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Rassbach v. Symdon

United States District Court, W.D. Wisconsin

January 23, 2017

JOHN P. RASSBACH, Petitioner,
DENISE SYMDON and GENA JARR, [1]Respondents.

          OPINION & ORDER

          JAMES D. PETERSON District Judge.

         Petitioner John P. Rassbach, a resident of Faribault, Minnesota, seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging state court felony convictions for theft by fraud in St. Croix County Case No. 09CF312. The petition is fully briefed and ready for decision. After considering the parties' submissions, I conclude that Rassbach fails to show that his sentences violated federal law with respect to either of his claims, so I will deny the habeas petition.


         On November 2, 2009, petitioner John Rassbach was charged with fourteen counts of theft by fraud, contrary to Wis.Stat. § 943.20(1)(d), in conjunction with his delivery of propane and diesel fuel to thirteen customers. The first five counts were felonies and the remaining nine misdemeanors, each based on the value of property at issue for each customer. The alleged value of the defrauded property for counts one through four was greater than $2, 500, and for the fifth count was greater than $5, 000.[2]

         Rassbach used several different methods to defraud his customers. For each of the felony counts, the method used by Rassbach was printing duplicate tickets for purported diesel fuel deliveries and submitting them to multiple customers. The duplicate tickets stated identical fuel amounts and delivery times. The criminal complaint stated the details of each duplicate ticket, including the ticket number, delivery time, fuel amount, and names of customers who were billed for each ticket. With respect to each ticket, the complaint alleged that Rassbach had defrauded every customer who received it for the full amount stated on the ticket. The charges were organized by customer, and the values of the alleged losses from each transaction were combined for each customer to determine the total value of fraudulent loss for each criminal charge.

         At the preliminary hearing, the felony-victim customers testified that they paid their respective fuel tickets but would not have had they known that other customers received identical tickets. The tickets showing the amount charged for each transaction were introduced as exhibits. On cross-examination, Rassbach's counsel attempted to get the customers to admit that, if they had actually received the fuel indicated on the ticket, they would have paid for it. Two customers testified that they would have paid for fuel they actually received, but most stated that they would have questioned the ticket and that there was no way to know if they actually received the fuel.

         Ultimately, Rassbach pleaded no contest to the five felony counts and guilty or no contest to the misdemeanor counts. The court accepted the plea and sentenced Rassbach to one year of initial confinement and two years of extended supervision on each of the first four felony counts, consecutively, as well as an imposed and stayed sentence of three years of initial confinement and three years of extended supervision on the fifth felony count.

         Rassbach filed a postconviction motion seeking resentencing, arguing that the complaint and preliminary hearing did not provide a factual basis for the value of the property necessary to prosecute felony charges, and that the court failed to adequately explain its rationale for giving him consecutive sentences he characterized as “near-maximum.” The court denied the motion. Rassbach raised the same arguments on appeal. On June 4, 2013, the Wisconsin Court of Appeals rejected these arguments and affirmed the conviction. State v. Rassbach, 2013 WI.App. 94, 349 Wis.2d 526, 835 N.W.2d 291');">835 N.W.2d 291 (unpublished). The Wisconsin Supreme Court denied Rassbach's petition for review on October 21, 2013. State v. Rassbach, 2013 WI 87, 350 Wis.2d 730, 838 N.W.2d 638 (unpublished).


         A. Review under 28 U.S.C. § 2254(d)

         Rassbach raises the following claims in his petition: (1) the trial court accepted his plea without having a factual basis for the amount of loss on each of the felony counts; and (2) the circuit court did not explain the reasons for giving him “near maximum or maximum” sentences consecutive to each other.

         This court's authority to issue habeas corpus relief for persons in state custody is governed by 28 U.S.C. § 2254, as amended by the Antiterrorism and Effective Death Penalty Act of 1996. Section 2254(d) states:

An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim-
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

         This court may issue a writ under the “contrary to” clause of § 2254(d)(1) if the state court applies a rule different from the governing law set forth in Supreme Court cases, or if it decides a case differently than the Court has on a set of materially indistinguishable facts. Williams v. Taylor,529 U.S. 362, 405-06 (2000). The court may grant relief under the “unreasonable application” clause if the state court correctly identifies the ...

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