State v. Octavia W. Dodson , 2022 WI 5 ( 2022 )

2022 WI 5SUPREME COURT OF WISCONSIN
CASE NO.: 2018AP1476-CR
COMPLETE TITLE: State of Wisconsin,
Plaintiff-Respondent,
v.
Octavia W. Dodson,
Defendant-Appellant-Petitioner.
REVIEW OF DECISION OF THE COURT OF APPEALS
Reported at 394 Wis. 2d 187,949 N.W.2d 879(2020 – unpublished)
OPINION FILED: January 26, 2022
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: September 13, 2021
SOURCE OF APPEAL:
COURT: Circuit
COUNTY: Milwaukee
JUDGE: Joseph M. Donald
JUSTICES:
KAROFSKY, J., delivered the majority opinion of the Court, in
which ANN WALSH BRADLEY, DALLET, and HAGEDORN, JJ., joined.
HAGEDORN, J., filed a concurring opinion. REBECCA GRASSL
BRADLEY, J., filed a dissenting opinion, in which ZIEGLER, C.J.,
and ROGGENSACK, J., joined.
NOT PARTICIPATING:
ATTORNEYS:
For the defendant-appellant-petitioner, there were briefs
filed by Jorge R. Fragoso, assistant state public defender. There
was an oral argument by Jorge R. Fragoso.
For the plaintiff-respondent, there was a brief filed by
Donald V. Latorraca, assistant attorney general; with whom on the
brief was Joshua L. Kaul, attorney general. There was an oral
argument by Donald V. Latorraca.
2022 WI 5NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2018AP1476-CR
(L.C. No. 2016CF1316)
STATE OF WISCONSIN : IN SUPREME COURT
State of Wisconsin,
Plaintiff-Respondent,
FILED
v. JAN 26, 2022
Octavia W. Dodson, Sheila T. Reiff
Clerk of Supreme Court
Defendant-Appellant-Petitioner.
KAROFSKY, J., delivered the majority opinion of the Court, in which
ANN WALSH BRADLEY, DALLET, and HAGEDORN, JJ., joined. HAGEDORN,
J., filed a concurring opinion. REBECCA GRASSL BRADLEY, J., filed
a dissenting opinion, in which ZIEGLER, C.J., and ROGGENSACK, J.,
joined.
REVIEW of a decision of the Court of Appeals. Affirmed.
¶1 JILL J. KAROFSKY, J. Octavia W. Dodson seeks
resentencing for his second-degree intentional homicide
conviction, alleging that the Milwaukee County Circuit Court
relied on an improper sentencing factor in mentioning his lawful
gun ownership and conceal-carry (CCW) permit.1 He contends such
reliance contravenes his rights under the Second Amendment to the
1 The Honorable M. Joseph Donald presided over sentencing.
No. 2018AP1476-CR
United States Constitution. The circuit court denied Dodson's
postconviction motion for resentencing, and the court of appeals
affirmed that denial.2 We likewise affirm. Dodson fails to prove
by clear and convincing evidence that the circuit court actually
relied on an improper factor. Accordingly, his sentence stands.
I. BACKGROUND
¶2 On March 25, 2016, Dodson shot and killed Deshun T.
Freeman. Roughly four minutes before the homicide, Dodson was
involved in a minor car accident during which an unidentified
driver——in what Dodson believed to be a Buick3——collided with the
rear of Dodson's car. Dodson exited his vehicle and as he walked
toward the back of his car, the other driver reversed the Buick
several car-lengths and sped off. Meanwhile, Dodson unholstered
his pistol, which he lawfully owned and for which he had a valid
CCW permit.4
¶3 Dodson returned to his car and attempted to follow the
Buick but lost sight of it. While searching for the Buick, Dodson
swapped out his pistol's ten-round magazine for an extended 17-
round magazine. Soon thereafter Dodson spotted a second Buick
driven by the victim, Deshun Freeman. Believing it to be the car
2 State v. Dodson, No. 2018AP1476-CR, unpublished slip op.
(Wis. Ct. App. Aug. 25, 2020) (affirming the postconviction order
of the Honorable Carolina Stark of the Milwaukee County Circuit
Court).
3 This opinion will refer to the striking vehicle as "the
Buick."
4 A CCW permit authorizes a qualifying person to carry a
concealed weapon in Wisconsin, except in enumerated circumstances.
See generally Wis. Stat. § 175.60 (2019–20).
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No. 2018AP1476-CR
that rear-ended him, Dodson pursued Freeman's vehicle. When
Freeman pulled over to the side of the road, Dodson parked his car
about two car-lengths behind.
¶4 According to Dodson, Freeman began "fumbling around" by
his driver-side door before starting to walk toward Dodson. At
that point, Dodson exited his vehicle and stood between the open
driver-side door and his car. Dodson told officers that Freeman,
with his hands either in his pockets or underneath his sweatshirt,
began running toward Dodson, and shouted an obscenity at him.
Dodson responded by firing six rounds from his pistol, three of
which hit and killed Freeman. After witnessing Freeman's body
fall to the ground, Dodson fled the scene. Hours later, Dodson
surrendered himself to the police. The investigation revealed
that Freeman had not been armed and that Freeman's vehicle did not
match Dodson's description of the Buick from the earlier collision.
¶5 The State charged Dodson with second-degree intentional
homicide, citing unnecessary defensive force as the mitigating
circumstance.5 The charge included the "use of a dangerous weapon"
penalty enhancer.6 As the result of plea negotiations, the State
dismissed the dangerous-weapon penalty enhancer in exchange for
Dodson's guilty plea to second-degree intentional homicide.
¶6 At the sentencing hearing, the circuit court determined
that despite Dodson being an otherwise "model citizen," the gravity
5 See Wis. Stat. §§ 940.01(2)(b) & 940.05(1) (2015-16). All
subsequent references to the Wisconsin Statutes are to the 2015-16
version unless otherwise indicated.
6 See Wis. Stat. § 939.63(1)(b).
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No. 2018AP1476-CR
and serious nature of the crime warranted 14 years of initial
confinement followed by six years of extended supervision. As the
circuit court explained:
In reviewing this case, I have to say I am completely
baffled as to why this happened. And I don't think that
there is any rational way of trying to explain it. I
can tell you this, Mr. Dodson, that in my experience as
a judge, I have seen over time how individuals when they
are possessing a firearm, how that in some way changes
them. It changes how they view the world. It changes
how they react and respond to people. I know that this
is only speculation on my part, but I do strongly feel
that the day that you applied for that concealed carry
permit and went out and purchased that firearm, and that
extended magazine, whether your rational beliefs for
possessing it, whether you felt the need to somehow arm
yourself and protect yourself from essentially the crime
that is going on in this community I think on that day
set in motion this circumstance.
It is clear to me, Mr. Dodson, that for whatever reason,
and it appears that it is a distorted, misguided belief
of the world that somehow Mr. Freeman was a threat that
required you, in essence, to terminate his life. Makes
no sense.
. . . [I]t is clear to me that you were operating under
some misguided belief, some distorted view of the world
that somehow [Deshun] Freeman was a threat to you when
in reality it was nothing further from the truth.
¶7 In a postconviction motion, Dodson argued that the
circuit court's statements demonstrated an improper reliance on
his gun ownership and CCW permit, in contravention of his Second
Amendment rights.7 The postconviction court denied the motion,
7
Dodson's postconviction motion also sought to withdraw his
guilty plea, alleging that he received ineffective assistance of
counsel. He does not pursue that relief in this appeal.
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No. 2018AP1476-CR
concluding that the challenged statements, in context, were not
improper. The court of appeals affirmed, holding that the
sentencing court's statements demonstrated that Dodson was being
punished not for exercising his Second Amendment rights but rather
his "distorted, misguided belief" that he could unlawfully and
lethally use his gun against the unarmed Freeman. See State v.
Dodson, No. 2018AP1476-CR, unpublished slip op., ¶¶16–18 (Wis. Ct.
App. Aug. 25, 2020). We granted Dodson's petition for review.
II. STANDARD OF REVIEW & APPLICABLE LAW
¶8 We review a circuit court's sentencing decision for an
erroneous exercise of discretion. State v. Dalton, 2018
WI 85, ¶36, 383 Wis. 2d 147, 914 N.W.2d 120. A circuit court
erroneously exercises its sentencing discretion when it "actually
relies on clearly irrelevant or improper factors." Id.Accordingly, a defendant challenging his or her sentence must prove
by clear and convincing evidence that: (1) the challenged factor
is irrelevant or improper; and (2) the circuit court actually
relied on that factor. State v. Pico, 2018 WI 66, ¶48, 382
Wis. 2d 273, 914 N.W.2d 95.
¶9 Under the improper-factor prong, sentencing factors are
proper when they inform valid sentencing objectives including "the
protection of the community, punishment of the defendant,
rehabilitation of the defendant, and deterrence to others." State
v. Gallion, 2004 WI 42, ¶40, 270 Wis. 2d 535, 678 N.W.2d 197; see
also Wis. Stat. § 973.017(2). Primary factors informing those
objectives are the gravity of the offense, the defendant's
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No. 2018AP1476-CR
character, and the need to protect the public. Gallion, 270
Wis. 2d 535, ¶44. Secondary factors include:
(1) Past record of criminal offenses; (2) history of
undesirable behavior pattern; (3) the defendant's
personality, character and social traits; (4) result of
presentence investigation; (5) vicious or aggravated
nature of the crime; (6) degree of the defendant's
culpability; (7) defendant's demeanor at trial;
(8) defendant's age, educational background and
employment record; (9) defendant's remorse, repentance
and cooperativeness; (10) defendant's need for close
rehabilitative control; (11) the rights of the public;
and (12) the length of pretrial detention.
Id., ¶43, n.11. Finally, a circuit court may properly entertain
a "general predisposition[], based upon his or her criminal
sentencing experience" so long as that predisposition is not "so
specific or rigid" that it "ignore[s] the particular circumstances
of the individual offender." State v. Ogden, 199 Wis. 2d 566,
573, 544 N.W.2d 574 (1996).
¶10 Under the actual-reliance prong, we review the
sentencing transcript as a whole and assess any allegedly improper
comments within that context. State v. Williams, 2018 WI 59, ¶52,
381 Wis. 2d 661, 912 N.W.2d 373. To prove actual reliance a
defendant must identify where in the transcript the circuit court
both gave "explicit attention" to an improper factor and made the
improper factor a part of the "basis for the sentence." Id.Therefore, a defendant will fall short of proving actual reliance
if the transcript lacks clear and convincing evidence that the
factor was the sole cause of a harsher sentence. Id., ¶¶45-46,
53. A defendant will also fail to show actual reliance if a
6
No. 2018AP1476-CR
reference to a challenged factor bears "a reasonable nexus" to a
relevant, proper factor. Id., ¶53.
III. ANALYSIS
¶11 Turning from the law to the case before us, Dodson
isolates two statements that he contends offer clear and convincing
evidence that the circuit court actually relied on an improper
factor. First, Dodson contends that the circuit court improperly
grafted a negative predisposition against all gun owners onto him
when it said that it has seen how "possessing a firearm" "changes
how they view the world" and "react and respond to people."
Second, Dodson argues that the circuit court improperly relied on
his gun ownership and CCW permit when it stated that "the day that
you applied for that concealed carry permit and went out and
purchased that firearm, and that extended magazine . . . set in
motion this circumstance."
¶12 We disagree. Dodson's arguments ignore critical context
that, when read alongside the challenged statements, demonstrate
the circuit court neither exhibited an improper predisposition
against all gun owners nor actually relied on Dodson's gun
ownership or CCW permit as part of his sentence. Our analysis
begins by providing the full context surrounding the challenged
statements. We then assess the challenged statements in their
proper context under the established law.
A. Context
¶13 The circuit court's challenged statements arise in the
context of its struggle to reconcile Dodson's clean criminal record
and the innocuous circumstances leading up to the shooting, with
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No. 2018AP1476-CR
an element of Dodson's second-degree homicide charge: his use of
unnecessary defensive force. See Wis. Stat. § 940.01(2)(b). That
is, the circuit court was trying to understand what caused this
"model citizen" to harbor the unreasonable belief that either he
"was in imminent danger of death or great bodily harm" or the
lethal "force used was necessary to defend [himself]." Id. This
inquiry into how the particular facts establish an element of the
offense is a necessary step in assessing the gravity of that
offense——a proper sentencing factor. See Wis. Stat.
§ 973.017(2)(ag); Gallion, 270 Wis. 2d 535, ¶44.
¶14 The circuit court then leaned on its judicial experience
to hypothesize about why Dodson used unnecessary defensive force.
The circuit court explained that in its "experience as a judge,"
it observed a recurring pattern wherein "possessing a firearm"
changes how some criminal defendants "view the world" and "react
and respond to people." From the circuit court's standpoint that
pattern was apparent here: Dodson reacted unreasonably to Freeman
because Dodson was armed with a gun. That is, absent the gun,
Dodson would not have used lethal force. But Dodson did have the
gun and a "distorted, misguided belief of the world that somehow
Mr. Freeman was a threat," which as Freeman's murder tragically
demonstrates, created a danger to the community——another proper
sentencing consideration. See Wis. Stat. § 973.017(2)(ad);
Gallion, 270 Wis. 2d 535, ¶44.
B. Predisposition
¶15 Having established the full context in which the circuit
court made the challenged statements, we next assess the statements
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No. 2018AP1476-CR
in that context. Dodson first challenges the circuit court's
comment about gun possession changing how some criminal defendants
both "view the world" and "react and respond to people" as an
improper predisposition against all gun owners or CCW permit
holders. Dodson is incorrect. The transcript read as a whole
shows that the circuit court properly cabined any "general
predisposition[]" about "when a certain type of sentence is
appropriate" both to its "criminal sentencing experience" and to
the "particular circumstances" of Dodson's criminal conduct. See
Ogden, 199 Wis. 2d at 573. Indeed, nothing in the transcript
indicates that this predisposition was "so specific or rigid as to
ignore" Dodson's "distorted, misguided" conduct here, which
included:
 Tracking down the first Buick instead of reporting the
minor collision;
 Swapping out a regular-capacity magazine for an extended
17-round magazine when tracking down the first driver,
indicating that he anticipated a violent confrontation;
 Failing to either record the license plate or call the
police when he began following Freeman's vehicle;
 Exiting his car when Freeman pulled over instead of
driving away from the confrontation;
 Firing six rounds at the unarmed Freeman as he
approached.
See id. Accordingly, Dodson fails to meet his burden to prove an
improper predisposition.
C. Actual Reliance
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No. 2018AP1476-CR
¶16 Dodson likewise fails to prove by clear and convincing
evidence that the circuit court improperly relied on his Second
Amendment activities when it speculated that "the day" Dodson
obtained his gun, extended magazine, and CCW permit "set in motion"
the homicide. Assuming without deciding that this statement
contained an improper factor, the transcript lacks evidence of
actual reliance in at least two regards. For one, when read in
context this statement "bore a reasonable nexus" to relevant and
proper sentencing factors. See Williams, 381 Wis. 2d 661, ¶53.
As explained above, the circuit court made this statement while
assessing both the offense's gravity, by addressing its
"unnecessary defensive force" element, and the need to protect the
public from the danger of Dodson's "distorted, misguided" view of
innocent community members. See Wis. Stat. § 973.017(2); Gallion,
270 Wis. 2d 535, ¶44.
¶17 Second, nothing in the transcript suggests that the
circuit court increased Dodson's sentence solely because he owned
a gun or sought permission to carry it concealed. The circuit
court acknowledged that its reference to these activities was "only
speculation" about what caused an otherwise "model citizen" to
react to Freeman so unreasonably. Nowhere did the circuit court
indicate that Dodson received a longer sentence because he
purchased the gun or applied for the CCW permit or that those
activities formed the "basis for the sentence." See Williams, 381
Wis. 2d 661, ¶52. Indeed, this transcript stands in stark contrast
to the one in State v. Dalton that contained statements such as
"you will be punished for [exercising your constitutional right]
10
No. 2018AP1476-CR
today" and "[exercising that right is] going to result in a higher
sentence for you." 383 Wis. 2d 147, ¶21. While a sentencing
transcript need not contain statements as direct as those in Dalton
to meet the clear-and-convincing threshold, the statements here
fall short of that mark. For that reason, we cannot disturb the
circuit court's wide sentencing discretion. See Williams, 381
Wis. 2d 661, ¶¶45-47.
IV. CONCLUSION
¶18 Dodson fails to prove by clear and convincing evidence
that the circuit court actually relied on an improper factor.
Accordingly, Dodson's sentence stands.
By the Court.—The court of appeals' decision is affirmed.
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No. 2018AP1476-CR.bh
¶19 BRIAN HAGEDORN, J. (concurring). I join the majority
opinion, but write separately to make two points.
¶20 First, this case turns on how you view the sentencing
transcript. I read the transcript the same way the postconviction
court and court of appeals did. The circuit court was trying to
comprehend how Dodson came to have a "distorted, misguided belief
of the world that somehow Mr. Freeman" posed a deadly threat. So,
drawing on a pattern it sometimes observed in criminal defendants
who previously purchased firearms, the circuit court offered its
"speculation" about how Dodson developed the criminal mindset that
precipitated an inexplicable and "baffl[ing]" homicide.
Understood in this context, the circuit court was not declaring
that all gun owners or CCW licensees develop a warped mindset
toward the world around them. Rather, the circuit court suggested
that in its experience, some do, and speculated that perhaps this
could explain Dodson's actions. To be sure, the circuit court
could have been clearer. But Dodson's contention that the court
punished him solely for exercising his Second Amendment rights is
unsupported by the sentencing transcript.
¶21 Second, as the majority explains, we employ a two-
pronged analysis when reviewing whether a sentencing court relied
on an improper factor. We consider: (1) whether the challenged
factor was improper, and (2) whether the sentencing court actually
relied on that factor. State v. Pico, 2018 WI 66, ¶48, 382
Wis. 2d 273, 914 N.W.2d 95. Tracking the analysis in a prior case,
the majority concludes Dodson did not prove actual reliance——in
part because the discussion of Dodson's lawful gun possession
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No. 2018AP1476-CR.bh
shared a "reasonable nexus" with "relevant and proper sentencing
factors." Majority op., ¶16; State v. Williams, 2018 WI 59, ¶53,
381 Wis. 2d 661, 912 N.W.2d 373. While the majority's approach
comports with our prior discussion of the actual reliance prong,
in my view, the reasonable nexus analysis more properly belongs
under the improper factor prong.
¶22 Logically, whether something bears a reasonable nexus to
permissible sentencing considerations goes not to whether it was
improperly relied upon, but to whether the consideration was proper
in the first place. State v. J.E.B. is a case in point. 161
Wis. 2d 655, 469 N.W.2d 192 (Ct. App. 1991). There, the circuit
court discussed the defendant's tendency to read graphic novels
containing "descriptions of adults having sexual contact with
children." Id. at 659. Reading the novels, however, was a
constitutionally protected activity. Id. at 663. The court of
appeals concluded that referencing this protected material was not
off limits because there was "a reliable showing of a sufficient
relationship" between the protected activity and the criminal
conduct. Id. at 673. Therefore, even though constitutionally
protected activity was discussed, it was not improper because it
was tied to an appropriate and relevant sentencing consideration.
Federal courts evaluate these types of sentencing challenges under
this same analytical framework. See Dawson v. Delaware, 503
U.S. 159, 166-67 (1992); United States v. Schmidt, 930 F.3d 858,
862-67 (7th Cir. 2019).
¶23 In this case, the majority correctly explains that the
circuit court's discussion of Dodson's gun possession was not about
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No. 2018AP1476-CR.bh
all gun owners; it was directly connected to Dodson's criminal
mindset and bore a reasonable nexus to the gravity of his offense
and the need to protect the public. Majority op., ¶16. While the
majority thus concludes there was no actual reliance, it would be
more analytically precise to hold that the reference to Dodson's
gun possession did not constitute an improper factor.
Nevertheless, I acknowledge our precedent has employed a
reasonable nexus test under the actual reliance prong and therefore
join the majority opinion.
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No. 2018AP1476-CR.rgb
¶24 REBECCA GRASSL BRADLEY, J. (dissenting).
"[H]oplophobia" is the "irrational fear of guns." Wis. Judicial
Comm'n v. Woldt, 2021 WI 73, ¶91, 398 Wis. 2d 482, 961 N.W.2d 854(Rebecca Grassl Bradley, J., concurring/dissenting).
"Constitutional rights must not give way to hoplophobia." Mance
v. Sessions, 896 F.3d 390, 405 (5th Cir. 2018) (Ho, J., dissenting
from a denial of a rehearing en banc). In this case, the sentencing
judge's hoplophobia was on full display——he gave Octavia Dodson a
particularly harsh sentence because Dodson legally purchased and
carried a firearm.1 In doing so, the sentencing judge violated
Dodson's constitutional right to keep and bear arms and deprived
Dodson of due process of law.
¶25 The majority ignores the facts in an effort to legitimize
Dodson's unlawful sentence. It whitewashes what actually happened
at the sentencing hearing by downplaying and twisting the
sentencing judge's remarks. In its opening paragraph, the majority
minimizes Dodson's argument as the sentencing judge "relied on an
improper sentencing factor in mentioning his lawful gun ownership
and concealed-carry (CCW) permit."2 As the record reflects, the
sentencing judge imbued his entire sentencing rationale with the
fact of Dodson's lawful gun ownership and possession, repeatedly
emphasizing not only how such lawful activity influenced Dodson's
behavior, but how it "changes" people who exercise their
1The Honorable M. Joseph Donald, Milwaukee County Circuit
Court, presided.
2 Majority op., ¶1 (emphasis added).
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fundamental Second Amendment right——in the sentencing judge's own
worldview.
¶26 Instead of crafting an individualized sentence, the
sentencing judge focused on how lawful firearm possession changes
people, not on how Dodson unlawfully used his firearm. The
sentencing judge reasoned: (1) when a person buys a gun and begins
carrying it for self-defense, he is forever changed by the
experience and starts to see the world as a threat; (2) therefore,
all gun owners are a danger to society——not just felons who
unlawfully use firearms; and (3) Dodson should be behind bars for
a particularly long time because he, like all other gun owners,
has a "distorted, misguided belief of the world," which causes him
to perceive non-existent threats.
¶27 Dodson's punishment was increased "solely" because he
"availed himself" of a constitutional right. See State v.
Williams, 2018 WI 59, ¶22, 381 Wis. 2d 661, 912 N.W.2d 373 (quoting
Buckner v. State, 56 Wis. 2d 539, 550, 202 N.W.2d 406 (1972)).
His status as a lawful gun owner was irrelevant, and its
consideration was improper. Lawful gun ownership says nothing
about a person's character or propensity for violence. Because
the majority sanctions punishing lawful gun owners for exercising
the fundamental constitutional right to keep and bear arms, I
dissent.
I. SELF-DEFENSE, GUN OWNERSHIP, & VIRTUOUS CITIZENSHIP
[L]aw-abiding citizens who arm themselves are exhibiting
the moral temper appropriate to a free people. They do
not regard their lives and safety as a gift from the
government. Nor do they think they should wait for the
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No. 2018AP1476-CR.rgb
government to come along and save them when their lives
or the lives of other innocent people are threatened.
Nelson Lund, The Right to Arms and the American Philosophy of
Freedom, First Principles, Oct. 17, 2016, at 1, 18.
¶28 Every person has a natural right to defend himself, which
is protected by both the Second Amendment to the United States
Constitution as well as Article I, Sections 1 and 25 of the
Wisconsin Constitution. People are born with this right, and the
government may not infringe it. See Porter v. State, 2018 WI 79,
¶52, 382 Wis. 2d 697, 913 N.W.2d 842 (Rebecca Grassl Bradley &
Kelly, JJ., dissenting). "[People] should have a right to destroy
that which threatens [them] with destruction: for, by the
fundamental law of nature, man being to be preserved as much as
possible, when all cannot be preserved, the safety of the innocent
is to be preferred[.]" John Locke, Second Treatise of Government
§ 16 (1690). Indeed, "self defence is nature's eldest law." John
Dryden, Absalom and Achitophel, as reprinted in 9 The Works of
John Dryden, at 217, 231 (1808).
¶29 Millions of Americans, including hundreds of thousands
of Wisconsinites, keep and bear arms in exercising their natural
right to self-defense. See Christopher J. Schmidt, An
International Human Right to Keep and Bear Arms, 15 Wm. & Mary
Bill Rts. J. 983, 994 (2007) ("The Framers believed individual
self-defense was an inalienable natural right. . . . The right to
keep and bear arms was a by-product of the natural right to self-
defense and survival. . . . Consequently, the right to keep and
bear arms was also described as a natural right that does not
belong to the government but to the individual."). Although Dodson
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admittedly committed a crime by using unnecessary defensive force,
his lawful gun ownership and possession had no bearing on his
culpability or character.
¶30 Wisconsin's concealed carry law reflects a legislative
recognition that lawfully purchasing and carrying a firearm is
completely consistent with responsible citizenship. See generally
C'Zar Bernstein, Timothy Hsiao & Matt Palumbo, The Moral Right to
Keep and Bear Firearms, 29 Pub. Aff. Q. 345 (2015). As the Framers
understood, "an individual's ability to arm himself against
threats to his person, property, or . . . the State" is "[t]he
cornerstone of strength of a republican society[.]" Schmidt, An
International Human Right to Keep and Bear Arms, at 994. As a
matter of law, law-abiding citizens have a constitutionally-
protected right to possess firearms and the government may not
punish them for exercising it.
¶31 Both the United States Constitution and the Wisconsin
Constitution protect the individual right to keep and bear arms.
The Second Amendment to the United States Constitution provides:
"A well regulated Militia, being necessary to the security of a
free State, the right of the people to keep and bear Arms, shall
not be infringed." As particularly relevant in this case, the
Second Amendment "guarantee[s] the individual right to possess and
carry weapons in case of confrontation." District of Columbia v.
Heller, 554 U.S. 570, 592 (2008). This individual right is
incorporated against the states by the Fourteenth Amendment.
McDonald v. City of Chicago, 561 U.S. 742, 750, 791 (2010).
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¶32 Article I, Section 25 of the Wisconsin Constitution
states: "The people have the right to keep and bear arms for
security, defense, hunting, recreation or any other lawful
purpose." We recently described this provision as "a
straightforward declaration of an individual right to keep and
bear arms for any lawful purpose[,]" including "obtaining a license
to carry concealed weapons."3 Wisconsin Carry, Inc. v. City of
Madison, 2017 WI 19, ¶¶10–11, 373 Wis. 2d 543, 892 N.W.2d 233.
Among other lawful purposes, the Framers of Section 25 enumerated
both "security" and "defense" as functions which animated the
people's decision to protect the right to keep and bear arms.
¶33 American citizens have a long history and tradition of
keeping and bearing arms in case of confrontation. The right to
do so antedates the establishment of government at any level. Both
our federal and state constitutions preserve this most fundamental
and natural right from infringement by the government. Citizens
may not be punished for lawfully exercising it.
II. BACKGROUND
A. Octavia Dodson & His Crime
¶34 As acknowledged by the sentencing judge, Dodson was a
model citizen before committing this crime.4 A hard-working
employee and a good father, Dodson had no criminal history.5 Like
3 The majority does not address Article I, Section 25 of the
Wisconsin Constitution even though Dodson raised it. Dodson's Br.
at 16.
4 R. 73:32.
5 R. 17:9–12; R. 73:32.
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millions of other model citizens, Dodson chose to keep and bear
arms. In 2014, he became a concealed carry permit-holder after
completing all state-mandated training.6 In the sentencing judge's
personal view, Dodson's decision to purchase and carry a firearm
somehow impaired his virtue, an opinion utterly antithetical to
founding principles underlying the explicit constitutional
protection afforded the natural right to keep and bear arms.
¶35 The sentencing judge would have us believe that each day
Dodson exercised his right to keep and bear arms, he menaced
society. For the sentencing judge, Dodson's lawful,
constitutionally-protected conduct before the crime overshadowed
the crime itself. With no grounding in reality, the sentencing
judge hypothesized that gun owners possess an increased propensity
for violence triggered by a purportedly paranoid worldview,
clouded by misperceptions of non-existent threats. In applying
his own "distorted" views of gun owners in this case, the
sentencing judge impermissibly stereotyped Dodson.
¶36 In March 2016, Dodson, a Black man, was the victim of a
hit and run.7 The driver of a Buick rear-ended him and then drove
away. Dodson tried to follow the fleeing Buick, but he lost sight
of it. Minutes after the collision, Dodson spotted Deshun
Freeman's Buick, which, contrary to Dodson's belief at the time,
probably was not the Buick involved in the hit and run. After
Dodson followed Freeman's Buick, Freeman pulled over and exited
R. 1:4. The state requires extensive training.
6 See Wis.
Stat. § 175.60(4)(a) (2013–14).
7 R. 1:3 & n.2.
6
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his vehicle. As the majority notes, the two men were standing
only "about two car-lengths" away.8 Freeman moved toward Dodson,
yelling racial epithets.9 Mistakenly thinking Freeman was armed,
Dodson shot Freeman multiple times with a handgun, which he was
lawfully carrying as a concealed carry permit-holder. Freeman
died. A few hours later, Dodson surrendered himself to the police.
¶37 For apparent dramatic effect, the majority emphasizes
that Dodson "swapped out his pistol's ten-round magazine for an
extended 17-round magazine" as he was searching for the Buick.10
So what? The sentencing judge did not even mention this irrelevant
fact, but merely noted Dodson purchased an extended magazine,
without discussing how Dodson used it.11 The conflation of lawful
purchase and possession with unlawful use is the central problem
with the sentencing judge's remarks (and the majority's approval
of them).
¶38 No one has suggested the magazine was atypical, much
less illegal. To the contrary, such magazines are "fairly
ordinary" and "popular." See Miller v. Bonta, __ F. Supp. 3d __,
2021 WL 2284132 *1 (S.D. Cal.), appeal filed ("Like the Swiss Army
Knife, the popular AR-15 rifle is a perfect combination of home
8 Majority op., ¶3.
The majority fails to mention Dodson is a Black man and
9
merely says Freeman yelled an "obscenity[.]" Id., ¶4. The
majority employs euphemisms. Understanding why Dodson may have
perceived a threat——even if one did not, in fact, exist——is
critical to understanding his actual culpability.
10 Id., ¶3; see also id., ¶15.
11 R. 73:30–31.
7
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defense weapon and homeland defense equipment. . . . This case is
not about extraordinary weapons lying at the outer limits of Second
Amendment protection. The banned 'assault weapons' are not
bazookas, howitzers, or machineguns. Those arms are dangerous and
solely useful for military purposes. Instead, the firearms deemed
'assault weapons' are fairly ordinary, popular, modern rifles.").
¶39 More fundamentally, even if there were something unusual
about a 17-round magazine, it would have no bearing on this case.
Would Dodson be less culpable in the majority's view if he had
used a ten-round magazine instead? The majority doesn't say.
Perhaps it deems a ten-round magazine less scary. Regardless of
the majority's feelings toward guns, our constitutions do not
countenance Wisconsinites being punished more harshly for lawfully
carrying weapons a judge deems insufficiently mundane.
¶40 The State charged Dodson with second-degree intentional
homicide by unnecessary defensive force and sought a penalty
enhancer for use of a dangerous weapon. The penalty enhancer
related to Dodson's use of the firearm, and had nothing to do with
the extended magazine. Dodson pled guilty in exchange for the
State dismissing the penalty enhancer and agreeing to seek a
"substantial prison term" rather than a specific sentence.12
¶41 The majority fails to mention the presentence writer
recommended a sentence of five to nine years of initial confinement
followed by five to six years of extended supervision——
12 R. 70:2–3; see also R. 13:2.
8
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substantially less than the sentence Dodson received.13 The
presentence writer noted, "Mr. Dodson expressed sincere remorse
for his behavior, and was tearful in expressing his desire to go
back in time."14 The presentence writer emphasized the incident
happened "[i]n the flash of a second" and seemed to believe Dodson
was in fear for his life.15
B. The Sentencing Hearing
¶42 At the sentencing hearing, the State expressed grave
concern about America's gun laws——"critical context"16 also
noticeably left unmentioned by the majority. This context informs
the sentencing judge's remarks. See United States v. Lemon, 723
F.2d 922, 931–32 (D.C. Cir. 1983). In particular, the prosecutor's
anti-gun sermon influenced the judge's reasoning for the sentence
he imposed on Dodson. The State claimed:
I think that given the way our laws are now, a law-
abiding citizen who's not otherwise prohibited can
exercise the right to keep and bear [arms] on the Second
13R. 17:20. We often refer to the presentence investigation
for context. See, e.g., State ex rel. Wren v. Richardson, 2019 WI
110, ¶4, 389 Wis. 2d 516, 936 N.W.2d 587 ("In early 2006, 15-year-
old Joshua Wren shot and killed a man. He pled guilty to first-
degree reckless homicide, and in March 2007 was sentenced to 21
years of initial confinement and nine years of extended
supervision——considerably more than Wren's counsel suggested and
longer than was recommended in the presentence investigation
report (PSI)."). The majority conspicuously omits any summary of
the PSI.
14 R. 17:19.
15 R. 17:19.
16The majority accuses Dodson of "ignor[ing] critical
context[,]" majority op., ¶12, while giving the reader only a
selective and truncated version of the facts.
9
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Amendment and the State can't prohibit the carrying of
deadly force concealed on one's person because we have
just decided as a people, that that is not a reasonable
restriction on the time, place, and manner on the
exercise of that inalienable right, and that's our law.
That's where we are as a society. But the public does
still have a right to be protected from people who think
that this is some sort of a game, or that this is not
real, or that this is a movie or a video. And that we
can carry around these pieces of technology, which are
capable of taking away a human life in a nano second.
These are semiautomatic weapons. They are going to fire
just as fast as a person who can pull the trigger. In
[sic] a 17-round capacity is meant for nothing, nothing
more than killing as quickly and efficiently as one
possibly can.
. . . .
It's just, we just as a society, as a community, we just
cannot look the other way and chalk this kind of carnage
up to our CCW laws or our self-defense laws, or our
castle doctrines, or whatever we have got these days
that are condoning deadly force.[17]
The prosecutor's hyperbolic comments stand in contrast to the
record, nothing in which indicates Dodson considered himself a
character in a "movie or a video."
¶43 Betraying his derision for the people's fundamental
right to keep and bear arms, the prosecutor complained that laws
protecting the people's exercise of their natural right to self-
defense "condon[e] deadly force."18 Dodson admittedly used
unnecessary defensive force; therefore, he could not claim self-
defense. However, he did nothing wrong by lawfully carrying a
firearm in case of confrontation. The prosecutor, by attacking
CCW, self-defense, and the castle doctrine, conflated Dodson's
17 R. 73:18–20.
18 R. 73:19–20.
10
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unlawful use of force with his lawful decision to purchase and
carry a firearm.
¶44 To "condone" means to "[f]orgive or overlook (an
offence; freq. a spouse's adultery)" or to "[a]pprove, sanction,
esp. reluctantly[.]" Condone, Shorter Oxford English Dictionary
(6th ed. 2007); see also Condone, Black's Law Dictionary (11th ed.
2019) ("To voluntarily pardon or overlook (esp. an act of
adultery)."). It can also mean to "permit the continuance of (as
vice, gambling)[.]" Condone, Webster's Third New International
Dictionary (2002). Contrary to the State's moralistic
disparagement of the people's fundamental constitutional rights,
self-defense serves as a "justification" for an otherwise criminal
act, not an "excuse." An act done in self-defense is not merely
tolerated by the law——it is declared rightful. Marcia Baron,
Justifications and Excuses, 2 Ohio St. J. Crim. L. 387, 388–90
(2005). Compare Justification, Black's Law Dictionary ("A lawful
or sufficient reason for one's acts or omissions; any fact that
prevents an act from being wrongful."), with Excuse, Black's Law
Dictionary ("A defense that arises because the defendant is not
blameworthy for having acted in a way that would otherwise be
criminal. • The following defenses are the traditional excuses:
duress, entrapment, infancy, insanity, and involuntary
intoxication."). The prosecutor's comments relegated self-defense
to an excuse, on par with insanity. See Baron, Justifications and
Excuses, at 388–89 ("Insanity is an excuse; self-defense is a
justification."). By extension, the prosecutor's comments also
11
No. 2018AP1476-CR.rgb
called into question the character of lawful gun owners who
exercise their right to self-defense.
¶45 Such a belittling attitude toward fundamental laws by a
lawyer sworn to uphold them is disconcerting. The right to keep
and bear arms may be listed second in the Bill of Rights, but
"[t]he Second Amendment is neither second class, nor second rate,
nor second tier." Mance, 896 F.3d at 396 (Willett, J., dissenting
from a denial of a rehearing en banc). The prosecutor's hostility
toward CCW, self-defense, and the castle doctrine set the tone for
the rest of the sentencing hearing, conveying a sentiment
ultimately adopted by the sentencing judge. At the outset of his
remarks, the sentencing judge identified relevant sentencing
factors but then acknowledged the prosecutor's diatribe was
intended "almost in a sense to demonize the defendant in such a
way that the Court truly understands what's at stake."19 The
sentencing judge then moralized about how gun ownership "changes"
people:
In reviewing this case, I have to say I am completely
baffled as to why this happened. And I don't think that
there is any rational way of trying to explain it. I
can tell you this, Mr. Dodson, that in my experience as
a judge, I have seen over time how individuals when they
are possessing a firearm, how that in some way changes
them. It changes how they view the world. It changes
how they react and respond to people. I know that this
is only speculation on my part, but I do strongly feel
that the day that you applied for that concealed carry
permit and went out and purchased that firearm, and that
extended magazine, whether your rational beliefs for
possessing it, whether you felt the need to somehow arm
yourself and protect yourself from essentially the crime
19 R. 73:30.
12
No. 2018AP1476-CR.rgb
that is going on in this community I think on that day
set in motion this circumstance.
It is clear to me, Mr. Dodson, that for whatever reason,
and it appears that it is a distorted, misguided belief
of the world that somehow Mr. Freeman was a threat that
required you, in essence, to terminate his life. Makes
no sense.[20]
No other portion of the sentencing judge's remarks were as long as
his speech about the malefactions of lawful gun owners. Contrary
to the majority's view, the sentencing judge did much more than
make an off the cuff remark that could be construed to express a
bias against gun owners; the judge's remarks bristled with animus
toward them.
¶46 The sentencing judge then turned to Dodson's driving
habits on the night in question, stating "[t]here is that factor,
too, that I struggle with as to why Mr. Freeman pulled over and
got out of his car."21 By using the language "factor, too" in
transitioning away from his criticisms of gun ownership, the
sentencing judge made clear he considered gun ownership as a factor
in sentencing Dodson. Our constitutions prohibit this.
¶47 The sentencing judge then discussed victim impact
statements, Dodson's character, accomplishments, and acceptance of
responsibility, and statements Dodson made to law enforcement that
were not factually supported. He reiterated his belief that Dodson
was "operating under some misguided belief, some distorted view of
the world that somehow Desh[u]n Freeman was a threat[.]"22 Notably,
20 R. 73:30–31.
21 R. 73:31 (emphasis added).
22 R. 73:32 (emphasis added).
13
No. 2018AP1476-CR.rgb
the sentencing judge did not merely say Dodson had a "distorted
view" that Freeman was a threat——he said Dodson had a "distorted
view of the world[.]" This generalized statement strongly
indicates the sentencing judge inferred character traits from
Dodson's lawful gun ownership.
¶48 Given the majority's fast and loose description of the
sentencing hearing, it is necessary to discuss what the sentencing
judge did not say. The sentencing judge's remarks were brief.
Absent from them is any discussion of why Dodson might have been
fearful. In fact, the sentencing judge barely discussed Dodson's
actions on the night of his crime. When the sentencing judge did
so, he focused primarily on Dodson's ostensibly aggressive
driving. The sentencing judge said: "I struggle with as to why
Mr. Freeman pulled over and got out of his car. And the only
rationale that I can surmise, is that there was something about
how you were operating your vehicle at that time that at least
attracted his attention to you."23
¶49 The majority also mistakenly claims the sentencing judge
"properly cabined" his remarks about gun owners to "some criminal
defendants[.]"24 In the majority's recasting of the hearing, the
sentencing judge was not speaking about gun owners generally——just
violent felons. The record proves the falsity of the majority's
reconstruction of the hearing. The sentencing judge actually said:
"I have seen over time how individuals when they are possessing a
firearm, how that in some way changes them. It changes how they
23 R. 73:31.
24 Majority op., ¶15.
14
No. 2018AP1476-CR.rgb
view the world."25 The sentencing judge referred to "individuals,"
not "some criminal defendants," and lest there be any doubt about
what he meant, moments later he also said, "I do strongly feel
that the day that you applied for that concealed carry permit and
went out and purchased that firearm . . . set in motion this
circumstance."26 Of course, when Dodson lawfully purchased a
firearm, he was a lawful gun owner, not a felon or misdemeanant in
the criminal justice system.
¶50 The sentencing judge sentenced Dodson to fourteen years
of initial confinement followed by six years of extended
supervision, for a total of twenty years imprisonment.27 In
announcing the sentence, he mentioned twice that Dodson was forever
prohibited from possessing a firearm.28 Dodson filed a
postconviction motion for resentencing, which was heard by a
different judge.29
25 R. 73:30 (emphasis added).
26 R. 73:30–31.
27 R. 73:34.
28R. 73:33, 35 ("You are not to own or possess any
firearms. . . . One other thing I forgot. Mr. Dodson, you are a
convicted felon. From this time forward you may not own or possess
a firearm. If you do so, you can be charged and prosecuted as a
felon in possession of a firearm.").
29The Honorable Carolina Stark, Milwaukee County Circuit
Court, presided.
15
No. 2018AP1476-CR.rgb
C. The Postconviction Proceedings & Appeal
¶51 The postconviction judge denied the motion.30
Critically, however, she found the sentencing judge's comments on
gun ownership were not merely passing remarks but reflected his
reasons for imposing the sentence. Specifically, the
postconviction judge stated:
[W]hen I look at them [the comments of the sentencing
judge] there in the context of what he said, I do think
that he was relying on [them]. So the reliance prong of
this analysis I think is satisfied.
I think he was relying on the things that he said were
factors or things that he was announcing as part of his
thought process he was relying on them.[31]
Nevertheless, the postconviction judge concluded, "the types of
statements . . . the defendant has raised as evidence of an
improper sentencing factor . . . are not improper sentencing
factors when you look at them and look at them in the context of
what [the sentencing judge] was saying."32 The postconviction
judge seemed to reason that, while perhaps a person's status as a
gun owner and permit holder could be an improper factor, as applied
in this case, they were not. The majority discards the
postconviction judge's finding of actual reliance even though we
generally give such findings some weight——at least when the
Dodson's motion also requested plea withdrawal, alleging
30
ineffective assistance of counsel. This appeal, however, concerns
only his request for resentencing. See State v. Dodson, No.
2018AP1476-CR, unpublished slip op., ¶9 (Wis. Ct. App. Aug. 25,
2020) (per curiam).
31 R. 72:25.
32 R. 72:25.
16
No. 2018AP1476-CR.rgb
postconviction judge is different than the sentencing judge. See
State v. Alexander, 2015 WI 6, ¶34, 360 Wis. 2d 292, 858
N.W.2d 662.
¶52 Dodson appealed. The court of appeals affirmed. State
v. Dodson, No. 2018AP1476-CR, unpublished slip op. (Wis. Ct. App.
Aug. 25, 2020) (per curiam). It assumed "it would be improper to
punish a defendant for legally exercising his or her right to bear
arms under the United States and Wisconsin Constitutions." Id.,
¶13. It concluded, however, the sentencing judge did not actually
rely on Dodson's status as a gun owner and concealed carry permit-
holder. Id., ¶16. It stated, "the trial court's comments indicate
that it, like the parties, was trying to make sense of what
appeared to be a senseless homicide[.]" Id. We granted Dodson's
petition for review.
III. STANDARD OF REVIEW
¶53 Generally, we review a circuit court's sentencing
determination for an erroneous exercise of discretion. State v.
Gayton, 2016 WI 58, ¶19, 370 Wis. 2d 264, 882 N.W.2d 459 (citing
State v. Gallion, 2004 WI 42, ¶17, 270 Wis. 2d 535, 678
N.W.2d 197). "In exercising discretion, sentencing courts must
individualize the sentence to the defendant based on the facts of
the case by identifying the most relevant factors and explaining
how the sentence imposed furthers the sentencing objectives."
State v. Harris, 2010 WI 79, ¶29, 326 Wis. 2d 685, 786 N.W.2d 409(citing Gallion, 270 Wis. 2d 535, ¶¶39–48). "Individualized
sentencing . . . has long been a cornerstone to Wisconsin's
criminal justice jurisprudence." Gallion, 270 Wis. 2d 535, ¶48;
17
No. 2018AP1476-CR.rgb
see also In re Judicial Admin. Felony Sentencing Guidelines, 120
Wis. 2d 198, 202, 353 N.W.2d 793 (1984) (per curiam).
¶54 A circuit court erroneously exercises its discretion if
it misapplies the law by relying on a "clearly irrelevant or
improper factor[]" in determining a sentence. State v. Pico, 2018
WI 66, ¶48, 382 Wis. 2d 273, 914 N.W.2d 95 (quoting Harris, 326
Wis. 2d 685, ¶30); see also State v. Loomis, 2016 WI 68, ¶31, 371
Wis. 2d 235, 881 N.W.2d 749 (citing McCleary v. State, 49
Wis. 2d 263, 278, 182 N.W.2d 512 (1971)). Whether a circuit court
relied on particular statements made at sentencing is a question
of fact, which the defendant bears the burden of proving by clear
and convincing evidence. See Alexander, 360 Wis. 2d 292, ¶17
(citations omitted). In this case, the only evidence of reliance
is a transcript of the sentencing hearing. Therefore, we
independently determine whether the sentencing judge relied on his
statements about guns and gun owners, although we benefit from the
postconviction judge's findings. State v. Travis, 2013 WI 38,
¶48, 347 Wis. 2d 142, 832 N.W.2d 491; Alexander, 360 Wis. 2d 292,
¶34. Whether a factor is irrelevant or improper presents a
question of law we also review independently. See Loomis, 371
Wis. 2d 235, ¶29 (citing Jackson v. Buchler, 2010 WI 135, ¶39, 330
Wis. 2d 279, 793 N.W.2d 826).
IV. APPLICATION
A. Actual Reliance
¶55 As the postconviction judge recognized, the sentencing
judge actually relied on Dodson's status as a gun owner and
concealed carry permit-holder. Actual reliance is established if
18
No. 2018AP1476-CR.rgb
the sentencing judge gave "explicit attention" to Dodson's status
such that his status "formed part of the basis for the sentence."
See Alexander, 360 Wis. 2d 292, ¶25 (quoting State v. Tiepelman,
2006 WI 66, ¶14, 291 Wis. 2d 179, 717 N.W.2d 1; Travis, 347
Wis. 2d 142, ¶¶28, 31). Dodson's exercise of his
constitutionally-protected right to keep and bear arms not only
"formed part of the basis for the sentence," it was central to the
imposition of a sentence considerably harsher than the PSI writer's
recommendation.
¶56 The sentencing judge began his remarks by noting
relevant and proper factors he was supposed to consider. Before
he discussed any of them, however, he suggested that the State's
argument was intended to "demonize" Dodson to ensure the judge
understood "what's at stake."33 The sentencing judge did not say
explicitly what he thought was "at stake;" however, immediately
following this comment he spoke at length about gun ownership and
how it "changes" people. He claimed he "ha[d] seen over time how
individuals when they are possessing a firearm, how that in some
way changes them. It changes how they view the world. It changes
how they react and respond to people."34 The judge did not refer
to Dodson's particular circumstances but instead categorically
grouped him with gun owners as a whole.
¶57 The sentencing judge then stated:
I know that this is only speculation on my part, but I
do strongly feel that the day that you applied for that
33 R. 73:30.
34 R. 73:30 (emphasis added).
19
No. 2018AP1476-CR.rgb
concealed carry permit and went out and purchased that
firearm, and that extended magazine, whether your
rational beliefs for possessing it, whether you felt the
need to somehow arm yourself and protect yourself from
essentially the crime that is going on in this community
I think on that day set in motion this circumstance.[35]
This comment reveals the sentencing judge speculated that Dodson's
lawful decision to keep and bear arms changed his worldview and
"set in motion" a series of events culminating in his unlawful
behavior. Given the temporal proximity of this comment to the
sentencing judge's statement that gun ownership changes people,
the judge made clear he stereotyped Dodson by finding him——like
gun owners generally——forever changed for the worse by carrying a
gun. The temporal proximity is dispositive to the analysis the
majority should have employed; we are, after all, required to view
sentencing statements in context, not in isolation. Id., ¶30
(citing Harris, 326 Wis. 2d 685, ¶45).
¶58 The sentencing judge solidified his reliance with his
very next statement. He claimed this tragedy was likely caused by
Dodson's "distorted, misguided belief of the world that somehow
Mr. Freeman was a threat[.]"36 Notably, the sentencing judge made
a similar comment toward the close of his remarks, after discussing
other factors everyone agrees he considered.37 Critically, the
sentencing judge did not claim that Dodson had a "distorted,
misguided belief" that Freeman was a threat; he claimed that Dodson
35 R. 73:30–31 (emphasis added).
36 R. 73:31 (emphasis added).
37 R. 73:32.
20
No. 2018AP1476-CR.rgb
had a "distorted, misguided belief of the world" that caused him
to wrongly perceive Freeman as a threat.38
¶59 Although Dodson, by pleading guilty, admitted that he
acted unreasonably, the sentencing judge did not articulate a
legitimate basis for finding that Dodson's unreasonable behavior
stemmed from a paranoid worldview. This finding was based
primarily on the sentencing judge's biased——and admittedly
speculative——opinion that gun owners generally view the world as
a threat. Importantly, the judge felt "strongly" about his
subjective opinions——a point he felt compelled to articulate at
sentencing.39 In conveying those opinions, the sentencing judge
paid "explicit attention" to Dodson's status as a gun owner and
concealed carry permit-holder. See id., ¶25.
¶60 Immediately after a lengthy discussion of gun ownership,
the sentencing judge said, "[t]here is that factor, too, . . . as
38 The majority does not dispute this point. It says:
The circuit court explained that in its "experience as
a judge," it observed a recurring pattern wherein
"possessing a firearm" changes how some criminal
defendants "view the world" and "react and respond to
people." From the circuit court's standpoint that
pattern was apparent here: Dodson reacted unreasonably
to Freeman because Dodson was armed with a gun. That
is, absent the gun, Dodson would not have used lethal
force. But Dodson did have the gun and a "distorted,
misguided belief of the world that somehow Mr. Freeman
was a threat," which as Freeman's murder tragically
demonstrates, created a danger to the community——another
proper sentencing consideration.
Majority op., ¶14 (citing Wis. Stat. § 973.017(2)(ad)).
39 R. 73:30.
21
No. 2018AP1476-CR.rgb
to why Mr. Freeman pulled over and got out of his car."40 The use
of the phrase "factor, too" shows that the immediately preceding
discussion was more than a passing remark. The use of that phrase
indicates Dodson's status as a gun owner and permit holder was a
factor on at least equal footing with Dodson's debatably
belligerent driving. Accordingly, not only did the sentencing
judge pay explicit attention to Dodson's status as a lawful gun
owner and concealed carry permit-holder, it "formed part of the
basis for his sentence." Id.¶61 The prosecutor's comments, which have already been
discussed in detail, provide further context indicating the
sentencing judge actually relied on Dodson's constitutionally-
protected status. See Lemon, 723 F.2d at 931–32. The sentencing
judge even acknowledged the prosecutor's argument was intended to
ensure he understood what was "at stake."41 The full transcript
of the sentencing hearing confirms the sentencing judge was
responding to an argument advanced by the prosecutor——and
generally signaling his agreement.
¶62 Actual reliance is supported by the length of the gun
ownership discussion in proportion to the sentencing judge's
remarks as a whole. Nothing else was discussed to the same extent.
The postconviction judge's findings substantiate this analysis.
See Alexander, 360 Wis. 2d 292, ¶34. Although she interpreted the
sentencing judge's remarks differently, the postconviction judge
40 R. 73:31 (emphasis added).
41 R. 73:30.
22
No. 2018AP1476-CR.rgb
found the comments actually constituted part of the basis for the
sentence.42
¶63 The majority nevertheless declares
"Dodson . . . fail[ed] to prove by clear and convincing evidence
that the circuit court improperly relied on his Second Amendment
activities when it speculated that 'the day' Dodson obtained his
gun, extended magazine, and CCW permit 'set in motion' the
homicide."43 The majority's argument relies heavily on magic
words. Apparently, because the sentencing judge said he was "only
speculat[ing]" about what caused Dodson to shoot Freeman, his
remarks are insulated from scrutiny.44 Magic words cannot save an
unlawful sentence. See State v. Morgan-Owens, No. 2008AP887-CR,
unpublished slip op., ¶33 (Wis. Ct. App. Dec. 16, 2008) (Kessler,
J., dissenting) ("Although the trial court indicated that the
pregnancy would 'not enter into this Court's decision-making in
this case,' I am not convinced that the pregnancy did not
negatively impact the sentence. These were not passing references
to the pregnancy. On the contrary, the remarks indicate that the
court was highly focused on the fact that Morgan-Owens became
pregnant . . . . The totality of the trial court's comments show
the court believed that Morgan-Owens intentionally became pregnant
in order to positively influence the court at sentencing, and that
it considered the pregnancy in a negative context at sentencing.").
42 R. 72:25.
43 Majority op., ¶16.
44 Id., ¶17.
23
No. 2018AP1476-CR.rgb
¶64 It is not necessary for a sentencing judge to say "you
will be punished for [exercising your constitutional right] today"
or "[exercising that right is] going to result in a higher sentence
for you."45 Although the majority professes it is not requiring
defendants to identify such an explicit statement, it fails to
provide any other avenue for meeting the artificially high bar it
sets in this case. By effectively requiring a sentencing judge to
admit wrongdoing, the majority impermissibly raises the burden of
proof from clear and convincing evidence to beyond a reasonable
doubt.
B. Dodson's Gun Ownership: An Irrelevant & Improper Factor
¶65 Dodson's status as a gun owner and concealed carry
permit-holder was both an irrelevant and improper sentencing
factor. The sentencing judge increased Dodson's punishment
because he exercised his constitutional right to keep and bear
arms. "To punish a person because he has done what the law plainly
allows him to do is a due process violation of the most basic
sort[.]" Bordenkircher v. Hayes, 434 U.S. 357, 363 (1978) (citing
North Carolina v. Pearce, 395 U.S. 711, 738 (1969) (Black, J.,
concurring/dissenting), overruled by Alabama v. Smith, 490
U.S. 794 (1989)).
¶66 Dodson's status was irrelevant because, as already
explained, no reasonable inference whatsoever about a person's
propensity for violence or his character in general can be drawn
from lawful gun ownership. In Dawson v. Delaware, the United
Id. (quoting State v. Dalton, 2018 WI 85, ¶21, 383
45
Wis. 2d 147, 914 N.W.2d 120) (modifications in the majority).
24
No. 2018AP1476-CR.rgb
States Supreme Court held the First and Fourteenth Amendments to
the United States Constitution prohibited the introduction into
evidence of a defendant's membership in the Aryan Brotherhood
because his membership had "no relevance[.]" 503 U.S. 159, 160
(1992). Dawson's reasoning applies with particularly strong force
in this case.
¶67 David Dawson was prosecuted in a capital case for a
murder he committed after escaping prison. Id. at 160–61. While
on the run, he broke into a home, killed a woman, and then stole
her money and car before fleeing. Id. at 161. Dawson had
stipulated that the Aryan Brotherhood was a prison gang that
"entertains white racist beliefs[.]" Id. at 165. The murder
victim was white. Id. at 166. The prosecutor never introduced
any other evidence about the Aryan Brotherhood. Accordingly, the
Court deemed Dawson's membership in that group an irrelevant
sentencing factor.
¶68 If there had been evidence associating the Aryan
Brotherhood with "violent escape attempts" or "murder," the Court
declared it "would have [had] a much different case." Id. at 165.
However, "the Aryan Brotherhood evidence was not tied in any way
to the murder of Dawson's victim." Id. at 166. "[T]he inference
which the jury was invited to draw in this case tended to prove
nothing more than the abstract beliefs of the . . . [Aryan
Brotherhood]." Id. The evidence "was employed simply because the
jury would find these beliefs morally reprehensible." Id. at 167.
That violated Dawson's constitutionally-protected associational
rights. Id.25
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¶69 Just as Dawson's membership in a hate group was an
irrelevant sentencing factor, even more so was Dodson's status as
a lawful gun owner and concealed carry permit-holder in this case.
The prosecutor introduced no evidence about gun owners at all; he
merely asserted, in conclusory fashion, that they are dangerous.
While personal opinions about the desirability of gun ownership
and possession may diverge greatly among members of the judiciary
as much as among the citizenry, judges are duty-bound to apply the
law and not their personal opinions in all cases before them. In
upholding the rule of law, judges may punish people for committing
crimes. They may not punish people for exercising constitutional
rights judges may disfavor.
¶70 United States v. Lemon, a D.C. Circuit case, is also
instructive. 723 F.2d 922. At sentencing, the prosecution argued
the defendant, Edward Lemon, was a member of a "Black Hebrew sect"
and that "his crime was part of a pattern of crimes committed for
the benefit of the Black Hebrew community." Id. at 925. Despite
Lemon's denial, the judge relied on the prosecution's assertions.
Id. at 924, 931–32. The D.C. Circuit vacated and remanded for
resentencing. It held: "A sentence based to any degree on
activity or beliefs protected by the first amendment is
constitutionally invalid." Id. at 938 (emphasis added). Even if
Lemon was a member, "mere membership," the court concluded, "would
be an impermissible factor in sentencing." Id. at 940.
¶71 By analogy, a sentence based on activity protected by
the Second Amendment is also constitutionally invalid.
"Consideration of political beliefs, as distinguished from
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criminal activity, would clearly be impermissible in determining
defendants' sentences, because it would impair the rights of the
defendants under the First Amendment, protecting public expression
of their political beliefs, by words and symbols." United States
v. Bangert, 645 F.2d 1297, 1308 (8th Cir. 1981) (citations
omitted). While the sentencing judge could obviously consider
Dodson's use of his gun to kill Freeman, consideration of Dodson's
lawful ownership and possession of his gun during sentencing was
clearly impermissible and violated Dodson's rights under the
Second Amendment.
¶72 Factoring lawful gun ownership and possession into
sentencing as a basis for increasing the defendant's punishment
also implicates due process by assigning negative traits to all
gun owners. We have recognized that "certain factors are improper
for [a] circuit court to consider at sentencing and therefore
violate a defendant's right to due process: race or national
origin, gender, alleged extra-jurisdictional offenses, and the
defendant's or victim's religion." Alexander, 360 Wis. 2d 292,
¶23. When constitutionally-protected factors such as race or
religion are considered at sentencing, the chance that the
defendant is impermissibly stereotyped——and thereby denied an
individualized sentence——is high. See Harris, 326 Wis. 2d 685,
¶101 (Ann Walsh Bradley, J., concurring).
¶73 In this case, the sentencing judge pejoratively
stereotyped all gun owners, thereby denying Dodson an
individualized sentence while impermissibly punishing him not only
for his crime but for his constitutionally-protected activity as
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well. The sentencing judge's comments on gun ownership invoked
"general predispositions" grounded in his experience, at the
expense of the particulars of the case. See State v. Ogden, 199
Wis. 2d 566, 573, 544 N.W.2d 574 (1996). Tellingly, the
sentencing judge never discussed Dodson's belief that his life was
in danger, instead pronouncing in conclusory fashion that Dodson
had a "distorted, misguided belief of the world[,]"46 cultivated
(in the judge's own worldview) by Dodson's decision to lawfully
carry a concealed firearm. Absent from the sentencing judge's
consideration was Dodson's side of the
story——that he, a Black man, was approached by a man yelling racial
slurs. In fact, the sentencing judge barely discussed Dodson's
crime at all, instead impermissibly focusing on Dodson's exercise
of his constitutionally-protected right to keep and bear arms as
the predominate basis for the sentence imposed.
V. CONCLUSION
¶74 The majority establishes a dangerous precedent,
sanctioning the State's imposition of enhanced punishment based
upon a defendant's exercise of a constitutionally-protected right.
No one challenges the State's prerogative to punish criminals for
the crimes they commit. Dodson pled guilty to a serious crime for
which the law authorizes a penalty. The constitution, however,
does not authorize punishment based in whole or in part on the
defendant's constitutionally-protected conduct, no matter how
inadvisable the judge may deem it.
46 R. 73:31.
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¶75 In this case, Dodson's punishment was impermissibly
increased because he chose to exercise his right to keep and bear
arms. Dodson's punishment should have been based solely on his
unlawful use of a firearm, not his lawful ownership or possession
of it. The majority's conflation of the two imperils the Second
Amendment rights of Wisconsin citizens. I dissent.
¶76 I am authorized to state that Chief Justice ANNETTE
KINGSLAND ZIEGLER and Justice PATIENCE DRAKE ROGGENSACK join this
dissent.
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