State v. Edward L. Body, Sr.

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 No. 2019AP836-CR Cir. Ct. No. 2017CM1162

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT II

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

EDWARD L. BODY, SR.,

DEFENDANT-APPELLANT.

APPEAL from a judgment and an order of the circuit court for
Kenosha County: BRUCE E. SCHROEDER, Judge. Affirmed.

¶1 DAVIS, J.1 Edward L. Body, Sr., appeals from a judgment and
order revoking his probation for the offense of disorderly conduct and sentencing
him to one year in jail. He claims that the trial court relied on improper sentencing

1
This appeal is decided by one judge pursuant to WIS. STAT. § 752.31(2)(f) (2017-18). All
references to the Wisconsin Statutes are to the 2017-18 version unless otherwise noted.
No. 2019AP836-CR

factors, specifically his gender and certain information contained in a presentence
report. He further claims that the sentence was unduly harsh. We disagree, and
affirm, for the reasons stated herein.

Facts

¶2 This matter has its genesis in an incident that, according to the
criminal complaint and not disputed here, occurred just after midnight on August
1, 2017. Two Kenosha police officers responded to a report of “people being loud
in the street.” Upon arrival, the officers observed Body yelling and pacing in the
roadway. As the officers approached, they heard residents, who had congregated
in the area, tell Body to stop yelling. One resident said, “Hey man. The police are
here. Stop.” Body responded, “I don’t care. Fuck the police.” A woman near
Body identified herself as E.M. and told the officers she and Body had been
arguing about issues concerning their children.

¶3 The officers spoke to some of the residents, including a neighbor
who had told Body to “take his drama elsewhere” because it was creating a
disturbance and disrupting him and his neighbors. The officers took Body into
custody under a charge of disorderly conduct. A search incident to arrest revealed
marijuana. The officers asked if Body had anything on him that would be
harmful, and Body responded, “I just have some marijuana in my front pocket that
I just bought.” Several bags of a leafy substance, which tested positive for
tetrahydrocannabinols (THC), were discovered on Body’s person.

¶4 The criminal complaint alleged one count of disorderly conduct and
one count of possession of THC, both as repeaters. Body pled guilty to the
disorderly conduct charge in exchange for dismissal of the THC possession charge
and no specific sentencing recommendation. The trial court placed Body on one-

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No. 2019AP836-CR

year probation and withheld sentencing. The terms of probation included
requirements that Body not commit further crimes or consume alcohol and that he
report to his probation agent when required.

¶5 On August 7, 2018, the Department of Corrections issued a
Revocation Order and Warrant, and Body was arrested for violating the terms of
his probation. Body waived his revocation hearing, and the case was set for
sentencing on the prior disorderly conduct charge.

¶6 At sentencing, it was noted that the revocation summary was part of
the record and contained a reference to consumption of alcohol stemming from an
incident involving domestic violence, which is described further below. No
separate charges were filed in connection with this incident, but the offenses as
described in the report were serious. Specifically, it was reported by the probation
agent that on June 25, 2018, the agent had received an anonymous voicemail
stating that over the weekend, Body had struck E.M. several times (this was the
same woman who was part of the original incident for which Body was arrested).
The next day, the agent received a call from E.M. herself detailing these incidents.
E.M. reported that Body had come over on June 23, 2018, to visit their six-year-
old son. Body left and then returned with a disposable cup from which E.M. took
a drink, at Body’s suggestion, and realized was vodka. She continued drinking
with Body and, at some point, Body and E.M. got into an argument. Body spit in
her face and began hitting her with a closed fist. E.M. further stated that their son
heard the argument and tried calling 911, but Body grabbed the phone and threw it
across the room. Body had a similar reaction when E.M. attempted to call 911,
although she was able to make the call. E.M. was taken to the hospital with a
possible broken jaw.

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No. 2019AP836-CR

¶7 At the sentencing hearing, which was before the same judge who
had previously withheld sentencing, Body did not take issue with the contents of
the revocation summary, nor did he present evidence concerning the incident
described in the report or anything else. In addition to the incident that led to the
revocation, the trial court noted that Body had a lengthy background of incidents
involving domestic violence. In light of this history, the trial court put sentencing
over to another day in order to further review the record.

¶8 The adjourned sentencing hearing occurred on August 30, 2018. At
the hearing, the trial court indicated that it had reviewed the revocation summary,
as well as Body’s record, and that the record demonstrated a propensity for threats
and violence towards women. Specifically the trial court indicated that his
sentence would be affected by “[Body’s] long involvement with the law and
persistent involvement with aggressive behavior with women, and to a lesser
extent, his history of aggressive behavior with the police.” The trial court
sentenced Body to one year in jail. Body timely filed a postconviction motion for
resentencing or, in the alternative, sentence modification. The trial court denied
the motion on April 30, 2019. Body now appeals.

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No. 2019AP836-CR

The Trial Court Did Not Rely on Improper Sentencing Factors
in Imposing Body’s Sentence

¶9 “We review a motion for sentence modification by determining
whether the trial court erroneously exercised its discretion ….” State v. Noll, 2002
WI App 273, ¶4, 258 Wis. 2d 573, 653 N.W.2d 895. A sentencing court
erroneously exercised its discretion where it “actually relie[d] on clearly irrelevant
or improper factors.” State v. Harris, 2010 WI 79, ¶66, 326 Wis. 2d 685, 786
N.W.2d 409. The defendant bears the burden of proving, by clear and convincing
evidence, the trial court’s actual reliance on such factors. Id.; see also State v.
Alexander, 2015 WI 6, ¶17, 360 Wis. 2d 292, 858 N.W.2d 662. Where, as here,
the challenge is to a sentence after revocation, “we review both the original
sentencing and the sentencing after revocation ‘on a global basis, treating the latter
sentencing as a continuum [] of the first.’” State v. Reynolds, 2002 WI App 15,
¶8, 249 Wis. 2d 798, 643 N.W.2d 165 (2001) (citation omitted). Where, again as
here, “the same judge presides at both proceedings, the judge ‘should reference the
prior sentence’ at the sentencing after revocation, but need not ‘restate the reasons
supporting the original sentencing’ because ‘we will consider the original
sentencing reasons to be implicitly adopted.’” Id. (citations omitted).

¶10 Body claims that the trial court relied on multiple improper
sentencing factors, all of which stem from the contents of the revocation packet.
Initially, Body claims that the revocation packet “was improperly used for a
gender bias.” In support, Body cites to snippets of the transcript, in which the trial
court was critical of Body’s interactions with women. According to Body, this
shows that the trial court relied on an improper sentencing factor—specifically,
Body’s gender. The portion of the transcript referenced reads, “[Body] seems to
have interpersonal relationship problems with women and with police officers.”

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No. 2019AP836-CR

Addressing Body directly, the trial court and Body also engaged in the following
colloquy:

THE COURT: So now he is back again, and his most
recent episode for which he was revoked is punching a
woman repeatedly.

Do you think that is a manly thing to do?

MR. BODY: No.

THE COURT: What do you think other men think of
someone who slaps a woman around?

MR. BODY: I don’t think they think highly of them.

THE COURT: Do you think that is the limit of what they
think?

MR. BODY: I can’t presume to know what somebody else
knows. I can only assume they don’t think highly of them.

THE COURT: What do you think I think right now?

MR. BODY: I don’t know. I won’t know until you tell
me, sir.

¶11 Although the trial court was clearly troubled by Body’s history of
violence towards women and apparently wanted to send a strong message to that
effect, this does not evidence any particular bias towards men. Body cites no
authority to suggest otherwise. Although gender bias would unquestionably
constitute an improper sentencing factor, it was not shown on this record in any
respect, let alone by clear and convincing evidence.

¶12 Next, Body contends that the trial court erred by relying on
“uncharged allegations” contained in the revocation packet. Body cites no case
law for this proposition, and in fact the law is directly opposite.

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No. 2019AP836-CR

¶13 Sentencing courts are required to assess “three primary factors”: the
gravity of the offense, character of the defendant, and the need to protect the
public. Alexander, 360 Wis. 2d 292, ¶22. In addition, trial courts are authorized
to consider additional factors, including

(1) Past record of criminal offenses; (2) history of
undesirable behavior pattern; (3) the defendant’s
personality, character and social traits; (4) result of
presentence investigation; (5) vicious or aggravated nature
of the crime; (6) degree of the defendant’s culpability;
(7) defendant’s demeanor at trial; (8) defendant’s age,
educational background and employment record;
(9) defendant’s remorse, repentance and cooperativeness;
(10) defendant’s need for close rehabilitative control;
(11) the rights of the public; and (12) the length of pretrial
detention.

Id. The court is required to conduct an individualized inquiry with the defendant
based on the facts of the case. The inquiry “may include ‘identifying the most
relevant factors and explaining how the sentence imposed furthers the sentencing
objectives.’” Id. (citation omitted).

¶14 Body claims that the trial court erred by relying on the revocation
summary as bearing on these factors because it consisted of uncharged and
unproven offenses. But the fact that the offenses are unproven does not in and of
itself make their consideration improper. Indeed, our supreme court has
repeatedly made clear that “[t]he scope of the information that a court may
consider includes ‘not only uncharged and unproven offenses but also facts related
to offenses for which the defendant has been acquitted.’” State v. Salas Gayton,
2016 WI 58, ¶23, 370 Wis. 2d 264, 882 N.W.2d 459 (quoting State v. Frey, 2012
WI 99, ¶47, 343 Wis. 2d 358, 817 N.W.2d 436).

¶15 Body’s final argument concerning the revocation report is that it
constitutes hearsay. This argument also fails. No objection was lodged at

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No. 2019AP836-CR

sentencing on this basis, meaning the argument was forfeited. In any event, we do
not see how the trial court could have sustained any such objection. The rules of
evidence do not apply at sentencing hearings, WIS. STAT. § 911.01(4)(c), and it is
well established that hearsay may be admitted at such a proceeding, State v.
Scherreiks, 153 Wis. 2d 510, 521-22, 451 N.W.2d 759 (Ct. App. 1989); State v.
Mosley, 201 Wis. 2d 36, 45, 547 N.W.2d 806 (Ct. App. 1996).2

¶16 To the extent this rule opens the door to evidence that might not bear
directly on the crime for which sentence is being imposed, and evidence that
would not otherwise be admissible under the rules of evidence, the easy answer is
that sentencing inherently and routinely involves consideration of such
information, and defendants seeking a more favorable sentence should obviously
be prepared to address it. In this case, that would include rebuttal of the
information in the revocation report, if it was capable of being rebutted.3

The Sentence Was Not Unduly Harsh

¶17 In contesting the harshness of his sentence, Body correctly
acknowledges both that the standard of review is erroneous exercise of discretion

2
The State argues that the revocation report is also admissible under the public records
exception contained in WIS. STAT. § 908.03(8), citing State v. Winant, No. 2014AP1944,
unpublished slip op. (WI App July 21, 2015). In light of our conclusion under WIS. STAT.
§ 911.01(4)(c), we need not address this issue directly. We do note that unlike in Winant, no
authenticating witness testified in this case, and further, that Winant involved a civil proceeding
in which the “hearsay within hearsay” concern is expressly resolved by the express language of
the public records exception, which allows “in civil cases and against the state in criminal cases,
factual findings resulting from an investigation made pursuant to authority granted by law, unless
the sources of information or other circumstances indicate lack of trustworthiness.”
Sec. 908.03(8)(c) (emphasis added).
3
To the extent Body did not wish to testify (as was his right) he could have nonetheless
called witnesses, including E.M., if he believed the uncharged offenses were without merit or that
her account as described in the revocation report was false.

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No. 2019AP836-CR

and the strong policy against interference with that discretion. A sentence will be
deemed unduly harsh only if it is “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. Daniels,
117 Wis. 2d 9, 22, 343 N.W.2d 411 (Ct. App. 1983); see also State v.
Grindemann, 2002 WI App 106, ¶31, 255 Wis. 2d 632, 648 N.W.2d 507.

¶18 Body cannot overcome this high bar. “A sentence well within the
limits of the maximum sentence is unlikely to be unduly harsh or unconscionable.”
State v. Scaccio, 2000 WI App 265, ¶18, 240 Wis. 2d 95, 622 N.W.2d 449.
Therefore, the already high standard for reversal becomes even more difficult to
overcome in this case. Here the sentence was well below the maximum range,
which was two years’ imprisonment. Although the trial court exceeded the
recommendation of the author of the revocation packet, that recommendation is
not a baseline for what is a legally-permissible sentence. The trial court
adequately set forth its reasoning for the sentence it chose—a pattern of unlawful
behavior with a propensity for domestic violence. The trial court further
elaborated on this reasoning in denying Body’s postconviction motion, noting that
there was “[n]o precedential authority” for Body’s assertion that a sentence four
times in excess of the recommended sentence was per se unreasonable and
unjustified. We agree. There is no basis for reversal.

By the Court.—Judgment and order affirmed.

This opinion will not be published. See WIS. STAT. RULE
809.23(1)(b)4.

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