State v. Bernard M. Jackson

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 24, 2023
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. 2021AP1544-CR Cir. Ct. No. 2020CF2836

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT I

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

BERNARD M. JACKSON,

DEFENDANT-APPELLANT.

APPEAL from a judgment and orders of the circuit court for
Milwaukee County: MICHELLE ACKERMAN HAVAS, Judge. Affirmed.

Before Donald, P.J., Dugan and White, 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. 2021AP1544-CR

¶1 PER CURIAM. Bernard M. Jackson appeals from a judgment of
conviction, entered upon his guilty plea, convicting him of third-degree sexual
assault. Jackson also appeals an order denying his postconviction motion for relief
and an order denying his motion to reconsider. Jackson contends that the circuit
court sentenced him based on inaccurate information, and the circuit court failed
to consider the relevant sentencing factors. For the reasons discussed below, we
reject Jackson’s arguments, and therefore affirm.

BACKGROUND

¶2 According to the criminal complaint, D.M.B. stated that on
August 16, 2020, she woke up to Jackson, her friend’s boyfriend, on top of her.
Jackson pulled her pants and underwear down. She tried to push Jackson off of
her, but he penetrated her vagina with his penis. Subsequently, she was able to
push Jackson off her and she ran out of the residence.

¶3 Jackson told police that he saw D.M.B. lying in the middle of the
couch asleep. He approached her, rolled her onto her back, and pulled her pants
down. He then opened her legs and put his penis into her vagina. Jackson stated
that he “did three or four humps,” meaning that his penis penetrated D.M.B.’s
vagina three or four times. He stated that while penetrating D.M.B.’s vagina, she
woke up and said, “Ok, stop.” When asked why he thought that D.M.B. asked
him to stop, Jackson replied, “she did not want to have sex with me.”

¶4 Jackson was charged with one count of second-degree sexual
assault. Subsequently, pursuant to a plea agreement, Jackson entered a plea to an
amended charge of third-degree sexual assault. One count of false imprisonment
was dismissed and read-in.

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No. 2021AP1544-CR

¶5 At sentencing, the State recommended the maximum prison sentence
of five years of initial confinement and five years of extended supervision. The
defense requested an imposed, but stayed, prison sentence and that Jackson be
placed on probation with “substantial jail time.” In support of the
recommendation, the defense submitted a sentencing memorandum and multiple
character letters written on Jackson’s behalf. The circuit court sentenced Jackson
to four years of initial confinement and four years of extended supervision.

¶6 Jackson filed a postconviction motion alleging that he was sentenced
based on inaccurate information. Jackson also contended that the circuit court did
not sufficiently explain its sentence or why it rejected probation. The circuit court
denied the motion. Subsequently, Jackson filed a motion for reconsideration,
which the circuit court again denied. This appeal follows. Additional relevant
facts are discussed below.

DISCUSSION

¶7 On appeal, Jackson contends that the circuit court sentenced him
based on inaccurate information, and the circuit court failed to consider the
relevant sentencing factors. We address each issue below.

I. Inaccurate Information Claim

¶8 “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 was denied that right is a
constitutional issue that is reviewed de novo. Id.

¶9 To prevail on an inaccurate information claim, a defendant must
make two showings. First, the defendant must show that the information was

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No. 2021AP1544-CR

inaccurate. State v. Travis, 2013 WI 38, ¶21, 347 Wis. 2d 142, 832 N.W.2d 491.
Second, the defendant must show by clear and convincing evidence that the court
actually relied upon the inaccurate information at sentencing. Id., ¶¶21-22. If the
defendant makes these two showings, the burden shifts to the State to show
beyond a reasonable doubt that the error was harmless. Id., ¶23.

¶10 According to Jackson, there were four inaccuracies during the
sentencing hearing. Jackson first contends that the circuit court “unreasonably
reacted” to Jackson’s use of the word “mistake” in his allocution.

¶11 During his allocution, Jackson apologized to D.M.B. and stated that
“it was a mistake on me. I’m taking full responsibility.” Jackson indicated that “I
looked into something that wasn’t there, and I responded to it, and that was a
mistake.” Jackson then stated that “I’m not going to blame or say she was flirting
with me, she was looking at me wrong, but I seen something that I thought was
there, and I—I went for it, but it wasn’t so.”

¶12 In its sentencing decision, the circuit court questioned how the
incident could be described as a “mistake.” The court noted that Jackson said he
was taking responsibility, but the court indicated that it could not “get over the
word ‘mistake’” given that Jackson had removed D.M.B.’s pants and sexually
assaulted her while she was asleep.

¶13 Jackson complains that the circuit court transformed his statement
that he was not placing blame on D.M.B. into him attempting to shift
responsibility for his conduct to D.M.B. According to Jackson, the plain language
of his statement was inconsistent with the circuit court’s “inaccurate
interpretation.”

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No. 2021AP1544-CR

¶14 We disagree. To start, we are not convinced that the circuit court’s
comments constitute a factual finding. Rather, we agree with the State that the
circuit court’s comments were simply a disagreement with how Jackson
characterized his own conduct. See United States v. Pennington, 908 F.3d 234,
239-40 (7th Cir. 2018) (stating in an inaccurate information challenge that a
judge’s passing comment that the defendant was a poor historian of her past was
difficult to construe as a factual finding).

¶15 Moreover, even if the comments constituted a factual finding, we
cannot say that the finding was clearly erroneous. See WIS. STAT. § 805.17(2)
(2019-20) (stating that we uphold findings of fact unless they are clearly
erroneous).1 The circuit court is responsible for assessing the credibility of a
witness and the weight of his or her testimony. See State v. Peppertree Resort
Villas, Inc., 2002 WI App 207, ¶19, 257 Wis. 2d 421, 651 N.W.2d 345. We defer
to a circuit court’s assessment of witnesses because the circuit court is in the best
position to observe the witnesses and to gauge the persuasiveness of their
testimony. Johnson v. Merta, 95 Wis. 2d 141, 151-52, 289 N.W.2d 813 (1980).
Here, the circuit court reasonably determined that Jackson’s use of the word
“mistake” shifted some of the blame to D.M.B. The circuit court’s credibility
finding is not “inaccurate information” simply because Jackson disagrees with the
circuit court’s characterization of him.

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

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No. 2021AP1544-CR

¶16 Second, Jackson contends that the circuit court misinterpreted the
character letters submitted on his behalf “to reflect that the people who wrote them
did not even know how old Jackson is[.]”

¶17 In regards to the character letters, the circuit court stated at
sentencing that based on the way the letters were phrased, the circuit court had
forgotten that Jackson was not twenty years old, but in fact, thirty-nine years old.
The court further stated that in “reading these letters, it sounds to me that
everybody believes that you are, you know, just very young. I was surprised to
see how old you were.” Once again, we are not persuaded that these comments
are factual findings that could be inaccurate. See Pennington, 908 F.3d at 239-40.
Rather, they appear to be simply an expression of surprise.

¶18 Additionally, even if the comments constitute a factual finding,
Jackson has failed to establish that the circuit court’s comments are inaccurate.
Inaccurate information is that which is “extensively and materially false.”
Tiepelman, 291 Wis. 2d 179, ¶10 (quoting Townsend v. Burke, 334 U.S. 736, 741
(1948)). None of the letters mention Jackson’s age, and the circuit court correctly
indicated that Jackson was actually thirty-nine years old.

¶19 Further, as the State observes, it is not unreasonable for the circuit
court to be surprised by Jackson’s actual age. A letter from Jackson’s father
referenced that Northwestern University had shown an interest in Jackson’s
athletic and academic abilities, and that math was his best subject throughout
school. A letter from Jackson’s mother states “Bernard is my oldest son and has
played a major role in helping me raise his siblings,” which suggests that Jackson
is younger than his late thirties. Thus, we reject Jackson’s claim that the circuit
court’s comments regarding the character letters constitute inaccurate information.

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No. 2021AP1544-CR

¶20 Third, Jackson challenges the circuit court’s statement that the
victim may now think that “I should never go to sleep because if I let my guard
down enough to relax and go to sleep, I might get sexually assaulted.” Jackson,
however, presents no evidence that this statement is false or inaccurate. Cf.
Travis, 347 Wis. 2d 142, ¶26 (concluding that there was inaccurate information
where the circuit court mistakenly believed a mandatory minimum applied to the
offense); Tiepelman, 291 Wis. 2d 179, ¶¶6, 29-30 (concluding that there was
inaccurate information where the number of prior convictions was wrong).

¶21 Moreover, the underlying fact—that D.M.B. suffered trauma from
the sexual assault—is supported in the record. At sentencing, the prosecutor
discussed the “emotional scars” that Jackson left on D.M.B. and that those scars
were “not going to go away at this point.” Jackson’s counsel also acknowledged
that “we can’t dismiss the fact that [D.M.B.] will probably live with some trauma
for the rest of her life and maybe even need counseling for what’s happened
here[.]” Jackson also acknowledged the effect his actions had on D.M.B. During
his allocution, Jackson stated, “[a]nd for her to go through that, I don’t—I don’t
know the feeling. I don’t know. I don’t understand it, but I can understand that
she is traumatized and she is hurt[.]”2 Cf. State v. Johnson, 158 Wis. 2d 458, 468-
69, 463 N.W.2d 352 (Ct. App. 1990), abrogated on other grounds by State v.
Harbor, 2011 WI 28, ¶¶47-48, 333 Wis. 2d 53, 797 N.W.2d 828 (holding that the
defendant failed to establish inaccurate information where the record supported the
circuit court’s statements that the victims suffered emotional damage).

2
Although not available to the circuit court at the time of sentencing, we note that the
record reflects that there is a police report that states that D.M.B. “advised me that she has never
gone through something like this before. She added that she is traumatized about this.”

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No. 2021AP1544-CR

¶22 Finally, Jackson contends that the circuit court accused him of
challenging D.M.B. to call the police; however, the police report of the incident
shows that it was Jackson’s girlfriend who told D.M.B. to call the police if the
sexual assault really happened. Additionally, Jackson complains that when the
circuit court was confronted after his conviction with the police report, the circuit
court speculated that Jackson’s girlfriend had acted at Jackson’s direction.

¶23 Even if we assume that the circuit court’s statement was inaccurate,
we conclude that Jackson has failed to establish that the circuit court actually
relied on this information. The circuit court’s statement was that:

As to the number on the sentence, I am taking into account
the fact that you did plead guilty to this. And despite your
initial denial, almost challenging [D.M.B.] to call the
police, which I find to be a manipulation, I do believe you
eventually did admit to the police that you did engage in
the behavior and that you did understand that when she told
you to stop, you stopped because you understood that she
did not want to have sex with you.

(Emphasis added). The circuit court’s statement reflects that the court imposed
Jackson’s sentence despite the perceived manipulation, not because of it. See
Travis, 347 Wis. 2d 142, ¶22.

¶24 Therefore, we reject Jackson’s arguments that the circuit court
violated his due process right to be sentenced only on accurate information.3

3
We note that the State also argues that any error is harmless. Given our conclusion that
Jackson was not sentenced based on inaccurate information, we do not address the State’s
harmless error argument. See State v. Blalock, 150 Wis. 2d 688, 703, 442 N.W.2d 514 (Ct. App.
1989).

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No. 2021AP1544-CR

II. Erroneous Exercise of Discretion Claim

¶25 Jackson also contends that the circuit court failed to adequately
consider the relevant sentencing factors. According to Jackson, the circuit court
did not consider “the need to protect the community” or Jackson’s “rehabilitative
needs.” Additionally, Jackson argues that there is no explanation as to why four
years of initial confinement and four years of extended supervision was the
minimum amount of confinement necessary.

¶26 The State responds that Jackson forfeited these arguments. We
agree. In his postconviction motion, Jackson stated in a single sentence that “the
[circuit] court arguably did not sufficiently explain the basis for the sentence or
why it concluded that probation would unduly depreciate the seriousness of the
offense.” Jackson’s postconviction motion did not allege that the circuit court
failed to consider the need to protect the community or his rehabilitation needs.
Additionally, Jackson did not develop an argument in his postconviction motion as
to why the circuit court failed to adequately explain itself.

¶27 We generally do not consider issues raised for the first time on
appeal. State v. Huebner, 2000 WI 59, ¶10, 235 Wis. 2d 486, 611 N.W.2d 727
(stating that “[i]t is a fundamental principle of appellate review that issues must be
preserved at the circuit court”). While there is an exception to this rule when there
is a sufficiency of the evidence claim or an issue that was previously raised during

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No. 2021AP1544-CR

trial, see WIS. STAT. § 974.02, Jackson’s erroneous exercise of discretion claim
does not fall within these exceptions, and therefore, we decline to address it here.4

CONCLUSION

¶28 In sum, for the reasons stated above, we reject Jackson’s arguments
that he is entitled to a new sentencing hearing. Accordingly, we affirm.

By the Court.—Judgment and orders affirmed.

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

4
In his reply brief, Jackson contends that the circuit court opened the door to this issue
because it stated in its postconviction decision that it had appropriately considered the relevant
sentencing factors. Jackson, however, does not cite any authority for this proposition. We do not
address undeveloped arguments. State v. Pettit, 171 Wis. 2d 627, 646-47, 492 N.W.2d 633 (Ct.
App. 1992).

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