State v. Octavia W. Dodson

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.
August 25, 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. 2018AP1476-CR Cir. Ct. No. 2016CF1316

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT I

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

OCTAVIA W. DODSON,

DEFENDANT-APPELLANT.

APPEAL from a judgment and an order of the circuit court for
Milwaukee County: M. JOSEPH DONALD and CAROLINA STARK, Judges.
Affirmed.

Before Brash, P.J., Blanchard 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).
No. 2018AP1476-CR

¶1 PER CURIAM. Octavia W. Dodson appeals from a judgment of
conviction, entered upon his guilty plea, for one count of second-degree
intentional homicide. See WIS. STAT. § 940.05(1) (2015-16).1 Dodson also
appeals from an order denying his postconviction motion. Dodson seeks
resentencing on grounds that the trial court relied on an improper factor at
sentencing: Dodson’s legal gun ownership. Upon review, we affirm.

BACKGROUND

¶2 Dodson was charged with one count of second-degree intentional
homicide, by use of a dangerous weapon, in connection with the death of
Deshun T. Freeman. See WIS. STAT. § 940.05(1) (2015-16). The complaint
indicated that the mitigating factor that resulted in a charge of second-degree
intentional homicide, rather than first-degree intentional homicide, was
“[u]nnecessary defensive force.” See WIS. STAT. § 940.01(2)(b) (2015-16).2

1
All references to the Wisconsin Statutes are to the 2017-18 version unless otherwise
noted.
2
WISCONSIN STAT. § 940.01(2) (2015-16), which has not been amended in the 2017-18
version of the statutes, provided in relevant part:

MITIGATING CIRCUMSTANCES. The following are affirmative
defenses to prosecution under this section which mitigate the
offense to 2nd-degree intentional homicide under s. 940.05:

….

(b) Unnecessary defensive force. Death was caused
because the actor believed he or she or another was in imminent
danger of death or great bodily harm and that the force used was
necessary to defend the endangered person, if either belief was
unreasonable.

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No. 2018AP1476-CR

¶3 According to the criminal complaint, Dodson told the police that his
vehicle was rear-ended by a man driving a Buick. Dodson said that he got out of
his vehicle to check for damage and observed the other vehicle drive backwards.
Dodson, who had a valid concealed carry permit, removed his semi-automatic
pistol from his holster and held it in his hand. The other vehicle then drove
forward, around Dodson’s vehicle, and left the scene.

¶4 Dodson told the police that he got back into his vehicle and drove in
the direction of the Buick “to try to get a plate number.” While Dodson was
driving, he removed a ten-round magazine from his pistol and “replaced it with the
extended 17-round magazine.”

¶5 Dodson said that as he was driving, a Buick that Dodson believed
was the same Buick which he had been following “came up from behind at a high
rate of speed.”3 Both vehicles stopped and parked on the side of the street. The
complaint continues:

Dodson states that a male subject exited the car in
front of him and ran toward Dodson. Dodson stated that he
could not see this subject’s hands because they were either
in his jacket pockets or underneath his shirt. Dodson states
that he thought that this subject was pulling something out.
Dodson states that this male subject yelled: “Fuck nigga!”
or words to that effect.

Dodson initially stated that he discharged his
firearm at the male subject from his automobile, and that he
never at any point got out of his car. Dodson later
confessed that he exited [his vehicle] and shot the victim
from a standing position outside of his car.

3
While Dodson believes that the vehicle Freeman drove was the same vehicle that was
involved in the accident, the record indicates that the police were not able to confirm that. The
State suggested at sentencing that Freeman may not have been involved in the first accident.

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No. 2018AP1476-CR

Dodson stated that he believes he shot his gun three
times. Dodson stated: “I felt that threat wasn’t fair. There
was no need.”

Dodson states that after he shot, he observed the
victim fall to the ground. Dodson states that he then got
back into his car and drove to his girlfriend’s house.
Dodson states that he spoke with his girlfriend, and from
there drove to his father’s house. On the way to his father’s
house, Dodson states that he called 911 to report the
shooting.

(Dodson’s name substituted for “the defendant.”) According to the criminal
complaint, about four minutes elapsed between the time of the car accident and the
shooting.4

¶6 Dodson entered into a plea agreement with the State. In exchange
for Dodson’s guilty plea, the State agreed to dismiss the dangerous weapon
penalty enhancer, which lowered Dodson’s potential exposure by five years, to
forty years of initial confinement and twenty years of extended supervision. The
State further agreed to recommend “substantial prison time,” with the terms of
initial confinement and extended supervision left to the trial court’s discretion.
The trial court conducted a plea colloquy with Dodson, during which Dodson
personally agreed that the facts in the criminal complaint were “true and correct.”
The trial court thereafter dismissed the penalty enhancer, accepted Dodson’s guilty
plea, and found him guilty.5

4
Specifically, the criminal complaint states that a security camera at a gas station
indicated that the car accident occurred at 10:44 p.m. At 10:48 p.m., law enforcement’s
ShotSpotter gunshot detection system detected six gunshots near the intersection where Dodson
shot Freeman. The criminal complaint further indicates that when the police recovered the
extended magazine from Dodson, there were eleven unspent cartridges, which is consistent with
six shots being fired.
5
The Honorable M. Joseph Donald accepted Dodson’s guilty plea and sentenced him.

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No. 2018AP1476-CR

¶7 At the sentencing hearing, the trial court heard arguments from both
parties and from representatives for Dodson and the victim. Dodson personally
addressed the trial court, expressing remorse for the victim’s death. The trial court
sentenced Dodson to fourteen years of initial confinement and six years of
extended supervision.

¶8 Represented by postconviction counsel, Dodson filed a
postconviction motion seeking to withdraw his guilty plea based on ineffective
assistance of trial counsel with respect to the guilty plea. In the alternative, he
sought resentencing on grounds that the trial court considered an improper factor
at sentencing—Dodson’s legal gun ownership. After conducting a Machner6
hearing, the trial court denied the postconviction motion.7 This appeal follows.

DISCUSSION

¶9 On appeal, Dodson has chosen to pursue only his request for
resentencing. He argues resentencing is warranted because the trial court “relied
on an improper factor, in this case, [Dodson’s] decisions to obtain a concealed
carry permit and to purchase a firearm.”

¶10 The parties agree that our analysis is guided by State v. Alexander,
2015 WI 6, 360 Wis. 2d 292, 858 N.W.2d 662. Alexander recognized that
appellate courts will not disturb a criminal sentence “so long as the [trial] court
does not erroneously exercise its discretion.” See id., ¶16. Alexander continued:

6
See State v. Machner, 92 Wis. 2d 797, 285 N.W.2d 905 (Ct. App. 1979).
7
The Honorable Carolina Stark presided over the Machner hearing and denied
Dodson’s postconviction motion.

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No. 2018AP1476-CR

“A [trial] court erroneously exercises its sentencing discretion when it ‘actually
relies on clearly irrelevant or improper factors.’” Id., ¶17 (citation omitted). The
burden is on the defendant to prove, “by clear and convincing evidence, that the
sentencing court actually relied on irrelevant or improper factors.” Id.

¶11 Alexander discussed the “two-step framework” used in cases
involving a trial court’s reliance on inaccurate information. See id., ¶18. Under
that two-part analysis, “a defendant must prove that: (1) information was
inaccurate, and (2) the court actually relied on the inaccurate information in the
sentencing.” Id. (citing State v. Tiepelman, 2006 WI 66, ¶26, 291 Wis. 2d 179,
717 N.W.2d 1). “If the defendant proves inaccuracy and actual reliance, the
burden shifts to the State to prove the error was harmless.” See Alexander, 360
Wis. 2d 292, ¶18 (citing Tiepelman, 291 Wis. 2d 179, ¶¶26-27).

¶12 Alexander held that Tiepelman’s two-step test for analyzing alleged
inaccurate information can also be applied to cases alleging reliance on improper
factors. See Alexander, 360 Wis. 2d 292, ¶18. Alexander further recognized
precedent holding that “[w]hen the question relates to other improper factors like
race and gender, only the second part of the test, actual reliance, is relevant.” Id.,
¶21 (quoting State v. Harris, 2010 WI 79, ¶33 n.10, 326 Wis. 2d 685, 786 N.W.2d
409). Actual reliance on an improper factor occurs only when the trial court “gave
explicit attention to an improper factor” and “the improper factor formed part of
the basis for the sentence.” See Alexander, 360 Wis. 2d 292, ¶25 (citations and
internal quotation marks omitted). On appeal, “[o]ur obligation is to review the
sentencing transcript as a whole, and to review potentially inappropriate comments
in context.” See Harris, 326 Wis. 2d 685, ¶45.

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No. 2018AP1476-CR

¶13 With those legal standards in mind, we turn to Dodson’s argument
that the trial court actually relied on an improper factor. For purposes of this
decision, we will accept, without deciding, Dodson’s assertion that it would be
improper to punish a defendant for legally exercising his or her right to bear arms
under the United States and Wisconsin Constitutions. The issue is whether the
trial court did so here.

¶14 In its sentencing remarks, the trial court stated:

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, [whatever] 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.

Later, after recognizing that Dodson had previously been “a model citizen” with a
job and no criminal history, the trial court said, “[I]t is clear to me that you were
operating under some misguided belief, some distorted view of the world that
somehow Desh[u]n Freeman was a threat to you when in reality it was nothing
further from the truth.”

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No. 2018AP1476-CR

¶15 Dodson argues that the trial court’s statements indicate that it
believed that Dodson “was a threat to society and had a ‘distorted view of the
world’ because he was a lawful gun owner.” Dodson explains: “The [trial] court
blamed Mr. Dodson not merely for the homicide, but for what the court viewed as
putting himself on a path toward violence by lawfully obtaining a gun and a
license to carry it. This assumption violated Mr. Dodson’s Second Amendment
right to possess the firearm.” Dodson further asserts that the trial court made
assumptions about gun owners and “attribute[d] the negative views it has about
gun owners to” Dodson.

¶16 We are not persuaded that the trial court’s comments suggested that
the trial court was punishing Dodson for exercising his Second Amendment rights.
Here, the trial court’s comments indicate that it, like the parties, was trying to
make sense of what appeared to be a senseless homicide committed by someone
without a criminal history. The trial court noted that in its experience as a judge,
people can change as a result of owning guns. Such an observation was not
improper. See State v. Ogden, 199 Wis. 2d 566, 573, 544 N.W.2d 574 (1996)
(holding that trial court is not “prohibited from entertaining general
predispositions, based upon his or her criminal sentencing experience, regarding
when a certain type of sentence is appropriate” as long as those predispositions are
not “so specific or rigid so as to ignore the particular circumstances of the
individual offender upon whom he or she is passing judgment”).

¶17 Further, when the trial court commented on Dodson’s “distorted,
misguided belief of the world” that the victim presented a threat that required a
lethal response, the trial court was addressing a relevant issue: Dodson’s use of
“[u]nnecessary defensive force.” See WIS. STAT. § 940.01(2)(b). We agree with
the State’s analysis:

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No. 2018AP1476-CR

The court’s comments about Dodson’s “distorted,
misguided belief” and “distorted view” focused on
Dodson’s perception that Freeman posed a threat to him.
Neither statement had anything to do with the court’s
previous observations as a judge about gun ownership or
Dodson’s status as a conceal-carry licensee. Indeed, the
court’s comments went to the very nature of the second-
degree intentional homicide charge: Dodson acted with
unnecessary defensive force when he intentionally killed
Freeman. That is, Dodson believed Freeman posed an
imminent danger of death or great bodily harm to him and
that deadly force was necessary to defend himself, but his
beliefs were not objectively reasonable. [Section]
940.01(2)(b); see also State v. Head, 2002 WI 99, ¶69, 255
Wis. 2d 194, 648 N.W.2d 413 (discussing imperfect self-
defense).

(Bolding added.)

¶18 We conclude that Dodson has not shown, by clear and convincing
evidence, that the trial court actually relied on an improper factor. When viewed
in context, see Harris, 326 Wis. 2d 685, ¶45, the trial court’s comments about
Dodson’s unlawful use of his firearm were not improper. The trial court never
stated, explicitly or implicitly, that it was basing its sentence on the fact that
Dodson chose to exercise his right, as the holder of a concealed carry permit, to
carry a concealed weapon. Therefore, Dodson is not entitled to resentencing. We
affirm the judgment and order.

By the Court.—Judgment and order affirmed.

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

9