State v. Robert M. Anderson, Jr.

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.
November 2, 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 No. 2020AP2131-CR Cir. Ct. No. 2017CF4892

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT I

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

ROBERT M. ANDERSON, JR.,

DEFENDANT-APPELLANT.

APPEAL from a judgment and an order of the circuit court for
Milwaukee County: DAVID L. BOROWSKI, Judge. Order affirmed in part,
reversed in part, and cause remanded with directions.

Before Brash, C.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. 2020AP2131-CR

¶1 PER CURIAM. Robert M. Anderson, Jr. appeals his judgment of
conviction after entering pleas to charges of second-degree reckless homicide by
use of a dangerous weapon and possession of a firearm by a felon. He also appeals
the order denying his motions for postconviction relief.1

¶2 In Anderson’s first postconviction motion, he sought to withdraw his
pleas on the grounds that he received ineffective assistance of counsel because
counsel did not advise him that he could receive the maximum penalty. He further
asserted that his sentence was unduly harsh and excessive, and sought resentencing.
The trial court rejected those claims and denied that motion without a hearing.

¶3 Anderson then filed a supplemental postconviction motion claiming
that he had newly discovered evidence in the form of an affidavit by a witness who
stated that he saw Anderson’s brother commit the homicide. In the alternative,
Anderson sought resentencing on the grounds that the trial court improperly
considered Anderson’s race as a sentencing factor, and that the trial court did not
allow Anderson’s trial counsel the opportunity to argue that consideration should be
given to Anderson’s taking responsibility for these crimes by entering guilty pleas.
The trial court rejected Anderson’s claims in the supplemental motion as well, and
also denied it without a hearing.

¶4 Upon review, we conclude that Anderson is entitled to an evidentiary
hearing on his claim relating to newly discovered evidence. We therefore remand

1
Anderson’s pleas were taken by the Honorable Carolina Stark. Anderson’s
presentencing motion to withdraw his pleas, his sentencing, and both postconviction motions were
before the Honorable David L. Borowski. We refer generally to them both as the trial court.

2
No. 2020AP2131-CR

this matter to the trial court for an evidentiary hearing on that issue.2 However, with
regard to Anderson’s other claims in his postconviction motions, we affirm.

BACKGROUND

¶5 The charges against Anderson stem from a shooting that occurred in
July 2017 on North 23rd Street in Milwaukee. Police officers responded to a call
regarding the homicide of six-year-old Justin Evans, who had been on the front
porch steps of a residence on that street when he was shot. The investigation
revealed that a vehicle had been seen doing “donuts” in the nearby intersection, and
that the person who shot Justin may have been shooting at that vehicle.

¶6 According to the complaint, police interviewed a confidential witness
who was present during the shooting. Just prior to the shooting, that witness saw
Anderson—who the witness identified in a photo array—standing in the street,
yelling at someone in the intersection. The witness then looked away, but upon
hearing gunshots, looked back and saw Anderson with a firearm in his hand, running
toward the intersection, continuing to fire the gun as he ran. The witness said that
Anderson then left the scene in a vehicle with two other males. Police determined
that the direction of those shots fired, as described by the witness, was consistent
with the direction from which Justin had been shot.

¶7 Anderson was arrested and charged with first-degree reckless
homicide as a party to a crime with the use of a dangerous weapon and with a
habitual criminality enhancer, along with possession of a firearm by a felon, also

2
Although Anderson filed two postconviction motions in this matter addressing different
issues, only the order relating to the second, supplemental postconviction motion is deemed to be
a final order; the further proceedings held on that supplemental motion rendered the order from the
initial motion nonfinal. Additionally, while Anderson appeals both the judgment of conviction and
the final order, we address only the order for the reasons set forth in this opinion.

3
No. 2020AP2131-CR

with a habitual criminality enhancer. Anderson subsequently entered into a plea
agreement by which the first-degree reckless homicide charge was amended to
second-degree reckless homicide, and the habitual criminality enhancers were
dropped for both that charge and the felon in possession of a firearm charge. Under
the agreement, the State was to recommend substantial prison time. Anderson
entered his pleas to both charges in April 2018.

¶8 After that plea hearing but before sentencing, Anderson filed a motion
to withdraw his pleas. He alleged that he did not understand the meaning of the
term “substantial prison.” He further claimed that he never read the applicable jury
instructions prior to entering the pleas, and had he known “what the [S]tate had to
prove at trial,” he would not have pled guilty.

¶9 Additionally, Anderson alleged ineffective assistance of his trial
counsel who represented him through the plea hearing.3 He claimed that counsel
had failed to investigate witnesses, misled him as to the availability of the State’s
key witnesses, and “was not truly prepared for trial.” In fact, during the plea
hearing, Anderson told the trial court that he did not want to proceed with entering
the pleas and that he wanted a new attorney. The trial court rejected his request for
a new attorney and the plea hearing resumed with Anderson entering pleas to the
amended charges. In his motion for plea withdrawal, Anderson alleged that when
the trial court denied his request for a new attorney, he felt that he was in a “‘lose
lose’ situation” of either going to trial with an attorney he believed was unprepared,
or going ahead with the pleas.

3
Anderson informed his trial counsel after the plea hearing that he wanted to withdraw his
pleas. Counsel then filed a motion to withdraw which was granted by the trial court, and new
counsel was appointed.

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No. 2020AP2131-CR

¶10 The trial court held a hearing on that presentencing plea withdrawal
motion in October 2018, during which it denied the motion. The trial court found
that granting it would be “extremely prejudicial” to the State, primarily based on its
difficulty in locating and securing witnesses in preparation for trial.4 Additionally,
the court did not find Anderson’s testimony regarding his lack of understanding of
the plea agreement credible.

¶11 The matter then proceeded to sentencing. As agreed to under the plea
agreement, the State asked for “substantial prison.” Anderson’s new trial counsel
then argued that “great weight” should be given to the fact that Anderson had
accepted responsibility for the crimes by pleading guilty. The trial court disagreed,
noting that Anderson had subsequently tried to withdraw his pleas. The court also
commented about the circumstances of the homicide—which it characterized as “an
act of human depravity”—and further noted that “[t]he average homicide in this city
is so frequent that no one cares, and the average homicide is one black male shooting
another black male. In this case, the human depravity that I saw exhibited killed a
six year old[.]” The court then imposed the maximum sentences allowable: twenty
years of initial confinement and ten years of extended supervision for the reckless
homicide charge with the dangerous weapon enhancer, and five years of initial
confinement and five years of extended supervision for the felon in possession of a
firearm charge, to be served consecutively. See WIS. STAT. § 940.06(1); WIS. STAT.
§ 939.63(1)(b); WIS. STAT. § 941.29(1m)(a); WIS. STAT. §§ 939.50(3)(d) and (3)(g)

4
“A [trial] court should freely allow a defendant to withdraw his plea prior to sentencing
if it finds any fair and just reason for withdrawal, unless the prosecution has been substantially
prejudiced by reliance on the defendant’s plea.” State v. Garcia, 192 Wis. 2d 845, 861, 532 N.W.2d
111 (1995).

5
No. 2020AP2131-CR

(2017-18).5 Indeed, the court observed that “[i]f any case ever warrants the
maximum, this is it.”

¶12 Anderson filed his first postconviction motion in October 2019. He
claimed that he should be allowed to withdraw his pleas due to the ineffective
assistance of his first trial counsel at the plea hearing. He asserted that he believed
he was “guaranteed” not to get the maximum penalty because counsel had told him
“the court did not sentence people to the maximum penalty when they accepted
responsibility and pled guilty.” Anderson also sought resentencing, claiming that
the maximum penalties imposed were unduly harsh and excessive given the fact that
he had entered pleas to the charges, which meant that Justin’s family did not have
to go through a trial.

¶13 The trial court rejected these arguments. With regard to the
ineffective assistance claim, the court found that even if Anderson’s first trial
counsel had performed deficiently regarding sentencing advice, Anderson had not
demonstrated prejudice because he had made “no meaningful allegation” that he
would have gone to trial and “risked far greater exposure” even if counsel had
informed him that the maximum penalty was a possibility, noting that the plea
agreement reduced his total exposure by sixty-five years.

¶14 The trial court also rejected Anderson’s claim that his sentence was
unduly harsh and excessive. The court stated that it recognized that Anderson had
pled guilty to the charges, but that it was “this court’s view that he did so only
after … he was informed that the State’s witnesses were in custody and available to
testify, so he got no credit for that.” The court also noted Anderson’s criminal

5
All references to the Wisconsin Statutes are to the 2019-20 version unless otherwise
noted.

6
No. 2020AP2131-CR

record, stating that the charges in the case “signaled an alarming escalation in
criminality.”

¶15 Finally, the court stated that, as it had observed at sentencing, this was
“one [of] the most aggravated, heinous, senseless homicides” that it had presided
over, and for that reason, Anderson was deserving of the most severe punishment.
Therefore, the court determined that the sentence imposed was not unduly harsh and
excessive, but rather it was “the only sentence the court deemed sufficient to
accomplish the sentencing goals of punishment, deterrence and community
protection.” The motion was thus denied without a hearing.

¶16 Anderson filed his “supplemental” postconviction motion in July
2020, this time seeking to withdraw his pleas on the ground of newly discovered
evidence. The alleged new evidence was an affidavit from Christopher Pickens,
with whom Anderson was incarcerated. Pickens averred that he was present during
the shooting in July 2017, and that Anderson’s brother, Devon, was actually the
shooter; Pickens said that he saw Anderson on a porch of a residence on North 23rd
Street at that time, and that Anderson remained on the porch throughout the incident.

¶17 The trial court rejected this claim. It suggested that Anderson was
willing to implicate his brother because “[c]onveniently” Devon had died in
May 2018. Ultimately, the court found that there was “not a reasonable probability
that a jury hearing all of the evidence, including [Anderson’s] purported newly
discovered evidence, would have reasonable doubt as to the defendant’s guilt” in
light of the State’s evidence against Anderson.

¶18 Anderson’s supplemental postconviction motion also included
arguments for resentencing. First, he asserted that the trial court improperly relied
on race as a factor in imposing his sentence. The court “categorically reject[ed]”

7
No. 2020AP2131-CR

that assertion. The court explained that its comment during the sentencing hearing
that “the average homicide is one black male shooting another black male” was
made “within the broader scope of its discussion about the unabated level of
homicide violence in the community.” The court recognized that “comments about
race can be uncomfortable,” but stated that “not every mention of race during the
rendition of sentence amounts to a due process violation.” The court further noted
that the record “reflects that the court sentenced [Anderson] as a contributor to that
violence based upon the individualized factors it considered … and not because of
his racial community,” stating emphatically that it “did not rely on race as a factor
in determining an appropriate sentence in this case.”

¶19 Anderson also argued that resentencing is warranted because the trial
court did not let his new trial counsel “meaningfully argue” at the sentencing hearing
that Anderson should be given “credit” for entering his guilty pleas. This claim is
based on an exchange between counsel and the court when counsel argued that
“great weight” should be given to the fact that Anderson had accepted responsibility
for the crimes by pleading guilty:

THE COURT: Well, Counsel, he also tried to
withdraw his plea.

[TRIAL COUNSEL]: Those, Judge—

THE COURT: It was a total stunt.

[TRIAL COUNSEL]: Listen—

THE COURT: Don’t use the word, “Listen,” with
me.

[TRIAL COUNSEL]: No. I’m just saying with—

THE COURT: Don’t use that language with me.

[TRIAL COUNSEL]: It’s a legal argument. It’s a
legal decision. It’s a right of his to pursue—

8
No. 2020AP2131-CR

THE COURT: You cannot sit here and tell me I
should give him credit for accepting a plea when he then
months later tried and failed to withdraw the plea with a
specious argument. He doesn’t get it both ways, Counsel.

[TRIAL COUNSEL]: Of course—

THE COURT: Sorry.

[TRIAL COUNSEL]: Of course, you have to give
him credit for acceptance of responsibility. That’s exactly
what—

THE COURT: [Counsel], if you don’t lose the tone
right now, you’re going to have a problem. Got it?

[TRIAL COUNSEL]: How is my tone different than
your tone?

THE COURT: It doesn’t matter. Lose it, [Counsel],
or you’re going to be out of here. Move on.

[TRIAL COUNSEL]: You must give him credit for
acceptance of responsibility. That’s what a plea is.

THE COURT: Thanks, Counsel. Thanks.

[TRIAL COUNSEL]: You know you’ve read the
transcript.

THE COURT: Right. I read the transcript.

[TRIAL COUNSEL]: You read the transcript; and
you saw how clear even [the prosecutor] admits that, how
clear he was admitting facts of the case. And that’s what he
did.

¶20 In its review of this claim in the supplemental postconviction motion,
the trial court observed that Anderson did not identify any additional argument that
his counsel was unable to make. Furthermore, the court stated that while it
recognized that Anderson “deserved credit” for pleading guilty, any credit was
“totally eroded” by the circumstances of the case, as well as Anderson’s “horrific
conduct” during the proceedings. The court explained that “no amount of argument

9
No. 2020AP2131-CR

on this point would have persuaded the court to impose anything less than a
maximum sentence[.]”

¶21 Therefore, the trial court denied Anderson’s supplemental
postconviction without a hearing as well. This appeal follows.

DISCUSSION

¶22 On appeal, we review Anderson’s postconviction motions, both of
which request an evidentiary hearing on his claims, and ultimately seek the
withdrawal of his pleas. A defendant seeking to withdraw his or her plea after
sentencing has a higher standard to meet than if withdrawal is sought prior to
sentencing; after sentencing, he or she “must prove, by clear and convincing
evidence, that a refusal to allow withdrawal of the plea would result in ‘manifest
injustice.’” See State v. Brown, 2006 WI 100, ¶18, 293 Wis. 2d 594, 716 N.W.2d
906 (citation omitted). The “‘mere assertion’” of manifest injustice, however,
“‘does not entitle a defendant to the granting of relief[.]’” State v. Allen, 2004 WI
106, ¶14, 274 Wis. 2d 568, 682 N.W.2d 433 (citation omitted).

¶23 Indeed, a defendant is not automatically entitled to an evidentiary
hearing relating to his or her postconviction motion. State v. Bentley, 201 Wis. 2d
303, 310-11, 548 N.W.2d 50 (1996). Rather, the trial court is required to hold an
evidentiary hearing only if the defendant has alleged “sufficient material facts that,
if true, would entitle the defendant to relief.” Allen, 274 Wis. 2d 568, ¶14. This is
a question of law that we review de novo. Id., ¶9.

¶24 If, on the other hand, the postconviction motion “does not raise facts
sufficient to entitle the movant to relief, or presents only conclusory allegations, or
if the record conclusively demonstrates that the defendant is not entitled to relief,”

10
No. 2020AP2131-CR

the trial court, in its discretion, may either grant or deny a hearing. Id. We will
uphold such a discretionary decision if the trial court “has examined the relevant
facts, applied the proper legal standards, and engaged in a rational decision-making
process.” Bentley, 201 Wis. 2d at 318.

Claim of Newly Discovered Evidence

¶25 We first address the State’s argument that Anderson should be
judicially estopped from seeking to withdraw his plea based on newly discovered
evidence when he had admitted to the crimes by pleading guilty. The doctrine of
judicial estoppel “precludes a party from asserting a position in a legal proceeding
and then subsequently asserting an inconsistent position.” State v. Petty, 201
Wis. 2d 337, 347, 548 N.W.2d 817 (1996). Its application is intended to protect the
judicial process from litigants who attempt to “play[] fast and loose with the
courts[.]” Id. at 346-47 (citations and some quotation marks omitted).
“Determining the elements and considerations involved before invoking the
doctrine of judicial estoppel are questions of law” that this court reviews
independently. See id. at 347.

¶26 In its argument for applying judicial estoppel, the State points out that
Anderson relies on State v. Krieger, 163 Wis. 2d 241, 255, 471 N.W.2d 599 (Ct.
App. 1991), for its assertion that the newly discovered evidence test may be applied
in motions for plea withdrawal. The State argues that Krieger is distinguishable
from this case, however, because in Krieger the defendant had entered a no-contest
plea, as opposed to the guilty pleas entered by Anderson here. See id. at 246-47.

¶27 Still, the State concedes that this court previously applied the newly
discovered evidence test in State v. Ferguson, 2014 WI App 48, 354 Wis. 2d 253,
847 N.W.2d 900, where the defendant sought to withdraw his pleas after entering a

11
No. 2020AP2131-CR

“straight” guilty plea. See id., ¶¶6, 26-27. We are bound by that precedent, see
Cook v. Cook, 208 Wis. 2d 166, 189-90, 560 N.W.2d 246 (1997), and therefore we
decline the State’s request to apply the doctrine of judicial estoppel in this case.

¶28 Thus, we turn to Anderson’s claim that Pickens’ affidavit constitutes
newly discovered evidence. “Newly discovered evidence may be sufficient to
establish that a manifest injustice has occurred” for a defendant seeking to withdraw
a guilty plea. State v. McCallum, 208 Wis. 2d 463, 473, 561 N.W.2d 707 (1997).
Whether to allow the withdrawal of a plea under the manifest injustice standard is a
decision within the trial court’s discretion, and we will uphold that decision as long
as the court properly exercised its discretion. Id. However, “[a]n exercise of
discretion based on an erroneous application of the law is an erroneous exercise of
discretion.” Id.

¶29 In order to warrant plea withdrawal, newly discovered evidence must
meet the following criteria: “(1) the evidence was discovered after conviction;
(2) the defendant was not negligent in seeking evidence; (3) the evidence is material
to an issue in the case; and (4) the evidence is not merely cumulative.” Id. “If the
defendant proves these four criteria by clear and convincing evidence, the [trial]
court must determine whether a reasonable probability exists that a different result
would be reached in a trial.” Id.

¶30 It its decision denying Anderson’s supplemental postconviction
motion, the trial court focused on that final requirement, finding that there was not
a reasonable probability that a jury hearing all of the evidence, “including
[Anderson’s] purported newly discovered evidence,” would have reasonable doubt

12
No. 2020AP2131-CR

regarding Anderson’s guilt.6 However, in reviewing Anderson’s motion, we
conclude that he has sufficiently pled his claim of newly discovered evidence. See
Allen, 274 Wis. 2d 568, ¶23 (a defendant’s postconviction motion must specifically
allege “the five ‘w’s’ and one ‘h’; that is, who, what, where, when, why, and how”
to be factually sufficient to demonstrate he or she is entitled to relief). Furthermore,
“[i]f the facts in the motion are assumed to be true, yet seem to be questionable in
their believability, the [trial] court must hold a hearing.” Id., ¶12 n.6.

¶31 It is clear from the trial court’s decision that it did not consider the
averments in Pickens’ affidavit to be credible. However, pursuant to Allen, the
proper procedure is to hold an evidentiary hearing in order to make such credibility
determinations. See id. Therefore, the trial court erroneously exercised its
discretion in failing to apply that law which requires holding an evidentiary hearing
on this issue. See McCallum, 208 Wis. 2d at 473.

Claim of Ineffective Assistance of Counsel

¶32 We next discuss Anderson’s claim that he received ineffective
assistance from his first trial counsel relating to sentencing advice he was provided.
Specifically, Anderson argues that counsel failed to explain that he could still
receive the maximum penalty after counsel had explained the mitigating factors of
the case, such as entering the guilty pleas.

6
In its argument on appeal, the State also focuses on this requirement, without discussing
the first four factors of the newly discovered evidence test. Furthermore, although the State
“reserve[d] the right to address the first four factors if they ever become relevant” in its response
to Anderson’s supplemental postconviction motion, it did not renew that request in its response
brief, nor did it respond to Anderson’s assertions in his brief-in-chief that the factors were met.
Thus, Anderson contends that the State has conceded that Pickens’ affidavit meets those factors,
and we agree. See Charolais Breeding Ranches, Ltd. v. FPC Sec. Corp., 90 Wis. 2d 97, 109, 279
N.W.2d 493 (Ct. App. 1979) (unrefuted arguments are deemed conceded).

13
No. 2020AP2131-CR

¶33 Proving ineffective assistance of counsel is one way to establish a
manifest injustice for purposes of plea withdrawal. State v. Taylor, 2013 WI 34,
¶49, 347 Wis. 2d 30, 829 N.W.2d 482. To prove ineffective assistance of counsel,
a defendant must show that his trial counsel’s performance was deficient and that
the deficiency prejudiced the defense. Strickland v. Washington, 466 U.S. 668,
687 (1984). The defendant “must prevail on both parts of the test to be afforded
relief.” Allen, 274 Wis. 2d 568, ¶26.

¶34 A claim of ineffective assistance of counsel requires that a
postconviction evidentiary hearing be held “to preserve the testimony of trial
counsel.” State v. Machner, 92 Wis. 2d 797, 804, 285 N.W.2d 905 (Ct. App. 1979).
However, as stated above, the trial court is only required to hold such a hearing if
the defendant has sufficiently alleged facts in his postconviction motion that
demonstrate he is entitled to relief. See Allen, 274 Wis. 2d 568, ¶14.

¶35 In his first postconviction motion,7 Anderson pointed in particular to
the testimony of his first trial counsel at the hearing on his presentencing motion to
withdraw his pleas: “I would have told him most likely, because I tell every client
this, that if you plead guilty it’s not likely you’re going to get the maximum because
from a public policy perspective the judges typically don’t do that because otherwise
no one would plead guilty[.]” Anderson asserts that, based on his discussions with
counsel, he believed he “would probably receive around [fifteen] years in prison”
and that he “relied on this number” when he entered his pleas. He then alleges that

7
In support of this argument on appeal, Anderson also points to his own testimony at the
hearing on his presentence motion to withdraw his pleas, in which he stated that trial counsel had
advised him “that [Judge] Stark wouldn’t have gave [sic] me all that time if I plead guilty on all of
this.” However, Anderson did not include a reference to that testimony in his postconviction
motion, and our review is limited to “the four corners” of the postconviction motion. See State v.
Allen, 2004 WI 106, ¶27, 274 Wis. 2d 568, 682 N.W.2d 433.

14
No. 2020AP2131-CR

he “would not have pled guilty if he thought that receiving the maximum penalty
was a possibility.”

¶36 That allegation is conclusory. Had Anderson gone to trial, the trial
court noted that he would have faced 105 years of incarceration if convicted on all
counts—essentially a de facto life sentence. Anderson fails to explain why he would
have insisted on going to trial and face an additional sixty-five years of
incarceration, as compared to the forty years he faced under the plea agreement. See
Allen, 274 Wis. 2d 568, ¶23.

¶37 Therefore, Anderson did not sufficiently plead his claim of ineffective
assistance of counsel to demonstrate that he is entitled to relief. See id., ¶14.
Accordingly, the trial court did not err in denying the claim without a hearing. See
id., ¶9.

Sentencing Claims

¶38 Finally, we review Anderson’s claims relating to sentencing.8
Anderson alleges that the trial court erred by not allowing his new trial counsel the
opportunity to “meaningfully” argue that Anderson’s decision to plead guilty was a
mitigating factor for sentencing, and that the court improperly relied on Anderson’s
race in imposing his sentence when it referenced the number of homicides that occur
in the community.

¶39 “It is a well-settled principle of law that a [trial] court exercises
discretion at sentencing.” State v. Gallion, 2004 WI 42, ¶17, 270 Wis. 2d 535, 678

8
In his appeal, Anderson does not renew his argument set forth in his first postconviction
motion that his sentence was unduly harsh and excessive. “On appeal, issues raised but not briefed
or argued are deemed abandoned.” State v. Ledger, 175 Wis. 2d 116, 135, 499 N.W.2d 198 (Ct.
App. 1993).

15
No. 2020AP2131-CR

N.W.2d 197. Our review on appeal is limited to determining whether that discretion
was erroneously exercised. See id.

¶40 In making a sentencing determination, the trial court must identify the
objectives of the sentence, which generally include “the protection of the
community, punishment of the defendant, rehabilitation of the defendant, and
deterrence to others.” Id., ¶40. To meet these objectives, the court must consider
“‘legally relevant factors.’” State v. Odom, 2006 WI App 145, ¶7, 294 Wis. 2d 844,
720 N.W.2d 695 (citation omitted). The primary factors for consideration are “the
gravity of the offense, the character of the offender, and the public’s need for
protection.” Id. It is also within the court’s discretion to consider other relevant
factors, and to determine the weight given to the factors considered. Id. Other
factors the court may consider include the defendant’s “‘remorse, repentance and
cooperativeness[.]’” State v. Harris, 2010 WI 79, ¶28, 326 Wis. 2d 685, 786
N.W.2d 409 (citations omitted).

¶41 Anderson’s claim that the trial court did not allow the opportunity to
argue that factor stems from the heated exchange between the court and his new
counsel during the sentencing hearing relating to the “credit” counsel asserted
Anderson should be given for pleading guilty, as previously described. It is clear
from the transcript that the court disagreed with counsel’s assertion that “great
weight” should be afforded Anderson’s guilty pleas, given that Anderson had tried
to withdraw his pleas prior to sentencing. The trial court deemed that motion a
“specious stunt,” observing that Anderson had likely only pled guilty because he
found out that the State’s “reluctant witnesses” were “either available or in custody
being held to testify,” and then sought to withdraw his pleas after those witnesses
“were long gone.”

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No. 2020AP2131-CR

¶42 Nevertheless, counsel was able to make his point that the trial court
had reviewed the plea hearing transcript where Anderson admitted to being the
shooter, and further noted that even the prosecutor had stated that Anderson had
admitted to the facts in the case. Therefore, we conclude that the trial court did not
prevent counsel from making the argument that Anderson had accepted
responsibility for the crimes.

¶43 Furthermore, a trial court may elaborate on the sentencing factors it
considered in postconviction decisions. See State v. Fuerst, 181 Wis. 2d 903, 915,
512 N.W.2d 243 (Ct. App. 1994). Here, the trial court noted in its decision denying
Anderson’s supplemental postconviction motion:

While the court recognized that [Anderson] deserved credit
for pleading guilty, that credit was totally eroded by other
circumstances: (1) he pled guilty to a significantly amended
offense; (2) he pled guilty only when he knew that the State
had reluctant witnesses either available or in custody being
held to testify; (3) he only accepted responsibility to a lesser
charge knowing that a conviction on the original charge
would likely amount to a de facto life sentence; (4) he
attempted to withdraw his plea[s] prior to sentencing based
on disingenuous claims about his attorney’s performance
and his understanding of the plea.

The court also pointed out that Anderson was “belligerent” during the hearing on
his presentence motion to withdraw his pleas, and was removed from the courtroom
due to an outburst of profanity.

¶44 Thus, the record indicates that the trial court recognized that Anderson
had pled guilty, and explained its reasoning for the limited weight that it afforded
that decision, which is properly within its discretion. See Odom, 294 Wis. 2d 844,
¶7.

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No. 2020AP2131-CR

¶45 Turning to Anderson’s claim that the trial court improperly relied on
Anderson’s race as a factor in imposing his sentence, the law is clear that race is an
improper factor to consider at sentencing and, as such, imposing a sentence based
on race is therefore an erroneous exercise of discretion. See Harris, 326 Wis. 2d
685, ¶33. A defendant must prove by clear and convincing evidence that the trial
court actually relied on this improper factor at sentencing. Id., ¶34.

¶46 Anderson has not met this burden. The comment in which the trial
court referred to race was part of its discussion regarding violent crime in the City
of Milwaukee: “[t]he average homicide in this city is so frequent that no one cares,
and the average homicide is one black male shooting another black male.” When
reviewed in its full context, the court’s comments reflected its “dismay” at the high
level of homicides in the city—which has “disproportionately victimized” the Black
community—and the need for society as a whole to respond to the issue.

¶47 Furthermore, the trial court explained the factors it was relying on to
achieve its sentencing objectives. This included Anderson’s extensive criminal
history, for which the court characterized him as “a menace to society” from which
the community needed protection, noting that the charges in this case “signaled an
alarming escalation in criminality” on Anderson’s part. The court also emphasized
that punishment for “one [of] the most aggravated, heinous, senseless homicides”
that the court had ever presided over was one of its main sentencing goals. See
Gallion, 270 Wis. 2d 535, ¶40.

¶48 Therefore, we conclude that the trial court did not erroneously
exercise its discretion during sentencing, nor did it rely on improper factors.
Accordingly, Anderson’s request for resentencing was properly denied. See id.,
¶¶17, 40; Odom, 294 Wis. 2d 844, ¶7.

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No. 2020AP2131-CR

CONCLUSION

¶49 In sum, we reverse and remand this matter to the trial court for an
evidentiary hearing on Anderson’s claim of newly discovered evidence. However,
we affirm the trial court’s decision denying his claim of ineffective of counsel and
his request for resentencing.

By the Court.—Order affirmed in part, reversed in part, and cause
remanded with directions.

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

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