State v. Marcotte
| Citation | 2020 WI App 28,943 N.W.2d 911,392 Wis.2d 183 |
| Decision Date | 14 April 2020 |
| Docket Number | Appeal No. 2019AP695-CR |
| Parties | STATE of Wisconsin, Plaintiff-Respondent, v. Jason A. MARCOTTE, Defendant-Appellant. |
| Court | Court of Appeals of Wisconsin |
On behalf of the defendant-appellant, the cause was submitted on the briefs of Kathilynne A. Grotelueschen, assistant state public defender, Madison.
On behalf of the plaintiff-respondent, the cause was submitted on the brief of Joshua L. Kaul, attorney general, and Sarah L. Burgundy, assistant attorney general.
Before Stark, P.J., Hruz and Seidl, JJ.
¶1 Jason Marcotte appeals a judgment convicting him of one count of delivering three grams or less of amphetamine, as a party to the crime. He also appeals an order denying his postconviction motion for resentencing. Marcotte argues the judge who sentenced him after the revocation of his probation was objectively biased for two reasons. First, he contends the judge made multiple comments indicating that he had prejudged Marcotte’s sentence. Second, Marcotte argues the judge was objectively biased as a result of his dual role as the sentencing judge in this case and as the presiding judge in a drug court program that Marcotte failed to complete. We agree with Marcotte that these factors, taken together, are sufficient to demonstrate objective bias. We therefore reverse and remand for Marcotte to be resentenced by a different judge.
¶2 On February 7, 2017, the State filed a complaint charging Marcotte with delivering three grams or less of methamphetamine, as a party to the crime and as a second and subsequent offense. The complaint alleged that Marcotte and his girlfriend sold methamphetamine to a confidential informant during a controlled buy. The charge against Marcotte was a Class F felony, which, without the enhancer, carried a maximum sentence of twelve and one-half years’ imprisonment and a $25,000 fine. See WIS. STAT. §§ 939.50(3)(f), 961.41(1)(e)1. (2017-18).1
¶3 The parties ultimately reached a plea agreement, which was premised on Marcotte’s participation in the Marinette County Treatment Drug Court program. Under the agreement, Marcotte agreed to plead no contest to the delivery of methamphetamine charge, without the second-and-subsequent-offense enhancer. The parties also agreed to jointly recommend that the circuit court withhold sentence and impose three years’ probation with various conditions, including a requirement that Marcotte comply with all of the drug court’s terms and conditions. During a plea hearing on August 31, 2017, the circuit court, the Honorable James A. Morrison presiding, accepted Marcotte’s plea, found him guilty, ordered a presentence investigation report (PSI), and set the matter for sentencing.
¶4 Marcotte began participating in drug court on October 2, 2017—nearly four weeks before his sentencing hearing. Judge Morrison presided over the drug court proceedings. During a drug court hearing on October 16, 2017, Judge Morrison cautioned Marcotte against driving without a license, advising him that "conviction of another offense is grounds for immediate discharge from the [drug court] program." Judge Morrison continued, "And in your case, discharge from the program means you get sentenced and you go to Dodge." It is undisputed that Judge Morrison was referring to Dodge Correctional Institution, a prison located in Waupun, Wisconsin.
¶5 Thereafter, at Marcotte’s sentencing hearing on October 27, 2017, Judge Morrison adopted the parties’ joint recommendation, withheld sentence, and placed Marcotte on probation for three years. Among the conditions of probation was a requirement that Marcotte comply with all conditions of the drug court. During his sentencing remarks, Judge Morrison warned Marcotte that if he was not successful in drug court, there would be "no mercy" when Marcotte returned to court for sentencing after revocation of his probation.
¶6 Despite Judge Morrison’s warning, Marcotte struggled in drug court. During a drug court hearing on January 8, 2018, Judge Morrison expressed frustration with Marcotte’s performance, stating:
And part of the reason that we're frustrated about this, Jason, is when you were asked whether you really wanted to do this, you said you'd try. You never volunteered 100 percent effort, you never told [a member of the drug court team] that you really were willing to do what’s needed to do here, and apparently you think if you go to prison, it’s going to be easier for you. Well, I'm sorry, my friend, we're not going to make it easier for you. Do you understand me?
¶7 At the next drug court hearing on January 22, 2018, Marcotte admitted he was "ready to give up on drug court and stuff for a while there." Judge Morrison then asked him, "Well, if you gave up on drug court, what would the consequence be?" Marcotte responded, "I'd go to prison."
Judge Morrison then discussed with Marcotte what would happen if "you gave up on drug court, you went to prison."
¶8 Approximately one month later, Marcotte was terminated from drug court. Shortly thereafter, his probation was revoked based on his termination from drug court, his use of methamphetamine, his absconding from supervision, his failure to attend scheduled treatment sessions, and his failure to report changes in his address. In its revocation summary, the Department of Corrections (DOC) recommended that the circuit court sentence Marcotte to three to four years of initial confinement, followed by three to four years of extended supervision.
¶9 At Marcotte’s sentencing after revocation hearing, the State similarly recommended that the circuit court impose four years’ initial confinement, with eligibility for the Substance Abuse Program after two years, followed by four years’ extended supervision. Marcotte’s attorney did not make a specific sentence recommendation. He argued, however, that "whatever sentence the Court does order" should include eligibility for the Substance Abuse Program.
¶10 Judge Morrison ultimately imposed a ten-year sentence, consisting of five years’ initial confinement (with eligibility for the Substance Abuse Program after three years) and five years’ extended supervision. During his sentencing remarks, Judge Morrison emphasized his significant familiarity with Marcotte’s circumstances based on Marcotte’s participation in drug court. He elaborated:
I don't know exactly how many drug court sessions we had, it was many. I know we spent many hours talking about your various problems when we were staffing this program week after week. And I don't say that because I'm beating up on you, I'm just pointing out that I am very familiar with your circumstances, with the circumstances of [Marcotte’s girlfriend], with the circumstances with respect to your children because I've been sitting on those cases as well, so I have a very good grasp of—at least of the directory facts, so as to say, with respect to you, Mr. Marcotte.
¶11 Later on during his remarks, Judge Morrison similarly stated that because of Marcotte’s participation in drug court, he knew Marcotte better than ninety-nine percent of the people he had to sentence. Judge Morrison explained, "I've basically lived with you every Monday for more than a year, and so I got my arms around your problem much better than most." He continued, "[The] PSI was helpful, but not nearly as helpful as the advantages I just talked about of actually seeing—seeing how you did this and how you did in drug court."
¶12 Judge Morrison also expressed frustration during his sentencing remarks about Marcotte’s failure in drug court. He stated:
And I think that it is clear that the drug court was not the answer for you, at least not that—the time around that you did it. An understandable frustration of the drug court team is my God, we gave him every tool, why didn't he just grab them, and I understand that, and I understand the—you know, that we could all say let’s just throw the book at this guy because he really screwed up. Well, you did really screw up repeatedly in every way imaginable, frankly. You let down yourself. You let down [your girlfriend]. You let down the team. Most importantly, you let down your children and yourself.
Judge Morrison later stated, In addition, he stated Marcotte was never "all in" with respect to drug court and was never "willing to surrender to the rest of us who understood better and had your best interest at heart more than you did, frankly." He described Marcotte’s "demeanor throughout the drug court" as "frustrating, to put it mildly."
¶13 In conclusion, Judge Morrison stated Marcotte needed a sentence that would provide close rehabilitative control. He explained,
¶14 Marcotte subsequently filed a postconviction motion seeking resentencing. He argued Judge Morrison "demonstrated objective bias when [he] relied upon information [he] received as the judge presiding over Drug Court and prejudged Mr. Marcotte’s sentence after revocation, thereby violating Mr. Marcotte’s due process right to be sentenced by an impartial court."
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