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  • February 20, 2022

    Circuit Court Did Not Rely on Improper Sentencing Factors by Discussing Defendant’s Gun Ownership

    A circuit court did not rely on improper factors by discussing a defendant’s gun ownership when sentencing the man for second-degree intentional homicide, the Wisconsin Supreme Court has ruled.

    Jeff M. Brown

    Man Pointing Pistol Out Car Window

    Feb. 20, 2022 – A circuit court did not rely on improper factors by discussing a defendant’s gun ownership when sentencing the man for second-degree intentional homicide, the Wisconsin Supreme Court has ruled.

    In State v. Dodson, 2018AP1476 (Jan. 26, 2022), the supreme court held that the defendant failed to show that the judge’s discussion of the defendant’s gun ownership improperly predisposed the judge against all gun owners.

    Additionally, the court held, the defendant failed to show that the judge actually relied on the defendant’s gun ownership in determining the defendant’s sentence.

    Deadly Road Rage

    On March 25, 2016 an unidentified person driving a Buick collided with car driven by Octavia Dodson in Milwaukee. At the time of the collision, Dodson had a valid concealed weapons permit and was armed with a pistol, which he lawfully owned.

    Jeff M. Brown Jeff M. Brown is a legal writer for the State Bar of Wisconsin, Madison. He can be reached by email or by phone at (608) 250-6126.

    After the collision, Dodson drove after the Buick but lost it. While he was driving, Dodson exchanged his pistol’s ten-round magazine for a 17-round magazine.

    About five minutes after the collision, Dodson spotted another Buick, this one driven by Deshun Freeman. Dodson chased Freeman, thinking the second Buick was the car that had collided with him.

    When Freeman pulled over, Dodson pu​lled in behind him. Freeman made movements toward the driver’s side door, then got out of his car and walked toward Dodson’s car.

    Dodson then got out of his car and stood between the open door of his car and Freeman. Freeman, with his hands in his pockets or under his sweatshirt, ran at Dodson and yelled an obscenity.

    Dodson fired six shots from his pistol. Three bullets cut into Freeman, killing him.

    When the police investigated, they learned that Freeman had not been armed. They also learned that Freeman’s Buick did not match Dodson’s description of the Buick that had collided with his car.

    ‘That Day Set in Motion This Circumstance’

    Dodson pled guilty to second-degree intentional homicide. During the sentencing phase Milwaukee County Circuit Court Judge M. Joseph Donald said the following:

    “In my experience as a judge, I have seen over time how individuals when they are possessing a firearm, how that in some way changes them. It changes how they view the world. It changes how they react and respond to people.

    “I know that this is only speculation on my part, but I do strongly feel that the day that you applied for that concealed carry permit and went out and purchased that firearm, and that extended magazine, whether you feel the need to somehow arm yourself and protect yourself from essentially the crime that is going on in this community, I think on that day set in motion this circumstance.”  

    The circuit court sentenced Dodson to 14 years in prison and six years of extended supervision.

    Dodson filed for post-conviction relief. He claimed that in determining his sentence, the circuit court improperly relied upon the fact he had a concealed weapons permit and lawfully owned a gun and therefore violated his rights under the Second Amendment.

    The post-conviction court denied Dodson’s motion and the court of appeals affirmed.

    Statements Taken Out of Context

    In her opinion, Justice Rebecca Dallet explained that Dodson mistook the statements of the sentencing judge.

    “The circuit court’s challenged statements arise in the context of its struggle to reconcile Dodson’s clean criminal record and the innocuous circumstances leading up to the shooting with an element of Dodson’s second-degree homicide charge: his use of unnecessary defensive force.”

    Such an inquiry was necessary for the circuit court to assess the gravity of Dodson’s offense, which was proper sentencing factor under Wis. Stat. section 973.017(2)(ag).

    Additionally, Justice Dallet wrote, the circuit court’s hypothesizing that Dodson had a distorted world view such that he thought Freeman was a threat went to whether Dodson was a danger to the community, a proper sentencing factor under section 973.017(2)(ad).

    To the extent that the remarks by the sentencing judge showed a predisposition, there was nothing in the transcript that showed that predisposition was “‘so specific or rigid as to ignore’” Dodson’s conduct – chasing after the Buick, switching magazines, failing to call the police when he began following Freeman, getting out his car when Freeman pulled over instead of driving away, and shooting six rounds at an unarmed man.

    Justice Dallet concluded that Dodson failed to prove by clear and convincing evidence that the circuit court based his sentence on improper factors.

    No Actual Reliance

    Assuming that the statements of the sentencing judge contained improper factors, Justice Dallet explained, there was no evidence in the transcript that the judge actually relied on improper factors in determining Dodson’s sentence.

    The statements “‘bore a reasonable nexus’” to proper sentencing factors, Justice Dallet wrote – namely, the element of unnecessary defensive force and the need to protect the community from Dodson’s “‘distorted, misguided’ view of innocent community members.”  

    Additionally, Justice Dallet explained, there was nothing in the transcript to suggest that the sentencing judge added to Dodson’s sentence solely because he legally owned a gun and had a concealed weapons permit.

    An Analytical Concurrence

    Justice Brian Hagedorn wrote a brief concurrence.

    He agreed with the majority that nothing in the transcript showed that the circuit court had punished Dodson solely because he had exercised is rights under the Second Amendment, Justice Hagedorn explained.

    But it would have been “more analytically precise,” Justice Hagedorn wrote, for the majority to hold that the circuit court’s reference to Dodson’s gun possession was not an improper factor, rather than holding that the circuit court had not actually relied on that factor.

    ‘Whitewashes,’ ‘Downplaying,’ ‘Twisting’

    Justice Rebecca Grassl Bradley’s dissent ran 29 pages to the majority opinion’s 11.

    The majority, Justice R.G. Bradley wrote, “ignores the facts in an effort to legitimize Dodson’s unlawful sentence. It whitewashes what actually happened at the sentencing hearing by downplaying and twisting the sentencing judge’s remarks.”

    Justice R.G. Bradly concluded that sentencing judge had punished Dodson solely for the exercise of his Second Amendment rights.

    “[Dodson’s] status as a lawful gun owner was irrelevant, and its consideration was improper. Lawful gun ownership says nothing about a person’s character or propensity for violence.”

    ‘Bristling with Animus’

    The sentencing judge’s remarks entailed far more consequence than the majority assigned them, Justice R.G. Bradley explained.

    Rather than merely being capable of being construed as biased against gun owners, she wrote, “the judge’s remarks bristled with animus toward them.”

    That the sentencing judge had actually relied on Dodson’s status as a gun owner in determining his sentence was made clear by the fact that the judge had given “‘explicit attention’” to that status, Justice R.G. Bradley explained.

    This was so despite the sentencing judge labeling the relevant part of his remarks as speculation, she wrote.

    “Magic words cannot save an unlawful sentence.”

    The majority’s holding, Justice R.G. Bradley wrote, would set the bar too high for defendants pressing claims that they had been punished solely for exercising their constitutional rights.

    “By effectively requiring a sentencing judge to admit wrongdoing, the majority impermissibly raises the burden of proof from clear and convincing evidence to beyond a reasonable doubt.”



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