Opinion
No. 2013AP2348–CR.
2014-10-7
STATE of Wisconsin, Plaintiff–Respondent, v. Mamadou BAMBA, Defendant–Appellant.
Appeal from a judgment and an order of the circuit court for Milwaukee County: Dennis P. Moroney, Judge. Judgment and order affirmed in part, reversed in part, and cause remanded with directions.
Before CURLEY, P.J., FINE and KESSLER, JJ. ¶ 1 PER CURIAM.
Mamadou Bamba appeals a judgment of conviction and an order denying his motion for resentencing. He challenges only his sentences. Because we conclude that the circuit court erroneously exercised its sentencing discretion and that the circuit court sentenced Bamba on the basis of inaccurate information, we reverse in part and remand for resentencing before a different circuit court judge.
DISCUSSION
¶ 8 Sentencing lies within the circuit court's discretion, and we adhere to a strong policy against interfering with the circuit court's exercise of sentencing discretion. State v. Gallion, 2004 WI 42, ¶¶ 17–18, 270 Wis.2d 535, 678 N.W.2d 197. The convicted offender must show some unreasonable or unjustifiable basis in the record for the sentences imposed before we will conclude that the circuit court erroneously exercised its discretion. See Ocanas v. State, 70 Wis.2d 179, 183–84, 233 N.W.2d 457 (1975). Our deference stems from our recognition that the circuit court is in the best position to observe the demeanor of the defendant and weigh the relevant factors. See Gallion, 270 Wis.2d 535, ¶ 18, 678 N.W.2d 197. We do, however, require the circuit court to provide a “rational and explainable” basis for a sentence and to apply “the primary sentencing factors to the particular facts of the case .” Gallion, 270 Wis.2d 535, ¶¶ 39, 58, 678 N.W.2d 197. “The primary sentencing factors which a court must consider are the gravity of the offense, the character of the defendant, and the need to protect the public.” State v. Ziegler, 2006 WI App 49, ¶ 23, 289 Wis.2d 594, 712 N.W.2d 76.
¶ 9 In this case, Bamba concedes that the circuit court appropriately considered the gravity of the offenses and the need to protect the public. He challenges the circuit court's assessment of his character. He asserts that the record contains a substantial amount of information from which the circuit court could measure his character, but instead, the circuit court drew unwarranted inferences and reached unjustified conclusions about him based on his origins in Ivory Coast. We must agree. The record does not show, and does not permit a reasonable inference, that Bamba lives by a code of conduct learned in Ivory Coast or that he took the actions that he did on November 1, 2012, “because that's what we did back in Ivory Coast.” These conclusions are not “ ‘rational and explainable.’ ” Cf. Gallion, 270 Wis.2d 535, ¶ 39, 678 N.W.2d 197 (citation omitted). The record includes nothing to show that Bamba had a criminal history in Ivory Coast, nor does the record support the circuit court's implied conclusion that Bamba brought to the United States a predatory mindset developed in his homeland.
¶ 10 A circuit court has an opportunity to further clarify its sentencing decisions when they are challenged by postconviction motion. See State v. Fuerst, 181 Wis.2d 903, 915, 512 N.W.2d 243 (Ct.App.1994). In the postconviction order here, the circuit court said that it did not “necessarily believe that the defendant learned his behaviors in this case from his experiences in Ivory Coast,” and the circuit court went on to say that the point of the sentencing remarks was that Bamba should have appreciated the seriousness of violence and its deleterious effects because he had been victimized himself. Like Bamba, however, we are compelled to conclude that the postconviction explanation does not fully account for the remarks made at sentencing. Those remarks reflect that the circuit court believed it understood Bamba's character based on unsupported assumptions about the effect of growing up in Ivory Coast. Accordingly, we cannot view the circuit court's postconviction assessment of the sentencing remarks as dispositive. Cf. State v. Travis, 2013 WI 38, ¶ 48, 347 Wis.2d 142, 832 N.W.2d 491 (sentencing court's “after-the-fact assertion of non-reliance on allegedly inaccurate information is not dispositive of the issue of actual reliance”).
¶ 11 Nonetheless, the State suggests that the circuit court drew an inference that “is independently reasonable—that being regularly exposed to violence and anarchy could contribute to skewed conceptions of the value of human life and property.” The supreme court has reminded us, however, “to be cautious when reaching high consequence conclusions about human nature that seem to be intuitively correct at the moment. Better instead is a conclusion that is based on more complete and accurate information and reached by an organized framework for the exercise of discretion.” Gallion, 270 Wis.2d 535, ¶ 36, 678 N.W.2d 197.
¶ 12 The circuit court could have analyzed Bamba's character by using the measures discussed in the presentence investigation report, by examining the psychological assessment Bamba filed, or by considering the other information presented at sentencing. The circuit court, however, relied on unsupported inferences drawn from what it believed his homeland revealed about him. Although we are confident that the circuit court's remarks were not motivated by malice, they appear to reflect conclusions based on a preconceived stereotype rather than on the materials about Bamba in the record. We must conclude that the sentences rest on an unreasonable and unjustifiable basis.
For the sake of completeness, we clarify that Bamba disavows any claim that the circuit court violated his right to due process by sentencing him based on his nationality, and we have not considered such a claim.
¶ 13 Additionally, “[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. A defendant claiming a violation of this right must show that the disputed information was inaccurate, and that the circuit court actually relied on the inaccurate information. See id., ¶ 2. A circuit court relies on inaccurate information by giving “ ‘explicit attention’ or ‘specific consideration’ to it, so that the misinformation ‘formed part of the basis for the sentence.’ ” Id. at ¶ 14 (citation omitted).
¶ 14 The sentencing remarks, Bamba argues, show that the circuit court fashioned his sentences in light of an erroneous conclusion, specifically, that he “brought to this country a philosophical belief that it was acceptable to prey upon people because that was the way of things in his homeland.” In postconviction proceedings, the circuit court determined that this aspect of Bamba's claim is not that the circuit court relied upon inaccurate information but that the circuit court relied upon an “unsupported assumption.” A circuit court's erroneous assumption, however, may not form the basis for a sentence. See id. at ¶¶ 6, 31 (sentencing judge's erroneous belief that defendant had twenty prior convictions warranted resentencing where information presented at original sentencing showed defendant had five prior convictions). Tiepelman holds that a defendant is entitled to resentencing when the circuit court relies on erroneous information and reflects that the rule is no less applicable when the erroneous information is the product of the circuit court's misunderstanding of accurate information presented. See id.
¶ 15 In this case, the circuit court's sentencing remarks reflect that the sentences imposed are based on an unsupported and therefore erroneous finding, namely, that Bamba believed he was entitled to commit crimes in the United States because he learned in Ivory Coast that criminal behavior is acceptable. We conclude that Bamba is therefore entitled to resentencing by a different judge.
Judgment and order affirmed in part, reversed in part, and cause remanded with directions.
This opinion will not be published. See Wis. Stat. RuleE 809.23(1)(b)5. (2011–12).