police. The investigation revealed that Freeman had not been armed and that Freeman's vehicle did not match Dodson's description of the Buick from the earlier collision.

¶5 The State charged Dodson with second-degree intentional homicide, citing unnecessary defensive force as the mitigating circumstance.⁵ The charge included the "use of a dangerous weapon" penalty enhancer.⁶ As the result of plea negotiations, the State dismissed the dangerous-weapon penalty enhancer in exchange for Dodson's guilty plea to second-degree intentional homicide.

¶6 At the sentencing hearing, the circuit court determined that despite Dodson being an otherwise "model citizen," the gravity and serious nature of the crime warranted 14 years of initial confinement followed by six years of extended supervision. As the circuit court explained:

In reviewing this case, I have to say I am completely baffled as to why this happened. And I don't think that there is any rational way of trying to explain it. I can tell you this, Mr. Dodson, that in my experience as a judge, I have seen over time how individuals when they are possessing a firearm, how that in some way changes them. It changes how they view the world. It changes how they react and respond to people. I know that this is only speculation on my part, but I do strongly feel that the day that you applied for that concealed carry permit and went out and purchased that firearm, and that extended magazine, whether your rational beliefs for possessing it, whether you felt the need to somehow arm yourself and protect yourself from essentially the crime that is going on in this community I think on that day set in motion this circumstance.

It is clear to me, Mr. Dodson, that for whatever reason, and it appears that it is a distorted, misguided belief of the world that somehow Mr. Freeman was a threat that required you, in essence, to terminate his life. Makes no sense.

... [I]t is clear to me that you were operating under some misguided belief, some distorted view of the world that somehow [Deshun] Freeman was a threat to you when in reality it was nothing further from the truth.

¶7 In a postconviction motion, Dodson argued that the circuit court's statements demonstrated an improper reliance on his gun ownership and CCW permit, in contravention of his Second Amendment rights.⁷ The postconviction court denied the motion, concluding that the challenged statements, in context, were not improper. The court of appeals affirmed, holding that the sentencing court's statements demonstrated that Dodson was being punished not for exercising his Second Amendment rights but rather his "distorted, misguided belief" that he could unlawfully and lethally use his gun against the unarmed Freeman. See State v. Dodson, No. 2018AP1476-CR, 2020 WL 4999697, unpublished slip op., ¶¶16–18 (Wis. Ct. App. Aug. 25, 2020). We granted Dodson's petition for review.

II. STANDARD OF REVIEW & APPLICABLE LAW

¶8 We review a circuit court's sentencing decision for an erroneous exercise of discretion.

State v. Dalton, 2018 WI 85, ¶36, 383 Wis. 2d 147, 914 N.W.2d 120. A circuit court erroneously exercises its sentencing discretion when it "actually relies on clearly irrelevant or improper factors." Id. Accordingly, a defendant challenging his or her sentence must prove by clear and convincing evidence that: (1) the challenged factor is irrelevant or improper; and (2) the circuit court actually relied on that factor. State v. Pico, 2018 WI 66, ¶48, 382 Wis. 2d 273, 914 N.W.2d 95.

¶9 Under the improper-factor prong, sentencing factors are proper when they inform valid sentencing objectives including "the protection of the community, punishment of the defendant, rehabilitation of the defendant, and deterrence to others." State v. Gallion, 2004 WI 42, ¶40, 270 Wis. 2d 535, 678 N.W.2d 197 ; see also Wis. Stat. § 973.017(2). Primary factors informing those objectives are the gravity of the offense, the defendant's character, and the need to protect the public. Gallion, 270 Wis. 2d 535, ¶44, 678 N.W.2d 197. Secondary factors include:

(1) Past record of criminal offenses; (2) history of undesirable behavior pattern; (3) the defendant's personality, character and social traits; (4) result of presentence investigation; (5) vicious or aggravated nature of the crime; (6) degree of the defendant's culpability; (7) defendant's demeanor at trial; (8) defendant's age, educational background and employment record; (9) defendant's remorse, repentance and cooperativeness; (10) defendant's need for close rehabilitative control; (11) the rights of the public; and (12) the length of pretrial detention.

Id., ¶43, n.11. Finally, a circuit court may properly entertain a "general predisposition[ ], based upon his or her criminal sentencing experience" so long as that predisposition is not "so specific or rigid" that it "ignore[s] the particular circumstances of the individual offender." State v. Ogden, 199 Wis. 2d 566, 573, 544 N.W.2d 574 (1996).

¶10 Under the actual-reliance prong, we review the sentencing transcript as a whole and assess any allegedly improper comments within that context. State v. Williams, 2018 WI 59, ¶52, 381 Wis. 2d 661, 912 N.W.2d 373. To prove actual reliance a defendant must identify where in the transcript the circuit court both gave "explicit attention" to an improper factor and made the improper factor a part of the "basis for the sentence." Id. Therefore, a defendant will fall short of proving actual reliance if the transcript lacks clear and convincing evidence that the factor was the sole cause of a harsher sentence. Id., ¶¶45-46, 53. A defendant will also fail to show actual reliance if a reference to a challenged factor bears "a reasonable nexus" to a relevant, proper factor. Id., ¶53.

III. ANALYSIS

¶11 Turning from the law to the case before us, Dodson isolates two statements that he contends offer clear and convincing evidence that the circuit court actually relied on an improper factor. First, Dodson contends that the circuit court improperly grafted a negative predisposition against all gun owners onto him when it said that it has seen how "possessing a firearm" "changes how they view the world" and "react and respond to people." Second, Dodson argues that the circuit court improperly relied on his gun ownership and CCW permit when it stated that "the day that you applied for that concealed carry permit and went out and purchased that firearm, and that extended magazine ... set in motion this circumstance."

¶12 We disagree. Dodson's arguments ignore critical context that, when read alongside the challenged statements, demonstrate the circuit court neither exhibited an improper predisposition against all gun owners nor actually relied on Dodson's gun ownership or CCW permit as part of his sentence. Our...