State v. Alexandrea C.E. Throndson

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.
July 15, 2021
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. 2020AP1081-CR 2018CF426

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT IV

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

ALEXANDREA C.E. THRONDSON,

DEFENDANT-APPELLANT.

APPEAL from a judgment of the circuit court for Sauk County:
MICHAEL P. SCRENOCK, Judge. Affirmed.

Before Fitzpatrick, P.J., Graham, and Nashold, JJ.

¶1 GRAHAM, J. Alexandrea C.E. Throndson appeals a judgment of
conviction for maintaining a drug trafficking place and bail jumping. Throndson
argues that she is entitled to resentencing because the circuit court relied on
No. 2020AP1081-CR

inaccurate information and exhibited objective bias during sentencing. We reject
both arguments and affirm.

BACKGROUND

¶2 In July 2018, Throndson lived with her boyfriend and her son in an
apartment she rented in Baraboo, Wisconsin. After a confidential informant
allegedly purchased drugs from Throndson and her boyfriend, police searched the
apartment pursuant to a warrant and Throndson and her boyfriend were both
arrested. Throndson was charged with delivery of cocaine and maintaining a drug
trafficking place, and she was later charged with intimidation of a witness and bail
jumping.

¶3 Pursuant to a plea deal, Throndson pled no contest to maintaining a
drug trafficking place and bail jumping, both felonies, and the State dismissed the
remaining charges outright. The parties agreed to jointly recommend a sentence
of thirty-six months of probation without jail time. During the plea hearing, the
circuit court confirmed that Throndson understood the maximum penalties for
each offense and that the court was not bound by the joint recommendation.

¶4 The circuit court found Throndson guilty and then informed the
parties that, in preparation for sentencing, it had run a search of Throndson’s name
“in the court record statewide.” According to the court, it found twenty-three prior
cases, which it identified by case number, and it “was able to view the charges and

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dispositions” in those matters.1 The court cautioned, “I can tell both parties it will
be a hard sell today to get me to probation without any jail.”

¶5 The circuit court offered Throndson’s trial counsel an opportunity to
respond, and counsel objected to the court’s consideration of “anything that’s not
been presented to you by the parties.” The court responded that, in its view, it was
not inappropriate for the court to review “other court records, provided that the
parties are made aware of it prior to sentencing” and have a meaningful
opportunity to respond to the information.

¶6 Per trial counsel’s request, sentencing was scheduled for a later date.
The circuit court informed the parties that it would order a pre-sentence
investigation report (PSI). See WIS. STAT. § 972.15 (2019-20). As it explained,
“given [trial counsel’s] concern about the court’s quick perusal of Ms.
Throndson’s juvenile criminal and non-criminal history, having a PSI will, first of
all, provide everyone with at least one document that will have all of the same
information for everybody.” The court also expected a PSI to “perhaps allow for
more explanation for some of the past history than merely the charges and the
outcomes provide.”

1
On appeal, Throndson asserts that the twenty-three case numbers identified by the
circuit court were all from her “closed juvenile record,” but that characterization does not appear
to be accurate. Based on the case numbers the court identified, it appears that three were juvenile
adjudications, three were juvenile ordinance cases, eight were traffic forfeitures, two were non-
traffic ordinance cases, three were misdemeanors, and two were felonies. The parties agree that
the juvenile records are sealed and unavailable to the public. As the court later explained, circuit
court judges around the state have electronic access to the court records from all counties in
Wisconsin through the state court computer system.

The circuit court also informed the parties that it had reviewed records from Throndson’s
boyfriend’s case to determine “what sentences he received.” Throndson does not make any
argument about this aspect of the court’s review on appeal, and we discuss it no further.

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¶7 The court-ordered PSI itemized Throndson’s prior adult offenses,
including incidents in 2016 and 2017 in which she was convicted of possession of
THC and other offenses. It also summarized statements that Throndson made
during her interview with the PSI’s author. During that interview, Throndson
expressed embarrassment and remorse for maintaining a drug house, but she
minimized her knowledge of and involvement in selling drugs. She stated that she
did not realize that her boyfriend was using or selling drugs until he overdosed on
one occasion, and that she stayed with him because “I loved him and I am a caring
person” and “[i]t has been hard for me to walk away from unhealthy
relationships.” Throndson, who is white, stated that the detective who arrested her
“has a vendetta against me because of my past and because I choose to date black
men. I don’t know why he keeps harassing me.” She reported a good relationship
with her mother, but a bad relationship with her father, including physical abuse
when Throndson was a child. She further reported that her father disapproved of
her dating black men and expressed antipathy toward her biracial child. The PSI
ultimately recommended a concurrent six-month jail sentence followed by three
years of probation, noting that Throndson had provided “false responses” during
the PSI process and that this was her third conviction involving illegal drugs.

¶8 The circuit court ended up holding two sentencing hearings in this
case. During the initial hearing, the prosecutor and trial counsel both argued in
favor of the joint recommendation for probation. The court discussed the severity
of Throndson’s crimes and reviewed her criminal history and character traits.
With regard to her contacts with the juvenile justice system, the court stated:

Ms. Throndson came through our juvenile system. I wasn’t
here then. Had she appeared in front of me as a 16-year-
old, I’m certain I would have told her your time is running
out. When Ms. Throndson sat at that table and she
appeared in front of Judge Reynolds in this room in

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juvenile court, the prosecutor, defense attorney, social
worker, Judge, all were here with an eye towards helping
her learn the things that she needs to learn to stay out of
court as an adult. And I frequently tell those older
juveniles, you’re running out of time. When you get—
when you turn 17, you get charged as an adult, the guy
sitting in this chair is not going to be your friend. He’s not
going to be here to help you. That’s not the focus of the
prosecution in adult court.

Regarding her history of juvenile and adult offenses, the court further stated:

Ms. Throndson has had chance after chance after chance to
get back on track, and what I’m being told here today is,
yeah, that’s happened now in 2019. It didn’t happen during
the Columbia County case [where she was charged as an
adult with possession of THC and two counts of bail
jumping]. In [that case] she entered her plea in April of
2018 and sentencing was delayed for a year to see if she
could remain law-abiding, and she couldn’t. She was
sentenced then … to two years of probation.

¶9 In addition, the circuit court expressed doubt as to the accuracy of
some of the statements Throndson made to the PSI writer. According to the court,
“it’s not credible” that Throndson “didn’t realize [her boyfriend] was using heroin
as he’s overdosing and selling and dealing drugs out of her home…. It’s just not
credible, which makes it very difficult to identify the reality of the positive things
that Ms. Throndson brings to the table.” As for her relationship with her father,
the court explained, “It’s not her dad’s fault that—that her dad doesn’t necessarily
like [Throndson’s boyfriend], and there may be many reasons why he doesn’t like
him besides the color of his skin, but that’s what Ms. Throndson focuses on, well,
my dad doesn’t like black people.”

¶10 The circuit court found Throndson untruthful, unwilling to abide by
society’s rules, and unwilling to accept responsibility for her own actions. It
stated that “we need Ms. Throndson on a different track, and I’m left to decide
what’s the best way to get there.” For the count of felony bail jumping, the court

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withheld sentence and placed Throndson on probation. For the count of
maintaining a drug trafficking place, the court explained that it “considered prison
to get her attention,” but chose not to impose a prison term because “I’m not
satisfied that we’re at that point yet.” Instead, the court determined that nine
months of confinement in jail without the possibility of immediate Huber release
“is appropriate and necessary to send the message that something needs to change
and that this track that [Throndson’s] been on cannot continue.”

¶11 Throndson filed a motion for release or stay pending appeal
asserting, among other things, that the circuit court violated her right to due
process by independently researching her record and relying on inaccurate
information in the PSI report. Among other things, Throndson argued that it was
improper for the court to review her juvenile records because that information was
not publicly available. The court rejected the argument that it was prohibited from
looking up the charges and outcomes of Throndson’s prior cases, including
juvenile cases. It nevertheless vacated the sentence and ordered resentencing to
provide the parties a chance to review the contested juvenile record and clarify any
evidentiary misunderstandings. Prior to the resentencing hearing, the parties
stipulated to the release of Throndson’s juvenile records.

¶12 At the resentencing hearing, the circuit court heard arguments about,
among other things, its consideration of Throndson’s juvenile record. Trial
counsel clarified that, of the three juvenile case numbers the circuit court had
previously identified, No. 08-JV-20 was a petition for a juvenile in need of
protective services, No. 08-JV-20A was a delinquency adjudication, and No. 08-
JV-20B was dismissed without any dispositional order. Accordingly, counsel
explained, Throndson had been adjudicated delinquent on just one occasion.
When counsel complained of errors in the PSI, the court gave counsel the

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No. 2020AP1081-CR

opportunity to go line by line through the report to identify and correct any
statements that Throndson alleged were inaccurate. Both parties again argued in
favor of the joint sentencing recommendation for probation, and counsel asked
that, if the court did impose jail, it also order Huber release so that Throndson
could maintain her employment.

¶13 The circuit court again considered the applicable sentencing factors,
this time without making explicit reference to Throndson’s juvenile record. As
before, the court relied on the PSI author’s assessment that Throndson presents
herself as a victim and takes no responsibility for her actions. When evaluating
Throndson’s personal characteristics, the court again expressed concern that she
had been dishonest with the PSI author. The court then stated, “[i]t comes out in
the PSI Ms. Throndson tries to play the race card and claims that she’s being
unfairly treated by family members and others because she chooses to date black
men.”

¶14 Ultimately, the court imposed a sentence that was nearly identical to
the one it initially ordered—nine months in jail for maintaining a drug trafficking
place, and four years of probation for felony bail jumping. This time, however,
the court made Throndson eligible for Huber release after three months of served
jail time. Throndson appeals.

DISCUSSION

¶15 On appeal, Throndson argues that the circuit court sentenced her
based on inaccurate information, and that it was not impartial as evinced by the
court’s independent investigation into her record. Both arguments implicate due
process, and our standard of review is de novo. State v. Tiepelman, 2006 WI 66,

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No. 2020AP1081-CR

¶9, 291 Wis. 2d 179, 717 N.W.2d 1 (inaccurate information); State v. Herrmann,
2015 WI 84, ¶23, 364 Wis. 2d 336, 867 N.W.2d 772 (impartial decision maker).

I. Inaccurate Information

¶16 “A defendant has a constitutionally protected due process right to be
sentenced upon accurate information.” Tiepelman, 291 Wis. 2d 179, ¶9. “A
criminal sentence based upon materially untrue information, whether caused by
carelessness or design, is inconsistent with due process of law and cannot stand.”
State v. Travis, 2013 WI 38, ¶17, 347 Wis. 2d 142, 832 N.W.2d 491. To prevail
on a claim for resentencing based on inaccurate information, a defendant must
show that the court was presented with inaccurate information at sentencing, “and
that the court actually relied on the inaccurate information” when sentencing the
defendant. Tiepelman, 291 Wis. 2d 179, ¶26.

¶17 Throndson’s argument fails at the outset because she does not
identify any inaccurate information relied on by the circuit court. She asserts that
the court “relied on the twenty-three cases [it] discovered during [its] independent
investigation” into her prior record, but she does not dispute the existence of those
cases, and she does not identify anything that the court said about them that is
inaccurate.

¶18 At best, Throndson may be arguing that, because the circuit court
identified three juvenile case numbers, the court might have inferred that she was
adjudicated delinquent on three separate occasions. There is absolutely no
indication in the record that the court made this inaccurate inference. On the
contrary, the court indicated that it reviewed court records to determine the
“charges” and “dispositions” of each of Throndson’s prior cases. Throndson gives
us no reason to doubt that these court records would have accurately reflected that,

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of the three juvenile case numbers, one was a petition for a juvenile in need of
protective services, the second was a delinquency adjudication, and the third was
dismissed without any dispositional order.

¶19 We further observe that, even if the circuit court did initially infer
that Throndson had been adjudicated delinquent on three occasions, Throndson’s
argument would fail for two additional reasons. First, the record does not reflect
that the court put any substantial emphasis on the number of times that Throndson
was adjudicated delinquent when it imposed the initial sentence. See Tiepelman,
291 Wis. 2d 179, ¶26 (a defendant must prove that the court actually relied on
inaccurate information). Second, Throndson was given the opportunity to correct
any potential misunderstanding before she was resentenced, and trial counsel did
an able job of showing that the three juvenile case numbers resulted in a single
delinquency adjudication. Accordingly, to the extent that the court initially relied
on any inaccurate inference about Throndson’s juvenile record—and it does not
appear to us that it did—any such misunderstanding was corrected before
Throndson was resentenced.

II. Impartiality

¶20 All defendants have a fundamental due process right to an impartial
judge. See State v. Marcotte, 2020 WI App 28, ¶16, 392 Wis. 2d 183, 943
N.W.2d 911. Throndson’s claim is based on objective bias,2 which occurs when
there is “a serious risk of actual bias ... based on objective and reasonable

2
A judge may also be subjectively biased. See State v. Gudgeon, 2006 WI App 143,
¶20, 295 Wis. 2d 189, 720 N.W.2d 114. Neither party makes an argument about subjective bias
and we limit our analysis to objective bias.

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No. 2020AP1081-CR

perceptions.”3 Miller v. Carroll, 2020 WI 56, ¶24, 392 Wis. 2d 49, 944 N.W.2d
542 (quoting Caperton v. A.T. Massey Coal Co., 556 U.S. 868, 884 (2009)). A
judge is presumed to act fairly and impartially, and the burden is on the defendant
to rebut this presumption by a preponderance of the evidence. Herrmann, 364
Wis. 2d 336, ¶24.

¶21 Throndson’s argument is primarily founded on her assertion that the
circuit court’s action of “conducting an independent investigation” into her record
demonstrates objective bias. Throndson also argues that the court exhibited bias
by rejecting the joint recommendation, and by its unfortunate use of the phrase
“play the race card” during sentencing. We address each argument in turn.

A. Independent Investigation

¶22 We begin by observing that, at times, Throndson’s argument about
the circuit court’s “independent investigation” appears to be limited to its review
of her juvenile record. Yet, Throndson makes no principled argument on appeal
that a court’s review of the charges and dispositions in juvenile cases is different
from the court’s review of the charges and dispositions of adult criminal cases.
And, as the State points out, our supreme court has explained that “adjudications
of delinquency, and even juvenile contacts with the court system that do not result
in adjudications of delinquency,” can be “considered by sentencing judges in adult
criminal proceedings.” State v. Hezzie R., 219 Wis. 2d 848, 882, 580 N.W.2d 660
(1998). As we understand it, the reason for Throndson’s specific focus on her

3
Although both parties use the phrase “appearance of bias” when discussing objective
bias, in our analysis, we use the standard that was articulated most recently by our supreme court.
See Miller v. Carroll, 2020 WI 56, ¶24 & ¶25 n.18, 392 Wis. 2d 49, 944 N.W.2d 542.

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No. 2020AP1081-CR

juvenile record is her mistaken belief that all of the twenty-three case numbers
related to her juvenile record. See supra, n.1. Accordingly, we address the court’s
“independent investigation” into all twenty-three cases, not just the juvenile cases.

¶23 Throndson cites SCR 60.04(1)(g) to support her argument that the
circuit court’s “independent investigation” demonstrates objective bias. That
provision of the Wisconsin judicial code provides that, with certain exceptions,
“[a] judge may not initiate, permit, engage in or consider ex parte communications
concerning a pending or impending action or proceeding.” SCR 60.04(1)(g). The
comments to this Rule state that “[a] judge must not independently investigate
facts in a case and must consider only the evidence presented.” SCR 60.04(1)(g)
(cmt.). The thrust of Throndson’s argument is that the court demonstrated its bias
by “function[ing] as a prosecutor” when it searched for this information, and that
the court’s consideration should have been limited to information that was
provided by the parties (or perhaps in the court-ordered PSI).4

¶24 It is not entirely clear from our case law the extent to which the
judicial code’s prohibition against independent investigation applies during
sentencing. On the one hand, Wisconsin courts appear to give circuit courts broad
license to inquire into matters relevant to sentencing. See, e.g., Handel v. State,

4
The purpose of the Wisconsin judicial code is to provide rules for judges, and
violations of these rules might result in disciplinary proceedings. See, e.g., SCR 60 Preamble. To
the extent that a judge’s actions in a particular case violate the judicial code, that fact may not be
dispositive of whether any litigant in the underlying case is entitled to relief. Cf. State v. Cooper,
2019 WI 73, ¶22, 387 Wis. 2d 439, 929 N.W.2d 192 (explaining that the fact that a lawyer
violated Supreme Court Rules when representing a client did not mean, ipso facto, that the client
was entitled to relief in his underlying case). The parties do not discuss the relationship between
a violation of the judicial code and a claimant’s right to due process in their appellate briefs. The
touchstone of our inquiry remains on principles of due process—that is, whether the circuit
court’s actions resulted in a violation of Throndson’s due process right to an impartial judge.

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74 Wis. 2d 699, 703, 247 N.W.2d 711 (1976) (“in sentencing, a trial judge may
appropriately conduct an inquiry broad in scope and largely unlimited either as to
the kind of information considered or the source from which it comes”).
Wisconsin courts have explained that, subject to limitations not applicable here,
sentencing courts should be in “possession of the fullest information possible
concerning the defendant’s life and characteristics,” State v. Knapp, 111 Wis. 2d
380, 385, 330 N.W.2d 242 (Ct. App. 1983), and that it is against public policy for
the prosecutor and the defendant to make an agreement to conceal or withhold
relevant information from the sentencing court, State v. McQuay, 154 Wis. 2d
116, 127-28, 452 N.W.2d 377 (1990).

¶25 On the other hand, other cases have imposed limits on the scope of
independent investigation that a circuit court may conduct for sentencing
purposes. The underlying facts of In re Piontek, 2019 WI 51, 386 Wis. 2d 703,
927 N.W.2d 552 and State v. Enriquez, No. 2015AP1850-CR unpublished op. and
order (Wis. Ct. App. July 27, 2016) are instructive. In those related matters, the
sentencing judge conducted internet research to determine the status of the
defendant’s out-of-state nursing licenses because he believed that the defendant
had been untruthful to the author of her PSI. Piontek, 386 Wis. 2d 703, ¶16. In so
doing, the judge uncovered what he believed to be incriminating information. Id.
Then, without notifying the parties or providing any opportunity to respond, the
judge used the information he uncovered, which turned out to be inaccurate, for
sentencing purposes. Id., ¶¶17-18. In the judicial disciplinary case that followed,
it was determined that the judge’s independent internet investigation violated
SCR 60.04(1)(g). Id., ¶22. And, in the underlying criminal case in which the
Piontek judge conducted the independent investigation, we determined that the

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No. 2020AP1081-CR

defendant was entitled to resentencing because her sentence had been imposed
based on inaccurate information. Enriquez, No. 2015AP1850-CR, ¶1.

¶26 Due to the limited nature of the circuit court’s inquiry in this case,
we need not consider the outer limits of permissible “independent investigation”
during sentencing. Here, the court accessed its own records, and the review was
limited to the “charges” and “dispositions” of Throndson’s twenty-three prior
cases. As for the juvenile cases that were the specific subject of Throndson’s
challenge, the court explained, “[m]y reliance on the juvenile record was merely
that she has been found delinquent as a juvenile and continues then to engage in
criminal conduct as an adult right up until however old she was when she was
charged with this offense,” and that “whatever help we were trying to accomplish
through the juvenile court didn’t stick.” The court further clarified, “I didn’t go
back and pour through the juvenile record [to inquire into disputed facts or the
nature of the juvenile offenses]. That wasn’t it at all.”

¶27 We have no doubt that the circuit court did not violate Throndson’s
due process rights by conducting this limited review of court records to determine
the charges and dispositions of her prior cases. As our supreme court recently
explained in a slightly different context, a sentencing court may access records in
the “institutional memory” of the court system so that the court does not “exercise
... its discretion in a vacuum.” State v. Counihan, 2020 WI 12, ¶48, 390 Wis. 2d
172, 938 N.W.2d 530. Throndson does not cite to Counihan, much less argue that
there is any meaningful difference between the court records that were consulted
here and the court records that the sentencing court consulted in that case. And
Throndson has not cited any other authority supporting the proposition that, under
these circumstances, a court violates due process by considering its records of the

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charges and dispositions that resulted from the defendant’s prior contacts with the
justice system, including the juvenile justice system, before imposing a sentence.

¶28 Importantly, the circuit court informed the parties of what it had
uncovered and provided ample opportunity for them to respond to that
information. Then, when trial counsel requested an adjournment, the court granted
that motion, meaning that counsel had every opportunity to investigate and rebut
the limited information that the court uncovered. As the court aptly explained,
“defendants, including Ms. Throndson, have the right to know what [it] is
considering,” and a court “cannot sandbag a defendant with information that [it]
found … and then proceed to sentencing without giving the defendant the
opportunity to explore that and perhaps refute or provide more accurate
information.” We agree, and we encourage other courts to be as transparent when
considering information found in court records for sentencing purposes.

¶29 For all these reasons, we conclude that the circuit court’s limited
review of court records to identify the charges and dispositions of Throndson’s
prior cases does not demonstrate objective bias.

B. Sentence imposed

¶30 Throndson next argues that the circuit court evinced its bias when it
imposed a jail sentence rather than a sentence consistent with the parties’ joint
recommendation. This argument is unfounded. As we have explained, sentencing
recommendations “are nothing more than recommendations which the court is free
to reject.” State v. Bizzle, 222 Wis. 2d 100, 105 n.2, 585 N.W.2d 899 (Ct. App.
1998). Indeed, “sentencing court[s] always ha[ve] an independent duty to look
beyond the recommendations and to consider all relevant sentencing factors.”
State v. Smith, 207 Wis. 2d 258, 281, 558 N.W.2d 379 (1997). Here, the court

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explained its reasons for deviating from the joint recommendation, and those
reasons are consistent with our supreme court’s guidance on the appropriate
sentencing factors and considerations. See State v. Gallion, 2004 WI 42, ¶76-77,
270 Wis. 2d 535, 678 N.W.2d 197. We conclude that the court’s deviation from
the joint recommendation is a proper exercise of its sentencing discretion and not
an indication of bias.

C. “Playing the race card”

¶31 Finally, Throndson argues that the circuit court “showed its bias” by
stating that Throndson was “play[ing] the race card” and “claim[ing] that she’s
being unfairly treated by family members and others.” To the extent that
Throndson contends that the use of the phrase “playing the race card” is inartful
and counterproductive, we agree. This phrase is a figure of speech that has often
been used to express a speaker’s disbelief in the existence of racial bias and
rejection of the idea that individuals may receive disparate treatment on account of
race. We caution judges to avoid using this phrase because, among other things, it
is likely to be counterproductive to the goals of sentencing. One of the primary
goals of sentencing is for the court “to explain the reasons for the particular
sentence they impose.” Gallion, 270 Wis. 2d 535, ¶39. Yet, after being accused
of “playing the race card,” a defendant may be more likely to disregard any
otherwise constructive message that the court attempts to convey.

¶32 At the same time, however, we do not conclude that the circuit
court’s comment evinces objective bias in this case. It is evident from the
sentencing transcripts that the court was attempting to convey the message that the
time had come for Throndson to proactively take responsibility for her own
actions, rather than casting aspersions elsewhere. While inartful, this isolated

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No. 2020AP1081-CR

comment about “playing the race card” does not undermine our confidence in the
court’s impartiality.5

¶33 In sum, we conclude that Throndson has not rebutted the
presumption that the circuit court acted fairly and impartially during sentencing.
See Herrmann, 364 Wis. 2d 336, ¶24.

CONCLUSION

¶34 For all the above reasons, we conclude that Throndson has not met
her burden to prove that the circuit court relied on inaccurate information or
exhibited objective bias during sentencing. Accordingly, we affirm.

By the Court.—Judgment affirmed.

Not recommended for publication in the official reports.

5
To the extent that Throndson advances any other argument on appeal that we have not
specifically addressed, we reject it as undeveloped. State v. Pettit, 171 Wis. 2d 627, 646-47, 492
N.W.2d 633 (Ct. App. 1992) (appellate courts need not consider inadequately developed
arguments).

16