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Inaccurate info results in vacated sentence

By: dmc-admin//November 20, 2002//

Inaccurate info results in vacated sentence

By: dmc-admin//November 20, 2002//

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Hon. Charles B. Schudson
Hon. Charles B. Schudson

Where a prosecutor informed the court on several occasions at sentencing that a defendant beats pregnant women, without factual basis for that assertion, the sentence must be vacated, the Wisconsin Court of Appeals held on Nov. 12.

Senseless Murder

In February 2000, Jeffrey R. Groth planned to confront men whom he believed had attacked him outside a tavern the previous week, and went to that tavern with a group of five others. They brought weapons to the scene, including a bat, a broken pool cue, brass knuckles and an inoperable .22 caliber handgun.

Groth also requested that a friend of his bring his .38 caliber handgun to the bar. Groth secured that gun and later handed it to one of the accompanying friends, Rodolph Lanaghan. After giving the gun to Lanaghan, Groth left the bar and pulled his car near the entrance, “in case something happened.” He kept the engine running.

Another friend of Groth’s, Bradley Debraska, then provided Lanaghan with a jacket with a hood to assist him in concealing his identity. Lanaghan then started firing at the bar’s entrance as people exited. Danny Oswald, one of the principal antagonists of Groth, was next to Joseph George, and George, an innocent bystander, received a fatal shot, presumably intended for Oswald.

Groth was charged with three counts: second-degree reckless homicide, party to a crime, while armed with a dangerous weapon; aiding a felon; and carrying a concealed weapon.

In instructing the jury, the trial court presented a modified version of Wis JI – Criminal 406, instructing the jury to find Groth guilty if it found that second-degree reckless homicide while armed was a natural and probable consequence of second-degree recklessly endangering safety (RES) with a dangerous weapon.

The jury found Groth guilty. At sentencing, the prosecutor three times made references to Groth beating his pregnant girlfriend. In sentencing Groth, the trial court commented that Groth had treated his girlfriend, who was pregnant at the time of sentencing, “with disrespect as pointed out by [the prosecutor].”

What the court held

Case: State of Wisconsin v. Jeffrey R. Groth, No. 01-3000-CR.

Issue: When a prosecutor, three times during sentencing, referred to a defendant’s beating his pregnant girlfriend, but there is no basis in the record for this assertion, is the defendant entitled to resentencing?

Holding: Yes. Despite the circuit court’s statement at the postconviction hearing that it did not rely on the information, there is a strong likelihood that it did.

Counsel: Robert J. Jambois, Kenosha; Sally L. Wellman, Madison, for appellant; Peter M. Koneazny, Milwaukee, for respondent.

Groth moved for postconviction relief, challenging both the jury instruction, and his sentence. Reserve Judge Michael J. Barron concluded that the instruction was improper because second-degree reckless homicide is not a natural and probable consequence of second-degree RES.

Although not necessary, given its holding on the validity of the conviction, the court nevertheless considered the sentence, holding that it was proper, even if the information about the pregnant girlfriend was incorrect, because the court did not take it into account in imposing sentence.

The State appealed, Groth cross-appealed, and the court of appeals reversed both holdings in a decision by Judge Charles B. Schudson.

Jury Instructions

The court held that the jury instructions were proper, and the conviction should not have been reversed.

The court found, “Groth and his accomplices, intending to retaliate against someone who had attacked him, came armed to a tavern to confront Groth’s assailant. Groth, as the trial court summarized, ‘secured’ the murder weapon and ‘handed it’ to Lanaghan, who shot and killed Joseph George. Groth was waiting nearby as the getaway
driver. As the State explains, ‘Death was particularly foreseeable under the circumstances.’ ”

The court added, “the evidence was overwhelming that Groth intended armed retaliation; he intentionally assisted Lanaghan in obtaining the gun Lanaghan fired into a group of people, killing an innocent victim. Unquestionably, Groth’s conduct was reckless; it endangered many people and, as a natural and probable consequence, it was a substantial factor causing Joseph George’s death.”

Accordingly, the court reversed the trial court’s postconviction decision to grant Groth a new trial.

Sentencing

Nevertheless, the court vacated the sentence, and remanded for resentencing.

The court acknowledged that Groth failed to object to the information at sentencing, but nevertheless, decided to consider the merits.

Citing State v. Leitner, 2001 WI App 172, pars. 39, 41, 42, 247 Wis.2d 195, 633 N.W.2d 207, aff’d, 2002 WI 77, 253 Wis.2d 449, 646 N.W.2d 341, the court noted that it has authority to ignore the waiver when it is clear the sentence was “affected by a trial court’s reliance on an improper factor.”

In addition, even if waiver were applied, the issue could still be reached in the context of an ineffective assistance of counsel claim.

Turning to the merits, the court concluded, “Notwithstanding the postconviction court’s disclaimer of reliance on the inaccurate information about beating pregnant women, we conclude … that the record establishes a very strong likelihood that the sentencing court did indeed rely on the information.”

Links

Wisconsin Court of Appeals

Related Article

Case Analysis

The first reason noted by the court was the expression used by the postconviction court, “as pointed out by the prosecutor,” when discussing Groth’s treatment of his girlfriend. The court noted that the prosecutor stated three times that Groth beats pregnant women.

Second, the court found that the postconviction court’s disclaimer of reliance on the information does not account for the extent to which the sentencing court may have been influenced indirectly through the prosecutor’s recommendation, which was based on the prosecutor’s impression that Groth beat pregnant women.

The court stated, “Unquestionably, the prosecutor’s recommendation was among the components considered by the court in reaching its sentencing decision. But that recommendation was based, in part, on precisely what the prosecutor later conceded was unsupported by the record.”

Finally, the court concluded, “the beating of pregnant women is so heinous that it would be difficult (if not impossible or improper) for any sentencing court to ignore it as an aggravating factor affecting the assessment of a defendant’s character.”

Accordingly, the court vacated the sentence, and remanded for resentencing on all three convictions, even though Groth only challenged the sentence on the homicide conviction.

Click here for Case Analysis.

David Ziemer can be reached by email.

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