State v. Antonio K. Davenport

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.
September 16, 2021
A party may file with the Supreme Court a
Sheila T. Reiff petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10 and
RULE 809.62.

Appeal Nos.
2020AP1341-CR Cir. Ct. Nos. 2008CF543
2008CF1048
2020AP1342-CR 2008CF1051
2020AP1343-CR
STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT IV

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

ANTONIO K. DAVENPORT,

DEFENDANT-APPELLANT.

APPEALS from judgments and an order of the circuit court for Rock
County: KARL HANSON, Judge. Affirmed.

Before Blanchard, P.J., Fitzpatrick, and Graham, 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).
Nos. 2020AP1341-CR
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2020AP1343-CR

¶1 PER CURIAM. Antonio Davenport challenges the prison sentence
he received after the revocation of his probation. Davenport contends that he is
entitled to resentencing because the circuit court judge who imposed his revocation
sentence did not review the original sentencing transcript or otherwise have a full
understanding of the entire record. We affirm.

¶2 In 2008, Davenport pled guilty to and was convicted of two counts of
felony bail jumping and two counts of delivery of cocaine. The circuit court
withheld sentence and imposed a term of probation, consecutive to a prior prison
sentence.

¶3 About ten years later, Davenport’s probation was revoked, and he was
returned to court for sentencing before a different circuit court judge. During the
sentencing hearing, the circuit court stated that it had reviewed both the original
presentence investigation report and the revocation summary materials. The court
did not state whether it had also reviewed the original sentencing transcript. The
court sentenced Davenport to a total of seven years of initial confinement and nine
years of extended supervision. We reference additional facts as needed below.

¶4 We review a circuit court’s sentencing decision for an erroneous
exercise of discretion. State v. Fenz, 2002 WI App 244, ¶6, 258 Wis. 2d 281, 653
N.W.2d 280. “When considering a challenge to a sentence after revocation, we
review both the original sentencing and the sentencing after revocation ‘on a global
basis, treating the latter sentencing as a continuum [sic] of the first.’” State v.
Reynolds, 2002 WI App 15, ¶8, 249 Wis. 2d 798, 643 N.W.2d 165 (alteration in
original) (quoting State v. Wegner, 2000 WI App 231, ¶7, 239 Wis. 2d 96, 619
N.W.2d 289).

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¶5 In Reynolds, this court stated that, “when the judge is not the one who
presided at the original sentencing, it is particularly important that the judge, ‘[l]ike
the appellate court, ... be able to rely upon the entire record, including the previous
comments at the first sentencing.’” Id., ¶9 (emphasis in Reynolds; quoting Wegner,
239 Wis. 2d 96, ¶9). We concluded in Reynolds that the court imposing Reynolds’
revocation sentence “was required to be informed of the trial record and [the original
judge]’s assessment, based on the evidence, of the severity of Reynolds’ crime.”
Id., ¶14.

¶6 Relying on Reynolds, Davenport argues that the circuit court
erroneously exercise its discretion when imposing his revocation sentence because
the court did not review the transcript of the original sentencing hearing or otherwise
have a full understanding of the entire record. Davenport concedes, in his reply
brief, that he “does not claim that Reynolds announced a bright line rule mandating
review of the original sentencing transcript in all cases.” He argues, however, that
a review of the transcript was necessary here to ensure that the court had a complete
understanding of the relevant facts. The State counters that the record shows that
the court was fully aware of the facts of Davenport’s case, and that the court
reasonably exercised its sentencing discretion.

¶7 We agree with the State. As noted above, the circuit court stated that
it had reviewed both the original presentence investigation report and the revocation
summary documents. Additionally, the prosecutor presented the court with a
summary of Davenport’s criminal history, including the offenses for which he was
being sentenced. We are satisfied that, consistent with Reynolds, the record
establishes that the court was fully informed of the facts.

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¶8 Davenport argues that the circuit court was not aware of the factors
that the original sentencing court found most significant, namely, his history of
addiction and substance abuse. We disagree and conclude that the record instead
supports a conclusion that the court was fully aware of Davenport’s substance abuse
history. It is true that the court appeared to question whether Davenport still had a
substance abuse problem. However, the court’s doubts as to whether Davenport had
a current substance abuse problem do not show that the court was unaware of the
significance of Davenport’s substance abuse history. Further, the court
acknowledged the possibility that Davenport might still have substance abuse
issues. The court agreed with an assertion by Davenport’s counsel that Davenport
could receive substance abuse treatment in prison. The court also stated, “[t]o
whatever extent that you do have an addiction problem it should be addressed.”

¶9 We conclude that Davenport’s remaining arguments are not true
Reynolds arguments but are instead challenges to the weight the circuit court gave
to certain sentencing factors. Such arguments are not persuasive, whether in the
revocation context or otherwise. “The weight to be given to each of the factors …
is a determination particularly within the discretion of the [circuit] court.” State v.
Davis, 2005 WI App 98, ¶13, 281 Wis. 2d 118, 698 N.W.2d 823. Here, the court
reasonably based Davenport’s sentence upon, among other permissible factors, the
nature of Davenport’s crimes, Davenport’s continued drug dealing after he
committed those crimes, and Davenport’s failure to take advantage of the

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opportunities he had been given on probation.1 The circuit court reasonably
exercised its discretion.

By the Court.—Judgments and order affirmed.

This opinion will not be published. See WIS. STAT.
RULE 809.23(1)(b)5. (2019-20).

1
The court in State v. Reynolds, 2002 WI App 15, 249 Wis. 2d 798, 643 N.W.2d 165,
noted that “‘a circuit court should, in imposing a sentence at a resentencing proceeding, consider
all information relevant about a defendant, including information about events and circumstances
either that the sentencing court was unaware of at the initial sentencing or that occurred after the
initial sentencing.’” See id., ¶13 (quoted source omitted).

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