State v. Bradley J. Young ( 2020 )

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.
March 18, 2020
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. 2018AP1945-CR Cir. Ct. No. 2013CF78
STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT II
STATE OF WISCONSIN,
PLAINTIFF-RESPONDENT,
V.
BRADLEY J. YOUNG,
DEFENDANT-APPELLANT.
APPEAL from a judgment and an order of the circuit court for
Green Lake County: MARK T. SLATE, Judge. Affirmed.
Before Neubauer, C.J., Reilly, P.J., and Gundrum, J.
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).
No. 2018AP1945-CR
¶1 PER CURIAM. Bradley Young appeals from a judgment
convicting him of seven counts of burglary on his guilty plea in a multi-county
crime spree of sixty-four burglaries (fifty-seven burglaries were dismissed and
read in). He seeks resentencing because the circuit court was biased. The record
does not support Young’s claims. We affirm.
Alleged bias due to prior attorney-client relationship with a victim
¶2 We first address the bias claim arising from the presence among the
victims of a former client of the circuit court judge. During the proceedings, the
court did not disclose to the parties that one of his former clients, Ted’s Piggly
Wiggly (owned by T.R.), was a victim in one of the counts to which Young pled
guilty.1
¶3 Postconviction, Young argued that the court’s former attorney-client
relationship with a victim was a basis for recusal and created the appearance of
bias.2 Young argued that the court should have disclosed the relationship and by
not doing so, the court deprived him of his right to make an informed decision
about whether to seek judicial substitution.
¶4 At a hearing on the postconviction motion, the circuit court rejected
the bias claim and made the following findings. The court acknowledged that it
should have disclosed the former attorney-client relationship, but stated that the
relationship with T.R. was superficial. The court represented the client in four
1
Ted’s Piggly Wiggly’s request for restitution was granted. Young does not dispute the
restitution award.
2
Young does not allege actual bias.
2
No. 2018AP1945-CR
small claims cases over twelve years, all of the cases ended in default judgment,
and the last case was resolved four years before Young’s sentencing. The court
did not recall the representation until Young raised the issue in his postconviction
motion.
¶5 Judicial bias can be either subjective or objective. State v. Gudgeon,
2006 WI App 143, ¶20, 295 Wis. 2d 189, 720 N.W.2d 114.
The test for bias comprises two inquiries, one subjective
and one objective. Either sort of bias can violate a
defendant’s due process right to an impartial judge. Judges
must disqualify themselves based on subjective bias
whenever they have any personal doubts as to whether they
can avoid partiality to one side.…
The second component, the objective test, asks whether a
reasonable person could question the judge’s impartiality.
Id., ¶¶20-21 (citations omitted). The objective test includes the appearance of
bias. Id., ¶26. A judge is presumed to act fairly, impartially, and without
prejudice. Id., ¶20.
¶6 We conclude that Young failed to rebut the presumption of
impartiality. See id. The court stated that he did not recognize that a former client
was among the victims in Young’s case until after Young sought postconviction
relief. The court explained that the attorney-client relationship was superficial and
ended several years before Young was sentenced. No reasonable person could
question the court’s impartiality under the facts of this case.
¶7 The criteria for WIS. STAT. § 757.19 (2017-18)3 disqualification are
also not met on this record. Considering only the relevant subsections of the
3
All references to the Wisconsin Statutes are to the 2017-18 version unless otherwise
noted.
3
No. 2018AP1945-CR
statute, the judge did not have “a significant financial or personal interest in the
outcome of” Young’s case, § 757.19(2)(f), the judge’s former client was not a
“party” represented by the judge in the same case, § 757.19(2)(c), and the judge
did not determine that he could not act in an impartial manner, § 757.19(2)(g).
¶8 We also consider whether the criteria for a SCR 60.04(4) recusal
were met. See State v. Pinno, 2014 WI 74, ¶94, 356 Wis. 2d 106, 850 N.W.2d
207 (Wisconsin Supreme Court Rules may be considered in the context of a bias
claim). Given that the court was not aware that a former client was one of the
victims until after sentencing, there is no indication that the judge had “a personal
bias or prejudice concerning a party.” SCR 60.04(4)(a). The judge was not a
material witness in the case and did not have an economic interest in the subject
matter or a party. SCR 60.04(4)(c) and (d). No other aspects of SCR 60.04 appear
to apply.
¶9 The record does not support Young’s claim of subjective or
objective bias.4
Alleged bias at sentencing
¶10 Relying upon the circuit court’s remarks at the plea hearing and at
sentencing,5 Young argues that the court prejudged his sentence and exhibited
bias.
4
For this reason, we are not persuaded that the circuit court deprived Young of his right
to substitution. Because there was no bias, Young was in the same position on the substitution
question as any other defendant appearing before an impartial judge.
5
Young also relies upon grounds for bias we have already rejected or reject elsewhere
in this opinion: bias arising from one of the victims being a former client of the judge and the
judge’s previous employment as a police officer.
4
No. 2018AP1945-CR
¶11 The plea agreement required Young to plead guilty to seven counts
of burglary with fifty-seven other burglary counts dismissed and read in. The
State agreed to cap its sentence recommendation at ten years of initial
confinement. The circuit court reacted to the sentence recommendation as
follows:
To be very honest with you, Mr. Young, the state is
capping its argument at ten years of initial confinement. I
have not heard the arguments of the parties, but at first
blush, that does not sound like something that the Court [is]
likely to follow. I need you to be aware of that before you
enter a plea here today. Like I said, I have not had the
benefit of having a presentence investigation. I understand
that you are going to be having your own, nor has the Court
had the luxury of having the time to review that, so I leave
that open, but I do have to advise you, prior to getting into
… this, that my initial reaction is that not only is the Court
not bound by any agreement that either party has reached. I
am not likely, at this point, to follow that agreement.
¶12 After the circuit court informed Young during the plea colloquy that
it was not bound by the sentence recommendation and could impose up to the
maximum penalty on each count, the court remarked:
I am going to make it very plain. I have not heard
arguments of counsel. I have not read the presentence
investigation. I will certainly keep an open mind on this,
but the fact that there are 59 burglaries with potential read
ins, the State capping their argument at ten years, do you
understand that at first blush that seems like a low number
to the Court?
¶13 The circuit court’s remarks at the plea hearing do not constitute
prejudging the sentence, i.e., a statement of what would happen at sentencing or an
indication that the court intended to forego scrutinizing Young’s individual
circumstances. See State v. Goodson, 2009 WI App 107, ¶17, 320 Wis. 2d 166,
771 N.W.2d 385. Rather, the court was sharing its initial impression that the
sentence recommendation seemed too low for the volume and nature of the crimes
5
No. 2018AP1945-CR
to be considered at sentencing. A court may inform a defendant that it might not
follow the sentence recommendation. State v. Marinez, 2008 WI App 105, ¶¶9-
12, 313 Wis. 2d 490, 756 N.W.2d 570. The court also stated that it would keep an
open mind. The court’s remarks gave Young an opportunity to change his mind
about entering a plea. In light of the foregoing, we reject Young’s claim that the
court prejudged his sentence.
¶14 We turn to Young’s claim of circuit court bias at sentencing. During
its sentencing remarks, the court stated its disagreement with the presentence
investigation report’s recommendation of concurrent sentences of three to four
years of initial confinement. The court then considered the following. The crimes
were serious felonies with significant victim impact. Young committed the crimes
while employed as a law enforcement officer and used his training and experience
to facilitate his crime spree, all while violating a public trust. The public required
protection because it is likely that had he not been apprehended, Young would
have continued to commit burglaries. The court also considered Young’s
character and factors that may have led him to commit the crimes, the number of
crimes he committed over a lengthy period of time, the need to generally deter law
enforcement officers and other persons who hold positions of public trust from
committing crimes, and the need to hold such persons accountable if they violate a
public trust. The court imposed a total sentence of thirty years for five of the
offenses (fifteen years initial confinement and fifteen years extended supervision)
and probation for two of the offenses.
¶15 The record does not support a claim of bias at sentencing. First, in
sentencing Young, the circuit court engaged in a proper exercise of sentencing
discretion after considering various sentencing factors. State v. Gallion, 2004 WI
42, ¶76, 270 Wis. 2d 535, 678 N.W.2d 197 (we review the sentence for a misuse
6
No. 2018AP1945-CR
of discretion); State v. Ziegler, 2006 WI App 49, ¶23, 289 Wis. 2d 594, 712
N.W.2d 76 (sentencing factors discussed). The weight of the sentencing factors
was within the court’s discretion. State v. Stenzel, 2004 WI App 181, ¶16, 276
Wis. 2d 224, 688 N.W.2d 20. Second, the record confirms that the court
scrutinized Young’s individual circumstances and did not make up its mind before
the sentencing hearing. See Goodson, 320 Wis. 2d 166, ¶17. We reject Young’s
claim that the court either prejudged the sentence or exhibited bias at sentencing.
Alleged bias due to judge’s former employment as a police officer
¶16 Young committed his crimes while employed as a law enforcement
officer. Young argues that because the judge was a former police officer, he was
biased during Young’s proceedings. At sentencing, the circuit court considered
Young’s status and found that Young violated a public trust. The court properly
considered Young’s crimes in the context of his status as a law enforcement
officer. Ziegler, 289 Wis. 2d 594, ¶23 (circuit court may consider a defendant’s
character and employment history at sentencing). We see no evidence of bias
arising from the judge’s former profession.6
By the Court.—Judgment and order affirmed.
This opinion will not be published. See WIS. STAT. RULE
809.23(1)(b)5.
6
While we have considered all of the arguments in the briefs, we only discuss those
arguments that are necessary to our decision. See State v. Waste Mgmt. of Wis., Inc., 81 Wis. 2d
555, 564, 261 N.W.2d 147 (1978) (we are not bound to the manner in which the parties have
structured or framed the issues). Arguments not mentioned are deemed rejected. Id.7