State v. Robert R. Underwood

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
January 26, 2023
A party may file with the Supreme Court a
Sheila T. Reiff petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.

Appeal No. 2021AP1629-CR Cir. Ct. No. 2019CF232

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT IV

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

ROBERT R. UNDERWOOD,

RESPONDENT-APPELLANT.

APPEAL from a judgment and an order of the circuit court for
Dodge County: BRIAN A. PFITZINGER, Judge. Affirmed.

Before Blanchard, P.J., Fitzpatrick, and Nashold, 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).

¶1 PER CURIAM. Robert R. Underwood appeals a judgment of
conviction for knowingly operating while suspended, causing death, and
No. 2021AP1629-CR

knowingly operating while suspended, causing great bodily harm. Underwood
argues that the evidence at his trial to the court was insufficient to prove the
element of Underwood’s knowledge, at the time of the offenses, that his operating
privilege had been suspended.

¶2 Underwood also appeals the circuit court order denying his
postconviction motion for sentence modification. He argues that he is entitled to
sentence modification based on newly presented evidence as to the sentences
imposed in purportedly similar cases.

¶3 For the reasons set forth below, we reject Underwood’s arguments.
We affirm.

BACKGROUND

¶4 The State charged Underwood with felony offenses of knowingly
operating a motor vehicle while suspended, causing death, and knowingly
operating a motor vehicle while suspended, causing great bodily harm, both as a
repeater, based on an automobile crash that occurred on September 17, 2017. At
Underwood’s trial to the court, the only element in dispute was whether
Underwood knew, at the time of the offenses, that his operating privilege had been
suspended.

¶5 The State presented the following evidence at trial. A police officer
testified that he issued a speeding citation to Underwood on March 29, 2017, for
driving twenty-five miles per hour over the speed limit. The officer testified that
the citation informed Underwood that if he failed to contest the citation or pay the
fine, his operating privilege may be suspended. The officer also testified that it
would have been his usual practice to include, with the citation, a court pamphlet

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that stated that a conviction for driving twenty-five miles per hour or more over
the speed limit required suspension of operating privileges.

¶6 The circuit court deputy clerk of the traffic forfeiture division
testified that Underwood failed to appear for his court date on the citation and a
default judgment was entered by the court on May 11, 2017. The default
judgment, which was entered into evidence, states that the penalty for the
conviction was thirty days of license suspension and a fine. It also ordered that, if
Underwood failed to pay the fine, his operating privilege would be suspended for
no less than thirty days and no more than two years. The court mailed the default
judgment to Underwood at the address it had in its system for Underwood, in
Butler, Wisconsin (the “Butler address”). Court records did not indicate that the
mailing was returned. Notice of Underwood’s conviction was transmitted
electronically by the court to the Department of Transportation (DOT).

¶7 The clerk testified that Underwood failed to pay the fine as required
under the default judgment and, on August 28, 2017, the circuit court issued an
order suspending Underwood’s operating privilege for two years. The court
electronically transmitted that order to the Department of Motor Vehicles (DMV)
for it to process. The clerk testified that the court did not mail that order to
Underwood, but further testified to the clerk’s understanding that, when such
orders are transmitted to the DMV, the DMV then notifies the defendants by mail.

¶8 An officer who investigated the September 2017 crash testified that
Underwood’s certified driving records from the DMV indicated that the DMV
mailed notice of the suspension for the speeding conviction to Underwood at the
Butler address on May 12, 2017, and mailed notice of the suspension for failure to
pay the fine to Underwood at an address in Horicon, Wisconsin (the “Horicon

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No. 2021AP1629-CR

address”) on August 29, 2017. The officer testified that, according to certified
records from DOT, Underwood registered a vehicle in his own name on July 16,
2017, and submitted the Horicon address as his address at that time. The officer
testified that Underwood’s license remained suspended on the date of the crash,
September 17, 2017.

¶9 Underwood testified as follows in his own defense. Underwood was
living with his girlfriend, Tracy Verbeten, in Juneau, Wisconsin, when he received
the traffic citation in May 2017. The Butler address was Underwood’s mother’s
residence, and Underwood used that address to receive business mail, although he
experienced some difficulty receiving his mail there. Underwood used the
Horicon address to register a vehicle he purchased for his brother-in-law but never
intended DOT to use that as his mailing address. He never received the default
judgment mailed to the Butler address, and he never received any mail at the
Horicon address. Underwood knew that, if he failed to pay his speeding citation,
his license would be suspended. However, he did not know that his license was
suspended at the time of the September 2017 crash. He first learned that his
license had been suspended when he met with an officer at the impound lot about
a week after the crash.

¶10 Underwood’s mother testified that she resides at the Butler address,
and that Underwood uses that address as his mailing address, although he was not
residing there at the time of the crash. She testified that she would give
Underwood’s mail to Underwood’s ex-brother-in-law, Eric, who lived in the
upstairs apartment at the Butler address, to give in turn to Verbeten and from her
to Underwood. However, when Eric moved out, Underwood’s mother found two
bags of Underwood’s mail among Eric’s belongings. Underwood’s mother also

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testified that she had experienced trouble receiving mail at her residence for the
past five years.

¶11 Verbeten testified that she lives in Juneau, Wisconsin, and that
Underwood moved in with her in 2016. Underwood received mail at their
residence. Verbeten owned the Horicon property, and no one was living there in
2017 because it was not habitable. To her knowledge, Underwood never received
mail at that address. Verbeten was not aware until after the crash in 2017 that
Underwood’s license had been suspended.

¶12 The circuit court determined that Underwood knew at the time of the
crash that his license was suspended. The court found that the testimony by
Underwood’s mother and Verbeten was credible, but the testimony by Underwood
that he did not receive the mailings from the court and the DMV was not credible.

¶13 The circuit court found Underwood guilty and imposed a sentence of
seven years of initial confinement and three years of extended supervision for
knowingly operating while suspended, causing death, and a consecutive sentence
of three years of initial confinement and two years of extended supervision for
knowingly operating while suspended, causing great bodily harm. The court
explained that it considered the offenses “on the top side of seriousness for this
type of offense.”

¶14 Underwood moved for sentence modification based on the new
factor that allegedly similarly situated defendants had received significantly lesser
sentences. He argued that the evidence indicated that, contrary to the circuit
court’s sentencing comments, Underwood’s offenses were not on the “top side” of
serious. The court determined that Underwood had not established a new factor,
and denied the motion for sentence modification.

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No. 2021AP1629-CR

I. Sufficiency of the Evidence

¶15 We will reverse for insufficient evidence only if “the evidence,
viewed most favorably to the state and the conviction, is so lacking in probative
value and force that no trier of fact, acting reasonably, could have found guilt
beyond a reasonable doubt.” State v. Poellinger, 153 Wis. 2d 493, 507, 451
N.W.2d 752 (1990). We review the sufficiency of the evidence under the same
standard whether the evidence against the defendant was direct or circumstantial.
Id. at 501. We review de novo whether the evidence at trial was sufficient to
support a conviction beyond a reasonable doubt. See State v. Booker, 2006 WI
79, ¶12, 292 Wis. 2d 43, 717 N.W.2d 676.

¶16 In order to convict Underwood of operating while suspended,
causing great bodily harm or death, the State was required to prove the following
elements: (1) Underwood operated a motor vehicle on a highway;
(2) Underwood’s operating privilege was suspended at the time he operated the
motor vehicle; (3) Underwood knew that his operating privilege had been
suspended; and (4) Underwood’s operation of the vehicle caused great bodily
harm or death to the victim. See WIS JI—CRIMINAL 2623A. The only element in
dispute at Underwood’s trial was the third element: whether Underwood knew, at
the time of the offenses, that his operating privilege had been suspended.

¶17 Underwood asserts that, to prove that Underwood knew that his
operating privilege had been suspended, the State was required to prove that
Underwood had actual knowledge of the suspension. See WIS. STAT.

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No. 2021AP1629-CR

§ 343.44(1)(a), (2)(ag)2.-3. (2015-16)1 (elements of knowingly operating while
suspended, causing great bodily harm or death, include that the person “knows at
the time of the violation that [the person’s] operating privilege has been
suspended” (emphasis added)). Underwood points out that, under a prior version
of the operating while suspended statute, the State had to prove only that “the
defendant had cause to believe their license might be revoked or suspended.” See
State v. Kemp, 106 Wis. 2d 697, 706, 318 N.W.2d 13 (1982). Underwood asserts
that the statute has now been amended to create separate felony offenses of
knowingly operating a motor vehicle, causing great bodily harm or death, which
include the element of actual knowledge. See 2011 Wis. Act 113.

¶18 Underwood argues that the jury instructions make clear that proving
actual knowledge is different than proving a defendant had “cause to believe” his
license was suspended. He cites WIS JI—CRIMINAL 2623A, which instructs that
the State “must prove beyond a reasonable doubt that the defendant knew [that the
defendant’s] operating privileges had been suspended regardless of whether the
defendant received written notice of suspension.” He also cites a jury instruction
committee note explaining that “[t]his may be accomplished by showing any
source of actual knowledge, such as a notice given by a judge, receipt of a mailed
notice, etc.” Id., n.9. He contends that the State failed to meet that burden here.

¶19 Underwood argues that the State’s evidence was insufficient to
establish actual knowledge because it presented no direct evidence that
Underwood received the default judgment or the notices of suspension that were

1
All references to the Wisconsin Statutes are to the 2015-16 version unless otherwise
noted.

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No. 2021AP1629-CR

mailed to addresses where he did not reside. He contends that the information
provided in the citation and pamphlet did not inform him that his license had been
suspended, only that it was possible, or even likely, to occur in the future if he was
ultimately convicted and failed to pay the fine. He contends that the same is true
of his admission that he understood that failure to pay a fine would lead to
suspension of his license, because that admission did not prove that he knew his
license had been suspended at the time of the offenses.

¶20 The State argues that the evidence was sufficient to support the
circuit court’s finding that Underwood received actual notice that his operating
privilege had been suspended. It argues, first, that the speeding citation and court
pamphlet provided Underwood with notice that his operating privilege would be
suspended. It argues that Underwood’s admission that he knew that his license
would be suspended if he failed to pay the fine established his actual knowledge
that his license was suspended when he subsequently failed to pay the fine, a
failure that is not disputed. Finally, it argues that the court was entitled to draw
the reasonable inference that Underwood received the default judgment and DMV
suspension notices mailed to him at the Butler and Horicon addresses. It contends
that failure to receive a properly mailed notice is not a defense to operating with a
suspended license under WIS. STAT. § 343.44(3).

¶21 In reply, Underwood contends that the State has not cited any trial
evidence from which a rational fact-finder could have found beyond a reasonable
doubt that Underwood knew at the time of the crash that his license was
suspended. He argues that the State has cited evidence to support the previous
“cause to believe” standard, not the current standard of actual knowledge. He
points out that the State has cited no evidence of an admission by Underwood that
he knew his license had been suspended, no evidence that an officer ever told

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No. 2021AP1629-CR

Underwood that his license had been suspended, and no evidence that any notice
was mailed to Underwood’s place of residence.

¶22 Underwood also cites State v. Giegler, No. 2021AP952-CR,
unpublished slip op. (WI App Nov. 2, 2021), as persuasive authority that the
State’s proof of actual knowledge was insufficient. Giegler was convicted of
knowingly violating a domestic abuse temporary restraining order (TRO), and
challenged the sufficiency of the evidence to establish that he had actual
knowledge of the TRO and its terms. Id. The State’s evidence at trial included:
(1) testimony by a police officer that he observed Giegler at the victim’s residence,
and that he confirmed that a TRO was in place that had been served; and
(2) testimony by another officer that the general process for serving a TRO was
personal service by an officer, and that he was informed by dispatch that there was
a TRO in place and that Giegler had been served. Id., ¶¶4, 5.

¶23 We held that the State’s evidence was insufficient as a matter of law
to prove Giegler’s knowledge of the TRO. Id., ¶¶14-15. We explained that,
although the trier of fact could draw reasonable inferences from the evidence,
“[a]n ‘inference cannot be based upon speculation or conjecture,’” id., ¶10 (quoted
source omitted). We noted that the only evidence the State produced to prove
knowledge was the officers’ testimony that they were informed that Giegler had
been served, and that the trial evidence lacked any evidence to prove service. Id.,
¶¶14-15. We therefore concluded that, “[a]t best, the jury may have speculated
that Giegler knew about the restraining order.” Id.

¶24 Underwood argues that here, as in Giegler, the State’s evidence was
insufficient to establish actual knowledge because the State failed to present a
witness involved in conveying notice, and any inference of notice had to be based

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No. 2021AP1629-CR

on speculation. He contends that the State presented no testimony as to whether
the DMV’s August 2017 notice of suspension, which it mailed to the Horicon
address, was returned as undeliverable. He asserts that the State could have
presented testimony by a DMV employee or another person with personal
knowledge as to how the DMV handles returned or undeliverable mail, or other
evidence to establish that Underwood received mail at the Horicon address. He
also argues that a fact-finder would have to speculate that the mail that
Underwood’s mother testified that she found undelivered to Underwood
(testimony the court found credible) did not include the default judgment and
DMV notice mailed to the Butler address.

¶25 Underwood also argues that the State’s argument that failure to
receive a properly mailed notice is not a defense is misplaced. He asserts that
WIS. STAT. § 343.44(3) would apply if the State had charged Underwood with
operating with a suspended license, causing death or great bodily harm, under
§ 343.44(1)(a) and (2)(ag)2. and 3. See § 343.44(3) (“[F]ailure to receive an order
of revocation, suspension or disqualification mailed by 1st class mail to such
person’s last-known address shall not be a defense to the charge of driving after
revocation, suspension or disqualification.”). Here, Underwood points out, the
State charged Underwood with knowingly operating a motor vehicle while
suspended, causing death or great bodily harm. See § 343.44(ag)2., 3. Thus,
Underwood points out, the State had the burden to prove actual knowledge.

¶26 At the outset, we agree with Underwood that resolution of this issue
turns on whether the evidence at trial was sufficient to support a finding that
Underwood received notice that his operating privilege had been suspended, not
whether he knew that that was merely a potential or even likely consequence of
the speeding citation. That is, as Underwood points out, evidence that Underwood

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No. 2021AP1629-CR

knew that his license would be suspended does not establish that Underwood knew
that his license had been suspended at the time of the offenses. Compare WIS.
STAT. § 343.44(1)(a), (ag)2., & 3. (elements of knowingly operating, causing great
bodily harm or death, include that “the person knows at the time of the violation
that his or her operating privilege has been suspended” (emphasis added)), with
Kemp, 106 Wis. 2d at 706 (then-current version of operating while suspended
statute required showing that “the defendant had cause to believe their license
might be revoked or suspended”). Accordingly, our discussion focuses on
whether the evidence at trial was sufficient to support a finding that Underwood
received the default judgment and DMV notices mailed to the Butler and Horicon
addresses.

¶27 We conclude that the evidence at trial was sufficient to support the
convictions because it allowed a reasonable inference that Underwood had
received notice that his license was suspended at the time of the September 2017
offenses. The State introduced testimony and certified DMV records to establish
that the default judgment and the first notice of suspension were mailed to
Underwood at the Butler address, and the second notice of suspension was mailed
to Underwood at the Horicon address. The State introduced testimony that
Underwood received mail at the Butler address. It also introduced testimony that
certified DOT records showed that Underwood used the Horicon address when he
registered a vehicle with the DMV several months after he received the speeding
citation and about a month before the DMV mailed the notice of the two-year
suspension. While Underwood points to reasons that the circuit court could have
found that Underwood did not receive the default judgment or the notices of
suspension, he has not shown that the court was required to make that finding.
Rather, the court, as the fact-finder, was entitled to draw the reasonable inference

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No. 2021AP1629-CR

from the evidence that notices were sent to addresses where Underwood received
mail, and the further reasonable inference that Underwood actually received the
notices that his license had been suspended.

¶28 We are not persuaded that the analysis in Giegler supports a
different result. In Giegler, the trial evidence did not include evidence that
Giegler received notice of the TRO. Here, by contrast, there was evidence that the
circuit court mailed the default judgment to the Butler address, and that the DMV
mailed notices of suspension to the Butler and Horicon addresses. As explained,
the court was entitled to draw the inference that Underwood received mail at those
addresses, and the court found that Underwood’s testimony that he did not receive
that mail was not credible. Thus, unlike Giegler, the trial evidence included
evidence that allowed a reasonable inference of actual notice.

¶29 We agree with Underwood that WIS. STAT. § 343.44(3) does not
apply in this case because the State chose to charge Underwood with knowingly
operating a motor vehicle while suspended, causing great bodily injury or death.
Thus, as Underwood points out, the State had the burden to prove actual
knowledge, such as by proving Underwood received the notices mailed to him.
However, as explained, we conclude that the evidence was sufficient to support a
reasonable inference that Underwood received the default judgment and DMV
notices of suspension that were mailed to one address that he used to receive mail
and a second address that he had recently provided to the DOT. Accordingly, we
are not persuaded that the evidence at trial was insufficient.

II. Sentence Modification

¶30 A new factor is “‘a fact or set of facts highly relevant to the
imposition of sentence, but not known to the trial judge at the time of original

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No. 2021AP1629-CR

sentencing, either because it was not then in existence or because … it was
unknowingly overlooked by all of the parties.’” See State v. Harbor, 2011 WI 28,
¶40, 333 Wis. 2d 53, 797 N.W.2d 828 (quoted source omitted). A defendant
seeking sentence modification based on a new factor must: (1) demonstrate by
clear and convincing evidence that a new factor exists; and (2) show that the new
factor justifies sentence modification. See id., ¶¶36-38. The court may consider
either prong first, and if a defendant fails to satisfy one prong, the court need not
address the other. See id., ¶38. Whether a fact or set of facts constitutes a new
factor is a question of law that this court considers de novo. See id., ¶33. Whether
a new factor warrants sentence modification is a matter within the circuit court’s
discretion. See id.

¶31 With his postconviction motion, Underwood presented the circuit
court with evidence regarding sentencings in other cases that he asserts are similar
to this one and, based on those submissions, he argues that other defendants
convicted of similar offenses have received lesser sentences, entitling Underwood
to sentence modification. He points to the circuit court’s comments at sentencing
that, compared to other cases, the facts in Underwood’s case were particularly
aggravated. He then argues that evidence that other defendants convicted of the
same offenses have received substantially lower sentences, despite some of the
cases having more aggravated facts than this one, constitutes a new factor
warranting sentence modification. He argues that the court erred by determining
that the new information did not constitute a new factor, and that the matter should
be remanded to the circuit court for a determination of whether the new factor
warrants sentence modification.

¶32 Underwood cites the following information from his postconviction
motion as establishing a new factor. Between April 14, 2000, and April 14, 2021,

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thirty-nine defendants were convicted of knowingly operating after suspension,
causing death. Fifteen of those defendants, like Underwood, were convicted only
of knowingly operating while suspended offenses, and all but two of those fifteen
defendants were placed on probation. The average length of initial confinement
across all thirty-nine cases, excluding Underwood’s, was 2.4 years. During the
same time period, forty-two defendants were convicted of knowingly operating
after suspension, causing great bodily harm. Seventeen of those defendants were
convicted only of knowingly operating while suspended offenses, and none of
those defendants received a prison sentence. Across all forty-two defendants, only
eleven defendants received prison sentences, and the average length of initial
confinement was 1.4 years. In some of those other cases, the driver was impaired,
was driving recklessly, lied to police, or fled the scene.

¶33 Underwood contends that the information he presented to the circuit
court showing disparities between his sentence and the sentences of other
defendants convicted of the same offenses, including the aggravated facts in some
of those cases that are not present in Underwood’s case, was a new factor
warranting sentence modification. He contends that the information was
unknowingly overlooked by all of the parties because no one mentioned that
information at sentencing, and in fact comments by counsel and the court
indicated that the court believed that a charge of knowingly operating while
suspended, causing great bodily harm or death, without an accompanying impaired
driving charge, was unusual. Underwood contends that the information is also
highly relevant to his sentencing because a circuit court may consider sentences
received by similarly situated defendants when imposing sentence. See State v.
Gallion, 2004 WI 42, ¶47, 270 Wis. 2d 535, 678 N.W.2d 197 (sentencing court
“may … consider information about the distribution of sentences in cases similar

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No. 2021AP1629-CR

to the case before it”). Underwood points out that, in State v. Counihan, 2020 WI
12, ¶¶43-44, 390 Wis. 2d 172, 938 N.W.2d 530, the supreme court held that
considering sentences in similar cases is “congruent with the general policy that
‘consistency in criminal sentencing is desirable.’” (Quoted source omitted.)

¶34 Underwood contends that the circuit court’s sentencing comments
made clear that the severity of the offenses he committed was highly relevant to
the sentence imposed, and that a comparison to the lower sentences received in
more aggravated cases is therefore highly relevant to the sentence Underwood
received. He argues that he has established a new factor, and that this matter
should be remanded for the circuit court to determine whether the new factor
warrants sentence modification.

¶35 The State responds that the circuit court properly denied
Underwood’s motion for sentence modification. It argues that there is no
requirement that defendants convicted of similar crimes must receive similar
sentences, and that each sentence must be individualized. See State v. Lechner,
217 Wis. 2d 392, 427, 576 N.W.2d 912 (1998). It argues that the sentences
received by other defendants convicted of the same offenses are irrelevant to
Underwood’s sentence. It also contends that, even if other sentences could be
considered, Underwood failed to provide sufficient information as to the details in
the other cases to establish that any disparity between his case and the other cases
would warrant sentence modification.

¶36 We conclude that Underwood failed to present a new factor for
sentence modification purposes, and that the circuit court therefore properly
denied the postconviction motion. Underwood compares his sentence to other
defendants convicted solely of knowingly operating while suspended, causing

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No. 2021AP1629-CR

great bodily harm or death, and defendants convicted of knowingly operating
while suspended, causing great bodily harm or death, plus impaired driving. He
argues that the criminal complaints in some of those other cases show more
aggravated facts, such as evidence that the defendant was impaired, drove
recklessly, lied to police, or fled the scene, none of which are present in
Underwood’s case. However, Underwood makes no comparisons between the
sentencing factors considered in his case versus the sentencing factors considered
in the other cases. For example, the circuit court here considered Underwood’s
history of poor driving for which he would offer excuses; that Fentanyl was
discovered in Underwood’s system after the crash in this case; the impact of the
crash on the victims’ family; Underwood’s “sketchy” employment history; and
Underwood’s significant criminal history, including that he was on probation at
the time of these offenses. Underwood’s postconviction motion did not present
the circuit court with comparisons to the sentencings in the other cases sufficient
to demonstrate whether similar factors were considered in any of those cases,
much less a highly relevant pattern. Thus, Underwood has failed to establish that
he was similarly situated to the other defendants who received lesser sentences
such that he presented highly relevant facts that could constitute a new factor.
Accordingly, the circuit court properly denied the motion for sentence
modification.

By the Court.—Judgment and order affirmed.

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

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