Opinion
No. 2013AP832–CR.
2013-10-15
STATE of Wisconsin, Plaintiff–Respondent, v. Rodney Vincent McTOY, Defendant–Appellant.
When the State issued the criminal complaint in this case, the other two cases were pending in Waukesha County. The first Waukesha case charged McToy with felony strangulation and suffocation involving domestic abuse, see Wis. Stat. §§ 940.235(1), 939.50(3)(h), & 968.075(1)(a); misdemeanor intimidation of a domestic-abuse victim, see Wis. Stat. §§ 940.44(1), 939.51(3)(a), & 968.075(1)(a); and misdemeanor domestic-abuse battery, see Wis. Stat. §§ 940.19(1), 939.51(3)(a), & 968.075(1)(a). The second Waukesha case charged McToy with misdemeanor bail jumping in connection with the first Waukesha case. Both Waukesha cases concerned Ms. H. McToy contends that the circuit court erroneously exercised its sentencing discretion because it set the two-hundred-day sentence so that McToy, as he writes in his main brief on this appeal, “would ‘remain in custody through the date of his jury trial’ in an unrelated matter in Waukesha County.” (Quoting the circuit court; emphasis added.) This is misleading because both the Waukesha cases and this case concern McToy's domestic-abuse of Ms. H.; they are not “unrelated,” and, as we explain below, the circuit court appropriately considered the Waukesha cases at the sentencing hearing. Yet neither of McToy's briefs on this appeal disclose that the Waukesha cases involved McToy's abusive relationship with Ms. H. Rather, they consistently refer to the Waukesha matters as “unrelated” or “wholly unrelated.” Further, McToy's main brief on this appeal refers to the Waukesha intimidation-of-a-victim case by asserting: “Mr. McToy was not charged with, or alleged to have, intimidated any victim or witness in this case” even though Ms. H. was the victim he was accused of intimidating in the Waukesha matter. We caution Mr. McToy's counsel, Dustin C. Haskell, that lawyers owe full candor to the tribunals before which they appear. See SCR 20:3.3. Technically correct but incomplete assertions can mislead or tend to mislead, as they do here, and this, too, violates the obligation of unalloyed honesty. Haskell is an Assistant State Public Defender and his supervisors should ensure that this is not repeated. McToy also claims that the circuit court's imposition of probation was flawed because, again as phrased by his brief on this appeal, the circuit court “acknowledge[ed] that it did not know how to address Mr. McToy's unspecified ‘probationary needs.’ ”