from a judgment and an order of the circuit court for Douglas
County No. 2015CF416 KELLY J. THIMM, Judge.
Stark, P.J., Hruz and Seidl, JJ.
Marshawn Johnson appeals a judgment of conviction for
possession with intent to deliver heroin and an order denying
his motion for postconviction relief. He contends the circuit
court erroneously exercised its sentencing discretion because
the court based its sentence in part on the fact that Johnson
was from Chicago, Illinois, and had traveled to Superior,
Wisconsin, to commit his crime. Johnson contends such a
consideration violated the Privileges and Immunities Clause
of the United States Constitution. See U.S. Const.
art. IV, § 2, cl. 1. We reject this argument because the
record shows Johnson was not sentenced because he was from
Chicago, but rather because he had brought heroin from
another area to be distributed locally. We conclude such a
consideration did not violate the Privileges and Immunities
Clause, and we affirm.
Johnson was arrested during the execution of a search warrant
for narcotics upon a residence located on Ogden Avenue in
Superior, Wisconsin. A number of suspects were arrested at
that time, including Johnson, Matthew Thompson, Lydia
Higgins, and Michael Jenkins. Jenkins was found with a large
bag of heroin on his person weighing approximately fifty-nine
grams. Additional packages of heroin were found in the
residence, one of which weighed approximately sixteen grams
and had Johnson's DNA present on it. Following a trial, a
jury returned a guilty verdict against Johnson on one count
of possession with intent to deliver between ten and fifty
grams of heroin as party to the crime.
Thompson and Higgins testified against Johnson at trial
pursuant to a cooperation agreement with the prosecution.
They resided at the Ogden Avenue address and both were heroin
addicts. Thompson testified that he received instructions
from an individual named "Bone" to pick up Johnson
and Jenkins, who were coming from Chicago, at a bus stop in
Duluth, Minnesota. The pair planned to stay with Thompson and
Higgins for several days, dealing drugs out of the Ogden
Avenue residence. Thompson and Higgins received free heroin
in exchange for their assistance in distributing the
narcotics in Superior.
Johnson testified in his own defense. He testified that he
and Jenkins had come to Superior from Chicago "to meet
girls." Johnson stated that he did not know that Jenkins
was dealing heroin and that he disapproved of the activity.
He denied knowing about or assisting in any way Jenkins'
trafficking of narcotics. The defense theory at trial was
that Thompson and Higgins were not credible because they were
testifying pursuant to agreements with the prosecutor,
whereas Johnson had not received a deal because he was
Johnson was sentenced to eight years' initial confinement
and ten years' extended supervision. In remarking upon
the seriousness of the offense, the circuit court emphasized
the heroin problem plaguing Superior and the
"significant amount of heroin" that Johnson had
possessed with the intent to distribute. The court also
emphasized that Johnson had traveled from Chicago to deliver
the heroin into the Superior community. In discussing
Johnson's character, the court remarked that
Johnson's attempts to blame Jenkins for the drug dealing
were "unbelievable." Contrary to defense
counsel's arguments, the court viewed the fact that
Johnson was not dealing heroin to feed an addiction as an
aggravating factor, characterizing him as a "serious
dealer." The court also found that the need to protect
the public from the severe consequences of heroin addiction
justified a lengthy sentence. The court briefly addressed the
treatment of Johnson's accomplices, noting that they
perhaps should not have benefitted from lenient treatment,
but it distinguished them from Johnson by noting that they
had cooperated whereas Johnson had been "willfully
… inadequate in any acceptance of
Johnson filed a postconviction motion seeking an order
vacating his sentence and resentencing. Johnson argued that
his sentence was based on an improper factor-namely that he
had traveled from Chicago to deliver drugs in Superior.
Johnson asserted that this consideration violated the United
States Constitution's Privileges and Immunities Clause.
In Johnson's view, he "should have been sentenced no
differently for having come from Chicago, than he would have
been sentenced had he lived in Superior." The circuit
court denied Johnson's motion, reasoning that Johnson was
not given a prison sentence because he was from Chicago, but
rather because he was both a "wholesaler and a
retailer" as opposed to a "street-level
dealer." Johnson now appeals.
We review a circuit court's sentencing decisions using
the erroneous exercise of discretion standard. State v.
Loomis, 2016 WI 68, ¶30, 371 Wis.2d 235, 881 N.W.2d
749. A defendant has a constitutional due process right to be
sentenced based upon accurate information, State v.
Harris, 2010 WI 79, ¶32, 326 Wis.2d 685, 786 N.W.2d
409, and a circuit court erroneously exercises its discretion
when it relies upon "clearly irrelevant or improper
factors," id., ¶30. Because we afford
sentencing decisions a "presumption of
reasonability" consistent with our strong public policy
against interference with the circuit court's discretion,
the defendant bears the burden of showing by clear and
convincing evidence that the court erroneously exercised its
sentencing discretion. Harris, 326 Wis.2d 685,
¶30; Loomis, 371 Wis.2d 235, ¶31.
Johnson argues he was given a harsher sentence than his
accomplices received because he traveled to Superior from
Chicago. Johnson further argues that a circuit
court's consideration of whether a defendant is from
another state violate the Privileges and Immunities Clause of
the United States Constitution, which provides as follows:
"The Citizens of each State shall be entitled to all
Privileges and Immunities of Citizens in the several
States." U.S. Const. art. IV, § 2, cl. 1. The
Privileges and Immunities Clause "expresses the
accommodation of the principle of equality of rights of
citizens and non-citizens with the needs and interests of the
state as a sovereign entity and helps 'fuse into one
nation a collection of independent, sovereign
states.'" Taylor v. Conta, 106 Wis.2d 321,
330, 316 N.W.2d 814 (1982) (quoting Toomer v.
Witsell, 334 U.S. 385, 395 (1948)). By violating his
constitutional rights, Johnson argues the circuit court
relied on an unlawful and improper sentencing factor.
Johnson contends his Privileges and Immunities argument is
buttressed by Buckner v. State, 56 Wis.2d 539, 202
N.W.2d 406 (1972). In that case, the circuit court remarked
at sentencing that the defendant and his accomplices in a
murder were "from Chicago, [and] came in here to have a
little fun in Madison." Id. at 551. In
commenting upon the need for the defendant's sentence to
have a deterrent effect, the court noted the apparent recent
rise in the number of first-degree murder cases, and it
stated, "Well, I think it's about time that the word
got around that this cannot happen in Madison,
Wisconsin." Id. Our supreme court rejected the
defendant's Privileges and Immunities argument there,
remarking that there had been no showing that the court
"relied, in its determination of the proper sentence,
upon the fact that ...