State v. Frey

• Citation: 817 N.W.2d 436,343 Wis.2d 358,2012 WI 99
• Decision Date: 17 July 2012
• Docket Number: No. 2010AP2801–CR.,2010AP2801–CR.
• Parties: STATE of Wisconsin, Plaintiff–Respondent, v. Michael L. FREY, Defendant–Appellant–Petitioner.
• Court: United States State Supreme Court of Wisconsin

343 Wis.2d 358
817 N.W.2d 436
2012 WI 99

STATE of Wisconsin, Plaintiff–Respondent,
v.
Michael L. FREY, Defendant–Appellant–Petitioner.

No. 2010AP2801–CR.

Supreme Court of Wisconsin.

Argued April 18, 2012.
Decided July 17, 2012.

[817 N.W.2d 439]

For the defendant-appellant-petitioner, there were briefs and oral argument by Devon M. Lee, assistant state public defender.

For the plaintiff-respondent, the cause was argued by Thomas J. Balistreri, assistant attorney general, with whom on the briefs was J.B. Van Hollen, attorney general.

¶ 1DAVID T. PROSSER, J.

[343 Wis.2d 364]This is a review of an unpublished decision of the court of appeals, State v. Frey, No. 2010AP2801–CR, unpublished slip op., 337 Wis.2d 429, 805 N.W.2d 735 (Wis.Ct.App. Aug. 30, 2011) affirming the felony convictions of Michael L. Frey (Frey).

¶ 2 Frey pleaded no contest to three felonies on the morning of a scheduled trial in which he was facing six felony charges. As part of a plea bargain, the State agreed to dismiss three felony charges, but there was no agreement that the dismissed charges would be “read-in” under Wis. Stat. § 973.20(1g)(b).¹

[343 Wis.2d 365]¶ 3 At sentencing, the Florence County Circuit Court, Leon D. Stenz, Judge, explicitly considered the dismissed charges in explaining and imposing Frey's sentence. As a result, Frey challenged the validity of the sentence. The circuit court denied Frey's motion for resentencing, and the court of appeals affirmed.

¶ 4 The issues presented here may be stated as follows:

1. May a circuit court consider dismissed charges in imposing a sentence when the defendant asserts that the charges were “dismissed outright”?

2. Did the circuit court consider a dismissed charge for more than determining Frey's character and need for

[817 N.W.2d 440]

incarceration and rehabilitation, entitling Frey to a new sentencing hearing?

¶ 5 We conclude that a circuit court may consider dismissed charges in imposing sentence. Nothing in this case alters that longstanding rule. The circuit court here did not use the dismissed charges for an improper purpose. In addition, we conclude that Frey had adequate opportunity to refute the purported inaccuracies of the facts underlying the dismissed charges. Therefore, we affirm the decision of the court of appeals.

I. FACTUAL BACKGROUND

¶ 6 Michael Frey and his girlfriend moved to the Town of Aurora in Florence County in the summer of 2008. M.G. lived at Frey's home with her mother, her half-sister, and Frey. This family unit had lived together for almost 10 years. M.G.'s high school friend, A.B., occasionally visited M.G. at the Aurora home and slept there overnight.

[343 Wis.2d 366]¶ 7 In the spring of 2009, A.B. and M.G. accused Frey of sexually assaulting them at different times at the Aurora home. Both girls were 16 years old at the time. Frey was 43.

¶ 8 A.B. alleged that when she visited M.G., she would “smoke weed” with M.G. and Frey. Frey would provide the marijuana as well as pills that caused her to get tired or dizzy.

¶ 9 A.B. alleged that when she was visiting M.G. one night in early February 2009, after an evening of smoking marijuana, taking pills, and smoking cigarettes, she came downstairs from M.G.'s bedroom to get a drink in the kitchen. She alleged that Frey came up behind her, pushed her against the sink, and attacked her. A.B. alleged that Frey pushed her to the ground, flipped her onto her back, and forcibly had sexual intercourse with her. A.B. screamed and tried to get away from Frey and eventually slipped away and ran upstairs to M.G.'s room. Early the next morning she called a friend who took her home.

¶ 10 M.G. alleged that Frey would give her pills, including sleeping pills, almost every night—usually seven per night. These pills would cause M.G. to fall asleep. On March 30, 2009, Frey gave pills to M.G. causing her to fall asleep. M.G. woke up to find Frey's hand inside her pants.

¶ 11 M.G. had previously accused Frey of similar conduct, but charges were not filed after M.G. withdrew her statement to police.

¶ 12 On April 15, 2009, police obtained and executed a search warrant and discovered two baggies of marijuana and two scales, one digital and one mechanical, in Frey's home.

[343 Wis.2d 367]II. PROCEDURAL HISTORY

¶ 13 On April 21, 2009, Michael L. Frey was charged with (1) second degree sexual assault, contrary to Wis. Stat. § 940.225(2)(a); (2) attempted second degree sexual assault, contrary to Wis. Stat. § 940.225(2)(d); (3) possession of tetrahydrocannabinols, second and subsequent, contrary to Wis. Stat. § 961.41(3g)(e); and (4) possession of drug paraphernalia, contrary to Wis. Stat. § 961.573(1).

¶ 14 At the initial appearance on April 21, 2009, the court found probable cause, reduced bail to $100,000 cash, and set the preliminary examination date.

¶ 15 A preliminary examination was held on April 28, 2009, at which both A.B. and M.G. testified.

¶ 16 On April 30, 2009, an information was filed that contained six counts:

COUNT 1: Second Degree Sexual Assault, Wis. Stat. § 940.225(2)(a)—A Class C Felony

[817 N.W.2d 441]

COUNT 2: Second Degree Sexual Assault, Wis. Stat. § 940.225(2)(cm)—A Class C Felony

COUNT 3: Child Enticement, Wis. Stat. § 948.07(6)—A Class D Felony

COUNT 4: Child Enticement, Wis. Stat. § 948.07(6)—A Class D Felony

Count 5: Deliver a Controlled Substance, Wis. Stat. § 961.41(1)(h) 1—A Class I Felony

COUNT 6: Deliver a Controlled Substance, Wis. Stat. § 961.41(1)(h) 1—A Class I Felony

¶ 17 Counts 1, 3, and 5 related to the incident involving A.B. while counts 2, 4, and 6 related to the incident involving M.G.

[343 Wis.2d 368]¶ 18 On September 2, 2009, on the morning set for trial, the State and Frey negotiated a plea bargain. It was a last-minute agreement, as the courtroom was full of prospective jurors when the court left to take the plea in a different room.

¶ 19 The court asked Florence County District Attorney Douglas Drexler to state the plea bargain on the record. Drexler replied that, “the defendant would plead either guilty or no contest to Count Two, Count Five, and Count Six of the Information.... And Count One, Three, and Four would be dismissed.” The parties agreed that there would be a presentence investigation and that the parties could argue about the proper sentence.

¶ 20 Frey pleaded no contest to one count of second degree sexual assault and two counts of delivery of marijuana or tetrahydrocannabinols. These were counts 2, 5, and 6 of the information. The court accepted the pleas and found Frey guilty of the three counts. The other three counts were dismissed.

¶ 21 On November 10, 2009, the circuit court sentenced Frey. Certain statements that the court made during sentencing are the issue in this appeal and are set forth in detail.

¶ 22 Frey's defense counsel, Sam Filippo, stated that “Another factor for the court to consider is the viciousness or aggravated nature of the crime. This [Count 2] was a nonviolent crime. And it was not by the use of force or threat of force.” Filippo was permitted to make this argument because Count 1 had been dismissed.

¶ 23 Before imposing sentence, the court stated that it had considered the arguments of the attorneys and the statements of the parties and had reviewed several documents submitted by Frey, by M.G., and by the attorneys.

[343 Wis.2d 369]¶ 24 The court then provided a lengthy and thorough explanation for the sentence it was imposing. The court explicitly stated that it was considering: (1) The gravity and nature of the offense; (2) Frey's character and rehabilitative needs; (3) The need to protect the public; (4) Frey's criminal history; (5) Frey's drug and alcohol problem; (6) Frey's personality, character, and social traits; (7) Frey's work history; (8) Frey's mental health; (9) The presentence investigation; (10) The recommendations of defense counsel; (11) Frey's culpability; (12) The aggravated nature of this offense; (13) That Frey was responsible for the welfare of the child, having lived with her for 10 years; (14) That Frey was the only father figure M.G. ever had; (15) The ongoing nature of the offense; (16) The impact on M.G.; (17) The demeanor of the defendant; (18) Frey's age and the victims' ages; (19) Frey's intelligence; (20) Frey's remorse and cooperation; (21) That Frey avoided a trial; (22) The victim impact statements; (23) That M.G. was knocked out and drugged; (24) That there could have been a penalty enhancer; (25) That Frey manipulated the child during and after the offense; (26) Previous inappropriate

[817 N.W.2d 442]

text messages sent by Frey to M.G.; (27) That M.G. was unconscious because of Frey and his plan to drug her so that he could take advantage of her; and (28) Frey's previous community supervision.

¶ 25 The circuit court was very thorough in its remarks—explaining every factor that it was considering in sentencing.

¶ 26 Within the court's lengthy sentencing remarks were a few statements about other charges and incidents that are the center of this dispute:

[T]his is Mr. Frey's fault.... [H]e was 43. And I think the girls were 16.

....

[343 Wis.2d 370]I believe that one girl said that they were sleeping pills.... [W]hat would happen he would give them six or seven each night and every night just about.... [T]hen he would follow-up the pills with marijuana.... [T]he cumulative effect of these drugs and marijuana was that they would become sleepy. And I think that effect was not lost upon the defendant.

In the court's opinion that was the precise intention of the defendant, to knock them out and make them sleepy. And when they were sleeping and lost some of their control he would take advantage of them and abuse them. And also considering that the offense for which he has been charged is not the only such offense. Although the court has dismissed Count One, the sexual assault of [A.B.], I believe the court can consider that charge in determining the sentence. And I can consider uncharged offenses. And I can consider...