State v. Suchocki, 96-1712-CR

• Decision Date: 04 February 1997
• Docket Number: No. 96-1712-CR,96-1712-CR
• Citation: 561 N.W.2d 332,208 Wis.2d 509
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. David W. SUCHOCKI, Defendant-Appellant.
• Court: Wisconsin Court of Appeals

Page 332

561 N.W.2d 332

208 Wis.2d 509

STATE of Wisconsin, Plaintiff-Respondent, v. David W. SUCHOCKI, Defendant-Appellant.

No. 96-1712-CR.

Court of Appeals of Wisconsin.

Submitted on Briefs Dec. 23, 1996.

Decided Feb. 4, 1997.

For the defendant-appellant the cause was submitted on the briefs of Martha A. Askins, Assistant State Public Defender.

For the plaintiff-respondent the cause was submitted on the brief of James E. Doyle, Attorney General, and James M. Freimuth, Assistant Attorney General.

Before CANE, P.J., and LaROCQUE and MYSE, JJ.

MYSE, Judge.

David W. Suchocki appeals his sentence for one count of possession with intent to deliver marijuana and two counts of simple possession of marijuana and an order denying his motion to strike a presentence report prepared by an agent of the Division of Corrections who was married to the prosecuting attorney. Suchocki contends that the marital relationship between the agent who prepared the presentence investigation report (PSI) and the prosecuting attorney renders the report invalid and requires a resentencing with a presentence report prepared by an independent and neutral agent. Suchocki also contends that the presentence report writer was actually prejudiced against him because of Suchocki's sexual preference and a new presentence report and resentencing are required on that ground as well.

Although the marital relationship is sufficient to demonstrate bias and it is improper for a biased writer to prepare a PSI, we conclude Suchocki was not prejudiced because the sentencing process was not improperly influenced by the presentence investigation report. In addition, the evidence was insufficient to conclude that the PSI writer was biased against Suchocki because of Suchocki's sexual preference. Accordingly, we affirm the sentence and the order denying the motion for a new presentence investigation.

This case arises from a series of drug-related charges filed against Suchocki in Kewaunee and Oconto Counties. The charges were consolidated into one count of possession with intent to deliver and two counts of simple possession of marijuana to which Suchocki pled no contest.

A presentence investigation report was prepared by Rebecca Neveau, an agent of the Division of Corrections. Neveau is married to the Kewaunee County District Attorney, Jackson Main, who was the prosecutor in this case. Upon learning of the relationship between the presentence writer and the prosecutor, Suchocki filed a motion to strike the presentence investigation report and to order a new PSI prepared by a different agent. Suchocki claimed that the marital relationship between Neveau and Main created a conflict of interest that compromised the PSI because of the lack of objectivity in the author. In addition, the motion alleged that Neveau was biased against him because he is homosexual and that her bias influenced the PSI and, as a result, the sentencing process.

The trial court heard and denied the motion, but allowed the defense to file its own sentencing recommendations. The defense retained Clark Clermont, a social worker, to prepare an alternative PSI. The trial court considered both the Neveau PSI and the Clermont PSI at sentencing.

Neveau's PSI recommended three years' probation with six months' confinement in jail as a condition of probation and an additional two months consecutive in jail for the simple possession convictions. The alternative PSI prepared by Clermont recommended probation for three years with thirty days' confinement as a condition of probation and a recommendation for further occupational training.

The court ordered three years of probation with six months in jail as a condition of probation, but stayed ninety days of jail time and allowed community service in lieu of an additional sixty days of jail time. The result was a probationary sentence with thirty days to be served in jail with Huber law privileges.

Suchocki claims that the relationship between the PSI writer and the prosecutor compromised the objectivity of the PSI and tainted the sentencing process. This issue raises a question of law, which we determine without deference to the trial court. See Bantz v. Montgomery Estates, Inc., 163 Wis.2d 973, 978, 473 N.W.2d 506, 508 (Ct.App.1991). Whether Neveau was actually prejudiced against Suchocki because of his sexual preference raises a mixed question of fact and law. In reviewing mixed questions, the trial court's factual determinations relevant to the issue are reviewed under a clearly erroneous standard. We accept all factual determinations made unless no reasonable finder of fact could have reached the conclusions reached by the trial court. State v. Smith, 170 Wis.2d 701, 714, 490 N.W.2d 40, 46 (Ct.App.1992). Propositions of law applied to the factual determinations made by the court, however, are applied without deference to the trial court's determination. Id.

The use of a PSI is a matter within the court's discretion. The court has discretion to order a PSI and to determine the extent to which it will rely upon the information in the PSI. State v. Skaff, 152 Wis.2d 48, 52 n. 3, 447 N.W.2d 84, 86 n. 3 (Ct.App.1989). The determination of relevant facts and the weight given to those facts in the sentencing process are matters uniquely within the discretion of the trial court. State v. Evers, 139 Wis.2d 424, 452, 407 N.W.2d 256, 268 (1987). In the event the defendant wishes to contest any of the factual matters set forth in a PSI, the defendant is entitled to an evidentiary hearing where evidence regarding the issue in controversy may be presented by the State or the defendant. State v. Perez, 170 Wis.2d 130, 140-41, 487 N.W.2d 630, 634 (Ct.App.1992). In the absence of any claimed factual error, the information presented by a PSI may be considered by the court in its sentencing determination. State v. Peters, 192 Wis.2d 674, 696, 534 N.W.2d 867, 876 (Ct.App.1995).

We first address Suchocki's assertion that Neveau was actually biased against him as a result of his confessed homosexuality. In support of his claim, Suchocki cites a decision and order in Neveau's divorce proceeding where she asked for a change in her child's placement because of her concern over the child's safety based on her former husband's homosexuality. The decision refers to Neveau's anxiety for her child due to her former husband's sexuality and her concern that he would influence their son into a homosexual lifestyle. Relying on these expressed concerns, Suchocki contends that Neveau was biased against homosexuals and that his avowed homosexuality created actual prejudice in Neveau's mind which was reflected in the PSI.

Suchocki claims that his due process right to a fair sentencing hearing was violated. Accordingly, he must demonstrate both bias in the PSI writer and that the sentencing process was prejudiced by such bias. See State v. Coulthard, 171 Wis.2d 573, 591, 492 N.W.2d 329, 337 (Ct.App.1992); see also State v. Littrup, 164 Wis.2d 120, 127, 473 N.W.2d 164, 168 (Ct.App.1991). Suchocki has failed to show bias in the PSI writer or that the alleged bias influenced the sentencing process.

The trial court concluded that there was no evidence of any actual bias by Neveau toward Suchocki because of his sexual preference. Neveau expressly denied any bias towards homosexuals. The court noted that Suchocki did not contest the accuracy of the objective information contained in the report. Also, the court found the subjective portions of the report reasonable, consistent with Suchocki's background and the nature of the offenses for which he was convicted, and uninfluenced by his sexual preference. The evidence of record is sufficient to support the trial court's findings. The court may consider the reasonableness and accuracy of the PSI in question in determining whether the writer was biased. See Littrup, 164 Wis.2d at 132-34, 473 N.W.2d at 168-69; see also Coulthard, 171 Wis.2d at 591, 492 N.W.2d 329 at 337.

Even if we were to conclude the PSI writer was biased against Suchocki based upon his homosexuality, the sentencing process was not influenced by that bias. The trial court found Suchocki's sexual preference to be irrelevant to the sentencing process and specifically declared:

I certainly find that any reference to Mr. Suchocki's sexual orientation has nothing to do with these proceedings. That is not part of this and need not be considered, and I am not considering that.

Further, the court's sentence was much closer to the thirty days of confinement recommended in the PSI submitted by the defense than to the eight-month recommendation of Neveau. This fact belies any argument that the PSI writer's bias toward Suchocki's sexual orientation influenced the sentencing process.

Suchocki failed to demonstrate bias in the PSI writer and that...