# State v. Johnson

> Court of Appeals of Wisconsin · September 20, 1990 · 158 Wis. 2d 458

URL: https://www.frixlaw.com/law-library/cases/9737488

## Case

- **Full name:** STATE of Wisconsin, Plaintiff-Respondent, v. Allen Briggs JOHNSON, Defendant-Appellant
- **Court:** Court of Appeals of Wisconsin
- **Decided:** September 20, 1990
- **Citations:** 158 Wis. 2d 458; 463 N.W.2d 352; 1990 Wisc. App. LEXIS 1008
- **Precedential status:** Published
- **Opinion:** Concurrence by Sundby
- **Judges:** Eich, Dykman, Sundby
- **Cited by:** 38 later opinions in the Frix Law Library

## Citator (automated)

- **Red flag:** Abrogated on other grounds by State v. Harbor, 333 Wis. 2d 53 (2011).
- Negative treatments: 1
- Distinguished by: 0
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9737488

## Opinion text

SUNDBY, J.
(concurring). I concur in the majority's opinion in all respects except I do not believe we should decide that the victim's recommendation as to the appropriate sentence may be considered by the sentencing court. There is nothing in the record of the sentencing hearing to support Johnson's argument that the trial court gave any weight to the victim's wishes or opinions as to the appropriate sentence for the defendant. The trial court simply stated that it was aware of the presentence report in which the preparer described how the victims felt about the matter.
When the sentencing hearing record is considered in its entirety, it is evident that the trial court was considering the contents of the pre-sentence report insofar as that report related how the victims were severely emotionally damaged. There is no evidence that the trial court considered any of the victims' views as to the appropriate sentence for Johnson. Accordingly, when we approve for trial courts' consideration the "wishes" of a victim as to the appropriate sentence, we prematurely place our imprimatur on a practice not followed in this case.
Further, before we approve for trial courts' sentencing discretion the wishes of a victim as to the appropriate sentence, we should require that the issue be thoroughly briefed. First, we should inquire whether the victim's opinion or wish as to the appropriate sentence may properly be included in a presentence investigation report under sec. 972.15(2m), Stats., which provides:
*472 The person preparing the presentence investigation report shall attempt to contact the victim to determine the economic, physical and psychological effect of the crime on the victim. The person preparing the report may ask any appropriate person for information. This subsection does not preclude the person who prepares the report from including any information for the court concerning the impact of a crime on the victim. [Emphasis added.]
Sections 950.04(2m) and 950.05(l)(dm), Stats., which also deal with victim rights, are concerned with the impact of the offense upon the victim and not with the opinion or wish of the victim as to the appropriate sentence.
Second, we should be concerned as to the constitutionality of the use of victim impact statements generally and particularly those which can be considered as invading the province of the trial court. At least thirty-six states permit the use of victim impact statements in some context. Booth v. Maryland, 482 U.S. 496 , 509 n.12 (1987) 1 (citing National Organization for Victim Assistance, Victim Rights and Services: A Legislative Directory, 32-33 (1985) (chart); and McLeod, Victim Participation at Sentencing, 22 Crim. L. Bull. 501 ,507 and n.22 (1986)). Congress has also provided for victim participation in federal criminal cases. See Fed. R. Crim. P. 32(c)(2)C. In Booth , the supreme court expressed no *473 opinion as to the use of victim impact statements in non-capital cases. The Court did, however, hold invalid a Maryland statute requiring consideration by the jury of a victim impact statement at the sentencing phase of a capital murder trial. The Court held that the statute violated the eighth amendment.
Third, if we allow victims to recommend sentences, we raise the specter of a victim challenging a sentence if the judge does not consider the victim's recommendation. See McLeod, 22 Crim. L. Bull, at 517. Section 950.04, Stats., provides in part: " Victims ... of crimes . . . have the following rights: . . . (2m) To have the court provided with information pertaining to the economic, physical and psychological effect of the crime upon the victim of a felony and have the information considered by the court." (Emphasis added.) This language is mandatory.
If the trial court's consideration is limited to the effects upon the victims, as I believe the record in this case requires, I see no error. The defendant waived any objection to the trial court's considering the impact of his acts upon the victims. He advised the court: "I feel very badly about what I have done to these people. I've hurt not only them but their families and friends and my family and friends. I hope that they can get on with their lives, lead productive lives."

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9737488. Public record. Not legal advice.