State v. Jason A. Marcotte

2020 WI App 28

COURT OF APPEALS OF WISCONSIN
PUBLISHED OPINION

Case No.: 2019AP695-CR

Complete Title of Case:

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

JASON A. MARCOTTE,

DEFENDANT-APPELLANT.

Opinion Filed: April 14, 2020
Submitted on Briefs: February 4, 2020
Oral Argument:

JUDGES: Stark, P.J., Hruz and Seidl, JJ.
Concurred:
Dissented:

Appellant
ATTORNEYS: On behalf of the defendant-appellant, the cause was submitted on the
briefs of Kathilynne A. Grotelueschen, assistant state public defender,
Madison.

Respondent
ATTORNEYS: On behalf of the plaintiff-respondent, the cause was submitted on the
brief of Joshua L. Kaul, attorney general, and Sarah L. Burgundy,
assistant attorney general.
2020 WI App 28

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.
April 14, 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. 2019AP695-CR Cir. Ct. No. 2017CF19

STATE OF WISCONSIN IN COURT OF APPEALS

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

JASON A. MARCOTTE,

DEFENDANT-APPELLANT.

APPEAL from a judgment and an order of the circuit court for
Marinette County: JAMES A. MORRISON, Judge. Reversed and cause remanded
with directions.

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

¶1 STARK, P.J. Jason Marcotte appeals a judgment convicting him of
one count of delivering three grams or less of amphetamine, as a party to the crime.
He also appeals an order denying his postconviction motion for resentencing.
No. 2019AP695-CR

Marcotte argues the judge who sentenced him after the revocation of his probation
was objectively biased for two reasons. First, he contends the judge made multiple
comments indicating that he had prejudged Marcotte’s sentence. Second, Marcotte
argues the judge was objectively biased as a result of his dual role as the sentencing
judge in this case and as the presiding judge in a drug court program that Marcotte
failed to complete. We agree with Marcotte that these factors, taken together, are
sufficient to demonstrate objective bias. We therefore reverse and remand for
Marcotte to be resentenced by a different judge.

BACKGROUND

¶2 On February 7, 2017, the State filed a complaint charging Marcotte
with delivering three grams or less of methamphetamine, as a party to the crime and
as a second and subsequent offense. The complaint alleged that Marcotte and his
girlfriend sold methamphetamine to a confidential informant during a controlled
buy. The charge against Marcotte was a Class F felony, which, without the
enhancer, carried a maximum sentence of twelve and one-half years’ imprisonment
and a $25,000 fine. See WIS. STAT. §§ 939.50(3)(f), 961.41(1)(e)1. (2017-18).1

¶3 The parties ultimately reached a plea agreement, which was premised
on Marcotte’s participation in the Marinette County Treatment Drug Court program.
Under the agreement, Marcotte agreed to plead no contest to the delivery of
methamphetamine charge, without the second-and-subsequent-offense enhancer.
The parties also agreed to jointly recommend that the circuit court withhold sentence
and impose three years’ probation with various conditions, including a requirement
that Marcotte comply with all of the drug court’s terms and conditions. During a

1
All references to the Wisconsin Statutes are to the 2017-18 version unless otherwise
noted.

2
No. 2019AP695-CR

plea hearing on August 31, 2017, the circuit court, the Honorable James A. Morrison
presiding, accepted Marcotte’s plea, found him guilty, ordered a presentence
investigation report (PSI), and set the matter for sentencing.

¶4 Marcotte began participating in drug court on October 2, 2017—
nearly four weeks before his sentencing hearing. Judge Morrison presided over the
drug court proceedings. During a drug court hearing on October 16, 2017, Judge
Morrison cautioned Marcotte against driving without a license, advising him that
“conviction of another offense is grounds for immediate discharge from the [drug
court] program.” Judge Morrison continued, “And in your case, discharge from the
program means you get sentenced and you go to Dodge.” It is undisputed that Judge
Morrison was referring to Dodge Correctional Institution, a prison located in
Waupun, Wisconsin.

¶5 Thereafter, at Marcotte’s sentencing hearing on October 27, 2017,
Judge Morrison adopted the parties’ joint recommendation, withheld sentence, and
placed Marcotte on probation for three years. Among the conditions of probation
was a requirement that Marcotte comply with all conditions of the drug court.
During his sentencing remarks, Judge Morrison warned Marcotte that if he was not
successful in drug court, there would be “no mercy” when Marcotte returned to
court for sentencing after revocation of his probation.

¶6 Despite Judge Morrison’s warning, Marcotte struggled in drug court.
During a drug court hearing on January 8, 2018, Judge Morrison expressed
frustration with Marcotte’s performance, stating:

And part of the reason that we’re frustrated about this, Jason,
is when you were asked whether you really wanted to do this,
you said you’d try. You never volunteered 100 percent
effort, you never told [a member of the drug court team] that
you really were willing to do what’s needed to do here, and

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No. 2019AP695-CR

apparently you think if you go to prison, it’s going to be
easier for you. Well, I’m sorry, my friend, we’re not going
to make it easier for you. Do you understand me?

¶7 At the next drug court hearing on January 22, 2018, Marcotte admitted
he was “ready to give up on drug court and stuff for a while there.” Judge Morrison
then asked him, “Well, if you gave up on drug court, what would the consequence
be?” Marcotte responded, “I’d go to prison.” Judge Morrison then discussed with
Marcotte what would happen if “you gave up on drug court, you went to prison.”

¶8 Approximately one month later, Marcotte was terminated from drug
court. Shortly thereafter, his probation was revoked based on his termination from
drug court, his use of methamphetamine, his absconding from supervision, his
failure to attend scheduled treatment sessions, and his failure to report changes in
his address. In its revocation summary, the Department of Corrections (DOC)
recommended that the circuit court sentence Marcotte to three to four years of initial
confinement, followed by three to four years of extended supervision.

¶9 At Marcotte’s sentencing after revocation hearing, the State similarly
recommended that the circuit court impose four years’ initial confinement, with
eligibility for the Substance Abuse Program after two years, followed by four years’
extended supervision. Marcotte’s attorney did not make a specific sentence
recommendation. He argued, however, that “whatever sentence the Court does
order” should include eligibility for the Substance Abuse Program.

¶10 Judge Morrison ultimately imposed a ten-year sentence, consisting of
five years’ initial confinement (with eligibility for the Substance Abuse Program
after three years) and five years’ extended supervision. During his sentencing
remarks, Judge Morrison emphasized his significant familiarity with Marcotte’s
circumstances based on Marcotte’s participation in drug court. He elaborated:

4
No. 2019AP695-CR

I don’t know exactly how many drug court sessions we had,
it was many. I know we spent many hours talking about your
various problems when we were staffing this program week
after week. And I don’t say that because I’m beating up on
you, I’m just pointing out that I am very familiar with your
circumstances, with the circumstances of [Marcotte’s
girlfriend], with the circumstances with respect to your
children because I’ve been sitting on those cases as well, so
I have a very good grasp of—at least of the directory facts,
so as to say, with respect to you, Mr. Marcotte.

¶11 Later on during his remarks, Judge Morrison similarly stated that
because of Marcotte’s participation in drug court, he knew Marcotte better than
ninety-nine percent of the people he had to sentence. Judge Morrison explained,
“I’ve basically lived with you every Monday for more than a year, and so I got my
arms around your problem much better than most.” He continued, “[The] PSI was
helpful, but not nearly as helpful as the advantages I just talked about of actually
seeing—seeing how you did this and how you did in drug court.”

¶12 Judge Morrison also expressed frustration during his sentencing
remarks about Marcotte’s failure in drug court. He stated:

And I think that it is clear that the drug court was not the
answer for you, at least not that—the time around that you
did it. An understandable frustration of the drug court team
is my God, we gave him every tool, why didn’t he just grab
them, and I understand that, and I understand the—you
know, that we could all say let’s just throw the book at this
guy because he really screwed up. Well, you did really
screw up repeatedly in every way imaginable, frankly. You
let down yourself. You let down [your girlfriend]. You let
down the team. Most importantly, you let down your
children and yourself.

Judge Morrison later stated, “Have you frustrated me over the time you’ve been in
the drug court? Absolutely. Have you frustrated every member of the team? Of
course.” In addition, he stated Marcotte was never “all in” with respect to drug court
and was never “willing to surrender to the rest of us who understood better and had

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No. 2019AP695-CR

your best interest at heart more than you did, frankly.” He described Marcotte’s
“demeanor throughout the drug court” as “frustrating, to put it mildly.”

¶13 In conclusion, Judge Morrison stated Marcotte needed a sentence that
would provide close rehabilitative control. He explained, “[Y]ou failed on
probation. You failed on drug court. You are going to prison. There is no choice.”

¶14 Marcotte subsequently filed a postconviction motion seeking
resentencing. He argued Judge Morrison “demonstrated objective bias when [he]
relied upon information [he] received as the judge presiding over Drug Court and
prejudged Mr. Marcotte’s sentence after revocation, thereby violating
Mr. Marcotte’s due process right to be sentenced by an impartial court.”

¶15 Judge Morrison denied Marcotte’s postconviction motion, following
a nonevidentiary hearing. Judge Morrison asserted he should not be criticized for
being invested in the success of drug court participants and for being disappointed
when those individuals are not successful, as judicial engagement is “one of the
pillars of drug court success.” Judge Morrison also characterized his comments
about Marcotte going to prison if he failed drug court as “completely appropriate”
and explained that he routinely makes such comments to motivate drug court
participants. Judge Morrison acknowledged that he is not required to send every
person who fails drug court to prison. He stated, however, that

[t]he alternative in the Marinette County Drug Court for
failure is almost always going to be prison, because
regrettably, it’s always felonies, there are almost always
multiple felonies, and the conduct has almost always
occurred in the past, so the factors that would normally cause
me to send somebody to prison almost always apply.

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No. 2019AP695-CR

Marcotte now appeals, arguing Judge Morrison erred by denying his postconviction
motion for resentencing.2

DISCUSSION

¶16 “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. Whether a judge was unbiased is a question of law that we review
independently. Id., ¶7. In so doing, “[w]e begin with a presumption that the judge
is free of bias and prejudice[,] and the burden is on the party asserting judicial bias
to show by a preponderance of the evidence that the judge is biased or prejudiced.”
State v. Neuaone, 2005 WI App 124, ¶16, 284 Wis. 2d 473, 700 N.W.2d 298.

¶17 In this case, Marcotte argues that Judge Morrison was objectively
biased.3 Objective bias can exist in two situations: (1) where there is an appearance
of bias; and (2) where objective facts demonstrate that a judge treated a party
unfairly. Goodson, 320 Wis. 2d 166, ¶9. Here, Marcotte contends

2
As noted above, Marcotte’s judgment of conviction states Marcotte was convicted of one
count of delivering three grams or less of amphetamine, as a party to the crime. Both the criminal
complaint and Information, however, state Marcotte was charged with one count of delivering three
grams or less of methamphetamine. During the plea hearing, Marcotte indicated he was entering a
no-contest plea to a charge of delivering methamphetamine. Nonetheless, the plea questionnaire
and waiver of rights form states Marcotte was entering a no-contest plea to “Delivery of
Amphetamine.”

The parties do not raise any issue on appeal regarding whether Marcotte’s judgment of
conviction should have listed the crime of conviction as delivery of amphetamine or as delivery of
methamphetamine, both of which are prohibited by WIS. STAT. § 961.41(1)(e)1. We therefore do
not address that issue. On remand, however, the circuit court should consider whether Marcotte’s
judgment of conviction should be amended to reflect a conviction for delivery of
methamphetamine, rather than delivery of amphetamine.
3
A judge may also be subjectively biased. See State v. Gudgeon, 2006 WI App 143, ¶20,
295 Wis. 2d 189, 720 N.W.2d 114. Subjective bias is present when a judge has personal doubts as
to whether he or she can be impartial. Id. Because Marcotte does not allege that Judge Morrison
was subjectively biased, we do not address that issue.

7
No. 2019AP695-CR

Judge Morrison’s conduct gave rise to the appearance of partiality. The appearance
of partiality constitutes objective bias when a reasonable person would conclude
“that the average judge could not be trusted to ‘hold the balance nice, clear, and
true’ under all the circumstances.” Id. (citation omitted). Stated differently,
“[w]hen the appearance of bias reveals a great risk of actual bias, the presumption
of impartiality is rebutted, and a due process violation occurs.” State v. Herrmann,
2015 WI 84, ¶46, 364 Wis. 2d 336, 867 N.W.2d 772.

¶18 Applying these standards to the instant case, we conclude Marcotte
has met his burden to demonstrate objective bias, based on the combined effect
of: (1) Judge Morrison’s comments indicating he had determined before the
sentencing after revocation hearing that Marcotte would be sentenced to prison if
he did not succeed in drug court; and (2) Judge Morrison’s dual role as the presiding
judge in the drug court proceedings and as the judge who sentenced Marcotte after
the revocation of his probation. Taken together, these factors created the appearance
of bias sufficient to give rise to a great risk of actual bias.

¶19 As noted above, at various times before Marcotte’s sentencing after
revocation hearing, Judge Morrison communicated to Marcotte that he would be
sentenced to prison if he did not succeed in drug court. In particular,
Judge Morrison expressly told Marcotte during one drug court hearing that if he was
discharged from the drug court program, he would “get sentenced and … go to
Dodge.” Judge Morrison also warned Marcotte during his original sentencing
hearing that if he did not succeed in drug court, there would be “no mercy” when
Marcotte returned for sentencing after revocation. Judge Morrison followed
through on that promise at Marcotte’s sentencing after revocation hearing, imposing
a sentence longer than those requested by both the State and the DOC. Moreover,
Judge Morrison stated during the sentencing after revocation hearing that because

8
No. 2019AP695-CR

Marcotte had failed in drug court, he had “no choice” but to sentence him to prison.
A reasonable person would interpret these comments to mean that Judge Morrison
had decided long before Marcotte’s sentencing after revocation hearing that he
would impose a prison sentence if Marcotte was terminated from drug court.

¶20 Several of our prior decisions illustrate that comments indicating a
circuit court has prejudged a defendant’s sentence can give rise to objective bias.
For instance, in Goodson, the circuit court told Goodson at his initial sentencing
hearing that if his probation or extended supervision was revoked, he would receive
the maximum sentence. Goodson, 320 Wis. 2d 166, ¶1. When Goodson’s extended
supervision was later revoked, the court followed through with its promise and
imposed the maximum sentence. Id., ¶5. The court expressly referred to its earlier
promise to impose the maximum sentence during its remarks at the sentencing after
revocation hearing. Id.

¶21 On appeal, we concluded Goodson was entitled to resentencing
because the circuit court “unequivocally promised to sentence Goodson to the
maximum period of time if he violated his supervision rules.” Id., ¶13. That
promise gave rise to the appearance of bias because “[a] reasonable person would
conclude that a judge would intend to keep such a promise—that the judge had made
up his mind about Goodson’s sentence before the reconfinement hearing.” Id. We
explained, “A court may certainly tell a defendant what could happen if his or her
extended supervision is revoked. But telling a defendant what will happen imperils
the defendant’s due process right to an impartial judge at a reconfinement hearing.”
Id., ¶17. Stated differently, when a judge has prejudged a defendant’s sentence, he
or she “cannot render a decision that comports with due process.” Id.

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No. 2019AP695-CR

¶22 We reached a similar conclusion in State v. Gudgeon, 2006 WI App
143, 295 Wis. 2d 189, 720 N.W.2d 114. In that case, Gudgeon was placed on
probation, but he still owed a significant amount of restitution when his probation
was about to expire. Id., ¶¶2-3. His probation agent wrote to the circuit court and
recommended that the court convert Gudgeon’s restitution obligation to a civil
judgment instead of extending Gudgeon’s probation. Id., ¶3. Before the extension
hearing, the court wrote a note on the agent’s letter stating it wanted Gudgeon’s
probation extended. Id., ¶¶3-4. On appeal, we concluded the court’s note gave rise
to the appearance of partiality sufficient to demonstrate objective bias. Id., ¶26. We
explained, “The ordinary reasonable person would discern a great risk that the trial
court in this case had already made up its mind to extend probation long before the
extension hearing took place.” Id.

¶23 Similarly, in State v. Lamb, No. 2017AP1430-CR, unpublished slip
op. ¶11 (WI App Sept. 25, 2018),4 we concluded Lamb had demonstrated objective
bias by “showing a serious risk that [the circuit court] prejudged his sentence.” The
circuit court in Lamb was aware the parties planned to recommend that the court
place Lamb on probation. Id., ¶14. However, before the parties made their
sentencing arguments, the court made statements indicating it did not intend to
follow their joint recommendation. Id., ¶¶14-15. We concluded those statements
demonstrated a serious risk that the judge “had already made up his mind about what
kind of sentence Lamb would receive.” Id., ¶16.

¶24 Goodson, Gudgeon, and Lamb support our conclusion that
Judge Morrison’s remarks in this case—i.e., those remarks indicating that Marcotte

4
Pursuant to WIS. STAT. RULE 809.23(3)(b), authored, unpublished opinions issued after
July 1, 2009, may be cited for their persuasive value.

10
No. 2019AP695-CR

would receive a prison sentence if he did not succeed in drug court—gave rise to
the appearance of bias evidencing a great risk of actual bias. The State argues
Goodson is distinguishable because the circuit court there promised to impose a
specific term of incarceration, which Judge Morrison did not do in this case. Be
that as it may, our conclusion in Goodson that the court was objectively biased did
not turn on the specificity of its promise. Instead, our decision was based on the
fact that the court told the defendant what would happen if his extended supervision
was revoked, rather than merely explaining what could happen. See Goodson, 320
Wis. 2d 166, ¶17. Similarly, in this case, Judge Morrison went beyond merely
informing Marcotte of what could happen if he failed drug court and instead
informed him of what would happen if he failed.

¶25 The State also argues that Gudgeon and Lamb are distinguishable
because in both of those cases there were multiple options available to the respective
circuit courts other than those that the courts promised to impose. In Gudgeon, for
instance, the court could have converted the defendant’s restitution obligation to a
civil judgment instead of extending his probation. See Gudgeon, 295 Wis. 2d 189,
¶3. In Lamb, the court could have placed the defendant on probation, rather than
imposing a prison sentence. See Lamb, No. 2017AP1430-CR, ¶6. In contrast, the
State argues the “only reasonable option left for Marcotte” after he failed drug court
was a prison sentence. The State contends, “[H]ad the judge here told Marcotte that
more probation or other sanctions were possible if he was revoked, that wouldn’t
have been true.”

¶26 We disagree. As Marcotte correctly notes, a prison sentence was not
the only option available to Judge Morrison after Marcotte was terminated from
drug court and his probation was therefore revoked. Judge Morrison could have
instead imposed a fine, a time-served sentence, a period of home detention, or a jail

11
No. 2019AP695-CR

sentence of up to one year. See WIS. STAT. §§ 939.50(3)(f), 973.02, 973.03(4)(a),
973.05. Depending on Marcotte’s progress in drug court, any of those alternatives
may have been reasonable, even if Marcotte was ultimately terminated from the
program. Judge Morrison’s comments, however, show that he rejected those
alternatives—or decided he would not even consider them—long before Marcotte’s
sentencing after revocation hearing took place.

¶27 The State also argues Judge Morrison’s comments did not give rise to
the appearance of bias because the parties understood at the time of Marcotte’s
original sentencing “that if Marcotte’s conduct caused him to be terminated from
drug court, prison was the only viable option.” The State does not explain, however,
why the parties’ understanding of the available options is relevant to the objective
bias analysis. As explained above, objective bias exists when a reasonable person
would conclude “that the average judge could not be trusted to ‘hold the balance
nice, clear, and true’ under all the circumstances.” Goodson, 320 Wis. 2d 166, ¶9
(citation omitted). Here, upon hearing Judge Morrison’s comments indicating that
Marcotte would receive a prison sentence if he was terminated from drug court, a
reasonable person would conclude there was a great risk that Judge Morrison had
prejudged Marcotte’s sentence and therefore could not be trusted to “hold the
balance nice, clear, and true” when sentencing Marcotte after the revocation of his
probation. See id. (citation omitted).

¶28 In any event, Judge Morrison’s comments that Marcotte would
receive a prison sentence if he failed drug court are not the only reason to conclude
that Judge Morrison was objectively biased. Instead, we must also consider Judge
Morrison’s dual role as both the judge who presided over the drug court proceedings
and as the judge who imposed Marcotte’s sentence after revocation. That dual role

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No. 2019AP695-CR

contributes to our conclusion that Judge Morrison was objectively biased under the
circumstances of this case for three reasons.

¶29 First, a judge who presides over drug court may become personally
invested in a defendant’s success in the program. Here, Judge Morrison’s comments
during the sentencing after revocation hearing demonstrate a high level of personal
investment in Marcotte’s case. In particular, Judge Morrison made multiple
comments during that hearing indicating that he was personally frustrated by
Marcotte’s failure to complete the drug court program. Judge Morrison also
commented that he, and the other members of the drug court team, had Marcotte’s
“best interest at heart” more than Marcotte did.

¶30 Marcotte concedes, and we agree, that as a general matter a court’s
investment in a defendant’s rehabilitation is appropriate, and as Judge Morrison
noted, judicial engagement is “one of the pillars of drug court success.” However,
we also agree with Marcotte that Judge Morrison’s comments during the sentencing
after revocation hearing would lead a reasonable person to conclude that Judge
Morrison could not be impartial when sentencing Marcotte. Specifically, a
reasonable person would conclude there was a great risk that Judge Morrison’s
personal frustration with Marcotte’s failure in drug court would lead him to impose
a harsher sentence than he would have otherwise imposed had he not presided over
the drug court proceedings.

¶31 Second, we observe that when a judge makes comments during drug
court proceedings indicating that a defendant will receive a certain sentence if he or
she is terminated from drug court, the judge has an institutional interest in following
through on that promise if the defendant is later terminated and his or her probation
is revoked. The judge’s comments during the drug court proceedings are made in

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No. 2019AP695-CR

front of other drug court participants and the drug court team, and if the judge fails
to act in accordance with those comments when sentencing one participant, the
judge risks undermining his or her credibility with both the other participants and
the team. This dynamic further adds to the appearance of bias in the instant case,
where Judge Morrison indicated during drug court hearings that Marcotte would
receive a prison sentence if he was terminated from drug court.

¶32 Third, a drug court judge receives significant amounts of ex parte
information about drug court participants that no other judge would have access to
when sentencing those individuals.5 As noted in the Marinette County Treatment
Drug Court Policies and Procedures Manual, in addition to proceedings held on the
record, the drug court team holds regular closed staffings. MARINETTE COUNTY
TREATMENT DRUG COURT POLICIES AND PROCEDURES MANUAL 9 (rev. May 8,
2017), https://www.marinettecounty.com/i/f/HHSD/Drug%20Court/drug
court%20policyandproceduresmanual%20updated%205-17.pdf. During those
staffings, the drug court team “advise[s] the Treatment Drug Court Judge of the
progress or any violation of each Treatment Drug Court Participant.” Id. In
addition, the drug court judge has sole and exclusive control of the drug court files,
which are confidential, are not open to the public, and are separate from circuit court
files. Id.

¶33 Thus, by virtue of his role as drug court judge, Judge Morrison had
access to information about Marcotte that was discussed outside Marcotte’s
presence and to which no other judge, or the public, would have access.

5
Notably, a drug court judge’s receipt of such ex parte information is expressly permitted
by SCR 60.04(1)(g)6., which states that a judge assigned to a “therapeutic, treatment or problem-
solving docket” may “initiate, permit, engage in or consider ex parte communications knowingly
waived by a participant.”

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No. 2019AP695-CR

Judge Morrison acknowledged as much during the sentencing after revocation
hearing when he stated he was “obviously very familiar with [Marcotte’s]
circumstances” based on the “many hours” the drug court team had spent “talking
about [his] various problems when we were staffing this program week after week.”
In fact, Judge Morrison stated that because of Marcotte’s participation in drug court,
he knew Marcotte better than ninety-nine percent of the people he had to sentence.
Moreover, Judge Morrison acknowledged that he relied on the information he had
received during the drug court proceedings when determining Marcotte’s sentence
after revocation, stating, “[The] PSI was helpful, but not nearly as helpful as the
advantages I just talked about of actually seeing—seeing how you did this and how
you did in drug court.”

¶34 Marcotte, however, was not present during the drug court team’s
closed staffings, and there is no evidence in the record that an attorney representing
him attended any of those staffings.6 As a result, Marcotte did not know what
information Judge Morrison received during the drug court staffings. Accordingly,
Marcotte had no opportunity to correct, explain, or otherwise respond to that
information. We agree with Marcotte that these circumstances support a finding of
objective bias because they support a conclusion that Judge Morrison sentenced

6
Standards published by the Wisconsin Association of Treatment Court Professionals
require that a drug court team include a defense attorney “who, among other duties, ensures
participants’ constitutional rights are protected and generally advocates for participant[s’] stated
legal interests.” WISCONSIN ASS’N OF TREATMENT COURT PROF’LS, WISCONSIN TREATMENT
COURT STANDARDS 6 (rev. 2018), https://www.watcp.org/wp-content/uploads/2018/12/FINAL-
WI-Treatment-Court-Standards-2018.pdf. However, “[d]efense counsel as a member of the
treatment court team does not represent individual participants.” Id. at 10. Although drug court
participants have the right “to request the presence of defense counsel (including private bar
attorneys) to attend the team staffings,” see id. at 7, there is no evidence in the record that Marcotte
was represented by counsel during any of the drug court staffings in this case.

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No. 2019AP695-CR

Marcotte based at least in part on ex parte information that he received during the
drug court proceedings, to which Marcotte had no opportunity to respond.

¶35 The State observes that Marcotte began participating in drug court
before his original sentencing, and the PSI author “interviewed the drug treatment
court coordinator and incorporated her comments on [Marcotte’s] progress in the
PSI.” The State further observes that at the sentencing after revocation hearing,
both the parties and the circuit court had access to the DOC’s revocation summary,
which “detailed Marcotte’s record in drug court and meetings with the drug court
coordinator.” The State therefore suggests that even if a different judge had presided
over Marcotte’s sentencing after revocation hearing, the PSI and revocation
summary would have provided that judge with access to the same information as
Judge Morrison regarding Marcotte’s performance in drug court.

¶36 We are not persuaded. Although the PSI and revocation summary
contain some information about Marcotte’s performance in drug court, there is
nothing in the record to support a conclusion that those documents contain all of the
information that Judge Morrison received about Marcotte during the closed drug
court staffings and subsequently relied upon at Marcotte’s sentencing after
revocation. Again, as Marcotte was not present during the staffings, he had no way
of knowing what information Judge Morrison received and therefore had no
opportunity to respond to that information.

¶37 We are not alone in questioning whether a judge who has presided
over drug court proceedings involving a defendant can remain unbiased when he or
she is later called upon to sentence that defendant. The Drug Court Judicial
Benchbook notes that “[s]ome commentators have taken the position that drug court
judges should not sentence participants who are terminated from their programs

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No. 2019AP695-CR

because they have a heightened familiarity with the case, and thus may not be
adequately neutral.” NATIONAL DRUG COURT INSTITUTE, DRUG COURT JUDICIAL
BENCHBOOK 41 (rev. Feb. 2017), https://www.ndci.org/wp-
content/uploads/2016/05/Judicial-Benchbook-2017-Update.pdf. The benchbook
therefore opines that the “safest position” is “to offer the offender the option to be
sentenced by the drug court judge or by another neutral magistrate, and to entertain
petitions for recusal if they are proffered by either the defense or prosecution.” Id.

¶38 In addition, in 2011, the Wisconsin Court System Planning and Policy
Advisory Subcommittee adopted a report entitled “Wisconsin Treatment
Courts: Best Practices for Record-keeping, Confidentiality & Ex Parte
Information,” which was authored by a committee of Wisconsin judges and court
professionals. As relevant here, that report provides:

Judges must carefully consider how participation in
treatment court may affect their decisions. A treatment court
judge has more information about each offender than in the
ordinary criminal case, but most of it is learned in treatment
team meetings and reports and is never made part of the court
record. Judges also report forming a strong emotional
connection with certain offenders after working with them
in treatment court, affecting impartiality or at least the
appearance of impartiality. If the judge relies on information
that is unsupported by the court record, the confidentiality of
those records may be compromised by the judge’s reliance
on them. For these reasons, judges must be very cautious
about taking action in the criminal case based on information
they have learned from participating in the treatment team.

WISCONSIN TREATMENT COURTS: BEST PRACTICES FOR RECORD-KEEPING,
CONFIDENTIALITY & EX PARTE INFORMATION 9 (Dec. 2011),
https://www.wicourts.gov/courts/programs/docs/treatmentbestpractices.pdf
(hereinafter, “Best Practices Report”).

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No. 2019AP695-CR

¶39 In light of these concerns, the Best Practices Report recommends “that
a judge should not sentence an offender after participating … in treatment court.”
Id. at 10. The report then suggests several ways in which judges can achieve that
result “without much difficulty.” Id. For instance, the report states that “[i]n a
number of Wisconsin treatment courts, the judge imposes and stays a sentence
before referring the offender to treatment court. If the offender fails the program,
the sentence is imposed automatically, without reliance on any information
subsequently acquired through the treatment court program.” Id. Alternatively, if
a court withholds sentence pending a defendant’s participation in drug court, the
court “should work out protocols, with the involvement of other team agencies, to
reassign the case to a new judge for sentencing. In one-judge counties, the number
of sentencings will be small enough to be easily handled by a visiting judge.” Id.
Finally, the Best Practices Report states that if a judge “decides to impose sentence
after … the defendant is terminated from treatment court, a comprehensive waiver
should be used.” Id. Judge Morrison did not follow any of these recommended
procedures in the instant case.

¶40 Notably, we do not hold that a judge who has presided over drug court
proceedings involving a particular defendant can never sentence that defendant after
the revocation of his or her probation. Whether a judge is objectively biased under
those circumstances must be determined on a case-by-case basis. Here, the record
contains other evidence of objective bias, beyond the mere fact that Judge Morrison
presided over both the drug court proceedings and Marcotte’s sentencing after
revocation. Specifically, the record shows that Judge Morrison: (1) made multiple
comments indicating he had prejudged Marcotte’s sentence; (2) repeatedly referred
to his personal frustration with Marcotte’s failure in drug court during the
sentencing after revocation hearing; and (3) expressly stated when imposing

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No. 2019AP695-CR

Marcotte’s sentence after revocation that he was relying on information he had
learned during the drug court proceedings.

¶41 Taken together, these factors give rise to an appearance of bias that is
sufficient to reveal a great risk of actual bias. Moreover, that great risk of actual
bias was borne out by the fact that Judge Morrison ultimately imposed a sentence
after revocation that was longer than those recommended by both the State and the
DOC. Accordingly, Marcotte has met his burden to overcome the presumption that
Judge Morrison was unbiased, and we therefore reverse and remand for Marcotte to
be resentenced by a different judge.

¶42 Under these circumstances, there is no need for us to render an
advisory opinion as to whether a judge’s dual role in presiding over both drug court
proceedings and a defendant’s sentencing after revocation, without more, gives rise
to objective bias. Nevertheless, similar to the authors of the Drug Court Judicial
Benchbook and the Best Practices Report, we caution circuit courts that presiding
over both a defendant’s drug court proceedings and his or her sentencing after
revocation raises significant concerns regarding partiality. Consequently, the better
practice would be for different judges to preside over a defendant’s drug court
proceedings and his or her sentencing after revocation. Alternatively, a court may
avoid this issue by imposing and staying a prison sentence for a drug court
participant in the first instance, instead of withholding sentence as Judge Morrison
did in this case. Imposing and staying a sentence is particularly appropriate if a
judge is convinced at the outset—as Judge Morrison apparently was here—that a

19
No. 2019AP695-CR

prison sentence would be the only appropriate disposition if the defendant were to
fail drug court.7

¶43 Finally, we acknowledge the concern Judge Morrison raised during
Marcotte’s postconviction hearing that in counties with few circuit court judges,
arranging for a judge other than the drug court judge to preside over a defendant’s
sentencing after revocation may pose some difficulty. However, as the Best
Practices Report notes, even in single-judge counties, the number of cases in which
this scenario arises should be small enough “to be easily handled by a visiting
judge.” BEST PRACTICES REPORT at 10. And ultimately, maintaining the integrity
of the judicial system is more important than the minor inconvenience that may arise
from a judicial substitution. Furthermore, we again observe that a judge may avoid
this potential inconvenience by imposing and staying a sentence for a drug court
participant in the first instance, rather than withholding sentence.

By the Court.—Judgment and order reversed and cause remanded
with directions.

7
Notably, if Judge Morrison had imposed and stayed Marcotte’s sentence in the first
instance, rather than withholding sentence, his statements during the drug court proceedings about
Marcotte going to prison if he failed drug court may have been an appropriate means of motivating
Marcotte. Judge Morrison also could have appropriately made those statements during drug court
if he had he recused himself from Marcotte’s criminal case once it became clear that Marcotte
would be participating in drug court. Under either of those scenarios, there would be no appearance
of bias because regardless of Judge Morrison’s statements during the drug court proceedings, Judge
Morrison would not be tasked with exercising his sentencing discretion in the event Marcotte was
terminated from drug court.

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