State v. Michael J. Leighton

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.
December 29, 2022
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. 2021AP945-CR Cir. Ct. No. 2019CF206

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT III

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

MICHAEL J. LEIGHTON,

DEFENDANT-APPELLANT.

APPEAL from a judgment and an order of the circuit court for
Outagamie County: MARK J. McGINNIS, Judge. Affirmed.

Before Stark, P.J., Hruz and Gill, 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).

¶1 PER CURIAM. Michael Leighton appeals from a judgment
convicting him of two felonies and one misdemeanor, and from an order denying
No. 2021AP945-CR

his motion for resentencing or sentence modification. He contends that the circuit
court relied upon an improper sentencing factor and that his sentences were unduly
harsh. We reject both contentions and affirm.

BACKGROUND

¶2 The State charged Leighton with two counts of identity theft, one
count of fraudulent use of a credit card, two counts of theft, and one count of entry
into a locked vehicle, all as a repeat offender. The complaint alleged that Leighton
took the victim’s car key fob out of the victim’s gym locker, used the fob to enter
the victim’s car, took the victim’s credit and debit cards from a wallet left in the
car, and then used both cards. Leighton eventually entered no-contest pleas to the
charges of identity theft and fraudulent use of a credit card. In exchange for the
pleas, other counts were dismissed and read in.

¶3 The Department of Corrections submitted a presentence
investigation report (PSI), and the defense submitted an alternative PSI. At the
sentencing hearing, the circuit court quoted a passage from the alternative PSI
stating that Leighton “understands he needs to address his substance abuse issues
in an honest manner.” The court then asked Leighton a series of questions “to
assess [his] ability to be honest” about himself.

¶4 The circuit court first asked Leighton what his substance abuse
issues were. Leighton answered “mostly pill abuse,” saying he took pills
“occasionally to just feel better, have a little fun.” Upon further prompting,
Leighton acknowledged that he also abused marijuana and alcohol, and that he
was a drug addict. Based upon Leighton’s responses, the court expressed concern
that Leighton still was not capable of being honest about his substance abuse.
Addressing the court’s concern later in the hearing, Leighton stated:

2
No. 2021AP945-CR

This whole thing, honest with myself, is new to me. So
that’s why I didn’t come across very well talking about
drug abuse addiction. It’s—I don’t want to see myself as
an addict, so it’s hard to say I am an addict. It’s hard to
accept those things when you’re 51 years old.

¶5 The circuit court next asked Leighton how many times he had been
convicted of a crime as an adult. Leighton answered “five to ten,” when the actual
number was twenty-five. After the court pointed out how far off he was in his
answer, Leighton said he did not understand that the court was asking about
individual charges because many of his convictions were consolidated in the same
cases.

¶6 The circuit court then asked Leighton to explain why he had
committed so many crimes and spent so much of his adult life in prison. Leighton
responded:

Originally, your Honor, it was—it didn’t seem real. I had
some credit cards that weren’t mine. I used them. It was
easy money. It became a felony. After that, I couldn’t get
a job. So I would use that and use that, use that. And that’s
the hole I’m talking about. I did it to myself after I was 21
or so. And, unfortunately, sometimes I go back to my old
ways and that’s why we’re sitting here today.

The court said Leighton’s explanation that he “used something that I thought was
mine” was “bogus” and that it “really isn’t your old ways. It’s what your way has
always been.” Leighton told the court that it had misheard him—i.e., that he had
said he used credit cards that were not his.

¶7 The circuit court next asked Leighton about a claim that he been
using the money he stole to support two families. Leighton said that he provided
money to one woman with whom he had a previous relationship to help her with
rent, but he later came to believe that she was using the money for drugs. The

3
No. 2021AP945-CR

court interrupted Leighton, stating its disbelief that Leighton did not know he was
supporting the woman’s drug habit.

¶8 Finally, the circuit court asked Leighton for the victim’s name, in
order to assess “how sorry you really are.” Leighton was not able to name the
victim.

¶9 The circuit court proceeded to discuss the multiple opportunities
Leighton had forgone to mature out of his criminal lifestyle. The court noted that
it had engaged in the colloquy with Leighton to “obtain an understanding about
the comments [he] made in the [PSIs] and address whether or not [he had] made
changes” or was simply saying what he thought the court wanted to hear. The
court concluded:

And as I sit here today and I listened to you for the last 20
minutes, it’s clear that your character is very low. You are
someone who is manipulative, is self-serving and truly
lacks any understanding of the bad things that you have
continued to impose on communities throughout the State
of Wisconsin.

You tell the alternative writer you finally are going to be
honest with your drug abuse and substance abuse issues. I
doubt it. You tell us today it was just an occasional thing,
an occasional treat. You tell us today that you have been
convicted of five or ten offenses and—but you were
confused on the way I asked it. We know that your
convictions, you’ve been convicted of 25 different crimes.
You’ve only been in the community 15 years, according to
you. And we also know that a whole multitude of other
criminal offenses have been dismissed and read in over the
years.

Each time you get released from prison, Mr. Leighton, you
go back to and resort to the same criminal behavior.
Whether it’s been classified as theft, burglary,
misappropriating ID, forgery, fraud, those are all the names
of your convictions over the years. But it’s you stealing
from innocent people and benefiting yourself to support

4
No. 2021AP945-CR

your addictions, to support your lifestyle without any
degree of remorse or interest in changing.

I truly hope, Mr. Leighton, that you are sincere that you
want the change. I really do for your benefit and for
everybody’s benefit. We’re only going to be better if you
quit committing criminal offenses. But at the end of the
day, I don’t think it’s going to happen just based upon your
character. I think you’re a high risk to reoffend. I think
you have so many positive traits and possibilities. And
over the last 30 years, like we’ve talked about, you just
have refused to take the positive route of hard work and
working your way up and earning the things that you’re
going to get as opposed to ripping people off.

So for those reasons, I believe that a prison sentence is
appropriate. I understand that your extended supervision
was revoked and you’re serving a sentence on that. I also
understand that you received a prison sentence from the
Walworth County case. Those are bad things for you. But
that’s because you were convicted of serious crimes and
you’re out on supervision. You were given an opportunity
to live in the community and you continued to engage in
very serious criminal conduct.

The question on whether or not to make this sentence
concurrent or consecutive to those sentences is really easy.
It’s going to be consecutive. And the reason for it, Mr.
Leighton, is because these are separate crimes. And like
[the prosecutor] said in one of her first sentences, you are
and have been for the last 30-plus years a career criminal.
And with career criminals, I don’t see any benefit to give
them a discount because they commit more offenses in
more counties. It doesn’t serve any of the purposes of what
we’re trying to accomplish when we sentence somebody.

¶10 The circuit court then sentenced Leighton to two years’ initial
confinement followed by three years’ extended supervision on each of the identity
theft counts and nine months on the credit card count, to be served concurrently to
one another but served consecutively to previously imposed sentences. The court
also imposed restitution in the amount stipulated by the parties, and it ordered that
Leighton would not be eligible for the Challenge Incarceration Program or
Substance Abuse Program.

5
No. 2021AP945-CR

¶11 Leighton filed a motion for resentencing, alleging that the circuit
court had sentenced him based upon several misunderstandings related to his
truthfulness. A hearing on the motion was held. In defending its assessment that
Leighton was manipulative and a liar, the court noted that it had observed
Leighton’s body language, demeanor, timing, tone and attitude at the sentencing
hearing. The court pointed out that the PSI author, who also observed Leighton’s
demeanor, similarly concluded that “while [Leighton] voiced that he was sorry for
his actions and the impact they had on the victims involved, his claims seemed
rehearsed and superficial” and that “he has clearly learned nothing from his past
mistakes.” Additionally, the court observed that it would have imposed the same
sentences based upon Leighton’s history as a career criminal, even if it had not
deemed him to be a liar. The court then denied the postconviction motion, and
Leighton now appeals.

DISCUSSION

¶12 Leighton first contends that the circuit court relied on the improper
factor that he was “lying” when he addressed the court at sentencing. An
improper sentencing factor is one that is “totally irrelevant or immaterial to the
type of decision to be made.” Elias v. State, 93 Wis. 2d 278, 282, 286 N.W.2d
559 (1980). For instance, race and gender may play no part in sentencing. State v.
Harris, 2010 WI 79, ¶3, 326 Wis. 2d 685, 786 N.W.2d 409. A defendant’s
character, however, is one of the most basic factors that a circuit court is supposed
to consider when fashioning a sentence. See generally State v. Gallion, 2004 WI
42, ¶¶39-46, 270 Wis. 2d 535, 678 N.W.2d 197. Leighton cites no authority that
would suggest a court cannot consider a defendant’s truthfulness as a proper
sentencing factor related to character. Rather, Leighton argues it was not true that

6
No. 2021AP945-CR

he was a liar—not that it would be irrelevant if he were a liar. Leighton thus
appears to be seeking resentencing based upon “inaccurate information.”

¶13 “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. If a defendant can establish by clear and convincing
evidence both that inaccurate information was presented at sentencing and that the
court relied upon the misinformation in reaching its determination, the burden
shifts to the State to show that the error was harmless. Id., ¶26. This court will
independently review a due process claim that a defendant has been sentenced
based upon inaccurate information. Id., ¶9. However, we will generally defer to
any credibility determination or factual findings underlying the circuit court’s
decision on a constitutional issue. Johnson v. Merta, 95 Wis. 2d 141, 151-52, 289
N.W.2d 813 (1980). Moreover, we do not deem information to be inaccurate
merely because it was contested. Rather, the defendant must demonstrate the
information was “extensively and materially false.” State v. Travis, 2013 WI 38,
¶18, 347 Wis. 2d 142, 832 N.W.2d 491.

¶14 Here, Leighton points to what he characterizes as three
“misunderstandings” by the circuit court. However, he has not established that the
alleged misunderstandings constituted extensively and materially false information
or that the court relied upon them. First, Leighton asserts that the court
erroneously determined that he was lying about the number of his prior
convictions. Nonetheless, Leighton clarified that he had misunderstood the court’s
question, and the court expressly acknowledged that clarification later in its
discussion. Second, Leighton asserts that the court erroneously believed Leighton
said he used credit cards he thought were his, when Leighton actually said he used
cards that were not his. Again, however, Leighton clarified his statement before

7
No. 2021AP945-CR

the court pronounced sentence, and the court did not repeat the mistake when
discussing why it was imposing the sentences it did. Third, Leighton asserts the
court erroneously determined that he was lying about knowing that a former
girlfriend was spending the stolen money he gave her on drugs. He has not,
however, presented any affidavit from the girlfriend or other evidence that would
objectively support his claim of ignorance. Ultimately, the court’s decision
whether to believe Leighton was merely a credibility determination, which we will
not set aside.

¶15 Moreover, Leighton ignores the context in which the circuit court
made its comments. The alleged misunderstandings were part of a twenty-minute
colloquy during which the court had ample time to observe Leighton’s demeanor
and consider the forthrightness of his answers. The court’s impression that
Leighton was lying and manipulative was based not upon a single statement
Leighton made, but upon the contrast between his extensive criminal history and
his hollow claims to have changed, while still minimizing his behavior.

¶16 Leighton next contends that his sentences were unduly harsh because
the circuit court imposed punishment “consecutively to a sentence already given
for the same actions” in violation of his double jeopardy rights, which also
resulted in the loss of previously granted eligibility for earned release programs.
Leighton’s argument combines two claims under the umbrella of a single issue.

¶17 A sentence may be considered unduly harsh or unconscionable only
when it 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.
Grindemann, 2002 WI App 106, ¶31, 255 Wis. 2d 632, 648 N.W.2d 507 (citation

8
No. 2021AP945-CR

omitted). There is a presumption that a sentence “well within the limits of the
maximum sentence” is not unduly harsh. Id., ¶¶31-32. The two years of initial
confinement and three years of extended supervision imposed here were well
within the twenty-two years of total imprisonment that the circuit court could have
imposed. Even taking into account that the sentences were imposed consecutively
to a prior revocation sentence and resulted in Leighton’s loss of eligibility for an
earned release program, the sentences were not excessive given Leighton’s
extensive criminal history.

¶18 Furthermore, the Double Jeopardy Clause protects against multiple
punishments for the same offense. See U.S. CONST. amend. V; State v. Kurzawa,
180 Wis. 2d 502, 515, 509 N.W.2d 712 (1994). Leighton’s prior revocation
sentence punished him for that conviction, not for the offenses at issue in this case.
See State ex rel. Flowers v. DHSS, 81 Wis. 2d 376, 386, 260 N.W.2d 727 (1978).
There was no double jeopardy violation here.

By the Court.—Judgment and order affirmed.

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

9