State v. Michael L. Winfield

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
January 22, 2020
A party may file with the Supreme Court a
Sheila T. Reiff petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.

Appeal Nos. 2018AP817-CR Cir. Ct. Nos. 2016CF2472
2016CF2652
2018AP818-CR

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT I

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

MICHAEL L. WINFIELD,

DEFENDANT-APPELLANT.

APPEALS from judgments and orders of the circuit court for
Milwaukee County: PEDRO COLON, Judge. Affirmed.

Before Brash, P.J., Kessler and Dugan, JJ.

Per curiam opinions may not be cited in any court of this state as precedent

or authority, except for the limited purposes specified in WIS. STAT. RULE 809.23(3).
Nos. 2018AP817-CR
2018AP818-CR

¶1 PER CURIAM. Michael L. Winfield appeals judgments entered
after he pled guilty to four felonies: second-degree recklessly endangering safety,
operating a vehicle without the owner’s consent, fleeing an officer, and burglary as
a party to a crime. He also appeals orders denying his motions for postconviction
relief from his aggregate sentence of sixteen and one-half years of imprisonment.
The circuit court concluded that Winfield did not demonstrate either the existence
of a new factor or that he was sentenced on the basis of inaccurate information.
The circuit court therefore denied his postconviction motions without a hearing.
We agree with the circuit court, and we additionally conclude that Winfield fails to
show on appeal that his aggregate sentence violates the prohibition against cruel
and unusual punishment contained in the Eighth Amendment of the United States
Constitution. We affirm.

BACKGROUND

¶2 According to the criminal complaint in Milwaukee County case No.
2016CF2472, which underlies appeal No. 2018AP817, Winfield participated in
two armed carjackings on June 4, 2016. A.L. told police that she was driving her
GMC Terrain and had come to a complete stop when a minivan struck her car
from behind. The force of the impact pushed her car into the vehicle ahead of
hers, a Ford Escape. Two men emerged from the minivan and approached A.L.
One, later identified as Winfield, pointed a gun at her and demanded that she get
out of her car. While she was taking her three-year-old child out of the back seat,
Winfield hit her and her child with the gun, eventually shoving both victims to the
ground and injuring them. Winfield then got into A.L.’s car and fled the scene.
His coactor took the keys from the driver of the Ford Escape and also drove away.

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¶3 Approximately two hours later, officers saw Winfield driving the
GMC Terrain on a city street and activated their squad car’s emergency lights and
siren to initiate a traffic stop. Winfield did not comply, and police in pursuit
observed that he drove at speeds exceeding seventy miles per hour, disregarded
stop signs and traffic lights, drove through a park, and endangered other motorists
and pedestrians as he successfully evaded police. Later that evening, officers
again observed Winfield driving the GMC Terrain and arrested him. The State
charged him with six felonies: two counts of armed robbery as a party to a crime,
and one count each of physical abuse of a child, operating a vehicle without the
owner’s consent, second-degree recklessly endangering safety, and fleeing or
eluding an officer. He faced an aggregate term of sixty years and six months of
imprisonment. See WIS. STAT. §§ 943.32(2) (2015-16),1 948.03(3)(b), 943.23(3),
941.30(2), 346.04(3), 939.50(3)(c), (g), (i).

¶4 In Milwaukee County case No. 2016CF2652, which underlies appeal
No. 2018AP818, the State alleged that on May 16, 2016, and again on May 18,
2016, Winfield and numerous coactors broke into Milwaukee car dealerships early
in the morning, seized keys from the businesses, and drove several vehicles off the
lots. On May 20, 2016, Winfield was arrested in one of the stolen cars. The State
charged Winfield with two counts of burglary as a party to a crime and two counts
of taking and driving a vehicle without the owner’s consent. He faced an
aggregate term of thirty-seven years of imprisonment. See WIS. STAT.
§§ 943.10(1m)(a), 943.23(2), 939.05, 939.50(3)(f), (h).

1
All references to the Wisconsin Statutes are to the 2015-16 version unless otherwise
noted.

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¶5 Within a few months, Winfield decided to resolve each case with a
plea agreement. In case No. 2016CF2472, Winfield pled guilty to second-degree
recklessly endangering safety, operating a vehicle without the owner’s consent,
and fleeing an officer. In case No. 2016CF2652, Winfield pled guilty to one count
of burglary as a party to a crime. The State agreed to recommend a prison
sentence for the burglary and a substantial prison sentence for the other three
crimes, all without specifying a recommended term of imprisonment, and to
recommend that Winfield serve the burglary sentence concurrently with any other
sentence imposed. Additionally, the State moved to dismiss and read in the
remaining six charges pending against Winfield. As a result of his plea
agreements, Winfield reduced his aggregate maximum term of imprisonment from
ninety-seven years and six months to twenty-nine years and six months.

¶6 The matters proceeded to a joint sentencing hearing in September
2016. At the outset of the proceeding, the State advised the circuit court that
Winfield was eighteen years old and a high school student at the time he
committed the crimes in these cases. The State then described Winfield’s juvenile
record, explaining that Winfield was adjudicated delinquent for second-degree
sexual assault when he was fifteen years old and for battery when he was sixteen
years old. The State went on to discuss the crimes in the instant cases in detail and
disclosed that Winfield’s coactors described him as the ringleader.

¶7 Winfield, by counsel, did not dispute that prison was the appropriate
disposition and asked the circuit court to impose an aggregate six-year term of
imprisonment bifurcated as two years of initial confinement and four years of
extended supervision. In support of this position, trial counsel described
Winfield’s troubled background, explaining that his mother died when he was

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fourteen years old and that his father was imprisoned. Trial counsel told the
circuit court that Winfield had a learning disability, carried diagnoses of attention-
deficit hyperactivity disorder (ADHD) and post-traumatic stress disorder (PTSD),
and that he had a history of “anger problems,” “low self-confidence,” “upsetting
thoughts that interfere with his ability to interact in society,” and “issues with
sleeping, eating, [and] pain.” In response to the circuit court’s inquiry, trial
counsel explained that the information he offered about Winfield’s mental health
was contained in a ten-page psychological report prepared in December 2015 by
one Dr. Gust-Brey. Trial counsel added that he did not think it necessary to file
the report and did not do so.

¶8 Following the parties’ statements, the circuit court discussed the
gravity of the offenses, Winfield’s character, and the need to protect the public.
The circuit court recognized that Winfield had serious mental health problems and
had suffered many misfortunes, but the circuit court put greatest emphasis on the
terror that Winfield’s actions aroused and the extent to which he “posed [a] danger
to everybody around [him].” The circuit court reminded Winfield that he had
victimized a woman and a “helpless child” at gun point and engaged in “erratic,
incredibly dangerous driving.”

¶9 At the conclusion of the sentencing remarks, the circuit court
imposed three consecutive sentences in case No. 2016CF2472: an evenly
bifurcated ten-year term of imprisonment for second-degree recklessly
endangering safety; and two three-year terms, each consisting of one year of initial
confinement and two years of extended supervision, for the crimes of operating a
motor vehicle without owner’s consent and fleeing an officer. For the burglary
conviction in case No. 2016CF2652, the circuit court imposed a twelve and one-

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half year term of imprisonment, bifurcated as seven and one-half years of initial
confinement and five years of extended supervision, and the circuit court ordered
Winfield to serve that sentence concurrently with any other sentence. The
aggregate disposition was thus sixteen and one-half years of imprisonment,
bifurcated as seven and one-half years of initial confinement and nine years of
extended supervision.2

¶10 Winfield filed a postconviction motion seeking relief from his
sentences on two related grounds. First, he claimed that a new factor, namely,
information about his mental health, warranted sentence modification. Second, he
claimed that he should be resentenced because his original sentences were based
on inaccurate and incomplete information about his “behavioral/emotional health
status.”

¶11 In support of the postconviction motion, Winfield submitted a four-
page excerpt—pages one, eight, nine, and ten—from the ten-page psychological
examination prepared in December 2015 by Dr. Karyn L. Gust-Brey. The excerpt
reflects Gust-Brey’s view that Winfield carried five diagnoses: conduct disorder;
oppositional defiant disorder; ADHD; specific learning disorder with impairment
in reading; and perpetrator of nonparental child sexual abuse. The excerpt

2
The circuit court also found Winfield eligible to participate in the Wisconsin substance
abuse program and the challenge incarceration program after he has served three and one-half
years of initial confinement. When an inmate successfully completes either program, his or her
remaining initial confinement time is converted to time on extended supervision. See WIS. STAT.
§§ 302.045(3m)(b), 302.05(3)(c)2.

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discloses that the sources of information on which Gust-Brey relied in preparing
her report included materials from Wraparound Milwaukee services providers.3

¶12 As additional attachments to the postconviction motion, Winfield
submitted five pages of materials from Wraparound Milwaukee, including three
pages of a Plan of Care dated May 19, 2015, and two pages of clinical progress
notes for the period from November 17, 2015, through January 19, 2016. These
materials reflected a history of additional diagnoses, specifically PTSD and
depression, and suggested that some months before Winfield committed the
crimes in the instant cases, he may have stopped taking the medication that had in
the past “decreased ... the frequency” of his “rough behavioral instances.” Finally,
Winfield submitted several pages of information about conduct disorders and
ADHD from the websites webmd.com, cdc.gov, and CurrentPsychiatry.com. In
light of his submissions, he contended that he was entitled to a more lenient
aggregate sentence because his crimes “were unavoidable products of his multiple
then-untreated behavioral/emotional pathologies.”

¶13 The circuit court denied Winfield’s claims without a hearing and
then denied Winfield’s motion for reconsideration. This appeal followed.4

3
Wraparound Milwaukee is a program operated by the Milwaukee County Behavioral
Health Division. The program coordinates care for Milwaukee youth with serious behavioral,
emotional, and mental health needs. See https://www.dhs.wisconsin.gov/medicaid/wam.htm (last
visited Nov. 26, 2019).
4
With our permission, Winfield filed his opening brief under seal. Neither the State’s
response brief nor Winfield’s reply brief was similarly filed under seal. The sealed brief is
hereby deemed unsealed only to the extent that it is quoted, referenced, or described in this
opinion.

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DISCUSSION

¶14 Winfield asserts that the circuit court wrongly denied him a hearing
to present his sentencing claims. We review this assertion under a familiar
standard. We consider de novo whether a postconviction motion on its face
alleges material facts that, if true, would entitle the defendant to an evidentiary
hearing. See State v. Allen, 2004 WI 106, ¶9, 274 Wis. 2d 568, 682 N.W.2d 433.
“If the motion raises such facts, the circuit court must hold an evidentiary
hearing.” Id. If the motion does not present such facts, however, or if it presents
only conclusory allegations, or if the record conclusively demonstrates that the
defendant is not entitled to relief, the circuit court has discretion to grant or deny a
hearing. See id., ¶¶9, 12. “We review a circuit court’s discretionary decisions
under the deferential erroneous exercise of discretion standard.” Id., ¶9.

¶15 A motion sufficient to earn a postconviction hearing should allege
within its four corners “who, what, where, when, why, and how.” See id., ¶23.
Even if a postconviction motion contains such allegations, however, the circuit
court may deny the defendant’s claims without a hearing when the record as a
whole conclusively demonstrates that the defendant is not entitled to relief. See
State v. Sulla, 2016 WI 46, ¶29, 369 Wis. 2d 225, 880 N.W.2d 659. With the
foregoing in mind, we turn to the substance of Winfield’s contentions.5

5
Winfield makes many arguments in his lengthy submissions, and we address some of
those arguments differently from the way in which he presents them. We are not bound by the
manner in which a party frames the issues. See Travelers Indem. Co. of Ill. v. Staff Right, Inc.,
2006 WI App 59, ¶8, 291 Wis. 2d 249, 714 N.W.2d 219.

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¶16 Winfield first claims that the circuit court erroneously denied his
motion for sentence modification based upon the alleged new factor of
information about his mental health. We disagree.

¶17 A new factor for purposes of sentence modification is “a fact or set
of facts highly relevant to the imposition of sentence, but not known to the trial
judge at the time of original sentencing, either because it was not then in existence
or because ... it was unknowingly overlooked by all of the parties.” See State v.
Harbor, 2011 WI 28, ¶40, 333 Wis. 2d 53, 797 N.W.2d 828 (citation omitted). A
circuit court has inherent authority to modify a defendant’s sentence upon a
showing of a new factor. See id., ¶35. To prevail, the defendant must satisfy a
two-prong test. See id., ¶36. First, the defendant must demonstrate by clear and
convincing evidence that a new factor exists. See id. This presents a question of
law, which we review de novo. See id., ¶¶33, 36. Second, the defendant must
demonstrate that the new factor justifies sentence modification. See id., ¶37. This
determination rests in the circuit court’s discretion. See id. If a defendant fails to
satisfy one prong of the test, a court need not address the other. See id., ¶38.

¶18 The record shows that Winfield did not demonstrate the existence of
a new factor because he failed to show that the psychological information he
presented in his postconviction motion had been “unknowingly overlooked by all
of the parties” at sentencing. See id., ¶40. To the contrary, his trial counsel
advised the sentencing court that he was reading from a ten-page psychological
evaluation prepared by Gust-Brey in December 2015, and, as we have seen, that
evaluation disclosed that it drew on reports and assessments from Wraparound
Milwaukee services providers. The record thus plainly shows that at the time of
sentencing, Winfield was aware of the Gust-Brey evaluation and its source

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materials. Therefore, although Winfield did not offer the sentencing court the
entirety of the documents that he subsequently submitted in the postconviction
proceedings, Winfield himself did not lack knowledge of those documents.
Accordingly, the documents and the information that they contain do not amount
to a new factor as a matter of law.6 See State v. Crockett, 2001 WI App 235, ¶14,
248 Wis. 2d 120, 635 N.W.2d 673. The circuit court properly denied this claim
without a hearing. See Allen, 274 Wis. 2d 568, ¶12.

¶19 In light of the foregoing, we need not consider the second prong of
Winfield’s new factor claim. See Harbor, 333 Wis. 2d 53, ¶38. Both parties have
addressed that aspect of the claim, however, and for the sake of completeness we
do so as well. We are satisfied that the circuit court properly exercised its
discretion in concluding that, even assuming Winfield offered new information in
his postconviction motion, he nonetheless failed to demonstrate that the
information warranted sentence modification.

¶20 The postconviction order reflects the circuit court’s findings that
carjackings, thefts, and physical attacks such as those Winfield perpetrated in
these cases harm local businesses, damage property, and threaten the safety and
security of the police and citizens alike. Further, the circuit court found that
Winfield’s crime spree necessitated “significant punishment,” notwithstanding his
troubled background and history of mental health problems. In the circuit court’s

6
Winfield suggests in his reply brief that his trial counsel was ineffective for failing to
present at sentencing all of the information submitted in support of postconviction relief, and he
requests a hearing to address trial counsel’s alleged ineffectiveness. Winfield did not raise the
issue of trial counsel’s ineffectiveness in either his opening brief or in his postconviction motion.
We decline to consider an issue raised for the first time in a reply brief. See State v. Anderson,
215 Wis. 2d 673, 683, 573 N.W.2d 872 (Ct. App. 1997).

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view, the sentences imposed in these cases were necessitated by a key
determination: “the community cannot be subjected to the danger presented by
this kind of criminality.” As the circuit court explained, Winfield’s contentions
that he exhibited “‘longstanding violent, disruptive, rule-transgressing ...
uncontrollable impulsive, aggressive, and transgressive behaviors’ as set forth in
the [postconviction] motion wholly underline the need for substantial punishment
and community protection.” The circuit court therefore concluded that the
information Winfield presented did not earn him a more lenient sentence.7

¶21 Winfield, of course, disagrees with that conclusion. Sentencing
decisions, however, rest in the circuit court’s discretion, see State v. Gallion, 2004
WI 42, ¶17, 270 Wis. 2d 535, 678 N.W.2d 197, and therefore the circuit court—
not the defendant and not this court—has the duty to “navigate the fine line
between what is clearly too much time behind bars and what may not be enough,”
see State v. Ramuta, 2003 WI App 80, ¶25, 261 Wis. 2d 784, 661 N.W.2d 483.

¶22 The postconviction order reflects a proper exercise of discretion.
The circuit court did not make any legal errors, and it fully set forth its reasons for
concluding that Winfield did not present information warranting sentence
modification. See Harbor, 333 Wis. 2d 53, ¶63. Accordingly, we reject
Winfield’s challenges to the decision denying sentence modification based on an
alleged new factor.

7
We observe that the policy of this state is that a person is not absolved of responsibility
for his or her crimes when the person suffers from “an abnormality manifested only by repeated
criminal or otherwise antisocial conduct.” See WIS. STAT. § 971.15(1)-(2).

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¶23 Winfield next asserts that he is entitled to resentencing on the ground
that the circuit court sentenced him based on inaccurate information. A defendant
has a due process right to be sentenced upon accurate information. State v.
Tiepelman, 2006 WI 66, ¶9, 291 Wis. 2d 179, 717 N.W.2d 1. To establish a
denial of this right, the defendant must show both that the disputed information
was inaccurate and that the sentencing court actually relied on the inaccurate
information. See id., ¶26. Whether a defendant has been denied the due process
right to be sentenced on accurate information is a constitutional question we
review de novo. See id., ¶9.

¶24 Winfield argues that the circuit court here sentenced him based on an
“incorrect, inaccurate, and incomplete picture” that he describes as consisting of
five parts: (1) he “had no chronic behavior disorders manifesting continually
through impulsive/compulsive (i.e. involuntary) ... behaviors”; (2) PTSD and
ADHD were his only behavioral or mental health disorders and they “did not
manifest through persistent impulsive/compulsive (i.e. involuntary) transgressive
and/or violent conduct”; (3) his criminal conduct “was [the] voluntary behavior of
a healthy but immature youth”; (4) his criminal conduct was not a symptom of a
mental illness or a behavioral disorder “so its seriousness was not mitigated by any
medical considerations”; and (5) his culpability “was not mitigated by any
medical, mental health, or behavioral-emotional considerations.”

¶25 Preliminarily, we observe that numerous aspects of Winfield’s
argument are flatly contradicted by the record. The circuit court did not sentence
Winfield as “a healthy but immature youth,” nor did the circuit court suggest that
his personal circumstances did not include any mitigating facts. To the contrary,
the circuit court explicitly told Winfield: “You have a serious diagnosis. I don’t

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doubt that you have PTSD. You’ve been through a lot in your life. You caused a
lot to people [sic] but you’ve also been through a lot for your life and I
acknowledge that.”

¶26 We next observe that, although Winfield repeatedly asserts that the
materials he filed in support of his postconviction motion show that his
“transgressive and/or violent” conduct was “involuntary,” he does not point to any
expert opinion supporting that claim.8 To the contrary, an entry in the November
2015 physician’s notes states that Winfield “refuses to take responsibility for his
behaviors,” not that his behaviors are excused because he cannot control them.

¶27 Relatedly, and critically, Winfield did not include an expert opinion
linking any of his criminal conduct in the instant cases to any medical cause.
Indeed, the last of the professionals’ notes and evaluations that he submitted was
prepared four months before he committed any of the crimes at issue here. As the
circuit court aptly observed, Winfield’s repeated assertion that his crimes in these
cases were symptoms of his various conditions therefore “falters upon the thin legs
of speculation.” To be sure, Winfield requested a hearing to provide additional
information, including expert testimony from unidentified sources, but the well-
established methodology for seeking postconviction relief required him to
demonstrate in his postconviction motion the material facts explaining precisely
whose testimony would establish precisely what proposition and how that
testimony would prove his claim. See Allen, 274 Wis. 2d 568, ¶¶23-24.

8
Our review of the briefs and the record reveals that the word “involuntary” appears 110
times in the text of Winfield’s appellate brief and an additional forty-four times in the reply brief,
but the word does not appear even once in the professionals’ evaluation, plan of care, and clinical
notes that Winfield submitted in support of his postconviction motion.

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¶28 We turn to the remaining components of Winfield’s contention that
the circuit court relied on inaccurate information. “Whether the circuit court
‘actually relied’ on ... incorrect information at sentencing, according to the case
law, turns on whether the circuit court gave ‘explicit attention’ or ‘specific
consideration’ to the inaccurate information, so that the inaccurate information
‘formed part of the basis for the sentence.’” State v. Travis, 2013 WI 38, ¶28, 347
Wis. 2d 142, 832 N.W.2d 491 (citations omitted). Here, Winfield states at the
outset of his appellate argument that the defense “overlooked the relevant correct
information” and failed to present it to the sentencing court. This contention does
not support a claim of inaccurate information at sentencing. Rather, it reflects that
the circuit court sentenced Winfield based on information that he now views as
incomplete. Winfield, however, does not cite any authority—and we know of
none—supporting the proposition that offenders must be resentenced merely
because the circuit court had less than complete information about them. A
sentencing court can never possess the entirety of information about a defendant. 9
Nothing in Tiepelman transforms that reality into a due process violation.

¶29 Moreover, we agree with the State that, insofar as Winfield’s claim
turns on information that the sentencing court actually received, Winfield’s

9
Indeed, Winfield himself has ensured that neither the circuit court nor this court has the
complete picture his health care services providers presumably painted in their reports and notes.
He hastened to advise the circuit court at sentencing that he did not think it necessary to file the
entirety of the psychological evaluation that Gust-Brey prepared in December 2015, and he
submitted only four of its ten pages with his postconviction motion. As to the five pages of
materials that Winfield submitted from Wraparound Milwaukee, these consist of two pages of
physician’s notes describing a visit in November 2015 and a cancellation in January 2016; and
three pages of a Plan of Care, the last of which reflects that it was “completed on 5/19/15” and
was “page 9 of 24.” When a defendant’s sentencing presentation does not include information
within the party’s knowledge and control, we generally view the omission as a tactical decision,
not as a basis for relief. Cf. Rosado v. State, 70 Wis. 2d 280, 288-89, 234 N.W.2d 69 (1975).

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allegation is not that the information was inaccurate but that the circuit court
assessed the information differently than Winfield would have preferred. Such an
allegation, however, does not identify an error. A sentencing court has broad
discretion to determine the factors it deems significant and to weigh those factors
as it sees fit. See State v. Stenzel, 2004 WI App 181, ¶16, 276 Wis. 2d 224, 688
N.W.2d 20. Here, the circuit court learned about Winfield’s troubled past and
found that Winfield had a “serious diagnosis.” The circuit court concluded,
however, that this information did not support more lenient sentences than those
imposed because Winfield was dangerous and must serve a significant period of
time in prison to protect the public and to punish him. Winfield may disagree with
that calculation, but his disagreement does not earn him resentencing. Cf. State v.
Prineas, 2009 WI App 28, ¶34, 316 Wis. 2d 414, 766 N.W.2d 206 (stating that
assessment of a circuit court’s exercise of sentencing discretion turns on whether
the circuit court exercised such discretion, not whether the circuit court could have
exercised discretion differently).

¶30 In sum, Winfield fails to show, by clear and convincing evidence,
that the circuit court sentenced him based on inaccurate information. The circuit
court properly denied this claim without a hearing.

¶31 Last, Winfield asserts that his aggregate sentence violates his right
under the Eighth Amendment of the United States Constitution to be free from
cruel and unusual punishment.10 He states that “neither the [circuit] court nor the

10
The protections of the Eighth Amendment of the United States Constitution are made
applicable to the states through the Fourteenth Amendment. See State v. Ninham, 2011 WI 33,
¶45, 333 Wis. 2d 335, 797 N.W.2d 451. We presume that Winfield intended to invoke both
amendments in support of his constitutional claim.

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postconviction court addressed this issue.” This statement is misleading, as it
suggests that the circuit court ignored one of his claims. In fact, Winfield failed to
raise his Eighth Amendment challenge in the circuit court at any time.11 “Issues
that are not preserved at the circuit court, even alleged constitutional errors,
generally will not be considered on appeal.” State v. Huebner, 2000 WI 59, ¶10,
235 Wis. 2d 486, 611 N.W.2d 727. In the interests of judicial efficiency, however,
we elect to discuss the claim.

¶32 Winfield argues that because his criminal conduct was a symptom of
his behavioral disorders, the circuit court wrongly punished him for his medical
status. In support, he directs our attention to the United States Supreme Court’s
statement that “a law which made a criminal offense of ... a disease would
doubtless be universally thought to be an infliction of cruel and unusual
punishment in violation of the Eighth and Fourteenth Amendments.” See
Robinson v. California, 370 U.S. 660, 666 (1962). He tacitly acknowledges
clarifying language in Powell v. Texas, 392 U.S. 514 (1968), but he asserts that
the Powell plurality opinion, if read in conjunction with the concurrence and with
Robinson, supports his claim “that the Eighth Amendment prohibits the state from
punishing an involuntary act which is the unavoidable consequence of one’s
status.”

11
If Winfield presented his Eighth Amendment claim to the circuit court, he has not
directed our attention to the place in the record where he did so. “The party raising [a
constitutional] issue on appeal has the burden of establishing, by reference to the record, that the
issue was raised before the circuit court.” State v. Caban, 210 Wis. 2d 597, 604, 563 N.W.2d 501
(1997). It is not our role to scour the record for indications that an issue was preserved for
appeal. Regardless, we have reviewed the record, including the sentencing transcript, the
postconviction motion, and the motion for reconsideration, and found no hint of an Eighth
Amendment claim in the circuit court proceedings.

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¶33 We are not persuaded. Leaving aside Winfield’s failure to establish
that the criminal conduct at issue here was either involuntary or a symptom of any
medical condition Winfield may have, the Wisconsin Supreme Court long ago
rejected his construction of Robinson and Powell.

In Robinson the accused was charged under a statute which
made it a crime to be addicted to narcotics. The [C]ourt
held that such addiction was a disease and the accused’s
condition was merely symptomatic of that affliction. Thus,
the [C]ourt concluded, the accused could not be punished
for his condition. The rationale of Robinson was extended
to cases involving public drunkenness where the accused
was an alcoholic in [a fourth circuit decision], but the
[S]upreme [C]ourt rejected that extension in Powell. The
[C]ourt in Powell distinguished the Robinson case by
stating that the accused was not charged for being an
alcoholic but for being drunk in public. The rule in Powell
indicates that the Robinson rationale only applies where the
alleged unlawful conduct is the accused’s condition.

Loveday v. State, 74 Wis. 2d 503, 509-10, 247 N.W.2d 116 (1976) (internal
citations omitted).

¶34 The Powell Court ultimately upheld a defendant’s state conviction
for public drunkenness, notwithstanding the defendant’s alcoholism. The Court
explained that the thrust of Robinson “is that criminal penalties may be inflicted
only if the accused has committed some act, has engaged in some behavior, which
society has an interest in preventing.” See Powell, 392 U.S. at 533. The defendant
in Powell, however, had not been punished for “a mere status”; rather, the State
had imposed “a criminal sanction for public behavior.” See id. at 532.

¶35 In the instant case, the circuit court sentenced Winfield for his illegal
acts, not for his afflictions. Therefore, nothing in Robinson or Powell renders
Winfield’s sentences unconstitutional. See State v. Gardner, 2006 WI App 92,

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Nos. 2018AP817-CR
2018AP818-CR

¶14, 292 Wis. 2d 682, 715 N.W.2d 720 (stating that the Supreme Court made clear
in Powell that Robinson “does not prohibit penalizing conduct”).

¶36 Accordingly, to the extent that Winfield has a claim under the Eighth
Amendment, that claim is governed by the well-settled rule that the Eighth
Amendment prohibits “sentences that are grossly disproportionate to the severity
of the crime.” See State v. Borrell, 167 Wis. 2d 749, 775, 482 N.W.2d 883
(1992), clarified on other grounds by State v. Greve, 2004 WI 69, ¶31, 272
Wis. 2d 444, 681 N.W.2d 469.

“‘[W]hat constitutes adequate punishment is ordinarily left
to the discretion of the trial judge. If the sentence is within
the statutory limit, appellate courts will not interfere unless
clearly cruel and unusual.’” A sentence is clearly cruel and
unusual only if the sentence is “so ‘excessive and unusual,
and so disproportionate to the offense committed, as to
shock public sentiment and violate the judgment of
reasonable people concerning what is right and proper
under the circumstances.’”

State v. Ninham, 2011 WI 33, ¶85, 333 Wis. 2d 335, 797 N.W.2d 451 (internal
citations omitted). Further, “[a] sentence well within the limits of the maximum
sentence is not so disproportionate to the offense committed as to shock the public
sentiment and violate the judgment of reasonable people concerning what is right
and proper under the circumstances.” State v. Berggren, 2009 WI App 82, ¶47,
320 Wis. 2d 209, 769 N.W.2d 110 (citation omitted).

¶37 When we review a claim that a defendant’s sentences are shocking
and disproportionate, we compare the defendant’s aggregate sentence to the
aggregate maximum sentence that the circuit court could have lawfully imposed.
See id., ¶48. Here, Winfield faced a possible twenty-nine and one-half years of
imprisonment for a series of vicious and dangerous crimes. The aggregate

18
Nos. 2018AP817-CR
2018AP818-CR

sentence of sixteen and one-half years of imprisonment that he received was far
below the aggregate statutory maximum, and therefore is not grossly
disproportionate to the severity of his offenses. For all the foregoing reasons, we
affirm.

By the Court.—Judgments and orders affirmed.

This opinion will not be published. See WIS. STAT RULE
809.23(1)(b)5. (2017-18).

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