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State v. Barbeau

Court of Appeals of Wisconsin, District II

June 22, 2016

State of Wisconsin, Plaintiff-Respondent
Antonio D. Barbeau, Defendant-Appellant.

         APPEAL from a judgment and an order of the circuit court for Sheboygan County, No. 2012CF511, TIMOTHY M. VAN AKKEREN, Judge.

          Before Neubauer, C.J., Reilly, P.J., and Hagedorn, J.

         ¶1 NEUBAUER, C.J.

         Antonio D. Barbeau, a few months shy of his fifteenth birthday, pleaded no contest to the first-degree intentional homicide of his great-grandmother. He was sentenced to life imprisonment with the right to seek release to parole supervision on his fiftieth birthday in 2048, after thirty-five years of imprisonment. Later, at the prodding of the Department of Corrections (DOC), the circuit court discovered that Barbeau was actually eligible for release to extended supervision and not parole. The court, the district attorney, and defense counsel all agreed that the judgment should be amended so that Barbeau would be eligible for release to extended supervision in 2048. However, before the judgment was amended, Barbeau, with new counsel, moved for resentencing, arguing that the error in imposing a parole eligibility date rather than an extended supervision eligibility date was a new factor that warranted modifying his sentence so that he would be eligible for release to extended supervision after twenty, instead of thirty-five, years of imprisonment. In addition, Barbeau argued that the statutory scheme he was sentenced under violated the prohibitions against cruel and unusual punishment contained in the United States and Wisconsin Constitutions. The circuit court granted Barbeau's motion only to the extent of amending the judgment to reflect that he was eligible for extended supervision on November 24, 2048. We reject Barbeau's contentions that the error at sentencing is a new factor that justifies a modification of his sentence and that his sentence is cruel and unusual; thus, we affirm.


         The Crime

         ¶2 On September 17, 2012, thirteen-year-olds Barbeau and Nathan A. Paape agreed to murder Barbeau's great-grandmother, Barbara Olson, because she "was somewhat rich and could be killed for money." Later that day, they went to Olson's house. Barbeau brought a hatchet; Paape brought a hammer. When Olson greeted them at the door and then turned her back, Barbeau struck Olson with the blunt end of the hatchet, knocking her to the floor. Barbeau struck Olson several more times with the blunt end of the hatchet, while Olson tried to cover her head and cried for him to stop. Barbeau called for Paape's help, and Paape struck Olson twice in the head with the hammer. Using the sharp end of the hatchet, Barbeau struck Olson, lodging the blade in her head. In total, according to the medical examiner, Olson was struck twenty-seven times, eighteen of which were blows to the head. Realizing that Olson was now dead, Barbeau and Paape searched her house, taking jewelry, a purse, and money.

         ¶3 Barbeau and Paape talked for several hours, devising a plan to conceal their murder of Olson. They wanted to put Olson in the trunk of her car, but were unable to lift her and, instead, left her in the garage. They wiped down portions of the house, placed the wipes in bags, and put the bags, along with the hammer and hatchet, and proceeds from the house into Olson's car. Paape put a pillow on the driver's seat so that he could see above the steering wheel, and then drove the car with Barbeau in the passenger seat back to Sheboygan, parking near a church, a few blocks from Paape's home.

         ¶4 The following day Barbeau and Paape returned to the vehicle. They drove it to a bowling alley and then walked to a pizzeria where they ate pizza. They went to a supermarket and purchased gloves and cleaning wipes. Then they returned to the car, wiped down the interior for fingerprints and blood, and left the car keys in the front seat with the jewelry in sight in the hope that someone would steal the car and be blamed for the murder of Olson. Barbeau and Paape took Olson's purse, which contained $150. The police later found Olson's purse containing her identification in a sewer a few houses away from Paape's home. The police also located Olson's car, finding the hammer and hatchet inside, jewelry, and a school paper containing the name "Nate."

         Charge and Plea

         ¶ 5 Barbeau was charged as a party to the crime of first-degree intentional homicide under Wis. STAT. § 940.01(l)(a) (2013-14), [1] a Class A felony. For a Class A felony, the penalty is life imprisonment. WIS. STAT. § 939.50(3)(a). Ultimately, Barbeau pled no contest to the charge. At the plea hearing, defense counsel recited that it was his understanding that upon the circuit court's acceptance of Barbeau's plea, "the [S]tate has agreed to recommend a parole eligibility date of 35 years." The district attorney agreed that this was "a correct recitation of the plea agreement." The circuit court advised Barbeau that "there would have to be some determination of a parole date." Defense counsel had advised Barbeau of the same, counsel told the court. The plea questionnaire Barbeau signed advised him that he faced a mandatory minimum of twenty years before being eligible for parole, with a maximum of life in prison.

         ¶ 6 At sentencing, on August 12, 2013, comments from the district attorney, defense counsel, and Barbeau's mother, all show that they were under the mistaken impression that the circuit court was going to impose a parole supervision eligibility date.

         ¶ 7 Before imposing sentence, the court commented that "if we would be looking at this with an adult, this is the type of case that would be called for life without any chance of parole." This, however, was not an available alternative because Barbeau was a juvenile, and the United States Supreme Court precedent prohibited a sentence of life without the possibility of parole for a juvenile.[2] The State's recommendation, the court said, was "the absolute minimum necessary to ensure the protection of the public." In fact, the court "had in mind a later eligibility date" than what it was going to order. The circuit court judge stressed the gravity of the offense. He variously described this offense as unlike anything he had seen in his twenty-four years on the bench, "not anything close"; that this was "nothing short of horrific, " "the most severe of the types of crimes that can happen, " an "extremely cruel act, " and "indescribable." The court ordered Barbeau eligible for parole on November 24, 2048.

         ¶8 The court then proceeded to warn Barbeau in accordance with Wis.Stat. § 973.014(1g)(b) that the DOC may extend the date when he would become eligible for extended supervision if he committed infractions while incarcerated or was placed in an adjustment program or controlled segregation status.


         ¶9 Two days after judgment was entered, the DOC wrote to the circuit court requesting clarification, pointing out that since Barbeau had been convicted of first-degree intentional homicide, under Wis.Stat. § 973.014(1g)(a), "he would need to be eligible for extended supervision, not parole."

         ¶10 In light of the DOC's letter, the State moved for a hearing to correct the sentence.

          ¶11 Defense counsel wrote the court, declining to object over amending the judgment to read "extended supervision" instead of parole. In light of counsel's letter, the court proposed amending the judgment without a hearing, to which defense counsel agreed in writing. The court, however, neglected to amend the judgment.

         Barbeau's Motion for Postconviction Relief

         ¶12 More than a year after being sentenced and now represented by different counsel, Barbeau moved for resentencing, arguing that the judgment should be modified to reflect his eligibility for extended supervision, and not parole, and after twenty years of confinement. He argued that the present sentence was invalid because a parole supervision eligibility date was imposed rather than an extended supervision eligibility date; that the differences between the two were new factors that warranted amending the sentence to reflect an extended supervision eligibility date of twenty, instead of thirty-five, years from the offense; and that counsel was ineffective for not knowing the current law. In addition, Wisconsin's statutory scheme for sentencing Class A felonies as applied to a juvenile was unconstitutional.

         ¶13 After a hearing, the circuit court granted Barbeau's motion in part, amending the judgment to reflect he was eligible for extended supervision on November 24, 2048. The court, however, refused to modify Barbeau's sentence.[3]It also concluded that Wisconsin's statutory scheme for sentencing minors convicted of Class A felonies was not unconstitutional.


         The Circuit Court did not Err in Determining that the Alleged New Factor-Setting Eligibility for Extended Supervision Rather than Parole-did not Warrant Modification of Barbeau's Sentence

         ¶14 Barbeau contends that the ignorance of his counsel, the district attorney, and the court that he would be eligible for release on extended supervision and not parole is a new factor. This is because of the "significant differences" between release on parole and release on extended supervision. Release on parole requires the parole commission to consider a host of factors, and various parties must be notified and may give their input, which allows the parole commission to develop a comprehensive assessment of the offender when deciding whether release to parole is appropriate. Release on extended supervision, in contrast, is in the hands of the circuit court, and the only consideration is the risk the offender poses to the public. With these differences in mind, defense counsel would have had to do more at the sentencing hearing. Specifically, Barbeau argues, defense counsel should have secured an alternative presentence investigation addressing all the factors the parole commission would have considered under the old law, present a full assessment of his client's rehabilitative needs, the time needed to address those needs, and the diminished culpability of youthful offenders. In the absence of this information, the circuit court will have little to consider when deciding whether to approve extended supervision release when that time comes.

         New ...

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