Due Process Violation – Military Law

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WI Court of Appeals – District IV

Case Name: State of Wisconsin v. Jesse t. Riemer

Case No.: 2016AP398

Officials: Kloppenburg, P.J., Lundsten and Blanchard, JJ.

Focus: Due Process Violation – Military Law

At a general court-martial under the Wisconsin Code of Military Justice, WIS. STAT. ch. 322 (2015-2016), Sergeant First Class Jesse Riemer of the Wisconsin Army National Guard was convicted, pursuant to negotiated pleas made before a military judge, of various felony offenses involving Riemer’s use of “his position as a [military] recruiter to engage in wrongful conduct with recruits and enlisted members of the [Wisconsin Army National Guard].” 1 Riemer was sentenced to thirty days’ confinement and a badconduct discharge. The adjutant general approved the conviction and sentence. Riemer appealed to this court pursuant to WIS. STAT. § 322.0675. That statute provides that convictions by a general court-martial are appealed “to the Wisconsin court of appeals, District IV and, if necessary, to the Wisconsin Supreme Court.” Riemer challenges the sentence imposed by the military judge, arguing that the military judge erred in four respects: (1) the judge misused his discretion by imposing an unduly harsh and unreasonable sentence; (2) the judge’s statements during sentencing evidenced objective bias in violation of Riemer’s right to due process; (3) the judge violated Riemer’s right to due process by failing to fully consider all of the evidence presented to him at sentencing; and (4) the judge violated Riemer’s right to due process by assuming facts not supported by evidence available to the judge at sentencing.

Riemer argues that we should review his first issue—sentencing discretion—as would a military appellate court. That is, Riemer asserts that we should accord no deference to the sentencing judge and, rather, independently determine whether the sentence was appropriate. We reject that argument and apply the same deferential review we normally apply to sentencing. As to the remaining three issues, Riemer nominally asserts that we should review them as would a military appellate court, but Riemer does not suggest that such review differs from how we would normally review these due process issues. Indeed, Riemer directs us to Wisconsin due process case law on all three issues. If Wisconsin law differs from military law, or federal law generally, on these topics, the parties have not brought those differences to our attention. Accordingly, we follow the parties’ lead and apply Wisconsin due process law to the last three issues. If there is an argument that our review of any of these three issues should be based on federal law, we leave that question for another day. Applying our normal deferential standard of review, we conclude that the judge did not misuse his discretion. Looking to Wisconsin due process law, in keeping with the parties’ arguments, we reject Riemer’s remaining three due process arguments. Therefore, we affirm.

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Attorney Derek A. Hawkins is the managing partner at Hawkins Law Offices LLC, where he heads up the firm’s startup law practice. He specializes in business formation, corporate governance, intellectual property protection, private equity and venture capital funding and mergers & acquisitions. Check out the website at www.hawkins-lawoffices.com or contact them at 262-737-8825.