State v. Gee

• Decision Date: 30 January 2007
• Docket Number: No. 2006AP1222-CR.,2006AP1222-CR.
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. Twaun L. GEE, Defendant-Appellant.
• Court: Wisconsin Court of Appeals

729 N.W.2d 424

2007 WI App 32

STATE of Wisconsin, Plaintiff-Respondent, v. Twaun L. GEE, Defendant-Appellant.

No. 2006AP1222-CR.

Court of Appeals of Wisconsin.

Submitted on Briefs January 3, 2007.

Opinion Filed January 30, 2007.

Appeal from orders of the circuit court for Milwaukee County: Dennis p. Moroney, Judge.¹ Reversed and cause remanded with directions.

On behalf of the defendant-appellant, the cause was submitted on the brief of Amelia L. Bizzaro of Henak Law Office, S.C., of Milwaukee.

On behalf of the plaintiff-respondent, the cause was submitted on the brief of Peggy A. Lautenschlager, attorney general, and Juan B. Colas, assistant attorney general.

Before WEDEMEYER, P.J., CURLEY and KESSLER, JJ.

¶ 1 CURLEY, J

Twaun L. Gee appeals the order denying his postconviction motion seeking a new reconfinement hearing. He argues that the trial court: (1) erroneously exercised its discretion and violated his right of due process when it failed to give an adequate explanation of his sentences; (2) failed to give deference to either the Department of Correction's (Department) or the administrative law judge's (ALJ) reconfinement recommendation; (3) "misused its discretion by imposing the maximum period of reconfinement with no supervised transition between incarceration and [his] return to the community"; and (4) erroneously exercised its discretion because it failed to review the presentence investigation report presented at the time of sentencing and the original sentencing judge's explanation for the sentences.

¶ 2 This case is controlled by the recent supreme court decision in State v. Brown, 2006 WI 131, ___ Wis.2d ___, 725 N.W.2d 262, which set forth factors that should be considered at a reconfinement hearing. The supreme court determined that trial courts are required to give "reasoned explanations for reconfinement decisions." Id., ¶ 29. While the supreme court rejected Gee's argument that the sentencing court must give deference to the Department's or ALJ's recommendation, the case does hold, by implication, that the trial court must consider the original sentencing transcript when making its reconfinement decision. See id., ¶ 38. Consequently, we conclude that the trial court, based on the limited information before it, set forth a reasoned explanation. However, we reverse and remand for a new reconfinement hearing, directing the trial court to consider the sentencing transcript along with any other relevant factors as listed in Brown that apply in this case when determining the appropriate period of reconfinement.²

I. BACKGROUND.

¶ 3 On February 11, 2002, Gee pled no contest in front of the Honorable John J. DiMotto to one count of duty upon striking a person resulting in death, and one count of homicide by negligent operation of a vehicle. While there were two charges, the accident resulted in the death of only one person. After a presentence investigation report was submitted, the trial court sentenced Gee on count one to two years' initial confinement and two years' extended supervision, and on count two to two years' initial confinement and three years' extended supervision. The sentences were ordered to be served concurrently.

¶ 4 On April 4, 2005, Gee, who had earlier been released to extended supervision, was arrested for possession of approximately seventeen grams of tetrahydrocannabinols (THC), i.e., marijuana, second offense, following a traffic stop.³ After the issuance of this new charge, the ALJ revoked his extended supervision. As is required by WIS. STAT. § 302.113(9)(at) (2003-04),⁴ the Department sent the trial court a memorandum explaining the agent's recommendation that Gee serve eight months, twenty days on count one, and three months, ten days on count two, to be served consecutively, as well as the history of the case and the new charge. The ALJ recommended that Gee be reconfined for one year. The State recommended that Gee be sentenced to the maximum time available—two years, eleven months and twenty-eight days. The reconfinement hearing was held on December 2, 2005, in front of the Honorable Dennis P. Moroney because, apparently, the Honorable John J. DiMotto was no longer serving in that division.

¶ 5 The trial court sentenced Gee to the maximum—two years, eleven months and twenty-eight days on the two counts. In doing so, the trial court explained:

[Y]ou obviously don't use your head at all. . . .

Now, to be driving again under the— at least of having admitted ingestion of THC, I mean, obviously you're not getting the message for whatever reason. . . . I mean, it's disturbing to me because it presents a true protection of society issue. What in the world does it take to get your attention on being right?

. . . .

And, I mean, that's—And the fact that you were going to go set up and have a birthday party and be in further violation of the revocation rules or extended supervision rules, I mean, again, that's just another issue.

The trial court concluded:

So, Mr. Gee, you deserve punishment. There's no question about that. And you just have not followed the rules. . . .

So the Court does look at this from a very egregious standpoint. I have looked at it from a protection of society standpoint, and I look at it from a need to punish sufficiently so you're finally deterred from ever doing this kind of foolishness again and hopefully rehabilitate you to the extent that it's possible. But I do think two years, 11 months and 28 days is what it's going to take because if you can't learn from what you did before, all I can tell you is that all we're going to be doing is protecting society from this time forward because I'm not going to have you running around town drinking, driving, smoking dope and whatever you're doing and hurt somebody else again or kill them and then say, I'm sorry and go away, I'm going to do better next time if you give me another chance. You don't get another chance when a person is dead. That's the problem. And you had your chance to stop doing this kind of behavior, and you just disregarded it completely. So the Court feels that that is the appropriate sentence under all the circumstances here.

¶ 6 Gee brought a postconviction motion seeking a new reconfinement hearing, claiming that the trial court erroneously exercised its discretion by failing to adequately explain its reasons for ordering the maximum term of reconfinement. The motion was denied.⁵ In its decision denying the motion, the trial court explained that "the court considered the gravity of the defendant's conduct, both as to the underlying offenses as well as his conduct on extended supervision, his character in terms of his failure to abide by the rules of his supervision, and the need for public protection." The court went on to say:

The defendant argues that the court had an obligation to consider the other recommendations for shorter reconfinement that were before it. . . . The court considered but was not bound by these recommenddations [recommendations]. . . .

The defendant also argues that the court was obliged to review the original sentencing transcript and presentence investigation report prior to ordering reconfinement, even though he acknowledges that the Court of Appeals has already held that a reconfinement judge is under no such duty. State v. Jones, 2005AP18-CR[288 Wis.2d 475, 707 N.W.2d 876] ([App.]filed November 2, 2005).

This appeal follows.

II. ANALYSIS.

¶ 7 On appeal, Gee presents three issues why he believes he is entitled to a new reconfinement hearing. First, he claims that the trial court erroneously exercised its discretion and violated his right to due process because it failed to adequately explain its sentences. Second, he submits that the trial court was obligated to give due deference to the Department's recommendation that he be confined for eight months, twenty days on count one; and three months, ten days consecutive on count two, and to the ALJ's recommendation for one year reconfinement, and erred in failing to give such deference. Finally, Gee maintains the trial court erroneously exercised its discretion in failing to familiarize itself with the original presentence investigation report and the sentencing transcript.

¶ 8 The procedure to be followed after a person's extended supervision is revoked is spelled out in WIS. STAT. § 302.113(9)(am) & (at).

(am) If a person released to extended supervision under this section violates a condition of extended supervision, the reviewing authority may revoke the extended supervision of the person. If the extended supervision of the person is revoked, the person shall be returned to the circuit court for the county in which the person was convicted of the offense for which he or she was on extended supervision, and the court shall order the person to be returned to prison for any specified period of time that does not exceed the time remaining on the bifurcated sentence. The time remaining on the bifurcated sentence is the total length of the bifurcated sentence, less time served by the person in confinement under the sentence before release to extended supervision under sub. (2) and less all time served in confinement for previous revocations of extended supervision under the sentence. The court order returning a person to prison under this paragraph shall provide the person whose extended supervision was revoked with credit in accordance with ss. 304.072 and 973.155.

(at) When a person is returned to court under par. (am) after revocation of extended supervision, the reviewing authority shall make a recommendation to the court concerning the period of time for which the person should be returned to prison. The recommended time period may not exceed the time remaining on the bifurcated sentence, as calculated under par. (am).

¶ 9 A reconfinement hearing is akin to a sentencing hearing and, for this reason, both are reviewed on appeal using the erroneous exercise of discretion...