explaining that there is a "well-recognized distinction between the fact-finder's function at the guilt stage, where the fact-finder must determine whether the government has proved a defendant's guilt beyond a reasonable doubt, and the sentencing judge's role, which is to assess the defendant's character using all available information, unconstrained by the rules of evidence that govern the guilt-phase of a criminal proceeding."
How later courts described this case
- explaining that there is a "well-recognized distinction between the fact-finder's function at the guilt stage, where the fact-finder must determine whether the government has proved a defendant's guilt beyond a reasonable doubt, and the sentencing judge's role, which is to assess the defendant's character using all available information, unconstrained by the rules of evidence that govern the guilt-phase of a criminal proceeding."
- holding that defendant could not overcome strong presumption that counsel acted reasonably where there was nothing in the record to indicate that the allegedly omitted witness could have been produced or located at the time of trial
- explaining that sentencing courts are “unconstrained by the rules of evidence that govern the guilt-phase of a criminal proceeding”
- noting that if a defendant argues that counsel was deficient for failing to present testimony, he “must allege with specificity what the particular witness would have said if called to testify”
Written by the judges who cited it.
The opinion
CURLEY, J.
¶ 57. (concurring in part; dissenting in part). I concur in the majority's- conclusions in all matters except Arredondo's sentencing claim. Although I believe the admission of Kim S.'s testimony as "other *406 acts" evidence was unwise, as Arredondo had been acquitted for those actions, I recognize that current law permits such a practice. However, I disagree with the majority opinion's holding that the trial court properly considered the allegations of the earlier case at sentencing.
¶ 58. The majority opinion cites State v. Bobbitt, 178 Wis. 2d 11 , 503 N.W.2d 11 (Ct. App. 1993), and State v. Leitner, 2001 WI App 172 , 247 Wis. 2d 195 , 633 N.W.2d 207 , aff'd, 2002 WI 77 , 253 Wis. 2d 449 , 646 N.W.2d 341 , as authority for the sentencing court to consider Arredondo's alleged assault of Kim S. in sentencing him in this case. Neither of the cases are factually on point.
¶ 59. In Leitner , the question arose as to whether a sentencing court could use earlier expunged convictions when sentencing a defendant for a newly-committed crime and whether all records documenting the behavior underlying an expunged conviction should be destroyed. The supreme court determined that the expungement statute does not require the destruction of the records, and the trial court is free to consider the underlying facts of the expunged conviction at sentencing. 247 Wis. 2d 195, ¶¶ 47, 49 .
¶ 60. In Bobbitt , the accused was found guilty of robbery and false imprisonment, but acquitted of the charge of attempted first-degree intentional homicide after a jury trial. All three charges involved the same victim, who testified at trial. Despite the acquittal on the one count, at sentencing, the trial court considered the alleged violence associated with the attempted homicide charge as an aggravating circumstance justifying a departure from the sentencing guidelines. The accused appealed, claiming that the acts of violence all dealt with the acquitted charge and, therefore, the trial *407 court improperly substituted its opinion for that of the jury when it considered the violent acts as a factor at sentencing. This court determined that, under those circumstances, it was proper for the trial court to adopt the victim's version of the events for sentencing purposes, even though the jury did not convict on the third charge. The Bobbitt court cautioned, however, that a "court may not sentence according to its desire to replace a jury's conclusion with its own." 178 Wis. 2d at 18 . To do so would "offend the fundamental principles of fairness and due process." Id.
¶ 61. Here, the trial court, the same court that presided over Arredondo's earlier acquittal, appears to have sentenced Arredondo based on its conclusions regarding the earlier case. The trial court stated:
And we are all to be thankful to the police department for that work because without that, you would be getting off the hook in this case as I believe you got off the hook unfairly and unjustly in the previous case having to do with Kate [sic] [S.] And I am absolutely convinced that that verdict in that case was wrong. And while we must accept it because it was the result of a proper trial and it was the jury's prerogative to issue that verdict, that does not mean we have to agree with it. And I did not and do not agree with it.
Paying lip service to the prohibition against replacing the jury's decision with its own, the trial court later remarked:
And as I've already indicated, that verdict must be accepted but that does not compel me to agree with it. And I think it is absolutely fair for me to consider what I heard in that case which was repeated in this case when Ms. S. was given permission to testify as a victim of a prior act on your part as being relevant to it. She *408 went through her pain as well and I think it is fair for me to consider that as well.
¶ 62. Clearly, the trial court's sentencing comments show that Arredondo was also being sentenced for the earlier charge on which he was acquitted. This is impermissible and "offend[s] the fundamental principles of fairness and due process." See Bobbitt, 178 Wis. 2d at 18 . Thus, I would remand for resentencing.