State v. Gerald D. Taylor

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 15, 2020
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. 2019AP1244-CR Cir. Ct. No. 1999CF3251

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT I

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT ,

V.

GERALD D. TAYLOR,

DEFENDANT-APPELLANT

APPEAL from an order of the circuit court for Milwaukee County:
JOSEPH R. WALL, Judge. Affirmed.

Before Brash, P.J., Donald and White, JJ.

¶1 WHITE, J. Gerald D. Taylor appeals the order denying his
postconviction motion for sentence modification. Taylor argues that a new factor
exists because the circuit court was unaware that he was subject to a presumptive
No. 2019AP1244-CR

mandatory release date because of the nature of his conviction. We disagree that
Taylor presented a new factor; therefore, we affirm.

BACKGROUND

¶2 Taylor was convicted of two counts of first-degree sexual assault of a
child after entering no contest pleas on September 30, 1999. He was charged with
sexually assaulting an eleven-year-old girl, his stepdaughter’s friend, who spent the
night at his residence with his stepdaughter. After assaulting the victim, he
threatened to kill her if she told anyone. After a plea colloquy, the circuit court
accepted his pleas and found him guilty.

¶3 At the sentencing hearing, the circuit court imposed a thirty-year
indeterminate sentence for each count, to be served consecutively. The circuit court
informed Taylor that it could sentence him to the “maximum penalty provided by
law[,]” which would equal eighty years. Although it described Taylor’s offenses as
“horrific” and “evil,” the court was satisfied that Taylor was “truly remorseful” for
his actions. The circuit court explained that it accounted for the parole system in
place at the time of Taylor’s crimes when it imposed his sentences.

[The court:] I know everyone in the criminal justice system
knows whatever sentence I impose, you will have to serve
one-quarter of that sentence and then you will be eligible for
parole, and you could serve up to two-thirds of the time
imposed. That’s when you would reach your mandatory
release date.

The court explained to Taylor he would “end up serving a minimum of fifteen years,
and [he] could serve up to a maximum time of forty years.” The circuit court
explained that when Taylor finally reached his parole date, DOC could seek to have
him “committed as a sexually violent offender, … where [he could] be placed in a
prison-like hospital where [he could] remain potentially for the rest of [his] life.”

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¶4 Taylor filed several motions for postconviction relief,1 but in the
motion underlying this appeal, Taylor requested that the postconviction court
modify his sentence from sixty to forty years to reflect the circuit court’s intent
during sentencing.2 He argued that the circuit court was unaware that the sentence
imposed would result in far lengthier confinement because Taylor’s conviction
required his sentence to be considered to have a presumptive mandatory release
(PMR) date instead of a mandatory release (MR) date. See WIS. STAT. § 302.11(1)-
(1g) (2017-18).3

¶5 The postconviction court denied Taylor’s motion for sentence
modification after a thorough review of the sentencing transcript and the parties’
arguments. It was not persuaded that the circuit court would have lessened the
sentence if it had known there was a possibility that Taylor would be kept in prison
past his mandatory release date. It ruled that “[t]he PMR law may have been
relevant to [the circuit court] for purposes of explaining to the defendant what he
was facing, but it is not likely to have altered his sentences based on the nature of
the offenses, which the court found to be ‘horrific.’” Further, it ruled that Taylor’s
motion was wholly premature because he had not served a sentence longer than his
MR date; therefore, it was not ripe for adjudication.

1
Taylor appealed his conviction directly; we summarily affirmed the judgment of
conviction in State v. Taylor, No. 2001AP1307-CR, unpublished op and order (WI App July 19,
2002). We denied his pro se postconviction motion because his claims were procedurally barred.
See State v. Taylor, No. 2003AP3239 unpublished slip op (WI App Jan. 25, 2005). We do not
address his prior appeals in this decision.
2
Taylor’s plea and sentencing was heard by the Honorable John D. DiMotto, whom we
refer to as the circuit court. Taylor’s postconviction motion was heard by the Honorable Joseph R.
Wall, whom we refer to as the postconviction court.
3
All references to the Wisconsin Statutes are to the 2017-18 version unless otherwise
noted.

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No. 2019AP1244-CR

¶6 This appeal follows. Additional facts are included in the discussion.

DISCUSSION

¶7 As a threshold matter, Taylor argues that his appeal is ripe for review
because PMR was attached at sentencing by statute and its application could keep
him in prison longer than intended by the circuit court. The State argues that this
court is being asked to issue an advisory opinion or to adjudicate issues based on
hypothetical or future facts. See State v. Armstead, 220 Wis. 2d 626, 631, 583
N.W.2d 444 (Ct. App. 1998). The State agrees with the postconviction court that
this matter is not ripe for review because Taylor has not served two-thirds of his
total sixty-year sentence and then been denied parole at his PMR date. Therefore,
it is hypothetical or unknown if Taylor will stay in prison later than that date.

¶8 This court must determine if a legal issue is ripe for adjudication
before issuing a decision. “The two fundamental considerations in a ripeness
analysis are ‘the fitness of the issues for judicial decision and the hardship to the
parties of withholding court consideration.’” State v. Thiel, 2012 WI App 48, ¶7,
340 Wis. 2d 654, 813 N.W.2d 709 (citations omitted). “A ripeness determination
… is a legal conclusion and therefore reviewed as a question of law.” Olson v.
Town of Cottage Grove, 2008 WI 51, ¶37, 309 Wis. 2d 365, 749 N.W.2d 211.
Although not all adjudicatory facts must be resolved, “[t]he facts on which the court
is asked to make a judgment should not be contingent or uncertain[.]” Putnam v.
Time Warner Cable of Se. Wis., Ltd. P’ship, 2002 WI 108, ¶44, 255 Wis. 2d 447,
649 N.W.2d 626.

¶9 The fact that Taylor has not been denied parole “at the time the motion
was brought is irrelevant.” See Loy v. Bunderson, 107 Wis. 2d 400, 411, 320
N.W.2d 175 (1982). Taylor is not appealing that he was wrongfully denied parole,

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No. 2019AP1244-CR

but instead he moves the court for “an interpretation of the present status” of a
prisoner as a result of the statutory construction of WIS. STAT. § 302.11(1) and (1g)
and the facts of the sentencing hearing conducted in 2000. See Loy, 107 Wis. 2d at
411. A determination of Taylor’s present rights under his sentence would enable
him—as well as DOC and the parole board—to plan for his future time in prison.
See id.

¶10 The legal issues that Taylor raises are readily apparent in the record;
there is no reason to require Taylor to wait until he has served forty years to contest
his sentence composition under the new factor framework. See State v. Dawson,
2004 WI App 173, ¶24, 276 Wis. 2d 418, 688 N.W.2d 12. It would be unfair to
Taylor to require him to complete the term of his sentence before allowing him to
appeal an unfair imposition. See id.; McCleary v. State, 49 Wis. 2d 263, 276, 182
N.W.2d 512 (1971) (“The sentence imposed in each case should call for the
minimum amount of custody or confinement which is consistent with the protection
of the public, the gravity of the offense and the rehabilitative needs of the
defendant.” (citation omitted)).

¶11 Although we disagree with the postconviction court about the ripeness
of Taylor’s motion because the record contains the necessary facts to resolve this
matter, we conclude the postconviction court appropriately denied Taylor’s motion
for sentence modification. A circuit court may modify a sentence upon a showing
of a new factor. State v. Harbor, 2011 WI 28, ¶35, 333 Wis. 2d 53, 797 N.W.2d
828. A claim that a new factor warranting sentence modification exists invokes the
inherent, though limited, authority of the circuit court to modify a sentence, and can
be made at any time. See State v. Noll, 2002 WI App 273, ¶¶11–12, 258 Wis. 2d
573, 653 N.W.2d 895.

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No. 2019AP1244-CR

¶12 A new factor is “a set of facts highly relevant to the imposition of
sentence, but not known to the trial judge at the time of original sentencing, either
because it was not then in existence or because … it was unknowingly overlooked
by all of the parties.” Rosado v. State, 70 Wis. 2d 280, 288, 234 N.W.2d 69 (1975).
The defendant has the burden of proving by clear and convincing evidence that a
new factor exists. Harbor, 333 Wis. 2d 53, ¶36. Whether a fact or set of facts
constitutes a new factor is a question of law. Id., ¶33. If the facts do not constitute
a new factor as a matter of law, a circuit court need go no further in the analysis.
Id., ¶38. If the defendant shows that a new factor exists, however, then the circuit
court has discretion to determine whether the new factor warrants sentence
modification. See id., ¶37.

¶13 Taylor argues that the circuit court was unaware at sentencing that
Taylor’s sentence would be governed by a PMR date instead of a MR date. As a
general rule, a prisoner sentenced for a crime committed before December 31, 1999,
is entitled to mandatory release after serving two-thirds of his or her sentence. See
WIS. STAT. § 302.11(1). Pursuant to § 302.11(1g)(am), a mandatory release date is
only a presumptive mandatory release date for prisoners who committed a serious
felony between April 21, 1994, and December 31, 1999. The parole commission
may, for the reasons set forth in § 302.11(1g)(b)1.-2., deny presumptive mandatory
release to an inmate who is serving a sentence for a serious felony. First-degree
sexual assault is serious felony within the meaning of the statute. See
§ 302.11(1g)(a)2. Taylor claims that the circuit court was unaware that his
conviction qualified as a “serious felony” under the statute; therefore, the terms of
the sentence imposed did not match the sentence described in the circuit court’s
reasoning on the record.

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No. 2019AP1244-CR

¶14 Taylor argues that because the circuit court stated that Taylor’s
sentence would be from fifteen to forty years, we should assume that the circuit
court intended Taylor to serve a maximum of forty years, instead of potentially
facing his full sixty-year sentence. Therefore, Taylor argues we should modify his
sentence to a maximum of forty years. He then interprets the maximum forty-year
term to mean that he would be eligible for a PMR date at two-thirds of the forty-
year term, which equals twenty-six years, eight months.

¶15 At the outset, we are not persuaded that the circuit court was unaware
of PMR and parole policy in Wisconsin. The circuit court is presumed to know the
law. See Tri-State Mech., Inc. v. Northland Coll., 2004 WI App 100, ¶10, 273
Wis. 2d 471, 681 N.W.2d 302. PMR had been in place for five years and the circuit
court referenced that the new truth in sentencing system was taking effect soon after
Taylor’s conviction. It is reasonable to infer that the circuit court was aware of the
application of PMR to Taylor’s sentence, even if it did not explain its potential
impact. Nevertheless, even if we assume that the circuit court was unaware of
PMR’s impact on Taylor’s sentence, we agree with the postconviction court’s
assessment that Taylor’s parole date, either mandatory or presumptive, was not
highly relevant to the circuit court’s construction of Taylor’s sentence.

¶16 Taylor argues that the circuit court was unaware that PMR would
apply to Taylor’s sentence because it did not use the term “serious felony” and it
did not explain the impact of PMR on Taylor’s sentence. That is not necessary.
“While a circuit court must articulate the basis for its sentence, it is not required to
use magic words.” State v. Ziller, 2011 WI App 164, ¶13, 338 Wis. 2d 151, 807
N.W.2d 241. The record demonstrates that the circuit court considered Taylor to
have committed a serious crime. The circuit court was concerned about Taylor’s
“Dr. Jekyll and Mr. Hyde” behavior. It considered his actions toward the victim “an

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No. 2019AP1244-CR

act of terrorism[.]” The circuit court explained that while Taylor may be released
on his “mandatory release date,” his release was not certain “given the nature of
these offenses[.]” These comments indicate that the circuit court considered
Taylor’s convictions to be serious felonies.

¶17 We reject Taylor’s supposition that the circuit court did not
contemplate that Taylor could serve forty years of his sentence. The circuit court
clearly understood the parole policies then in place. The circuit court explained that
it imposed a sixty-year sentence because that guaranteed a minimum time of fifteen
years, equaling one-quarter of the sentence, and an acceptable release date at forty
years, equaling two-thirds of the sentence. The circuit court did not express a desire
for Taylor to serve the complete sentence of sixty years—it stated that Taylor’s
adjustment and rehabilitation had an effect on whether Taylor was paroled at all, or
whether he may potentially face a WIS. STAT. ch. 980 commitment. Taylor’s claim
that the circuit court intended for him to be eligible for release at two-thirds (twenty-
six years and eight months) of two-thirds (forty years) of the original sentence (sixty
years) is clearly a misinterpretation of the circuit court’s words and sentencing
objectives.

¶18 Our review of the record supports the conclusion that the circuit court
crafted the sentence to ensure Taylor served “at least a minimum number [of years]
… after which the department can determine when you are truly parole eligible, if
you’re ever parole eligible.” The circuit court contemplated parole and the
importance of support for Taylor if he exits prison, but it did not consider parole to
be certain or necessary to the objectives of Taylor’s sentence. The postconviction
court reasonably inferred that the circuit court was not concerned with the endpoint
of Taylor’s sentence but instead was focused on ensuring Taylor was in prison for
a minimum amount of time for rehabilitation, protection of the community, and

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No. 2019AP1244-CR

punishment. We conclude his parole date was not “highly relevant” to the sentence
imposed. See Rosado, 70 Wis. 2d at 288. Accordingly, we conclude that Taylor
has not raised a new factor for sentence modification. When the facts do not
constitute a new factor as a matter of law, then no sentence modification is available.
See Harbor, 333 Wis. 2d 53, ¶38.

¶19 Although the postconviction court denied Taylor’s motion as
premature, it concluded that Taylor’s potential parole date was not highly relevant
in the circuit court’s sentencing objectives. Because the circuit court’s knowledge
of PMR does not constitute a new factor, we conclude that the postconviction court
properly denied Taylor’s postconviction motion.

By the court—Order affirmed.

Not recommended for publication in the official reports.

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