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State v. Johnson

Court of Appeals of Wisconsin, District III

March 19, 2019

State of Wisconsin, Plaintiff-Respondent,
Marshawn Terell Johnson, Defendant-Appellant.

          APPEAL from a judgment and an order of the circuit court for Douglas County No. 2015CF416 KELLY J. THIMM, Judge.

          Before Stark, P.J., Hruz and Seidl, JJ.

          HRUZ, J.

         ¶1 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.


         ¶2 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.

         ¶3 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.

         ¶4 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 African-American.

         ¶5 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 responsibility."[1]

         ¶6 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.


         ¶7 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.

         ¶8 Johnson argues he was given a harsher sentence than his accomplices received because he traveled to Superior from Chicago.[2] 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.

         ¶9 Johnson contends his Privileges and Immunities argument is buttressed by Buckner v. State, 56 Wis.2d 539, 202 N.W.2d 406 (1972).[3] 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 ...

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