Supreme Court Upholds Use of Dismissed Charges in Sentencing

By Deborah Spanic, legal writer

Aug. 17, 2012 – In State of Wisconsin v. Michael L. Frey, 2012 WI 99 (July 17, 2012), the Supreme Court upheld the longstanding rule of allowing a sentencing judge to consider dismissed charges when imposing a sentence.

Frey pleaded no contest to three out of six felony charges in a plea bargain where the State agreed to dismiss the remaining three felony charges. At sentencing, the Florence County Circuit Court Judge Leon D. Stenz explicitly considered the dismissed charges in explaining and imposing Frey’s sentence. Frey moved for resentencing, which the circuit court denied and the court of appeals affirmed.

On appeal by Frey, the Supreme Court was asked to review whether a circuit court may consider dismissed charges in imposing a sentence when the defendant asserts the charges were “dismissed outright.”

Background

Frey lived with his girlfriend and her daughter, M.G. and M.G.’s half-sister, for almost 10 years. Occasionally, M.G.’s friend from high school, A.B., would visit the home and sleep over.

In Spring 2009, A.B. and M.G. accused Frey of sexually assaulting them at different times in M.G.’s home. Both girls were 16 at the time. Frey was 43. Evidence was presented that when A.B. visited the home, she would “smoke weed” with M.G. and Frey, and that Frey would provide the marijuana and pills, such as sleeping pills, to make the girls tired or dizzy.

One night in February 2009, after an evening of smoking marijuana, taking pills and smoking cigarettes, A.B. alleged Frey attacked her in the kitchen and forcibly raped her. She was eventually able to get away from him and run upstairs to M.G.’s room, and early the next morning she called a friend to take her home.

M.G. alleged that Frey would give her pills almost every night, which would cause her to fall asleep. In March 2009, after taking those pills, M.G. woke up to find Frey’s hand inside her pants. M.G. had previously accused Frey of similar conduct, but charges were not filed after she withdrew her statement to police.

In April 2009 police arrested Frey and he was charged with second degree sexual assault, attempted second degree sexual assault and several drug possession charges. At trial, six counts were filed, two each of second degree sexual assault, child enticement, and delivery of a controlled substance.

On the morning set for trial, the State and Frey negotiated a plea bargain, whereby Frey pled guilty or no contest to the sexual assault count related to M.G. and both drug counts, and the State dismissed the sexual assault count related to A.B. and both counts of child enticement. The court accepted the plea.

During sentencing, the judge provided a lengthy and detailed explanation of the sentence he was imposing, and that he was considering the gravity and nature of the office, Frey’s character and rehabilitative needs, the need to protect the public, Frey’s criminal history and drug and alcohol problem, the aggravated nature of the offense, that Frey was responsible for the welfare of the child, having lived with her for 10 years, the ongoing nature of the offense, the impact on M.G., and numerous other facts that had been presented by the State, defense counsel and through the preliminary examination (which included the statements of both M.G. and A.B.).

The court specifically noted that it can consider the dismissed charges in determining the sentence, as well as uncharged offenses and unproven offenses. The judge specifically mentioned the attack on A.B. as being one of the contributing factors. Frey was sentenced to 25 years imprisonment for the sexual assault count and two sentences of 3-year imprisonment for the drug counts. All sentences to be served consecutively.

Frey filed a motion for post-conviction relief, claiming that the State dismissed the three remaining charges outright, that the dismissed charges were used for an improper purpose, that the court made unreasonable inferences from the facts and that the sentence was unduly harsh and excessive. After a hearing, the court denied all claims.

On appeal, the court of appeals stated that the sentencing court can consider uncharged and unproven offenses, pending charges, and even charges for which the defendant had been acquitted in order to measure the defendant’s character and the pattern of his behavior. It too rejected Frey’s argument and upheld the decision of the circuit court.

Analysis

Frey requested the court to hold that when a circuit court approves a plea agreement in which a charge will be dismissed outright, it is also agreeing not to consider that charge at sentencing. The court found Frey’s request unreasonable.

Justice David T. Prosser, in the court’s decision, noted first that the sentencing court needs the fullest amount of relevant information concerning a defendant’s life and character, indeed, that it was the courts “responsibility” to “acquire full knowledge of the character and behavior pattern of the convicted defendant before imposing sentence.”

Justice Prosser continued, “In sentencing, the circuit court must consider the nature of the crime, the character of the defendant, and the rights of the public.” It is well-settled law that to “discharge its obligation to discern a defendant’s character, a sentencing court may consider uncharged and unproven offenses, whether or not the defendant consents to having the charge read in.

“Against this background, it is hard to imagine directing a court not to consider dismissed charges unless those charges are groundless or unreliable,” the court concluded.

The court also noted that it is a better practice for the circuit court to acknowledge and discuss dismissed charges, if they are considered by the court, giving them appropriate weight and describing their relationship to a defendant’s character and behavioral pattern, or to the incident that serves as the basis for a plea.

As a general rule, parties may not immunize certain offenses from consideration by the court. Instead, the court is expected to fully utilize the information at its disposal concerning a defendant’s life and character in fashioning a sentence. The court held that a sentencing court may consider dismissed charges when it imposes a sentence, and the decision of the court of appeals was affirmed.