State v. Fredrick Joseph Baier

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 28, 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. 2020AP398-CR Cir. Ct. No. 2016CF628

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT II

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

FREDRICK JOSEPH BAIER,

DEFENDANT-APPELLANT.

APPEAL from a judgment and an order of the circuit court for
Winnebago County: THOMAS J. GRITTON AND TERESA S. BASILIERE,
Judges. Affirmed.

Before Neubauer, C.J., Gundrum and Davis, 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. 2020AP398-CR

¶1 PER CURIAM. Fredrick Joseph Baier appeals from a judgment of
conviction for one count of causing a child between the ages of thirteen and
eighteen to view sexual activity and one count of sexual assault of a student by a
school staff member. See WIS. STAT. §§ 948.055(1), (2)(b) and 948.095(2) (2015-
16).1 Baier also appeals from an order denying his postconviction motion. 2 Baier
argues that he is entitled to resentencing because the circuit court’s sentencing
remarks demonstrated that it was objectively biased and because the circuit court
relied on inaccurate information at sentencing. We reject his arguments and
affirm.

BACKGROUND

¶2 The criminal complaint alleged that Baier, a twenty-three-year-old
high school soccer coach, sent a picture of his erect penis to a fourteen-year-old
student and had oral and vaginal sexual intercourse, by use of force, with a
sixteen-year-old student at an underage drinking party. Baier entered into a plea
agreement with the State pursuant to which he pled no contest to causing a child
over the age of thirteen to view sexual activity and sexual assault of a student by
school staff, while a third charge, second-degree sexual assault, was dismissed
outright. The State agreed to recommend consecutive sentences totaling four
years of initial confinement and four years of extended supervision.

1
All references to the Wisconsin Statutes are to the 2019-20 version unless otherwise
noted.

The Honorable Thomas J. Gritton accepted Baier’s pleas and sentenced him. The
2

Honorable Teresa S. Basiliere denied Baier’s postconviction motion.

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No. 2020AP398-CR

¶3 The circuit court accepted Baier’s no contest pleas and found him
guilty. It also ordered a presentence investigation (PSI) report.

¶4 At the sentencing hearing, both parties told the circuit court that they
had no corrections or changes to the PSI report. The circuit court then heard from
the mother, father and a friend of the sexual assault victim3 and read a statement
written by the victim herself. Consistent with the plea agreement, the State urged
the circuit court to impose consecutive sentences totaling four years of initial
confinement and four years of extended supervision.

¶5 Trial counsel argued that instead of imposing a prison sentence, the
circuit court should place Baier on probation and impose conditional jail time.
Trial counsel emphasized that Baier had the support of his parents, sibling, friends,
and community members, many of whom submitted character letters on Baier’s
behalf. The circuit court said that it had read all of the letters.

¶6 Trial counsel said that Baier had accepted responsibility for his
actions by entering the plea agreement, eliminating the need for the victims to
testify at a trial. Trial counsel said that Baier had no adult criminal history. She
acknowledged that Baier had “two referrals in his juvenile history,” but she noted
that one was deferred and one did not result in charges.

¶7 Baier chose to exercise his right of allocution. His remarks included
the following:

I’m beyond sorry for what my actions have caused, all
the pain, stress, and the worry that I have caused not only

3
Trial counsel indicated she did not object to allowing the victim’s friend to speak at the
sentencing.

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No. 2020AP398-CR

the victims but their families. And I never meant for this to
occur and I wish in my heart that I could take it all back.

I realize how much of a negative impact I have caused
within the community and the lives of everyone involved.
There hasn’t been a day that has passed that I haven’t
thought about what I have done and how embarrassed I feel
that I have not only disappointed myself, my family, the
victims, their family, as well as my peers within the
community.

¶8 After Baier’s allocution, the circuit court took a short recess and then
returned to pronounce sentence. It began by referring to a “breakdown of our
criminal justice system in regards to Mr. Baier.” It discussed the juvenile referrals
involving Baier that were outlined in the PSI report and apologized to the sexual
assault victim “because the court system let you down.” The circuit court
indicated that if Baier had been held responsible for those juvenile acts, he would
not have been allowed to be a soccer coach.

¶9 The circuit court said that it was surprised by statements Baier made
to the PSI writer. For instance, Baier told the writer that he did not remember
sending the fourteen-year-old victim a picture of his erect penis and may have
done so by mistake, but he did remember receiving a sexual message from the
teen. Baier also told the PSI writer that he could not remember if he spoke with or
kissed the sixteen-year-old victim at the underage party, but he was sure he did not
have sexual intercourse with her. The circuit court said that was “astounding.”
The circuit court also criticized Baier’s decision to attend a high school drinking
party as an adult coach.

¶10 The circuit court asked Baier about his post-concussion syndrome
and which doctor was treating him. The circuit court questioned Baier’s claim that
he does not remember the crimes but added that if he does not remember them,
“that means that you are incredibly dangerous.”

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No. 2020AP398-CR

¶11 The circuit court also expressed dismay that Baier told the PSI writer
that he had not been treated fairly in the criminal justice system. The circuit court
said that Baier had “gotten every single break,” including a favorable plea
agreement that dismissed the most serious felony charge against him. The circuit
court imposed the maximum sentence on each count: three years of initial
confinement and three years of extended supervision. It ordered that the sentences
be served consecutively.

¶12 Baier filed a postconviction motion seeking resentencing on grounds
that the circuit court’s sentencing remarks indicated objective judicial bias and that
the circuit court relied on inaccurate information.4 The motion was considered
and denied by a different judge due to the sentencing judge’s retirement. This
appeal follows.

DISCUSSION

¶13 On appeal, Baier presents the same two arguments for resentencing.
We consider each in turn.

I. Judicial bias.

¶14 A defendant’s due process rights are violated if a sentencing court is
subjectively or objectively biased. See State v. Gudgeon, 2006 WI App 143, ¶20,
295 Wis. 2d 189, 720 N.W.2d 114. Where, as here, a defendant claims objective
bias, the issue is “whether a reasonable person could question the judge’s

4
In the alternative, Baier sought sentence modification based on a new factor: a post-
sentencing doctor’s report indicating that Baier has cognitive deficits that “affect his brain
functioning, information recall, and interpersonal skills.” On appeal, Baier has explicitly
abandoned that issue so we will not discuss it.

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No. 2020AP398-CR

impartiality.” See id., ¶21. “[T]he appearance of partiality” can constitute
objective bias. See id.; see also State v. Herrmann, 2015 WI 84, ¶30, 364 Wis. 2d
336, 867 N.W.2d 772 (recognizing that “the right to an impartial decisionmaker
stretches beyond the absence of actual bias to encompass the appearance of bias as
well”).

¶15 A circuit court’s partiality is a matter of law reviewed independently
by this court. State v. Goodson, 2009 WI App 107, ¶7, 320 Wis. 2d 166, 771
N.W.2d 385. When analyzing a claim of judicial bias, we “presume that the judge
was fair, impartial, and capable of ignoring any biasing influences.” Gudgeon,
295 Wis. 2d 189, ¶20. The burden is “on the party asserting bias to show that bias
by a preponderance of the evidence.” Herrmann, 364 Wis. 2d 336, ¶24.

¶16 Baier argues that two aspects of the circuit court’s sentencing
remarks demonstrated an appearance of bias. First, he argues that the circuit
court’s references to the PSI report “indicate that it had prejudged the case and had
made up its mind to sentence Mr. Baier to the maximum before the sentencing
hearing began.” He contends that the circuit court’s apology to the victim about
what it learned in the PSI report and its numerous references to that report suggest
“a serious risk that it had made up its mind about sentencing after reading the PSI
but before the sentencing hearing.”

¶17 We are not persuaded. Circuit courts are expected to read materials
such as the PSI report in preparation for sentencing, and in this case the circuit
court read not only the PSI report but also the letters submitted in support of Baier.
While the court’s sentencing comments indicate that it carefully reviewed the PSI
report, we disagree that the circuit court’s analysis—including its assessments
about Baier’s acceptance of responsibility—suggest that the circuit court made up

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No. 2020AP398-CR

its mind prior to the sentencing hearing. The circuit court was free to consider and
assess Baier’s credibility and the discrepancies between Baier’s statements to the
PSI writer and to the circuit court. Having done so, it was within the circuit
court’s discretion to find that maximum consecutive sentences were appropriate.

¶18 Baier’s second argument with respect to the appearance of bias is
that the circuit court’s “remarks indicate that it was so personally offended by the
information it read in the PSI as to cast doubt on its ability to remain impartial.”
Again, we are not persuaded. The PSI report discussed serious sexual assault
allegations against Baier made by multiple individuals. The circuit court
examined those allegations and Baier’s statements to the PSI writer, including
Baier’s expression of curiosity about why it took the sexual assault victim “so long
to report the sexual assault.” It was the circuit court’s responsibility to read and
assess the information in the PSI report. The fact that the circuit court was
disturbed by the information does not mean that it could not remain impartial and
listen to the arguments of counsel and the statements offered at the sentencing
hearing. Indeed, the circuit court’s questions before pronouncing sentence suggest
it continued to evaluate information throughout the hearing.

¶19 For the foregoing reasons, we conclude, like the postconviction
court, that Baier has not shown, by a preponderance of the evidence, that the
circuit court was objectively biased. See Herrmann, 364 Wis. 2d 336, ¶24.

II. Inaccurate information claim.

¶20 “A defendant has a constitutionally protected 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. “Whether a defendant has been denied this due
process right is a constitutional issue that an appellate court reviews de novo.” Id.

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No. 2020AP398-CR

Tiepelman outlined the standards applied when a defendant seeks resentencing
based on the circuit court’s reliance on allegedly inaccurate information:

A defendant who requests resentencing due to the circuit
court’s use of inaccurate information at the sentencing
hearing must show both that the information was inaccurate
and that the court actually relied on the inaccurate
information in the sentencing. Once actual reliance on
inaccurate information is shown, the burden then shifts to
the state to prove the error was harmless.

Id., ¶26 (citations and internal quotation marks omitted).

¶21 Although Baier did not raise concerns with the PSI report at the
sentencing hearing, he argued in his postconviction motion that certain
information in the PSI was inaccurate and that the circuit court relied on that
inaccurate information. We are not convinced.

¶22 First, Baier argues that the PSI writer’s assessment that he was at
high risk to reoffend was inaccurate. He faults the PSI writer for considering the
COMPAS report, arguing that “COMPAS is not accurate at predicting sexual
recidivism risk.” He also asserts that the PSI writer miscalculated Baier’s raw
score on the Static-99R test to be seven, which led her to conclude that Baier was
well above the average risk to reoffend. Baier notes that when he was
subsequently examined by two different examiners after he went to prison, they
concluded that his Static-99R test score should be five, which would lower his risk
by one level.

¶23 Like the postconviction court, we are not persuaded that Baier has
proven that the Static-99R test information in the PSI was inaccurate. The fact
that different test administrators arrived at different scores upon completing the
test at different times does not establish clear and convincing proof that the earliest

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No. 2020AP398-CR

test score was inaccurate. Baier did not demonstrate how the PSI writer
miscalculated the score. Indeed, at the postconviction hearing on Baier’s motion,
postconviction counsel could only speculate that “the PSI writer somehow added
numbers … that were not appropriate.”

¶24 Moreover, we are not persuaded that the circuit court actually relied
on the Static-99R test score or the COMPAS assessment in sentencing Baier. It
mentioned the Static-99R test score only after imposing the maximum sentences,
as it was starting to outline the conditions of extended supervision while looking at
the PSI report. The circuit court said: “[B]y the way, as I go past here, the Static-
99R indicates that you are well above average risk to reoffend. I wasn’t surprised
at that at all based on what I read in this report. I think that’s a very true
situation.” This comment indicates that the circuit court did not rely on the Static-
99R test result when it imposed the sentences and that it believed the Static-99R
score confirmed what it had already concluded based on the other information in
the report, including the details about the juvenile referrals. With respect to the
COMPAS assessment, the circuit court did not even mention that assessment in its
sentencing remarks. We conclude that Baier has not shown that the circuit court
“actually relied” on the information that he is challenging. See id.

¶25 Next, Baier argues that the PSI writer “misrepresented Mr. Baier’s
cognitive disabilities in the PSI, leading the court to erroneously conclude that
Mr. Baier was feigning his diagnosis of post-concussi[on] syndrome and resulting
memory difficulties.” Baier points to a medical evaluation completed after
sentencing where a doctor found that Baier had cognitive deficits that “impact
memory storage and aspects of memory recall.”

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No. 2020AP398-CR

¶26 In response, the State points out that the PSI writer “never claimed
that Baier did not suffer from post-concussi[on] syndrome.” Instead, the PSI
writer “questioned whether Baier truly took responsibility for his crimes given that
he claimed a lack of memory for his most culpable actions.” The State also
emphasizes that there was good cause to question Baier’s claims about his
memory, given that he told the PSI writer that he did not remember the underage
drinking party but later told prison officials that he remembers going to the party
“to clean up a spill” and having consensual oral sex with the victim.

¶27 We are not persuaded that the circuit court relied on inaccurate
information. See id. The circuit court did not reject Baier’s claim that he suffered
from post-concussion syndrome or find that he was feigning memory problems.
While it questioned Baier’s claim that he had no memory of certain events, the
circuit court acknowledged Baier may not remember them, stating: “You know
what that means to me, that means that you are incredibly dangerous because if
you can’t remember these events, that’s scary.”

¶28 Because Baier did not demonstrate that the circuit court “actually
relied” on inaccurate information concerning Baier’s cognitive disabilities, Baier
is not entitled to resentencing. See id.

By the Court.—Judgment and order affirmed.

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

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