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State v. Williams

Court of Appeals of Wisconsin, District I

June 28, 2017

State of Wisconsin, Plaintiff-Respondent,
Jamal L. Williams, Defendant-Appellant.

         APPEAL from a judgment and an order of the circuit court for Milwaukee County, Cir. Ct. No. 2013CF2025 TIMOTHY G. DUGAN and ELLEN R. BROSTROM, Judges. Judgment affirmed in part, reversed in part; order reversed and cause remanded for further proceedings.

          Before Reilly, P.J., Gundrum and Hagedorn, JJ.

          GUNDRUM, J.

         ¶1 Jamal Williams raises two issues on appeal. He first claims he is entitled to resentencing on the ground that the circuit court sentenced him based on an "improper and irrelevant sentencing factor, " "namely, the fact that Williams refused to stipulate to restitution for which he was not legally responsible." Second, he argues the court erred on ex post facto grounds in requiring him to pay a mandatory DNA surcharge.[1] We affirm the court on Williams' first claim, but reverse on the second.


         ¶2 On April 30, 2013, the State filed a complaint charging Williams and his brother, Tousani Tatum, with felony murder, as parties to a crime. The complaint alleged B.P. and R.W. drove to a marijuana deal B.P. had set up with Williams. Williams and Tatum exited their vehicle and met with B.P., who placed a scale on the sidewalk to measure out the marijuana. Tatum placed a gun to B.P.'s head and demanded money and marijuana, causing B.P. to run. Tatum then demanded that R.W., who was in his parked car down the street, give Tatum "his Cartier glasses." Tatum fired at the car, and R.W. died from the gunshot wound. R.W.'s three-year-old child was in the vehicle. According to what Williams told police, when Tatum had earlier entered the vehicle Williams was driving, he possessed a gun and told Williams he was going to rob B.P. Williams also told police he tried to talk Tatum out of robbing B.P., and that after Tatum shot at R.W., he and Tatum ran back to their vehicle and drove away.

         ¶3 The State and Williams reached a plea agreement, pursuant to which Williams pled guilty to an amended charge of felony attempted armed robbery as a party to a crime. At the plea hearing, counsel for Williams expressed as a factual basis for the plea that upon arriving at the location of the planned drug deal, Tatum

produced a gun and said that he was going to rob the drug dealer. [Williams] at that point knew that a robbery was going to occur, he asked that it not occur, however, he did leave the vehicle and approach [B.P.]
Within that transaction, the gun was used, and after that incident, he ran with the second individual back to the car where he drove the car away aiding ... [Tatum].

         Williams agreed that these facts were accurate, and the court accepted his plea and found him guilty of the amended charge.

         ¶4 The circuit court ordered that a presentence investigation (PSI) be completed. An agent who was already supervising Williams, and thus was familiar with him, interviewed him and prepared a report. Williams told the agent, "I'm the big brother and what I say goes." Williams also expressed that after Tatum fired at the car R.W. was in and they then drove off, the first thing that came to Williams' mind was how they likely had "messed up" his parole. When the agent asked questions of Williams related to R.W.'s death, Williams repeatedly asked, "What does his death have to do with my case? I was convicted of attempted armed robbery." The agent wrote in the PSI that when she "explained the drug deal, armed robbery, and the homicide were all inclusive of the sequence of events of the day, Mr. Williams repeatedly expressed concern about being made to 'look bad.'"

         ¶5 When the agent asked Williams his feelings regarding the offense, his first response was: "I fucked up. I fucked my parole up. My son is out there without his father." Although Williams claimed he was innocent, when queried by the agent, he admitted going to the location to buy drugs and being aware his brother had a gun and planned to rob B.P. Williams said he pled guilty to the amended charge because it was better than going to trial on felony murder, but added, "My case has nothing to do with [R.W.] dying. Nothing related to this case should [be] mixed in with that."

         ¶6 When the agent asked Williams if he had any remorse, Williams indicated he had remorse for his brother Tatum, his mother, and his son. After prompting by the agent, Williams indicated he also had remorse for R.W.'s father and the three year old who was present when R.W., her father, died. When asked what an appropriate sentence would be, Williams responded that he felt he should get "time served and probation."

         ¶7 The report detailed Williams' extensive history of criminal behavior beginning at twelve years old. As the agent went through each item of Williams' criminal record with him, Williams "minimized his behavior in every single arrest, or placed blame on another person." Regarding a 2003 arrest for endangering safety by use of a weapon, Williams "boast[ed] the charge was dropped in court" and "appeared to be proud and seemingly found it humorous how many times charges have been dropped in court." Williams smiled and stated police "wanted to get me on something, but they couldn't. Either they couldn't prove it was me or they did an illegal search or something." When asked if he felt he "just got away with a lot of stuff, " Williams shrugged and responded, "Rights are rights, right?" The agent further detailed Williams' "boasting" about other charges against him being dismissed.

         ¶8 Providing her "assessment and impression, " the agent wrote that

[o]nly after being questioned, by this writer repeatedly, did [Williams] even give a brief moment of thought to the victims of this case. Mr. Williams went on and on about how he feels he deserves a fair outcome in sentencing.... Mr. Williams is stunned to find himself in the current situation, repeatedly illustrating, to this writer, his only concern is for himself....
Mr. Williams comes off as being very savvy with the criminal justice system.... Mr. Williams illustrated a sense of self-centeredness when speaking about the current offense, minimizing the offense, talking in circles, and blaming others of twisting his words. Mr. Williams showed very little remorse for the victims caused by his action....

         The agent described Williams as having an "atrocious lack of remorse." The agent further observed that "[a]s the 'big brother' and driver, had Mr. Williams disengaged at any point, [R.W.] likely would not have lost his life in the presence of his young daughter."

         ¶9 At sentencing, the State told the circuit court, "I really don't think there's any remorse here.... As the presentence writer indicated, it's mostly about him and what's gonna happen to him." "There's no remorse for what happened here and he's taking no responsibility for [R.W.'s] death." The State requested Williams be ordered to pay $794 in restitution, joint and several with Tatum, related to the funeral costs of R.W., asserting "the homicide was a direct extension of this armed robbery."

         ¶10 Though invited to do so at the sentencing hearing, neither Williams nor his counsel made any relevant corrections to the PSI. Williams' counsel then told the circuit court that Williams had taken responsibility for his actions by pleading. He "disagree[d] strongly" with the State and PSI writer's representations that Williams lacked remorse, stating Williams "expressed to me remorse for everyone involved." Counsel added:

I guess I take issue that because he is thinking about his brother has thrown away his adult life, his mother and his son that somehow that does not reflect his remorse also for [R.W.'s fiance], [R.W.'s] father and for [R.W.'s] daughter, and in fact, on page four of the PSI the writer states, "He did have remorse thinking about the little girl who saw her father die [and R.W.'s] father who no longer has a son."

         Counsel admitted that Williams, even knowing what Tatum's intentions were, "went along to complete the transaction and this horrible, horrible thing resulted, " adding that Williams "is completely aware of the effect that this transaction has had on all the families involved." On the issue of restitution, however, counsel argued that the shooting was not foreseeable and was "a separate transaction" and Williams "should not be held accountable for ... that $794."

         ¶11 Sentencing Williams, the circuit court stated in relevant part:

[The] attempt[ed] armed robbery ... [is] really serious because of the nature of the crime, the outcome in this particular instance and your involvement.
Here you set up a drug deal and your brother came along. You knew your brother had a gun. You knew your brother was going to rob the individual, but instead of stopping, saying no, I'm not going to go along with this, get out of my car, I'm not taking you anywhere, you took him to the scene to commit the robbery, and then you assisted.
You called over to [B.P.] [B.P.] knew of you, and so you didn't just tell him to go away, get away because you're going to get robbed, you participated in the entire robbery, and then your brother shoots and kills [R.W.], and instead of saying what did you do, we can't leave here, we've got to call the police, we've got to address this issue-You didn't know he had died at this point. You didn't call for help for him. As he was driving away he shot him, and there was a little girl in the car and he did nothing. You drove away. That reflects upon your character. It reflects upon your participation in this entire proceeding. You've accepted responsibility in accepting a plea in this case. It was certainly strategic.

         The court then discussed Williams' substantial criminal history beginning at age twelve, including the failure of prior efforts to help reform Williams. The court stated, "The only significant periods that you've been without arrest were when you've been incarcerated."

         ¶12 The court then discussed the PSI report and comments by Williams' agent therein. The court noted that the crime Williams committed "is extremely serious. It's had a profound impact on the victims, their families, the community, and, as you noted yourself to the presentence writer, you could have stopped this at any time but you didn't." Turning to restitution, the court stated in part:

I don't think I have authority to order the restitution. Had you been convicted of the felony murder, party to a crime, certainly yes, but the nature of itself, the nature of the attempt[ed] armed robbery doesn't justify the restitution or give me authority, [2] and I think the fact that you're not willing to join in on that also reflects your lack of remorse under the circumstances, and I'm certainly considering that.

         The court sentenced Williams to ten years in prison and seven and one-half years of extended supervision and ordered him to "submit the mandatory DNA sample" and pay "the mandatory surcharge."

         ¶13 Williams filed a postconviction motion raising numerous claims of error. As relevant to this appeal, the postconviction court determined Williams was not entitled to resentencing on the basis of any comments the sentencing court made related to restitution. The court also denied a request by Williams to vacate the DNA surcharge on the basis that he had already provided a DNA sample and been assessed a $250 surcharge in relation to a 2009 felony conviction. Williams appeals.


         "Improper/Irrelevant Sentencing Factor"

         ¶14 Williams asserts he is entitled to resentencing because the circuit court sentenced him more harshly on the basis that he did not stipulate to restitution related to the funeral costs of R.W. Williams' appeal of this issue does not get out of the gate because he has not convinced us the court sentenced him more harshly on this basis.

         ¶15 "A circuit court erroneously exercises its sentencing discretion when it 'actually relies on clearly irrelevant or improper factors.'" State v. Alexander, 2015 WI 6, ¶17, 360 Wis.2d 292, 858 N.W.2d 662 (quoting State v. Harris, 2010 WI 79, ¶66, 326 Wis.2d 685, 786 N.W.2d 409). As Williams acknowledges, "[a] defendant bears the burden of proving, by clear and convincing evidence, that the sentencing court actually relied on irrelevant or improper factors." Id. Despite "the difficulty [a defendant may have] in proving that a sentencing court actually relied on improper factors, ... requiring a defendant to prove his case 'promotes the policy of finality of judgments and satisfies the purpose of sentence modification, which is the correction of unjust sentences.'" See id., ¶20 (quoting Harris, 326 Wis.2d 685, ¶34). Williams fails to satisfy his burden.

         ¶16 In Alexander, our supreme court stated:

When a sentencing challenge is grounded in the use of allegedly erroneous information, we look to the circuit court's articulation of its basis for imposing the sentence. In the context of the whole sentencing transcript, we examine first whether the court gave explicit attention to the allegedly improper factor and second, whether the improper factor "formed part of the basis for the sentence, " which could show actual reliance.

Id., ¶29 (citation omitted). In the case now before us, the circuit court did give "explicit attention" and recognition to the fact Williams was not stipulating to restitution. Considering "the context of the whole sentencing transcript, " id., however, we agree with the postconviction court that this factor did not ...

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