State v. Gayton, 2013AP646–CR.

CourtUnited States State Supreme Court of Wisconsin
Writing for the CourtDAVID T. PROSSER, J.
Citation370 Wis.2d 264,882 N.W.2d 459
PartiesSTATE of Wisconsin, Plaintiff–Respondent, v. Leopoldo R. SALAS GAYTON, Defendant–Appellant–Petitioner.
Docket NumberNo. 2013AP646–CR.,2013AP646–CR.
Decision Date06 July 2016

370 Wis.2d 264
882 N.W.2d 459

STATE of Wisconsin, Plaintiff–Respondent,
Leopoldo R. SALAS GAYTON, Defendant–Appellant–Petitioner.

No. 2013AP646–CR.

Supreme Court of Wisconsin.

Argued March 14, 2016.
Decided July 6, 2016.

882 N.W.2d 461

For the defendant-appellant-petitioner, there were briefs by Colleen D. Ball, assistant state public defender, and oral argument by Colleen D. Ball.

For the plaintiff-respondent, the cause was argued by Christopher G. Wren, assistant attorney general, with whom on the brief was Brad D. Schimel, attorney general.

There was an amicus curiae brief by Jeffrey O. Davis, Haar Katta, and Quarles & Brady LLP, Milwaukee, WI on behalf of the Irrevocable Trust for the Benefit of Hayden Isabella Lamb.

There was an amicus curiae brief by Matthew S. Pinix, Karyn Rotker, and ACLU of Wisconsin Foundation, Milwaukee, Claudia Valenzuela (pro hac vice) and National Immigrant Justice Center, Chicago, IL, Barbara J. Graham and Catholic Charities Legal Services for Immigrants, Milwaukee, and Stacy Taeuber, University of Wisconsin Law School Immigrant Justice Clinic. Oral argument by Matthew S. Pinix.


370 Wis.2d 268

¶ 1 This is a review of an unpublished decision of the court of appeals affirming the Milwaukee County Circuit Court's denial of a postconviction motion by Leopoldo Salas Gayton (Salas Gayton).1

¶ 2 Salas Gayton pled no contest to two charges that arose after he killed Corrie Damske while he was driving under the influence of alcohol in the wrong direction on a Milwaukee freeway. At sentencing, the circuit court focused its remarks on the serious crime of drunk driving and its potential consequences. It ultimately sentenced Salas Gayton to 15 years of initial confinement, the statutory maximum, followed by 7 years of extended supervision. On several occasions during its remarks, the circuit court mentioned Salas Gayton's immigration status, describing him as an “illegal alien,” “here illegally,” and an “illegal.” However, the court made clear that any unlawful conduct related to immigration represented no more than a “minor factor” or “minor character flaw.”

370 Wis.2d 269

¶ 3 In a postconviction motion, Salas Gayton argued, among other things, that the sentencing court erroneously exercised its discretion by relying upon an improper factor when it considered his immigration status at sentencing. The circuit court denied his motion, and the court of appeals affirmed. Because we conclude that the circuit court's comments do not demonstrate reliance on an improper factor at sentencing and therefore did not deny Salas Gayton due process of law, we affirm the decision of the court of appeals.


¶ 4 While driving drunk on Interstate 94 in Milwaukee on the morning of January 1, 2011, Salas Gayton struck a vehicle driven by Corrie Damske, who died at the scene shortly after the collision. The collision occurred at approximately 7:20 a.m. Salas Gayton entered the freeway2 near 35th

882 N.W.2d 462

Street and began traveling in the wrong direction in the westbound lanes. He struck one vehicle before colliding head-on with Damske near 20th Street, at the southwest corner of the Marquette University campus. His vehicle ricocheted

370 Wis.2d 270

and struck a third vehicle after his collision with Damske. Salas Gayton broke his foot as a result of the collisions.

¶ 5 In the hours before the collision, Salas Gayton consumed 2 beers at home before consuming a 12–pack of beer while driving around Milwaukee. He tossed empty cans out the car window as he drove. After the collision, he could not account for a large period of time and could not remember when he consumed his last beer. A test of Salas Gayton's blood approximately 2 hours and 20 minutes after the collision returned a blood alcohol content of .145.

¶ 6 When officers questioned Salas Gayton after his arrest, he told them that he entered the freeway because he saw police lights flashing in his mirror and he traveled in the wrong direction out of confusion as he attempted to evade police. He wanted to avoid being pulled over because he feared going to jail for driving without a valid license. A report from the Milwaukee County Sheriff's Office indicates that at the time of his arrest he informed officers that he immigrated to the United States illegally and that he had lived in the United States for approximately 13 years before the collision.3 Salas Gayton is originally from Mexico, and he is not an American citizen. At the time of the collision, he was 41 years old.

¶ 7 A criminal complaint and information filed in the Milwaukee County Circuit Court on January 6, 2011, charged Salas Gayton on three counts: (1) homicide by intoxicated use of a vehicle, contrary to Wis. Stat. §§ 940.09(1)(a) and 939.50(3)(d) ; (2) homicide by intoxicated use of a vehicle (prohibited alcohol concentration),

370 Wis.2d 271

contrary to Wis. Stat. §§ 940.09(1)(b) and 939.50(3)(d) ; and (3) operating without a license, causing death, contrary to Wis. Stat. §§ 343.05(5)(b) 3.d. and 939.51(3)(a).4 Although Salas Gayton initially entered not guilty pleas to all three charges, he ultimately agreed to plead no contest to the first and third counts.5

¶ 8 The Milwaukee County Circuit Court, Dennis Cimpl, Judge, conducted a lengthy sentencing hearing on July 22, 2011, at which the court heard statements on behalf of Damske and on behalf of Salas Gayton.6 After an initial discussion between

882 N.W.2d 463

the court and the parties regarding letters sent to the court on behalf of the victim and the defendant,7 the hearing proceeded with the State's presentation.

¶ 9 The attorney for the State began with a lengthy summary of the reasons why the State was “recommending ... a substantial period of confinement”:

370 Wis.2d 272
Corrie Damske was a woman who simply was driving on the freeway. She was going home as many people were going and traveling on January 1st, the holiday, 2011.

She was secured in the fact that she was traveling properly in the right lane when something happened that could happen to make any of us victims of a homicide, and that is that the defendant made a choice—perhaps, because he was intoxicated, not a knowing choice—but he made a choice to get on the freeway and drive the wrong way.

As the Court knows, it's probably the busiest freeway ... in the whole State of Wisconsin; it's a freeway that leads west from downtown Milwaukee and is as heavily traveled as any freeway in the State of Wisconsin.

The defendant traveling down that freeway had numerous opportunities to stop his car and realize that he was going the wrong way. But he went a significant distance traveling the wrong way down that freeway almost hitting other cars.


... He nipped a car and caused a bit of damage to another car, and then another woman also had her car damaged by the defendant, I believe after he hit Ms. Damske's car.

The man that was almost hit, he actually was hit but he did not sustain any injuries, was a fireman for the City of Milwaukee Fire Department; and the defendant, even after that, continued travelling the wrong way down the freeway.

The defendant killed a beautiful, loving mother. She was 34 years old.

... She had a young child who has to live the rest of her life without her mother, and I don't know how
370 Wis.2d 273
one explains to a child what happened here.... That child is going to have to live the rest of her life without her mother because of what the defendant did.

The defendant's blood level was .145, close to twice the amount of the legal amount allowed in the State of Wisconsin for a prima facie case for intoxication.


The defendant, as the Court knows, was not supposed to be driving. He did not have a valid driver's license; and not only that, he had been convicted of operating without a license two separate times....


Quite frankly, the public would have been safer if he was firing bullets down the freeway, rather than driving a vehicle the wrong way down the freeway at the speed that he was driving. It was a weapon.

Literally, the car was a weapon on that freeway, and anyone that came in contact with him or saw him coming down the freeway at the speed he was
882 N.W.2d 464
coming down the freeway the wrong way, obviously, would have been terrified and endangered.

¶ 10 Following that introductory statement, the circuit court heard statements on Damske's behalf. The first statement came from Damske's mother, Sharon Hvala, who made a few remarks before reading from a prepared statement, which began,

Everyday I wake up to the unbelievable, that I will never see my daughter again. The darkest day of my life is when the detective came to the door and showed me pictures to identify her, [a] parent's worst nightmare.

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21 cases
  • State v. Dodson
    • United States
    • United States State Supreme Court of Wisconsin
    • January 26, 2022
    ...we review a circuit court's sentencing determination for an erroneous exercise of discretion. State v. Gayton, 2016 WI 58, ¶19, 370 Wis. 2d 264, 882 N.W.2d 459 (citing 400 Wis.2d 345 State v. Gallion, 2004 WI 42, ¶17, 270 Wis. 2d 535, 678 N.W.2d 197 ). "In exercising discretion, sentencing ......
  • State v. Dalton
    • United States
    • United States State Supreme Court of Wisconsin
    • July 3, 2018
    ...indicative of his character. The circuit court did not erroneously exercise its discretion. State v. Salas Gayton, 2016 WI 58, ¶¶ 3, 15, 370 Wis. 2d 264, 882 N.W.2d 459 (concluding that the circuit court's comments on Mr. Gayton's status as an illegal alien did not demonstrate reliance on a......
  • State v. Dodson
    • United States
    • United States State Supreme Court of Wisconsin
    • January 26, 2022
    ...we review a circuit court's sentencing determination for an erroneous exercise of discretion. State v. Gayton, 2016 WI 58, ¶19, 370 Wis.2d 264, 882 N.W.2d 459 (citing State v. Gallion, 2004 WI 42, ¶17, 270 Wis.2d 535, 678 N.W.2d 197). "In exercising discretion, sentencing courts must indivi......
  • State v. X. S. (In re X. S.)
    • United States
    • United States State Supreme Court of Wisconsin
    • June 29, 2022 961. The exercise of discretion incorporates a process of reasoning and proper explanation. State v. Salas Gayton, 2016 WI 58, ¶19, 370 Wis.2d 264, 882 N.W.2d 459 ("An exercise of discretion contemplates a process of reasoning. This process must depend on facts that are of record or that......
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