State v. Richard I. Kasper ( 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.
April 28, 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. 2018AP1634-CR Cir. Ct. No. 2002CF38
STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT III
STATE OF WISCONSIN,
PLAINTIFF-RESPONDENT,
V.
RICHARD I. KASPER,
DEFENDANT-APPELLANT.
APPEAL from an order of the circuit court for Marathon County:
MICHAEL K. MORAN, Judge. Affirmed.
Before Stark, P.J., Hruz and Seidl, 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. Richard Kasper appeals from an order denying his
motion for sentence modification or resentencing on a judgment of conviction
No. 2018AP1634-CR
entered in 2002. Kasper contends he is entitled to sentence modification based
upon a new factor. In the alternative, he contends that he is entitled to
resentencing because his original sentence was based upon inaccurate information
in the presentence investigation (PSI) report that he had physically abused family
members. Both contentions are premised upon affidavits from three of Kasper’s
family members and the testimony of a fourth family member, all of whom now
assert they never spoke with the PSI author and dispute domestic abuse allegations
that were attributed to them in the PSI report. Kasper challenges a finding by the
circuit court that the family members’ affidavits and testimony were not credible.
¶2 We conclude that Kasper has failed to demonstrate a new sentencing
factor. We further conclude that Kasper’s inaccurate information claims are
procedurally barred. Accordingly, we affirm the order of the circuit court.
BACKGROUND
¶3 In 2002, Kasper was convicted of two counts of first-degree sexual
assault of a child and eleven counts of second-degree sexual assault of a child,
based upon allegations of multiple acts of sexual intercourse with the same child
over a period of several years. A PSI report was prepared.1 The report recounted
conversations the PSI author had with several of Kasper’s family members. As
relevant here, the PSI author related that Kasper’s daughter Danielle alleged that
Kasper had been physically abusive and that Kasper’s ex-wife Victoria alleged
that Kasper had held a gun to her head to force her to stay with him.
1
Although the PSI is not in the appellate record, we will accept uncontested
representations from the transcripts of the sentencing hearing and sentence modification hearing
about its contents.
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No. 2018AP1634-CR
¶4 At the sentencing hearing, defense counsel informed the court that
Kasper disputed the allegations of domestic abuse purportedly made by Danielle
and Victoria. The prosecutor responded to Kasper’s denial of physical abuse by
noting that such abuse would be consistent with Kasper’s extensive criminal
history of violent offenses.
¶5 The circuit court sentenced Kasper without making reference to the
domestic abuse allegations. This court subsequently affirmed the judgment of
conviction in a no-merit proceeding. Kasper then filed a pro se motion seeking
postconviction relief under WIS. STAT. § 974.06 (2017-18),2 which the court
denied.
¶6 In 2018, Kasper moved for sentence modification based upon a new
factor or, in the alternative, resentencing based upon the circuit court’s
consideration of inaccurate information at sentencing. Kasper submitted affidavits
from Danielle and Victoria in which each denied having ever spoken to the PSI
author and also denied the allegations of physical abuse attributed to them in the
report. In addition, Kasper’s son Harley provided an affidavit stating that he had
never witnessed Kasper engage in abusive behavior while they lived in the same
household.
¶7 At the hearing on the motion for sentence modification, without
objection from the State, Kasper informed the circuit court that he would rely upon
the affidavits in lieu of testimony from Danielle, Victoria and Harley. Another of
2
All references to the Wisconsin Statutes are to the 2017-18 version unless otherwise
noted.
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No. 2018AP1634-CR
Kasper’s daughters, Jennifer, testified that she had never spoken to the PSI author,
and that none of the statements therein could be attributed to her, either.
¶8 The PSI author, Sara Hohenstein, testified that Victoria, Danielle,
and Jennifer were all sources who had provided information for her report. She
agreed that she had not spoken to Harley. Hohenstein had three pages of notes
from an interview she had with Danielle on October 1, 2002; two and one-half
pages of notes from an interview she had with Jennifer on September 16, 2002;
and notes from a telephone interview she had with Victoria on September 16,
2002.
¶9 The circuit court found the PSI author’s testimony to be credible,
and it found the affidavits of Danielle and Victoria, as well as the testimony of
Jennifer, to be incredible. After determining that Kasper had failed to demonstrate
that the three women had not communicated with the PSI author or had not made
the statements attributed to Danielle and Victoria in the PSI report, the court
concluded that Kasper had failed to prove the existence of a new factor. Although
the court did not separately address Kasper’s inaccurate information claim, it is
implicit that the court denied that claim for the same reason—that is, it did not find
credible the allegation that none of the family members had made prior claims of
physical abuse. Kasper now appeals.
DISCUSSION
I. New Sentencing Factor
¶10 A new sentencing factor is a fact or set of facts highly relevant to the
imposition of sentence but not known to the trial judge at the time of sentencing,
either because it was not then in existence or because it was unknowingly
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No. 2018AP1634-CR
overlooked by all the parties. State v. Harbor, 2011 WI 28, ¶¶40, 52, 333 Wis. 2d
53, 797 N.W.2d 828 (reaffirming test set forth in Rosado v. State, 70 Wis. 2d 280,
288, 234 N.W.2d 69 (1975)). In order to obtain relief, a defendant must
demonstrate by clear and convincing evidence both the existence of a new factor
and that the new factor justifies sentence modification. Id., ¶¶36-38.
¶11 Whether a particular set of facts constitutes a new sentencing factor
is a question of law subject to de novo review. Id., ¶36. However, the
determination of whether a new factor warrants a modification of sentence lies
within the circuit court’s discretion. Id., ¶37. If a court determines either that the
defendant has failed to demonstrate that a new factor exists as a matter of law, or
that the alleged new factor would not warrant relief within the court’s exercise of
discretion, the court need not address the other part of the test. Id., ¶38.
¶12 As a threshold matter related to his new sentencing factor claim,
Kasper contends the circuit court erred by making adverse credibility
determinations as to Danielle, Victoria and Harley’s current allegations without
holding “a full evidentiary hearing” and taking testimony from them. The record
shows, however, that the court did hold an evidentiary hearing, and it did not in
any way bar Danielle, Victoria or Harley from testifying at that hearing. Kasper
cannot now fault the court for granting his own request to rely on affidavits in lieu
of testimony from three of his four witnesses. In short, Kasper essentially waived
any objection to having the court weigh the credibility of the affidavits by asking
the court to consider them and, implicitly, to find them credible.
¶13 In any event, the circuit court did have the opportunity to observe
Jennifer and Hohenstein’s testimony and demeanor. It found Hohenstein to be
credible and Jennifer not credible. The court’s determination that Hohenstein
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No. 2018AP1634-CR
credibly testified regarding her sources in preparing the PSI necessarily compelled
the conclusion that the contrary allegations made by Danielle and Victoria in their
affidavits were not credible.
¶14 Because the circuit court is the “ultimate arbiter” for credibility
determinations when acting as a fact finder, we will defer to its resolution of
discrepancies or disputes in the testimony and its determinations of what weight to
give to particular testimony. Johnson v. Merta, 95 Wis. 2d 141, 151-52, 289
N.W.2d 813 (1980); see also WIS. STAT. § 805.17(2). We therefore accept the
court’s resulting factual finding that Danielle, Victoria and Jennifer all reported
allegations of physical abuse to the PSI author at the time of sentencing.
¶15 Here, Kasper contends the fact that he was not physically abusive
toward family members constitutes a new sentencing factor. However, aside from
that contention being disputed rather than established,3 there is nothing new about
it. At the sentencing hearing, Kasper, through his counsel, denied the allegations
that he was physically abusive toward family members. Moreover, Victoria,
Danielle, Jennifer, and Harley were all present at the sentencing hearing and
available to testify if the defense had chosen to call them. In sum, whether Kasper
engaged in physical abuse of family members was known to Kasper and his family
members at the time of sentencing. Far from being overlooked, the matter was set
forth in the PSI and disputed during the sentencing hearing. Furthermore, the
disputed allegations of domestic abuse were not highly relevant to sentencing
because the circuit court did not mention them in its discussion at the sentencing
3
The circuit court did not explicitly state whether it found that the previously alleged
physical abuse had in fact occurred, only that it had been reported to the PSI author.
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No. 2018AP1634-CR
hearing. The court therefore properly determined that Kasper failed to
demonstrate the existence of a new factor.
II. Inaccurate Sentencing Information
¶16 In a related claim, Kasper contends his due process rights were
violated because the circuit court relied at sentencing upon inaccurate information
in the form of false allegations that Kasper had engaged in physical abuse of
family members. This issue is procedurally barred under State v. Escalona-
Naranjo, 185 Wis. 2d 168, 517 N.W.2d 157 (1994). Escalona-Naranjo holds that
an issue that could have been raised in a direct appeal or in a postconviction
motion under WIS. STAT. § 974.02, cannot be the basis for a subsequent
postconviction motion under WIS. STAT. § 974.06, unless there was a sufficient
reason for failing to raise the issue earlier. Escalona-Naranjo, 185 Wis. 2d at
185. The procedural bar of Escalona-Naranjo may be applied to a defendant
whose direct appeal was processed under the no-merit procedure set forth in WIS.
STAT. RULE 809.32, as long as the no-merit procedures were in fact followed and
the record demonstrates a sufficient degree of confidence in the result. See State
v. Tillman, 2005 WI App 71, ¶¶19-20, 281 Wis. 2d 157, 696 N.W.2d 574.
¶17 This court’s opinion in State v. Kasper, No. 2003AP2069-CRNM,
unpublished op. and order (WI App Feb. 10, 2004), shows that the proper no-merit
procedures were followed on Kasper’s prior appeal. The opinion notes that
Kasper was afforded the opportunity to submit a response to counsel’s report, but
he did not do so. This court then engaged in an independent review of the record
and concluded that Kasper’s no-contest pleas and sentences were valid, and that
all other non-jurisdictional issues had been waived by the plea. Nothing in our
current review of the record undermines our confidence in those conclusions.
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No. 2018AP1634-CR
¶18 Furthermore, Kasper has not provided any sufficient reason why he
could not have raised his inaccurate sentencing information claim in his pro se
postconviction motion. We again observe that the facts regarding Kasper’s
alleged physical abuse of family members were within his knowledge during his
prior postconviction proceedings. We therefore agree with the State that Kasper is
now procedurally barred from raising his inaccurate sentencing information claim.
By the Court.—Order affirmed.
This opinion will not be published. See WIS. STAT. RULE
809.23(1)(b)5.
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