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Johnson v. Percy

United States District Court, E.D. Wisconsin

June 22, 2017

TERRANCE L. JOHNSON, Petitioner,
v.
WARDEN DOUGLAS PERCY, Respondent.

          ORDER SCREENING §2254 HABEAS CORPUS PETITION (DKT. NO. 1), AND ORDERING THE RESPONDENT TO ANSWER OR OTHERWISE RESPOND

          HON. PAMELA PEPPER, United States District Judge

         Terrance L. Johnson, who is proceeding without a lawyer, filed a petition for a writ of habeas corpus under 28 U.S.C. §2254. Dkt. No. 1. He has paid the $5.00 filing fee. The case is before the court for screening under Rule 4 of the Rules Governing §2254 Proceedings.

         I. BACKGROUND

         In Milwaukee County Circuit Court, a jury convicted the petitioner of four counts of uttering a forgery, six counts of identity theft and three counts of theft by fraud. Dkt. No. 1 at 1.[1] At sentencing, the state recommended a sentence of ten years of initial confinement, followed by ten years of extended supervision. Dkt. No. 1-3 at 15. After going through the history of the case and the petitioner's history, Milwaukee County Circuit Court Judge David A. Hansher said that based on all of that information, his evaluation of the case was that the defendant “deserved approximately 10 years overall of initial confinement and a period of extended supervision.” Id. at 34. Judge Hansher told the defendant that the state's recommendation was in line with what he'd concluded, and that the state's recommendation was “more than fair and equitable” and “a bit lighter than what I was thinking of.” Id. He concluded by saying that he was going to follow the state's recommendation. Id. at 35.

         Judge Hansher then imposed specific sentences on each count. He imposed the following sentences per count:

Count One:

One year of confinement.

Count Two:

Twelve months (one year) of confinement, to run concurrently to the sentence imposed on Count One.

Count Three:

One year of confinement.

Count Four:

One year of confinement (apparently, concurrent to Count Three, but consecutive to Count One, id. at 36).

Count Five:

Three years of confinement, concurrent to the sentences imposed for Counts Seven, Nine and Eleven.

Count Six:

Three years of confinement, consecutive to the sentence in Count One.

Count Seven:

Five years of confinement, consecutive to the sentence in Count One.

Count Eight:

Three years of confinement concurrent to the sentence in Count Six, but consecutive to the sentence in Count One.

Count Nine:

Five years of confinement, concurrent to the sentence in Count Seven, but consecutive to the sentence in Count One.

Count Ten:

Three years of confinement, concurrent to the sentences in Counts Six and Eight, but consecutive to the sentence in Count One.

Count Eleven:

Five years of confinement, concurrent to the sentences in Counts Seven and Nine, but consecutive to the sentence in Count One.

Count Twelve:

Three years of confinement, concurrent to the sentences in Counts Six, Eight and Ten, but consecutive to the sentence in Count One.

Count Thirteen:

Three years of confinement, concurrent to the sentences in Counts Six, Eight, Ten and Twelve, but consecutive to the sentence in Count One.

Id. at 34 through 41.

         At various points during the sentencing hearing, Judge Hansher questioned the prosecutor, or even questioned himself, about whether a sentence on a particular count ought to be consecutive or concurrent to sentences on other counts. He appears to have viewed the counts in groups- Counts One and Two as one group, Counts Three and Four as another, Counts Seven, Nine, and Eleven as a third, and Counts Five, Six, Eight, Ten, Twelve and Thirteen as a fourth. He appears to have been trying to impose a sentence of one year on the first group, one year consecutive on the second group, five years consecutive on the third group, and three years consecutive on the fourth group, for a total of ten years of confinement. But because he was proceeding count by count (and, at points, was interrupted by the clerk's phone ringing, or by the clerk stopping him to ask him to repeat or clarify), the transcript does not read so clearly.

         For example, when Judge Hansher reached Count Two, he said that he was imposing a one-year sentence in Count Two to run “consecutive” to the sentence imposed on Count One. He then asked, “Isn't that what the state was recommending?” The prosecutor replied, “The state was recommending that they be concurrent to count one, consecutive to all other counts.” Judge Hansher replied, “Isn't that the same thing if I make count two consecutive to count one?” The prosecutor answered, “I guess it would be.” Judge Hansher then said, “Okay. So that's what my intent is.” Dkt. No. 1-3 at 35. Toward the end of the sentencing, however, when Judge Hansher was in the process of imposing the five-year concurrent sentences on Counts Seven, Nine and Eleven, the state pointed out that perhaps Judge Hansher had imposed a sentence that exceeded ten years of confinement. The following exchange occurred:

DEFENDANT'S STAND-BY COUNSEL: If counts one and two are consecutive -
PROSECUTOR: I think - THE COURT: That's six.
PROSECUTOR: You made count two concurrent to count one, then -
THE COURT: Count two is - Right. Count two is concurrent to count one. It wasn't consecutive.
THE CLERK: I have consecutive.
THE COURT: Hold on. Let me ...

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