State v. Anthony J. LaRose

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.
March 25, 2025
A party may file with the Supreme Court a
Samuel A. Christensen 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. 2022AP647-CR Cir. Ct. No. 2019CF100

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT III

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

ANTHONY J. LAROSE,

DEFENDANT-APPELLANT.

APPEAL from a judgment and an order of the circuit court for
Oneida County: PATRICK F. O’MELIA, Judge. Affirmed.

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

¶1 HRUZ, J. Anthony LaRose appeals an order denying his
postconviction motion for resentencing on his conviction for first-degree sexual
assault of a child. In that motion, LaRose claimed that the circuit court judge was
biased against him based on three sets of facts. First, he pointed to various
No. 2022AP647-CR

comments that the same judge had made to LaRose during a sentencing hearing that
took place approximately ten years earlier. Second, LaRose complained that the
judge conducted an independent investigation into LaRose’s juvenile and adult
criminal history, and the judge failed to advise the parties ahead of the sentencing
hearing that he did so. Third, LaRose argued that the judge improperly made
comments about a divorce proceeding that the judge had recently presided over,
with which LaRose had a connection, and LaRose’s “undesirable behavior
patterns,” especially pertaining to his sexual proclivities.

¶2 We conclude that LaRose has failed to meet his burden to rebut the
presumption that the circuit court judge acted fairly, impartially, and without bias.
See Miller v. Carroll, 2020 WI 56, ¶16, 392 Wis. 2d 49, 944 N.W.2d 542. First, the
judge’s comments from the earlier sentencing hearing were warnings to LaRose,
rather than a predetermined sentence, and were far too attenuated—both in
substance and in time—from the sentencing in this case. Second, the judge’s
comments regarding LaRose’s juvenile and adult criminal history based on the
judge’s independent investigation were already known to the parties and to the judge
because those facts were noted in LaRose’s presentence investigation report (PSI).
Finally, the judge’s comments regarding both the divorce proceeding he presided
over and LaRose’s sexual behavior were based on an appropriate sentencing factor
that the judge considered, negative facts about LaRose presented in the PSI, and the
overall nature of the offense LaRose committed.

¶3 In sum, and as explained more fully below, LaRose has failed to
establish that the circuit court judge’s comments and actions of which he complains,
either individually or taken together, show a serious risk of actual bias that rises to
the level of a due process violation. See id., ¶24. Accordingly, we affirm.

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BACKGROUND

¶4 In 2019, the State charged LaRose with first-degree sexual assault of
a child (sexual intercourse with a person under age twelve), involving a nine-year-
old victim. Pursuant to a plea agreement, LaRose agreed to plead guilty to an
amended charge of first-degree sexual assault of a child (sexual contact with a
person under age thirteen) and a charge of contempt of court in a separate case. The
State agreed to dismiss and read in charges in two other cases. As to a sentencing
recommendation for the sexual assault charge, the parties agreed to jointly
recommend a prison sentence of thirty-four to thirty-seven years, consisting of
fourteen to seventeen years of initial confinement followed by twenty years of
extended supervision. The circuit court accepted LaRose’s guilty pleas and found
him guilty of both charges. The court then ordered a PSI.

¶5 The PSI provided information regarding LaRose’s criminal record
and correctional experience, his employment history, and his sexual behavior
generally, as well as statements from his family. The PSI also provided the victim’s
and LaRose’s respective accounts of the sexual assault for which he was convicted.
The victim described the sexual intercourse with LaRose and stated that
inappropriate touching had occurred “almost once a week.” The victim also stated
that LaRose would “make her smoke something … almost every time the assaults
occurred.” LaRose denied having sexual intercourse with the victim, but he
admitted to inappropriately touching the victim more than once. He also denied
making the victim smoke marijuana before the assaults, but he admitted that he
frequently smoked marijuana around the children in the home.

¶6 In discussing LaRose’s criminal record, the PSI listed the charges and
dispositions of LaRose’s past cases. Although the PSI author was unable to access

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LaRose’s juvenile record, LaRose had stated to the author that his juvenile record
was similar to his adult criminal record, and LaRose’s mother also provided
information about LaRose’s juvenile record. In particular, LaRose’s mother stated
that his first contact with the legal system began when LaRose was around eight
years old, when he was charged with battery for kicking a teacher who had
physically restrained him. LaRose’s mother also stated that LaRose had “behavioral
issues” while growing up and described her attempts to deal with them.

¶7 In outlining LaRose’s correctional experience, the PSI recounted
LaRose’s probation experience and the actions that led to the dismissed and read-in
charges in this case. The PSI also described LaRose’s employment history. LaRose
stated that he had several jobs “for short periods of time,” that he was a stay-at-home
dad, and that his wife “was the ‘sole breadwinner in the family.’” Regarding
LaRose’s family, the PSI noted that LaRose and his wife were separated for a time
“as a result of LaRose’s infidelity in which he impregnated [his wife’s] best friend.”
LaRose confirmed this story to the PSI author, but he explained that his wife’s friend
and her husband raised the child as their own. LaRose’s wife told the PSI author
that LaRose had been “unfaithful throughout their marriage.” She also described a
domestic violence incident LaRose committed against her.

¶8 In the PSI’s section on LaRose’s sexual behavior, LaRose told the
author that he “often sought extramarital sex” and that he believed he “has a sex
addiction.” He also described himself “as a very sexual person.” Notably, LaRose
acknowledged that the sexual assaults with the child victim would have continued
if she had not reported them.

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¶9 The PSI ultimately recommended a prison sentence of thirty to
thirty-five years of initial confinement and seven to ten years of extended
supervision for the sexual assault charge.

¶10 At the sentencing hearing in 2019, LaRose’s counsel noted that
LaRose’s first arrest occurred when he was eight years old, that his youth was
characterized by impulse control and anger issues, and that LaRose struggled to
maintain employment because of his mental health and behavioral issues. Both
LaRose’s counsel and the State asked the court to follow the joint recommendation
made in the plea agreement.

¶11 Following LaRose’s allocution, the circuit court judge began his
sentencing comments by explaining to LaRose the sentencing factors he had to
consider, stating that “frankly with your prior history you’ve heard this before.” The
judge explained that probation was the “preferred sentence” unless a defendant’s
treatment needs would be better met while in custody or the imposition of probation
would unduly depreciate the seriousness of the offense. The judge then listed the
factors he could consider when imposing a sentence, which included the
following: (1) the number of victims; (2) any injuries sustained by the victims and
the severity of those injuries; (3) the effect on the victims; (4) the defendant’s age,
education and employment; (5) the defendant’s criminal record; and (6) the
defendant’s “undesirable behavior patterns,” family history, substance abuse issues,
demeanor, and remorse.

¶12 The circuit court judge stated that he had ordered a PSI because he
“didn’t know [LaRose] before all this occurred, except I think [I] probably
prosecuted you back in the early 2000s,” and “to get a little better idea where you’ve
been for the last 15, 16 years.” The judge began with LaRose’s criminal record,

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No. 2022AP647-CR

noting, “I know the counsel probably can’t, but I’m able to go back to the juvenile
records, to the incident where you did hit a teacher or pushed the teacher. Police
were called.” Upon the judge expressing uncertainty about whether that offense
occurred in Oneida County, LaRose informed him that it had occurred in Rock
County. Continuing, the judge noted that LaRose’s criminal record “started very
young, younger than I’ve actually ever seen where you’re actually involved in the
juvenile justice system at that young age.”

¶13 The circuit court judge moved on to LaRose’s adult criminal record,
stating that he “read the complaints going back, it’s a lot of the same behavior, just
a different age.” The judge recounted LaRose’s probation experience in past cases,
the cases that were dismissed and read in as part of the plea agreement, and the
domestic violence incident noted by LaRose’s wife as recounted in the PSI.
Observing the PSI’s description of LaRose’s employment history, the judge
commented to LaRose: “You’re not able to really keep a stable lifestyle for the
family and then to the point where you ultimately began taking care of the children
in lieu of working and allowing your wife to work and be the breadwinner.”

¶14 Next, the circuit court judge explained what he meant by a defendant’s
“undesirable behavior patterns”:

That means a lot of people get arrested, get charged, go on
probation. That’s criminal convictions. But there are things
that people do that are—they don’t get caught for or it may
not … even [be] against the law, but it’s an undesirable
behavior pattern, such as it’s not against the law to sit at
home all day and eat potato chips and play video games, but
that’s an undesirable behavior pattern. And in this case
we’ve kind [of] got that, but it’s kind of aggravated with
smoking dope and having kids in the house.

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No. 2022AP647-CR

The judge described LaRose’s marijuana use as an undesirable behavior pattern,
noting that it was “not proper [for LaRose] to smoke in the house” while his children
were observing him.

¶15 As another undesirable pattern of behavior, the circuit court judge
stated that LaRose, by his own admission, had “some very strong sexual addictions
to the point where you’ve been unfaithful to your wife on more than one occasion,
fathered a child with another married woman who, by the way, just this morning I
had her in court.” Elaborating, the judge noted that he had presided over that
woman’s divorce earlier in the day and that he asked her about her son because he
“wanted to make sure that the dad in that case knew that somebody else had fathered
the child. Well, anyway, he did.” The judge added, “I’m not saying it’s a direct
result of what happened here, but I’m sure it didn’t help their marital
relationship…. Having that, always waking up to that every day, being reminded
that my wife was unfaithful or my husband was unfaithful.”

¶16 Based on information in the PSI, the circuit court judge also
considered what he called LaRose’s narcissistic tendencies and manipulative
conduct as additional undesirable behavior patterns. The judge noted that LaRose
“is very self-protecting” and “self-explain[s] things away” to “try and put [himself]
in a better light with people.” The judge also discussed the effects of LaRose’s
manipulation on the victim, and he noted LaRose’s admission that the assaults
“would still be going on. This was not going to stop.”

¶17 The circuit court judge next discussed the prospect that other people
had been victimized by LaRose’s conduct, stating: “[A]s I sat this morning doing
the divorce I’m like, geez, are they a victim of what happened or what you do, you
know? Because of your undesirable behavior patterns is that [other woman] a

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No. 2022AP647-CR

victim?” The judge then moved on to discuss the victim’s mother, the victim’s
grandparents, and LaRose’s children as other victims.

¶18 In relating his final thoughts, the circuit court judge stated:

I wrote down here I have a 34-year-old narcissist with
basically a ninth grade education with an HSED, limited,
sporadic employment, long criminal history, smokes dope
almost every day while he’s in charge of the children
exposing them to THC … to the point of positive results.
Hobbies are tinkering with motors, listening to music,
playing video games, finally an insatiable appetite for sex of
any kind, with anyone, even the [victim].

The circuit court ultimately imposed a forty-five-year prison sentence, consisting of
twenty-five years of initial confinement followed by twenty years of extended
supervision.

¶19 LaRose filed a postconviction motion seeking resentencing before a
different judge on the ground that the circuit court judge had exhibited objective
bias. The judge did so, according to LaRose, by: (1) conducting an independent
factual investigation; (2) relying on the facts he had independently discovered
without providing the parties an opportunity to verify or respond to those facts;
(3) expressing opinions in his sentencing comments “that revealed a high degree of
antagonism” toward LaRose; and (4) predetermining the need to send LaRose to
prison based on comments the judge had made during a sentencing hearing that
occurred in 2009.1

¶20 In support of his motion, LaRose provided a portion of the transcript
from the 2009 hearing in which the circuit court sentenced him after revocation of

1
Alternatively, LaRose argued that the circuit court had erroneously exercised its
sentencing discretion by relying on LaRose’s gender when imposing sentence. LaRose does not
raise this argument on appeal. Therefore, we do not address it further.

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No. 2022AP647-CR

his probation. During that sentencing, the circuit court judge noted LaRose’s then
already lengthy criminal record and stated:

You’ve been in court so much you know what to say to the
judges, and you’ve seen lots of different judges before.
But … it’s to a point where we almost don’t care what you
do. We’ll just keep putting you in jail and put you ultimately
in prison because that’s where you’re headed. They should
have cited you with [a] repeater.

I don’t know, do you have a felony conviction at all?

In response to LaRose denying that he had a felony conviction, the judge said, “All
right. Because if this continues and there’s a felony, boy, it’s—I’m not sure how
another court could really keep you from prison. And you’re not too far from a
felony.” In explaining what would have made LaRose’s offense a felony, the judge
stated, “The gal you threw against the wall at the bowling alley, cut on her
head …. All that’s required is if she had to have one stitch to close the wound, that
will be a felony.”

¶21 The circuit court held a nonevidentiary hearing on LaRose’s
postconviction motion. The circuit court judge acknowledged that he referenced
the divorce proceeding in his sentencing comments, but he explained that his
comments were musings about whether the divorce was a collateral result in the
overall context of determining if there were other victims from LaRose’s sexual
behavior that contributed to the charged sexual assault of a child. The judge stated
he was not suggesting the divorce was directly related to the charged offense, but
rather the comments were him simply “thinking out loud but wondering the effects
of [LaRose’s] actions that perhaps are unforeseen at this point.” The judge added
that LaRose’s sexual behavior was mentioned throughout the PSI, so his reference
to the divorce was “inconsequential.”

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No. 2022AP647-CR

¶22 The circuit court judge also acknowledged his sentencing comment
that the PSI author did not have access to LaRose’s juvenile record, but the judge
noted that he merely referenced the information LaRose’s mother had provided in
the PSI “that [LaRose] was an eight-year-old child, battery by kicking the teacher.”
As for LaRose’s adult criminal record, the judge again noted that the PSI laid out
the types of crimes and discussed some of those incidents “that were consistent with
his 15 years prior.” Regarding his antagonistic comments toward LaRose, the judge
explained that they were due to “the nature of this case” and that the judge “has to
speak freely and frankly” when speaking to a defendant at sentencing. As to his
comments describing LaRose as narcissistic and manipulative, the judge explained
that they were based on LaRose’s mother’s comments in the PSI and that LaRose
had manipulated a child “to do the things that he did.”

¶23 Finally, with respect to his comments from the 2009 sentencing
hearing, the circuit court judge noted his sentencing comment in this case stating
that he did not know LaRose. The judge also pointed out that he did not reference
the 2009 hearing at all. Indeed, he noted that it was not until he received LaRose’s
postconviction motion that he became aware of having presided over the 2009
hearing. The judge explained that his comments in the 2009 hearing were not a
threat to LaRose, but that he made those comments to deter LaRose. He further
explained that he made those comments in 2009 because LaRose “had been going
down the wrong path,” and he wanted to convey to LaRose “that a court, whether
it’s me or some other court, is going to pretty soon … have to start considering more
punishment. That’s not a promise.”

¶24 For all of these reasons, the circuit court concluded that LaRose had
not shown that the judge exhibited objective bias, and it denied LaRose’s
postconviction motion. LaRose now appeals.

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No. 2022AP647-CR

DISCUSSION

¶25 On appeal, LaRose argues that the circuit court judge’s
predetermination that LaRose needed to have prison time in this case at the 2009
hearing, the judge’s independent investigation, and the judge’s “expressions of
antipathy” toward LaRose at his sentencing, individually and taken together, show
that the judge was objectively biased. Given that LaRose does not argue that the
judge was subjectively biased or that his comments show actual bias,2 we address
only whether LaRose has rebutted the presumption that the judge acted fairly,
impartially, and without bias by showing that his comments gave rise to a serious
risk of actual bias.3

¶26 “The right to an impartial judge is fundamental to our notion of due
process.” State v. Goodson, 2009 WI App 107, ¶8, 320 Wis. 2d 166, 771 N.W.2d
385. When evaluating a judicial bias claim, we presume that the judge has acted
fairly, impartially, and without bias. Id. To overcome this presumption, the party
asserting judicial bias must show either subjective or objective bias by a
preponderance of the evidence. Miller, 392 Wis. 2d 49, ¶21. If a party rebuts the
presumption “and shows a due process violation, the error is structural and not

2
Subjective bias exists when a judge has “any personal doubts as to whether [he or she]
can avoid partiality to one side.” State v. Gudgeon, 2006 WI App 143, ¶20, 295 Wis. 2d 189, 720
N.W.2d 114. Actual bias occurs when there are objective facts showing that the judge “in fact
treated [the defendant] unfairly.” State v. Goodson, 2009 WI App 107, ¶9, 320 Wis. 2d 166, 771
N.W.2d 385 (alteration in original; citation omitted).
3
The parties argue over whether it is proper for LaRose to use the “appearance of bias”
language that Wisconsin courts applied in judicial bias decisions prior to Miller v. Carroll, 2020
WI 56, 392 Wis. 2d 49, 944 N.W.2d 542. Despite this dispute, they ultimately—and correctly—
agree that LaRose must show a serious risk of actual bias to overcome the presumption that the
circuit court judge acted fairly, impartially, and without bias.

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No. 2022AP647-CR

subject to a harmless error analysis.” Id., ¶16. Whether a judge’s partiality can
reasonably be questioned is a matter of law that we review de novo. Id., ¶15.

¶27 In an objective bias analysis, the party asserting bias rebuts the
presumption of impartiality by showing actual bias or a serious risk of actual bias.
See Goodson, 320 Wis. 2d 166, ¶¶8, 14. We determine whether there is a serious
risk of actual bias “based on objective and reasonable perceptions.” Miller, 392
Wis. 2d 49, ¶24 (quoting Caperton v. A.T. Massey Coal Co., 556 U.S. 868, 884
(2009)). This analysis requires an inquiry into “whether ‘under a realistic appraisal
of psychological tendencies and human weakness,’ the interest ‘poses such a risk of
actual bias or prejudgment that the practice must be forbidden if the guarantee of
due process is to be adequately implemented,’” and “whether the circumstances
‘would offer a possible temptation to the average … judge to … lead him [or her]
not to hold the balance nice, clear and true.’” Id., ¶¶22, 24 (quoting Caperton, 556
U.S. at 883-85). “[I]t is the exceptional case with ‘extreme facts’ which rises to the
level of a ‘serious risk of actual bias.’” Id., ¶24 (citation omitted).

I. The Circuit Court Judge’s 2009 Comments

¶28 LaRose first argues that the circuit court judge’s comments at the 2009
sentencing hearing show that the judge had “predetermined the necessity of prison
should … LaRose eventually face sentencing for a felony.” Specifically, LaRose
contends that the following comments show a serious risk of actual bias because
they reveal the judge’s intended disposition, if he were ever to sentence LaRose for
a felony, to impose a prison sentence: (a) that “courts” will “just keep putting you
in jail and put you ultimately in prison because that’s where you’re headed”; (b) that
LaRose should have been charged as a repeater in that earlier case; and (c) that if
LaRose were charged with a felony, the judge was unsure “how another court could

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No. 2022AP647-CR

really keep you from prison.” LaRose asserts that the judge’s 2009 comments rise
to the same level of bias as in several cases, discussed in detail below, where we
have concluded that a judge’s comments showed he or she had predetermined a
defendant’s sentence and therefore gave rise to a serious risk of actual bias.

¶29 We reject LaRose’s reliance on those cases, given the totality of the
circumstances here. Unlike the language in the cases he cites, the circuit court
judge’s 2009 comments contain no promissory language that even suggests the
judge had predetermined LaRose’s sentence in this case. Juxtaposing those cases
with this one, we conclude that the judge’s comments here were simply admonitions
to LaRose that did not show a serious risk of actual bias.

¶30 We begin our analysis of the cases on which LaRose relies with State
v. Gudgeon, 2006 WI App 143, ¶¶3-4, 295 Wis. 2d 189, 720 N.W.2d 114, where
the defendant’s probation agent wrote a letter to the circuit court prior to a probation
extension hearing, proposing that the court convert the defendant’s restitution into
a civil judgment rather than extending the defendant’s probation. The circuit court
judge responded by writing at the bottom of the letter, “No—I want [the
defendant’s] probation extended.” Id., ¶3. At the extension hearing, the court
extended the defendant’s probation. Id., ¶4. On appeal, we concluded that the
judge’s use of the word “want” showed a serious risk of actual bias because an
“ordinary reasonable person would discern a great risk” that the judge “had already
made up [his] mind to extend probation long before the extension hearing took
place.” Id., ¶26. We explained that the judge’s use of the word “want” signified
his personal desire, which referred “not to an extension hearing—at which to decide
the merits of extension versus a civil judgment—but to the extension itself, an
ultimate outcome.” Id.

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No. 2022AP647-CR

¶31 A predetermined outcome was also present in Goodson, where the
circuit court judge warned the defendant throughout the sentencing hearing that if
“you deviate one inch from these [probation or extended supervision] rules, and you
may think I’m kidding, but I’m not, you will come back here, and you will be given
the maximum.” Goodson, 320 Wis. 2d 166, ¶2. The judge followed through with
this promise after the defendant’s extended supervision was revoked. Id., ¶5. The
judge stated that his decision was “pretty easy” and that the maximum period of
reconfinement was appropriate “not because that’s the sentence I’m giving you
today, [but] because that’s the agreement you and I had back at the time that you
were sentenced.” Id. (alteration in original). On appeal, we concluded that the
judge’s statements showed a serious risk of actual bias. See id., ¶13. The judge’s
unequivocal promise to impose the maximum period of confinement time would
lead a reasonable person to conclude “that a judge would intend to keep such a
promise—that the judge had made up his mind about [the defendant]’s sentence
before the reconfinement hearing.”4 Id.

¶32 We reached the same conclusion in State v. Lamb,
No. 2017AP1430-CR, unpublished slip op. ¶¶5-6, 16 (WI App Sept. 25, 2018),5
where, prior to the circuit court hearing sentencing arguments, the defendant talked
about being on probation and “the possibility of leaving today,” and the circuit court
judge interrupted by stating, “Not really. Okay. Just thought I’d tell you that so

4
We also concluded that the circuit court judge’s statements that his decision was “pretty
easy” and that the maximum period of confinement was appropriate because it was what the judge
and the defendant had “agreed to” at the sentencing hearing were “definitive evidence of actual
bias” because “[t]here could not be a more explicit statement confirming that the sentence was
predecided.” Goodson, 320 Wis. 2d 166, ¶16.
5
An unpublished opinion that is authored by a member of a three-judge panel and issued
on or after July 1, 2009, may be cited for its persuasive value. See WIS. STAT. RULE 809.23(3)(b)
(2023-24).

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No. 2022AP647-CR

you don’t have any false hopes. I mean, there’s a possibility, but it’s probably not
going to happen.” The judge then asked whether the defendant wanted to proceed
with sentencing “now that you know that it probably isn’t going to happen that
you’re going to get out today.” Id., ¶5. After hearing the parties’ arguments
recommending probation and the defendant’s allocution, the judge began his
sentencing remarks by stating, “Well, just so there’s no surprise, I mean, you are
going to prison today.” Id., ¶6.

¶33 On appeal, we concluded that the circuit court judge’s comments
showed a serious risk of actual bias because “a reasonable lay observer would
interpret them as prejudging [the defendant]’s sentence.” Id., ¶14. Of particular
importance was the timing of the judge’s statements, which were made immediately
prior to hearing the parties’ sentencing arguments and the defendant’s allocution.
Id., ¶15. Furthermore, the parties had agreed to forgo a PSI, “which would have
contained essential sentencing information about the offense and [the defendant]’s
character.” Id. Although the judge spoke of probabilities and possibilities, his
statements, taken together, reasonably conveyed to the defendant that the judge “had
effectively decided against ordering probation” before hearing any sentencing
arguments. Id., ¶17.

¶34 Finally, in State v. Marcotte, 2020 WI App 28, ¶3, 392 Wis. 2d 183,
943 N.W.2d 911, the parties jointly recommended that the circuit court withhold
sentence and order probation, which included a condition that the defendant
participate in that county’s drug treatment court program. At both a drug court
hearing that took place prior to the defendant’s sentencing and at his sentencing, the
same circuit court judge told the defendant that he would go to prison if he failed in
drug court and that there would be “no mercy” when the defendant returned to court
for sentencing after revocation of probation. Id., ¶¶4-5. The defendant was

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No. 2022AP647-CR

subsequently terminated from drug court and his probation was revoked. Id., ¶8.
The court imposed a prison sentence, stating that it had “no choice” but to impose a
prison sentence because the defendant failed in drug court. Id., ¶¶10, 13. On appeal,
we concluded that the judge’s comments and the judge’s dual role in presiding over
the sentencing court and the drug court, taken together, gave rise to a serious risk of
actual bias. Id., ¶18.

¶35 Prominent in the foregoing cases is promissory language that would
lead a reasonable observer to conclude that the judge had predetermined the
defendant’s forthcoming sentence prior to the sentencing hearing and that the
judge’s sentence was a guarantee, rather than a possibility. The same cannot be said
of the circuit court judge’s 2009 comments that “courts” would ultimately put
LaRose in prison because that is where he was headed and that the judge was not
sure how another court could keep him from prison. When read in context, the
judge’s 2009 comments can best be characterized as a warning that prison was likely
forthcoming if LaRose were convicted of a felony and appeared for sentencing
before any court, rather than a promise that the judge himself would put LaRose in
prison if he were convicted of a felony and appeared again before that same judge.
Explaining to a defendant what could happen if a particular event were to occur is
permissible; it is a judge telling that defendant what will happen that “imperils the
defendant’s due process right to an impartial judge.” See Goodson, 320 Wis. 2d
166, ¶17; see also Marcotte, 392 Wis. 2d 183, ¶24 (explaining that the judge went
beyond “merely informing [the defendant] of what could happen if he failed drug
court and instead informed him of what would happen if he failed”).

¶36 The circuit court judge’s 2009 comments were admonitions that sound
nothing like the unequivocal promises by the judges in Goodson and Marcotte.
They were a warning of what LaRose could face if he continued with his

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No. 2022AP647-CR

increasingly serious criminal behavior, and they spoke only of possibilities in the
form of what could happen should LaRose not discontinue his criminal behavior
because he was “not too far from a felony.” In no way do these comments convey
a guarantee by the judge that he would impose a prison sentence like the judge’s
comments did in Lamb. Similarly, the judge’s single comment that LaRose “should
have been charged” as a repeater did not convey a personal desire by the judge to
impose a prison sentence, as the judge’s clear statement did in Gudgeon, but was
simply a part of the judge’s overall “words of caution” upon learning that LaRose
did not yet have a felony conviction.

¶37 Furthermore, the dated 2009 comments lack any clear connection to
the comments made in this case. It is clear that the circuit court judge did not have
those comments in mind during the sentencing in this case, given that he never
referenced them. The judge only remembered possibly prosecuting LaRose in the
past, and he did not recall presiding over the 2009 case until he read the
postconviction motion. In contrast, the comments and the eventual sentences in
Goodson, Lamb and Marcotte occurred within a short span of time and show a
clearer connection between the comments and the eventual sentences. The judges
in those cases dealt with, for the most part, the same crime for which the judge
addressed the defendant prior to ordering probation (or hearing sentencing
arguments in Lamb) and when imposing a sentence upon revocation of that
probation. Conversely, in this case, the judge made his 2009 comments with respect
to a much different crime than the one LaRose committed in this case.

¶38 In sum, the circuit court judge’s 2009 comments are nothing like those
made in Gudgeon, Goodson, Lamb or Marcotte. They were indefinite admonitions
from many years prior that lack any connection to the sentencing in this case. Thus,
LaRose has not met his burden to rebut the presumption that the judge acted fairly,

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No. 2022AP647-CR

impartially, and without bias, as the judge’s 2009 comments did not give rise to a
serious risk of actual bias.

II. The Circuit Court Judge’s Independent Investigation of LaRose’s Criminal
History

¶39 LaRose next argues that the circuit court judge’s review of LaRose’s
juvenile record and adult criminal record, together with his failure to notify the
parties of his investigation and give the parties an opportunity to respond to the facts
the judge obtained from his investigation, gave rise to a serious risk of actual bias.
LaRose contends that a comment from SCR 60.04(1)(g) and two judicial discipline
cases—Judicial Commission v. Piontek, 2019 WI 51, 386 Wis. 2d 703, 927
N.W.2d 552, and Judicial Commission v. Calvert, 2018 WI 68, 382 Wis. 2d 354,
914 N.W.2d 765—“demonstrate the error [of the judge’s] ways [in the present case],
and they make clear that judicial neutrality requires abstaining from independent
factual investigation.”

¶40 We conclude that the mere fact the circuit court judge conducted an
independent investigation of LaRose’s criminal history is insufficient to rebut the
presumption that the judge acted fairly, impartially, and without bias under the
circumstances. We do so primarily because the information the judge noted in his
sentencing comments was referenced in the PSI, and LaRose did not—and does
not—argue that the information in the PSI was inaccurate. Under these
circumstances, the judge’s failure to follow the rule that “[a] judge must not
independently investigate facts in a case and must consider only the evidence
presented,” SCR 60.04(1)(g) (cmt),6 is materially different from the judges’ failures

6
The rule itself provides that, with certain exceptions, a judge cannot “initiate, permit,
engage in or consider ex parte communications concerning a pending or impending action or
proceeding.” SCR 60.04(1)(g).

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No. 2022AP647-CR

to follow that rule in Piontek and Calvert, which gave rise to a violation of
SCR 60.04(1)(g) and disciplinary actions.

¶41 In Piontek, the judge conducted an independent internet investigation
into the defendant’s nursing credentials in other states because he believed the
defendant had been untruthful to the PSI author. Piontek, 386 Wis. 2d 703, ¶16.
The judge discovered what he believed to be incriminating information that turned
out to be incorrect and he relied on that incorrect information when sentencing the
defendant. Id., ¶¶16, 18. When the defendant attempted to explain the information
the judge had found, he told the defendant that her “lies” were “getting [her] in
trouble” and “that he did not want any further comment from her.” Id., ¶18
(alteration in original). Our supreme court concluded that the judge’s independent
investigation violated his duty of neutrality, stating that “it is clearly improper for a
judge to both conduct an independent investigation and to fail to give a party a
chance to respond to the judge’s misinformed allegations based on that
investigation.” Id., ¶37.

¶42 Here, unlike the judge in Piontek, LaRose does not argue that the
circuit court judge found and considered incorrect information regarding his
juvenile and adult criminal records when sentencing LaRose. The judge simply
recounted the juvenile incident with the teacher, which was information in the PSI
that was accurate. In fact, LaRose informed the judge of the county where the
incident occurred when the judge stated he could not recall where it had occurred.
Thus, there was nothing for LaRose to explain or address when he did not dispute
the information in the PSI that was recounted by the judge, unlike the defendant in
Piontek who sought to explain the inaccurate information that the judge found and
relied upon.

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No. 2022AP647-CR

¶43 In Calvert, a court commissioner conducted an independent
investigation into a harassment injunction case by speaking with law enforcement
to obtain information about the case prior to the injunction hearing. Calvert, 382
Wis. 2d 354, ¶¶6-8. After denying the injunction, the commissioner informed the
parties that he told law enforcement to issue disorderly conduct tickets to both
parties if law enforcement were called again by the parties, that the parties would
be found guilty of disorderly conduct regardless of fault, and that such finding
would be upheld because the commissioner had spoken with both the municipal and
circuit court judges. Id., ¶11. But the commissioner had not, in fact, told law
enforcement or the judges anything. Id., ¶12. Our supreme court characterized the
commissioner’s conduct as “undeniably serious,” noting that the commissioner was
“far from objective and impartial” because he independently investigated the facts
of a pending case, which included engaging in an ex parte communication, and he
“lied to the parties in a particularly manipulative manner, falsely claiming that he
had communicated with individuals in the judicial and law enforcement systems in
such a way that the parties were doomed to failure and future legal troubles should
they ever seek additional recourse.” Id., ¶26.

¶44 In this case, LaRose does not argue that the circuit court judge
engaged in ex parte communications to obtain information about LaRose’s juvenile
and adult criminal records, and he does not suggest that the judge manipulated the
information he found in a way that disadvantaged LaRose. Here, the judge simply
looked at available court records. In different circumstances, Wisconsin courts have
concluded that a judge’s investigation into available court records, such as the ones
the judge accessed here, is not improper. See State v. Throndson,
No. 2020AP1081-CR, unpublished slip op. ¶¶26-27, 29 (WI App July 15, 2021)
(concluding that the limited nature of the court’s investigation of its own records to

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No. 2022AP647-CR

review the charges and dispositions of the defendant’s juvenile and adult criminal
cases did not show objective bias); see also State v. Counihan, 2020 WI 12, ¶¶43,
48, 390 Wis. 2d 172, 938 N.W.2d 530 (concluding that a court can access its
“institutional memory” to consider information about sentences imposed in similar
cases).

¶45 The circuit court judge’s investigation into available court records,
while not recommended, was not improper under the circumstances here. After
explaining why he had ordered a PSI, the judge informed the parties that he had
looked at LaRose’s juvenile and adult criminal records. The judge then mentioned
only the information provided in the PSI relating to LaRose’s juvenile and adult
records, see supra ¶¶6-7, 12-13, but he made no other comments regarding
information that was not in the PSI and that he found in those records. Thus, the
judge’s comments referenced only information that was available to the parties.

¶46 LaRose does not argue that the information the circuit court judge
recounted in his comments about LaRose’s juvenile and adult criminal records or
the information in the PSI regarding those records are inaccurate. LaRose also does
not argue that the judge mentioned information from his independent investigation
that was not provided in the PSI and to which he did not have a chance to respond.
He simply takes issue with the fact that the judge conducted a separate independent
investigation without giving notice to the parties and without giving them a chance
to respond. More is required to show a serious risk of actual bias.

¶47 The departure from impartiality and neutrality in Piontek and Calvert
was not due to the judges simply conducting an independent investigation, as the
circuit court judge did here, but by their additional conduct based on that
independent investigation. Namely, the judge did not allow the defendant to explain

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No. 2022AP647-CR

the obtained misinformation on which the judge relied in Piontek, and the
commissioner lied to the parties and manipulated the obtained information to
suggest the parties could seek no additional recourse in Calvert.

¶48 We agree with LaRose that a sentencing judge must provide the
parties with notice and an opportunity to respond when he or she conducts an
independent investigation. Although the better course of action would have been
for the circuit court judge to alert both parties of his investigation into LaRose’s
juvenile record and adult criminal record and give the parties an opportunity to
review them prior to sentencing, the mere fact that the judge conducted an
independent investigation into what were otherwise plainly relevant facts that were
available to the parties, by itself, is insufficient to rebut the presumption of
impartiality under these circumstances.

III. The Circuit Court Judge’s Comments on the Divorce and LaRose’s
Behavior

¶49 Finally, LaRose argues that the circuit court judge’s comments on the
divorce proceeding he had presided over shortly before LaRose’s sentencing and
his negative commentary on LaRose’s behavior outside of the charged crime
showed an “unequivocal antagonism” toward LaRose that gave rise to a serious risk
of actual bias. Specifically, LaRose contends that the judge provided no notice that
he would be considering that divorce as an aggravating factor in his sentencing and
that it is unclear why the judge considered the woman from the divorce a potential
victim when there was no evidence of nonconsensual sex or of LaRose’s “sexual
appetite” causing her infidelity. He further asserts that the judge’s focus on
LaRose’s undesirable patterns of behavior and apparent belief that those patterns
caused the divorce “betray[ed] an unconstitutional degree of antipathy” toward
LaRose.

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No. 2022AP647-CR

¶50 We conclude that the circuit court judge’s comments about the
divorce and his overall negative comments about LaRose’s behavior did not rise to
the level of a serious risk of actual bias. Judicial remarks “that are critical or
disapproving of, or even hostile to,” a party will not support a showing of bias unless
“they reveal such a high degree of favoritism or antagonism as to make fair
judgment impossible.” Liteky v. United States, 510 U.S. 540, 555 (1994). The
judge’s comments here do not meet that standard because they were made in the
context of the relevant and proper sentencing factors the judge outlined when he
began his sentencing remarks—which included LaRose’s “undesirable behavior
patterns,” see State v. Gallion, 2004 WI 42, ¶43 n.11, 270 Wis. 2d 535, 678 N.W.2d
197—and because they were drawn from the information provided in the PSI and
the nature of LaRose’s charged offense.

¶51 At the outset, we reject LaRose’s contention that the circuit court
judge’s presiding over the divorce proceeding earlier in the day is an “independent
investigation.” The judge did not seek to obtain information about the divorce, like
the judge in Piontek did by doing internet research or like the commissioner in
Calvert did by communicating ex parte with a third party. The judge merely
mentioned he had presided over a proceeding from earlier in the day that just
happened to be related to the sentencing at hand. Additionally, both the woman
from the divorce and the child that resulted from LaRose’s affair with that woman
were mentioned in the PSI.

¶52 Furthermore, the circuit court judge discussed the divorce in the
context of considering LaRose’s undesirable behavior patterns—specifically, his
questionable sexual behavior. Importantly, LaRose’s overall sexual behavior and
self-proclaimed addiction were tied to the very offense for which he was being
sentenced—sexual assault of a child. The judge noted that LaRose, by his own

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No. 2022AP647-CR

admission, had sexual addictions that drove him to be unfaithful to his wife and to
“father[] a child with another married woman.” The PSI mentioned this information
in its discussion of LaRose’s family and his sexual behaviors. It was in this context
that the judge mentioned he had presided over the woman’s divorce, made his
comment on the potential effect LaRose’s behavior had on that woman’s marriage,
and wondered whether the woman was also a victim of LaRose’s behavior patterns.

¶53 When viewed in a vacuum, the circuit court judge’s comments may
be seen as irrelevant or gratuitously negative toward LaRose. But when viewed
objectively in the context of the offense LaRose committed and the sentencing
factor the judge was considering in imposing his sentence for that offense, the
judge’s comments do not reveal a high degree of antagonism toward LaRose,
despite their negativity. Rather, the judge’s comments suggested the potential
effects on victims of the undesirable pattern of behavior the judge was considering
overall, and that behavior pattern’s effect on other appropriate sentencing factors
the judge was considering.

¶54 Here, the circuit court judge was presented with negative facts
regarding LaRose’s sexual behavior, which led to LaRose being unfaithful to his
wife, to fathering a child with another woman, and, ultimately, to the sexual assault
of a child for which he was being sentenced—an assault that, as the judge noted,
was not “a one-time thing.” Further adding to the negative facts before the judge
was LaRose’s acknowledgement that the assaults would have continued had the
victim not reported them. Thus, the judge was within his bounds to comment on
LaRose’s sexual conduct as an undesirable behavior pattern and, despite the
negativity, his comments did not reveal a high degree of antagonism toward LaRose.
The judge simply viewed LaRose’s undesirable behavior pattern as negatively
affecting LaRose’s rehabilitative needs and the judge’s consideration of protecting

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No. 2022AP647-CR

the public, both proper sentencing factors. See WIS. STAT. § 973.017(2)(ad), (ak)
(2023-24).

¶55 In sum, the circuit court judge’s 2009 comments, his independent
investigation of LaRose’s juvenile and adult criminal records, and his comments on
the divorce proceeding he had presided over are each individually insufficient to
show a serious risk of actual bias. Taken together, they are also insufficient to show
a serious risk of actual bias. Accordingly, LaRose has failed to rebut the
presumption that the judge acted fairly, impartially, and without bias.

By the Court.—Judgment and order affirmed.

Not recommended for publication in the official reports.

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