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Note: We are crunching Supreme Court of Wisconsin decisions down to size. The rule for this is that no justice gets more than 10 paragraphs as written in the actual decision. The "upshot" and "background" sections do not count as part of the 10 paragraphs because of their summary and very necessary nature. We've also removed citations from the opinion for ease of reading, but have linked to important cases cited or information about them. Italics indicate WJI insertions except for case names, which also are italicized. The case: State v. Octavia W. Dodson Majority: Justice Jill J. Karofsky (10 pages), joined by Justices Ann Walsh Bradley, Rebecca F. Dallet, and Brian Hagedorn. Concurrence: Hagedorn (3 pages). Dissent: Justice Rebecca Grassl Bradley (29 pages), joined by Justices Patience D. Roggensack and Annette K. Ziegler.  Karofsky The upshot Octavia W. Dodson seeks resentencing for his second-degree intentional homicide conviction, alleging that the Milwaukee County Circuit Court relied on an improper sentencing factor in mentioning his lawful gun ownership and conceal-carry (CCW) permit. He contends such reliance contravenes his rights under the Second Amendment to the United States Constitution. The circuit court denied Dodson's postconviction motion for resentencing, and the court of appeals affirmed that denial. We likewise affirm. Dodson fails to prove by clear and convincing evidence that the circuit court actually relied on an improper factor.  Background Roughly four minutes before the homicide, Dodson was involved in a minor car accident during which an unidentified driver – in what Dodson believed to be a Buick – collided with the rear of Dodson's car. Dodson exited his vehicle and as he walked toward the back of his car, the other driver reversed the Buick several car-lengths and sped off. Meanwhile, Dodson unholstered his pistol, which he lawfully owned and for which he had a valid CCW permit. Dodson returned to his car and attempted to follow the Buick but lost sight of it. While searching for the Buick, Dodson swapped out his pistol's 10-round magazine for an extended 17-round magazine. Soon thereafter Dodson spotted a second Buick driven by the victim, Deshun Freeman. Believing it to be the car that rear-ended him, Dodson pursued Freeman's vehicle. When Freeman pulled over to the side of the road, Dodson parked his car about two car-lengths behind. According to Dodson, Freeman began "fumbling around" by his driver-side door before starting to walk toward Dodson. At that point, Dodson exited his vehicle and stood between the open driver-side door and his car. Dodson told officers that Freeman, with his hands either in his pockets or underneath his sweatshirt, began running toward Dodson, and shouted an obscenity at him. Dodson responded by firing six rounds from his pistol, three of which hit and killed Freeman. After witnessing Freeman's body fall to the ground, Dodson fled the scene. Hours later, Dodson surrendered himself to the police. The investigation revealed that Freeman had not been armed and that Freeman's vehicle did not match Dodson's description of the Buick from the earlier collision. Dodson pleaded guilty to second-degree intentional homicide, citing unnecessary defensive force as the mitigating circumstance and then-Circuit Judge M. Joseph Donald sentenced him to 14 years in prison followed by six years of extended supervision. Donald, noting Dodson's lack of a criminal record, made the following comments: "In reviewing this case, I have to say I am completely baffled as to why this happened. And I don't think that there is any rational way of trying to explain it. I can tell you this, Mr. Dodson, that in my experience as a judge, I have seen over time how individuals when they are possessing a firearm, how that in some way changes them. It changes how they view the world. It changes how they react and respond to people. I know that this is only speculation on my part, but I do strongly feel that the day that you applied for that concealed carry permit and went out and purchased that firearm, and that extended magazine, whether your rational beliefs for possessing it, whether you felt the need to somehow arm yourself and protect yourself from essentially the crime that is going on in this community I think on that day set in motion this circumstance. It is clear to me, Mr. Dodson, that for whatever reason, and it appears that it is a distorted, misguided belief of the world that somehow Mr. Freeman was a threat that required you, in essence, to terminate his life. Makes no sense. ". . . [I]t is clear to me that you were operating under some misguided belief, some distorted view of the world that somehow [Deshun] Freeman was a threat to you when in reality it was nothing further from the truth." *** In a postconviction motion, Dodson argued that the circuit court's statements demonstrated an improper reliance on his gun ownership and CCW permit, in contravention of his Second Amendment rights. The postconviction court denied the motion, concluding that the challenged statements, in context, were not improper. The court of appeals affirmed, holding that the sentencing court's statements demonstrated that Dodson was being punished not for exercising his Second Amendment rights but rather his "distorted, misguided belief" that he could unlawfully and lethally use his gun against the unarmed Freeman. Dodson appealed to the Supreme Court. The guts A defendant challenging his or her sentence must prove by clear and convincing evidence that: (1) the challenged factor is irrelevant or improper; and (2) the circuit court actually relied on that factor....A defendant will fall short of proving actual reliance if the transcript lacks clear and convincing evidence that the factor was the sole cause of a harsher sentence. A defendant will also fail to show actual reliance if a reference to a challenged factor bears "a reasonable nexus" to a relevant, proper factor. Dodson isolates two statements that he contends offer clear and convincing evidence that the circuit court actually relied on an improper factor. First, Dodson contends that the circuit court improperly grafted a negative predisposition against all gun owners onto him when it said that it has seen how "possessing a firearm" "changes how they view the world" and "react and respond to people." Second, Dodson argues that the circuit court improperly relied on his gun ownership and CCW permit when it stated that "the day that you applied for that concealed carry permit and went out and purchased that firearm, and that extended magazine . . . set in motion this circumstance." We disagree. Dodson's arguments ignore critical context that, when read alongside the challenged statements, demonstrate the circuit court neither exhibited an improper predisposition against all gun owners nor actually relied on Dodson's gun ownership or CCW permit as part of his sentence. *** The circuit court's challenged statements arise in the context of its struggle to reconcile Dodson's clean criminal record and the innocuous circumstances leading up to the shooting, with an element of Dodson's second-degree homicide charge: his use of unnecessary defensive force. That is, the circuit court was trying to understand what caused this "model citizen" to harbor the unreasonable belief that either he "was in imminent danger of death or great bodily harm" or the lethal "force used was necessary to defend [himself]." This inquiry into how the particular facts establish an element of the offense is a necessary step in assessing the gravity of that offense – a proper sentencing factor. The circuit court then leaned on its judicial experience to hypothesize about why Dodson used unnecessary defensive force. The circuit court explained that in its "experience as a judge," it observed a recurring pattern wherein "possessing a firearm" changes how some criminal defendants "view the world" and "react and respond to people." From the circuit court's standpoint that pattern was apparent here: Dodson reacted unreasonably to Freeman because Dodson was armed with a gun. That is, absent the gun, Dodson would not have used lethal force. But Dodson did have the gun and a "distorted, misguided belief of the world that somehow Mr. Freeman was a threat," which as Freeman's murder tragically demonstrates, created a danger to the community – another proper sentencing consideration. Having established the full context in which the circuit court made the challenged statements, we next assess the statements in that context. Dodson first challenges the circuit court's comment about gun possession changing how some criminal defendants both "view the world" and "react and respond to people" as an improper predisposition against all gun owners or CCW permit holders. Dodson is incorrect. The transcript read as a whole shows that the circuit court properly cabined any "general predisposition[]" about "when a certain type of sentence is appropriate" both to its "criminal sentencing experience" and to the "particular circumstances" of Dodson's criminal conduct. Indeed, nothing in the transcript indicates that this predisposition was "so specific or rigid as to ignore" Dodson's "distorted, misguided" conduct here, which included:
Dodson likewise fails to prove by clear and convincing evidence that the circuit court improperly relied on his Second Amendment activities when it speculated that "the day" Dodson obtained his gun, extended magazine, and CCW permit "set in motion" the homicide. Assuming without deciding that this statement contained an improper factor, the transcript lacks evidence of actual reliance in at least two regards. For one, when read in context this statement "bore a reasonable nexus" to relevant and proper sentencing factors. As explained above, the circuit court made this statement while assessing both the offense's gravity, by addressing its "unnecessary defensive force" element, and the need to protect the public from the danger of Dodson's "distorted, misguided" view of innocent community members. Second, nothing in the transcript suggests that the circuit court increased Dodson's sentence solely because he owned a gun or sought permission to carry it concealed. The circuit court acknowledged that its reference to these activities was "only speculation" about what caused an otherwise "model citizen" to react to Freeman so unreasonably. Nowhere did the circuit court indicate that Dodson received a longer sentence because he purchased the gun or applied for the CCW permit or that those activities formed the "basis for the sentence...." Dodson fails to prove by clear and convincing evidence that the circuit court actually relied on an improper factor. Accordingly, Dodson's sentence stands.  Hagedorn Concurrence I join the majority opinion, but write separately to make two points. First, this case turns on how you view the sentencing transcript. I read the transcript the same way the postconviction court and court of appeals did. The circuit court was trying to comprehend how Dodson came to have a "distorted, misguided belief of the world that somehow Mr. Freeman" posed a deadly threat. So, drawing on a pattern it sometimes observed in criminal defendants who previously purchased firearms, the circuit court offered its "speculation" about how Dodson developed the criminal mindset that precipitated an inexplicable and "baffl[ing]" homicide. Understood in this context, the circuit court was not declaring that all gun owners or CCW licensees develop a warped mindset toward the world around them. Rather, the circuit court suggested that in its experience, some do, and speculated that perhaps this could explain Dodson's actions. To be sure, the circuit court could have been clearer. But Dodson's contention that the court punished him solely for exercising his Second Amendment rights is unsupported by the sentencing transcript. Second, as the majority explains, we employ a two-pronged analysis when reviewing whether a sentencing court relied on an improper factor. We consider: (1) whether the challenged factor was improper, and (2) whether the sentencing court actually relied on that factor. Tracking the analysis in a prior case, the majority concludes Dodson did not prove actual reliance – in part because the discussion of Dodson's lawful gun possession shared a "reasonable nexus" with "relevant and proper sentencing factors." While the majority's approach comports with our prior discussion of the actual reliance prong, in my view, the reasonable nexus analysis more properly belongs under the improper factor prong. Logically, whether something bears a reasonable nexus to permissible sentencing considerations goes not to whether it was improperly relied upon, but to whether the consideration was proper in the first place. There, the circuit court discussed the defendant's tendency to read graphic novels containing "descriptions of adults having sexual contact with children." Reading the novels, however, was a constitutionally protected activity. The court of appeals concluded that referencing this protected material was not off limits because there was "a reliable showing of a sufficient relationship" between the protected activity and the criminal conduct. Therefore, even though constitutionally protected activity was discussed, it was not improper because it was tied to an appropriate and relevant sentencing consideration. Federal courts evaluate these types of sentencing challenges under this same analytical framework. In this case, the majority correctly explains that the circuit court's discussion of Dodson's gun possession was not about all gun owners; it was directly connected to Dodson's criminal mindset and bore a reasonable nexus to the gravity of his offense and the need to protect the public. While the majority thus concludes there was no actual reliance, it would be more analytically precise to hold that the reference to Dodson's gun possession did not constitute an improper factor. Nevertheless, I acknowledge our precedent has employed a reasonable nexus test under the actual reliance prong and therefore join the majority opinion.  Grassl Bradley Dissent In this case, the sentencing judge's hoplophobia (irrational fear of guns) was on full display – he gave Octavia Dodson a particularly harsh sentence because Dodson legally purchased and carried a firearm. In doing so, the sentencing judge violated Dodson's constitutional right to keep and bear arms and deprived Dodson of due process of law.... Dodson's punishment was increased "solely" because he "availed himself" of a constitutional right. His status as a lawful gun owner was irrelevant, and its consideration was improper. Lawful gun ownership says nothing about a person's character or propensity for violence. Because the majority sanctions punishing lawful gun owners for exercising the fundamental constitutional right to keep and bear arms, I dissent.... The sentencing judge would have us believe that each day Dodson exercised his right to keep and bear arms, he menaced society. For the sentencing judge, Dodson's lawful, constitutionally-protected conduct before the crime overshadowed the crime itself. With no grounding in reality, the sentencing judge hypothesized that gun owners possess an increased propensity for violence triggered by a purportedly paranoid worldview, clouded by misperceptions of non-existent threats. In applying his own "distorted" views of gun owners in this case, the sentencing judge impermissibly stereotyped Dodson.... For apparent dramatic effect, the majority emphasizes that Dodson "swapped out his pistol's 10-round magazine for an extended 17-round magazine" as he was searching for the Buick. So what? The sentencing judge did not even mention this irrelevant fact, but merely noted Dodson purchased an extended magazine, without discussing how Dodson used it. The conflation of lawful purchase and possession with unlawful use is the central problem with the sentencing judge's remarks (and the majority's approval of them).... "For apparent dramatic effect, the majority emphasizes that Dodson "swapped out his pistol's 10-round magazine for an extended 17-round magazine" as he was searching for the Buick. So what?" – Wisconsin Supreme Court Justice Rebecca Grassl Bradley More fundamentally, even if there were something unusual about a 17-round magazine, it would have no bearing on this case. Would Dodson be less culpable in the majority's view if he had used a ten-round magazine instead? The majority doesn't say. Perhaps it deems a ten-round magazine less scary. Regardless of the majority's feelings toward guns, our constitutions do not countenance Wisconsinites being punished more harshly for lawfully carrying weapons a judge deems insufficiently mundane.
*** The majority fails to mention the presentence writer recommended a sentence of five to nine years of initial confinement followed by five to six years of extended supervision – substantially less than the sentence Dodson received. The presentence writer noted, "Mr. Dodson expressed sincere remorse for his behavior, and was tearful in expressing his desire to go back in time." The presentence writer emphasized the incident happened "[i]n the flash of a second" and seemed to believe Dodson was in fear for his life. *** No other portion of the sentencing judge's remarks were as long as his speech about the malefactions of lawful gun owners. Contrary to the majority's view, the sentencing judge did much more than make an off the cuff remark that could be construed to express a bias against gun owners; the judge's remarks bristled with animus toward them. *** The majority also mistakenly claims the sentencing judge "properly cabined" his remarks about gun owners to "some criminal defendants[.]" In the majority's recasting of the hearing, the sentencing judge was not speaking about gun owners generally – just violent felons. The record proves the falsity of the majority's reconstruction of the hearing. The sentencing judge actually said: "I have seen over time how individuals when they are possessing a firearm, how that in some way changes them. It changes how they view the world." The sentencing judge referred to "individuals," not "some criminal defendants," and lest there be any doubt about what he meant, moments later he also said, "I do strongly feel that the day that you applied for that concealed carry permit and went out and purchased that firearm . . . set in motion this circumstance." Of course, when Dodson lawfully purchased a firearm, he was a lawful gun owner, not a felon or misdemeanant in the criminal justice system. *** The majority establishes a dangerous precedent, sanctioning the State's imposition of enhanced punishment based upon a defendant's exercise of a constitutionally-protected right. No one challenges the State's prerogative to punish criminals for the crimes they commit. Dodson pled guilty to a serious crime for which the law authorizes a penalty. The constitution, however, does not authorize punishment based in whole or in part on the defendant's constitutionally-protected conduct, no matter how inadvisable the judge may deem it. In this case, Dodson's punishment was impermissibly increased because he chose to exercise his right to keep and bear arms. Dodson's punishment should have been based solely on his unlawful use of a firearm, not his lawful ownership or possession of it. The majority's conflation of the two imperils the Second Amendment rights of Wisconsin citizens.
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