State v. Michael J. Leighton ( 2022 )


Menu:
  •        COURT OF APPEALS
    DECISION                                                   NOTICE
    DATED AND FILED                               This opinion is subject to further editing. If
    published, the official version will appear in
    the bound volume of the Official Reports.
    December 29, 2022
    A party may file with the Supreme Court a
    Sheila T. Reiff                    petition to review an adverse decision by the
    Clerk of Court of Appeals               Court of Appeals. See WIS. STAT. § 808.10
    and RULE 809.62.
    Appeal No.           2021AP945-CR                                                  Cir. Ct. No. 2019CF206
    STATE OF WISCONSIN                                                IN COURT OF APPEALS
    DISTRICT III
    STATE OF WISCONSIN,
    PLAINTIFF-RESPONDENT,
    V.
    MICHAEL J. LEIGHTON,
    DEFENDANT-APPELLANT.
    APPEAL from a judgment and an order of the circuit court for
    Outagamie County: MARK J. McGINNIS, Judge. Affirmed.
    Before Stark, P.J., Hruz and Gill, JJ.
    Per curiam opinions may not be cited in any court of this state as precedent
    or authority, except for the limited purposes specified in WIS. STAT. RULE 809.23(3).
    ¶1         PER CURIAM. Michael Leighton appeals from a judgment
    convicting him of two felonies and one misdemeanor, and from an order denying
    No. 2021AP945-CR
    his motion for resentencing or sentence modification. He contends that the circuit
    court relied upon an improper sentencing factor and that his sentences were unduly
    harsh. We reject both contentions and affirm.
    BACKGROUND
    ¶2      The State charged Leighton with two counts of identity theft, one
    count of fraudulent use of a credit card, two counts of theft, and one count of entry
    into a locked vehicle, all as a repeat offender. The complaint alleged that Leighton
    took the victim’s car key fob out of the victim’s gym locker, used the fob to enter
    the victim’s car, took the victim’s credit and debit cards from a wallet left in the
    car, and then used both cards. Leighton eventually entered no-contest pleas to the
    charges of identity theft and fraudulent use of a credit card. In exchange for the
    pleas, other counts were dismissed and read in.
    ¶3      The   Department     of   Corrections   submitted    a     presentence
    investigation report (PSI), and the defense submitted an alternative PSI. At the
    sentencing hearing, the circuit court quoted a passage from the alternative PSI
    stating that Leighton “understands he needs to address his substance abuse issues
    in an honest manner.” The court then asked Leighton a series of questions “to
    assess [his] ability to be honest” about himself.
    ¶4      The circuit court first asked Leighton what his substance abuse
    issues were.     Leighton answered “mostly pill abuse,” saying he took pills
    “occasionally to just feel better, have a little fun.”    Upon further prompting,
    Leighton acknowledged that he also abused marijuana and alcohol, and that he
    was a drug addict. Based upon Leighton’s responses, the court expressed concern
    that Leighton still was not capable of being honest about his substance abuse.
    Addressing the court’s concern later in the hearing, Leighton stated:
    2
    No. 2021AP945-CR
    This whole thing, honest with myself, is new to me. So
    that’s why I didn’t come across very well talking about
    drug abuse addiction. It’s—I don’t want to see myself as
    an addict, so it’s hard to say I am an addict. It’s hard to
    accept those things when you’re 51 years old.
    ¶5   The circuit court next asked Leighton how many times he had been
    convicted of a crime as an adult. Leighton answered “five to ten,” when the actual
    number was twenty-five. After the court pointed out how far off he was in his
    answer, Leighton said he did not understand that the court was asking about
    individual charges because many of his convictions were consolidated in the same
    cases.
    ¶6   The circuit court then asked Leighton to explain why he had
    committed so many crimes and spent so much of his adult life in prison. Leighton
    responded:
    Originally, your Honor, it was—it didn’t seem real. I had
    some credit cards that weren’t mine. I used them. It was
    easy money. It became a felony. After that, I couldn’t get
    a job. So I would use that and use that, use that. And that’s
    the hole I’m talking about. I did it to myself after I was 21
    or so. And, unfortunately, sometimes I go back to my old
    ways and that’s why we’re sitting here today.
    The court said Leighton’s explanation that he “used something that I thought was
    mine” was “bogus” and that it “really isn’t your old ways. It’s what your way has
    always been.” Leighton told the court that it had misheard him—i.e., that he had
    said he used credit cards that were not his.
    ¶7   The circuit court next asked Leighton about a claim that he been
    using the money he stole to support two families. Leighton said that he provided
    money to one woman with whom he had a previous relationship to help her with
    rent, but he later came to believe that she was using the money for drugs. The
    3
    No. 2021AP945-CR
    court interrupted Leighton, stating its disbelief that Leighton did not know he was
    supporting the woman’s drug habit.
    ¶8     Finally, the circuit court asked Leighton for the victim’s name, in
    order to assess “how sorry you really are.” Leighton was not able to name the
    victim.
    ¶9     The circuit court proceeded to discuss the multiple opportunities
    Leighton had forgone to mature out of his criminal lifestyle. The court noted that
    it had engaged in the colloquy with Leighton to “obtain an understanding about
    the comments [he] made in the [PSIs] and address whether or not [he had] made
    changes” or was simply saying what he thought the court wanted to hear. The
    court concluded:
    And as I sit here today and I listened to you for the last 20
    minutes, it’s clear that your character is very low. You are
    someone who is manipulative, is self-serving and truly
    lacks any understanding of the bad things that you have
    continued to impose on communities throughout the State
    of Wisconsin.
    You tell the alternative writer you finally are going to be
    honest with your drug abuse and substance abuse issues. I
    doubt it. You tell us today it was just an occasional thing,
    an occasional treat. You tell us today that you have been
    convicted of five or ten offenses and—but you were
    confused on the way I asked it. We know that your
    convictions, you’ve been convicted of 25 different crimes.
    You’ve only been in the community 15 years, according to
    you. And we also know that a whole multitude of other
    criminal offenses have been dismissed and read in over the
    years.
    Each time you get released from prison, Mr. Leighton, you
    go back to and resort to the same criminal behavior.
    Whether it’s been classified as theft, burglary,
    misappropriating ID, forgery, fraud, those are all the names
    of your convictions over the years. But it’s you stealing
    from innocent people and benefiting yourself to support
    4
    No. 2021AP945-CR
    your addictions, to support your lifestyle without any
    degree of remorse or interest in changing.
    I truly hope, Mr. Leighton, that you are sincere that you
    want the change. I really do for your benefit and for
    everybody’s benefit. We’re only going to be better if you
    quit committing criminal offenses. But at the end of the
    day, I don’t think it’s going to happen just based upon your
    character. I think you’re a high risk to reoffend. I think
    you have so many positive traits and possibilities. And
    over the last 30 years, like we’ve talked about, you just
    have refused to take the positive route of hard work and
    working your way up and earning the things that you’re
    going to get as opposed to ripping people off.
    So for those reasons, I believe that a prison sentence is
    appropriate. I understand that your extended supervision
    was revoked and you’re serving a sentence on that. I also
    understand that you received a prison sentence from the
    Walworth County case. Those are bad things for you. But
    that’s because you were convicted of serious crimes and
    you’re out on supervision. You were given an opportunity
    to live in the community and you continued to engage in
    very serious criminal conduct.
    The question on whether or not to make this sentence
    concurrent or consecutive to those sentences is really easy.
    It’s going to be consecutive. And the reason for it, Mr.
    Leighton, is because these are separate crimes. And like
    [the prosecutor] said in one of her first sentences, you are
    and have been for the last 30-plus years a career criminal.
    And with career criminals, I don’t see any benefit to give
    them a discount because they commit more offenses in
    more counties. It doesn’t serve any of the purposes of what
    we’re trying to accomplish when we sentence somebody.
    ¶10    The circuit court then sentenced Leighton to two years’ initial
    confinement followed by three years’ extended supervision on each of the identity
    theft counts and nine months on the credit card count, to be served concurrently to
    one another but served consecutively to previously imposed sentences. The court
    also imposed restitution in the amount stipulated by the parties, and it ordered that
    Leighton would not be eligible for the Challenge Incarceration Program or
    Substance Abuse Program.
    5
    No. 2021AP945-CR
    ¶11    Leighton filed a motion for resentencing, alleging that the circuit
    court had sentenced him based upon several misunderstandings related to his
    truthfulness. A hearing on the motion was held. In defending its assessment that
    Leighton was manipulative and a liar, the court noted that it had observed
    Leighton’s body language, demeanor, timing, tone and attitude at the sentencing
    hearing. The court pointed out that the PSI author, who also observed Leighton’s
    demeanor, similarly concluded that “while [Leighton] voiced that he was sorry for
    his actions and the impact they had on the victims involved, his claims seemed
    rehearsed and superficial” and that “he has clearly learned nothing from his past
    mistakes.” Additionally, the court observed that it would have imposed the same
    sentences based upon Leighton’s history as a career criminal, even if it had not
    deemed him to be a liar. The court then denied the postconviction motion, and
    Leighton now appeals.
    DISCUSSION
    ¶12    Leighton first contends that the circuit court relied on the improper
    factor that he was “lying” when he addressed the court at sentencing.             An
    improper sentencing factor is one that is “totally irrelevant or immaterial to the
    type of decision to be made.” Elias v. State, 
    93 Wis. 2d 278
    , 282, 
    286 N.W.2d 559
     (1980). For instance, race and gender may play no part in sentencing. State v.
    Harris, 
    2010 WI 79
    , ¶3, 
    326 Wis. 2d 685
    , 
    786 N.W.2d 409
    . A defendant’s
    character, however, is one of the most basic factors that a circuit court is supposed
    to consider when fashioning a sentence. See generally State v. Gallion, 
    2004 WI 42
    , ¶¶39-46, 
    270 Wis. 2d 535
    , 
    678 N.W.2d 197
    . Leighton cites no authority that
    would suggest a court cannot consider a defendant’s truthfulness as a proper
    sentencing factor related to character. Rather, Leighton argues it was not true that
    6
    No. 2021AP945-CR
    he was a liar—not that it would be irrelevant if he were a liar. Leighton thus
    appears to be seeking resentencing based upon “inaccurate information.”
    ¶13    “A defendant has a constitutionally protected due process right to be
    sentenced upon accurate information.” State v. Tiepelman, 
    2006 WI 66
    , ¶9, 
    291 Wis. 2d 179
    , 
    717 N.W.2d 1
    . If a defendant can establish by clear and convincing
    evidence both that inaccurate information was presented at sentencing and that the
    court relied upon the misinformation in reaching its determination, the burden
    shifts to the State to show that the error was harmless. Id., ¶26. This court will
    independently review a due process claim that a defendant has been sentenced
    based upon inaccurate information. Id., ¶9. However, we will generally defer to
    any credibility determination or factual findings underlying the circuit court’s
    decision on a constitutional issue. Johnson v. Merta, 
    95 Wis. 2d 141
    , 151-52, 
    289 N.W.2d 813
     (1980). Moreover, we do not deem information to be inaccurate
    merely because it was contested. Rather, the defendant must demonstrate the
    information was “extensively and materially false.” State v. Travis, 
    2013 WI 38
    ,
    ¶18, 
    347 Wis. 2d 142
    , 
    832 N.W.2d 491
    .
    ¶14    Here, Leighton points to what he characterizes as three
    “misunderstandings” by the circuit court. However, he has not established that the
    alleged misunderstandings constituted extensively and materially false information
    or that the court relied upon them.         First, Leighton asserts that the court
    erroneously determined that he was lying about the number of his prior
    convictions. Nonetheless, Leighton clarified that he had misunderstood the court’s
    question, and the court expressly acknowledged that clarification later in its
    discussion. Second, Leighton asserts that the court erroneously believed Leighton
    said he used credit cards he thought were his, when Leighton actually said he used
    cards that were not his. Again, however, Leighton clarified his statement before
    7
    No. 2021AP945-CR
    the court pronounced sentence, and the court did not repeat the mistake when
    discussing why it was imposing the sentences it did. Third, Leighton asserts the
    court erroneously determined that he was lying about knowing that a former
    girlfriend was spending the stolen money he gave her on drugs. He has not,
    however, presented any affidavit from the girlfriend or other evidence that would
    objectively support his claim of ignorance.        Ultimately, the court’s decision
    whether to believe Leighton was merely a credibility determination, which we will
    not set aside.
    ¶15       Moreover, Leighton ignores the context in which the circuit court
    made its comments. The alleged misunderstandings were part of a twenty-minute
    colloquy during which the court had ample time to observe Leighton’s demeanor
    and consider the forthrightness of his answers.        The court’s impression that
    Leighton was lying and manipulative was based not upon a single statement
    Leighton made, but upon the contrast between his extensive criminal history and
    his hollow claims to have changed, while still minimizing his behavior.
    ¶16       Leighton next contends that his sentences were unduly harsh because
    the circuit court imposed punishment “consecutively to a sentence already given
    for the same actions” in violation of his double jeopardy rights, which also
    resulted in the loss of previously granted eligibility for earned release programs.
    Leighton’s argument combines two claims under the umbrella of a single issue.
    ¶17       A sentence may be considered unduly harsh or unconscionable only
    when it is “so excessive and unusual and so disproportionate to the offense
    committed as to shock public sentiment and violate the judgment of reasonable
    people concerning what is right and proper under the circumstances.” State v.
    Grindemann, 
    2002 WI App 106
    , ¶31, 
    255 Wis. 2d 632
    , 
    648 N.W.2d 507
     (citation
    8
    No. 2021AP945-CR
    omitted). There is a presumption that a sentence “well within the limits of the
    maximum sentence” is not unduly harsh. Id., ¶¶31-32. The two years of initial
    confinement and three years of extended supervision imposed here were well
    within the twenty-two years of total imprisonment that the circuit court could have
    imposed. Even taking into account that the sentences were imposed consecutively
    to a prior revocation sentence and resulted in Leighton’s loss of eligibility for an
    earned release program, the sentences were not excessive given Leighton’s
    extensive criminal history.
    ¶18    Furthermore, the Double Jeopardy Clause protects against multiple
    punishments for the same offense. See U.S. CONST. amend. V; State v. Kurzawa,
    
    180 Wis. 2d 502
    , 515, 
    509 N.W.2d 712
     (1994).               Leighton’s prior revocation
    sentence punished him for that conviction, not for the offenses at issue in this case.
    See State ex rel. Flowers v. DHSS, 
    81 Wis. 2d 376
    , 386, 
    260 N.W.2d 727
     (1978).
    There was no double jeopardy violation here.
    By the Court.—Judgment and order affirmed.
    This    opinion   will   not       be   published.   See    WIS. STAT.
    RULE 809.23(1)(b)5.
    9
    

Document Info

Docket Number: 2021AP000945-CR

Filed Date: 12/29/2022

Precedential Status: Non-Precedential

Modified Date: 9/9/2024