Opinion
No. 2014AP281–CR.
2014-12-2
STATE of Wisconsin, Plaintiff–Respondent, v. Austin J. SINGER, Defendant–Appellant.
Appeal from a judgment and an order of the circuit court for Brown County: Tammy Jo Hock, Judge. Reversed and cause remanded for further proceedings.
Before HOOVER, P.J., STARK and HRUZ, JJ. ¶ 1 PER CURIAM.
Austin Singer appeals a judgment of conviction for delivery of heroin and an order denying his motion for postconviction relief. Singer argues the circuit court erroneously exercised its sentencing discretion and relied on inaccurate information at sentencing because an aggravating factor was not supported by the evidence. We agree the court erroneously exercised its sentencing discretion. We therefore reverse the judgment and order and remand for resentencing .
Singer also argues that he is entitled to resentencing because the State breached the plea agreement, and that the court erroneously ordered restitution. Because we remand for resentencing on other grounds, we need not reach these arguments. See State v. Castillo, 213 Wis.2d 488, 492, 570 N.W.2d 44 (1997) (appellate courts not required to address every issue raised when one issue is dispositive).
The State did present evidence that ... Singer's conduct caused ... Sweney's death through the Criminal Complaint, through the arguments that were presented. And I ... find from reviewing the record that the State presented evidence such that the Court could ... find that [Singer] was responsible for the death of ... Sweney.
Singer appeals.
DISCUSSION
¶ 12 Singer argues that the circuit court erroneously exercised its discretion, and/or that the court relied on inaccurate information, when the court considered as an aggravating factor that Singer's conduct was a substantial factor contributing to Sweney's death. We agree the court erroneously exercised its sentencing discretion because the evidence did not reasonably support the conclusion that Singer caused Sweney's death.
¶ 13 The pronouncement of a sentence is an exercise of the court's discretion. McCleary v. State, 49 Wis.2d 263, 277, 182 N.W.2d 512 (1971). Thus, we review sentences for erroneous exercise of that discretion. Id. at 278, 182 N.W.2d 512. “ ‘The sentence imposed in each case should call for the minimum amount of custody or confinement which is consistent with the protection of the public, the gravity of the offense and the rehabilitative needs of the defendant.’ “ Id. at 276, 182 N.W.2d 512 (source omitted). “When discretion is exercised on the basis of clearly irrelevant or improper factors, there is an erroneous exercise of discretion.” State v. Gallion, 2004 WI 42, ¶ 17, 270 Wis.2d 535, 678 N.W.2d 197. Additionally, “a defendant ... has a due process right to be sentenced on the basis of accurate information.” State v. Anderson, 222 Wis.2d 403, 412, 588 N.W.2d 75 (Ct.App.1998).
¶ 14 In a case involving a guilty plea, “the sentencing undoubtedly is the most critical phase of the proceeding.” Id. at 411, 588 N.W.2d 75. Accordingly, “the trial court has an important fact-finding role to perform if facts relevant to the sentencing decision are in dispute. In that setting, the sentencing court must resolve such disputes.” Id. at 412, 588 N.W.2d 75. However, a sentencing proceeding need not be conducted with the same evidentiary formality of a trial. Id. at 411, 588 N.W.2d 75. In Wisconsin, there is no specific burden of proof as to facts bearing upon a sentence. State v. Hubert, 181 Wis.2d 333, 345, 510 N.W.2d 799 (Ct.App.1993). “[T]he present law[,] which places all sentencing under the standard of judicial discretion[,] remains the more practical and workable rule for both the trial court when imposing a sentence and the appellate court when reviewing a sentence.” Id. “If our review of the record indicates that ... the facts of record fail to support the circuit court's decision, the circuit court erroneously exercised its discretion.” State v. Ringer, 2010 WI 69, ¶ 24, 326 Wis.2d 351, 785 N.W.2d 448.
¶ 15 We first observe that the State never alleged Singer assisted Sweney in obtaining any drugs in the first instance. Rather, the only alleged facts supporting Singer's plea to manufacture/deliver heroin were that he helped “cook” Sweney's heroin, applied a tourniquet to Sweney's arm, and injected the heroin into Sweney with a needle. Thus, as an initial matter, the circuit court could not have reasonably concluded that Sweney died from using drugs that Singer supplied.
¶ 16 Prior to and at the sentencing hearing, evidence was presented regarding the cause of Sweney's death. Witeck, the forensic pathologist, opined Sweney died of poly substance toxicity, based on the discovery of amphetamine, heroin, and cocaine in Sweney's system. However, Witeck was unable to give an opinion as to when Sweney took any of those drugs. Rather, he deferred to toxicologists on that question. The state crime lab's toxicologist explained “[t]here is no way to tell with any degree of reasonable certainty whether a dose of heroin, ingested [the night before] was a substantial factor in causing ... Sweney's death.” She also believed it would be unlikely that a particular heroin metabolite would be detectable twelve hours after a single injection. Singer's independent toxicologist, Oehldrich, opined that the injection in which Singer assisted could not have caused Sweney's death, and that Sweney must have used heroin following that incident because the heroin metabolites would no longer have been present from the initial injection.
¶ 17 At sentencing, the State presented no additional scientific evidence refuting the three experts' opinions. The court made no explicit findings regarding Oehldrich's and Schreiber's opinions, or Witeck's testimony that he would defer to a toxicologist's findings. In any event, given the expert evidence provided, the trial court could not reasonably conclude that the injection of heroin with which Singer assisted was a contributing factor in causing Sweney's death the next day. Thus, the court erroneously exercised its sentencing discretion. See Ringer, 326 Wis.2d 351, ¶ 24, 785 N.W.2d 448. We therefore remand for resentencing.
In its response brief, the State never acknowledges, much less addresses, the expert toxicologist evidence. Rather, it merely asserts the court “could draw its own conclusions based on [the] information [about Sweney's death]. Simply because Singer disputes some of the court's conclusions, does not mean that the information was inaccurate.” The State's response is so inadequately developed that we deem it a concession of the issue. See Charolais Breeding Ranches, Ltd. v. FPC Secs. Corp., 90 Wis.2d 97, 109, 279 N.W.2d 493 (Ct.App.1979) (unrefuted arguments are deemed conceded). The State also contends any error was harmless. However, this argument also ignores the expert testimony, and even relies on the fact the court considered Sweney's death to be an aggravating factor. We do not find the argument adequate or persuasive. The court's consideration at sentencing of other, proper factors did not negate the court's error.
Judgment and order reversed and cause remanded for further proceedings.
This opinion will not be published. See Wis. Stat. RuleE 809.23(1)(b)5. (2011–12).