State v. James B. Lussier

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 5, 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. 2022AP184-CR Cir. Ct. No. 2018CF8

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT III

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

JAMES B. LUSSIER,

DEFENDANT-APPELLANT.

APPEAL from a judgment and an order of the circuit court for Iron
County: PATRICK J. MADDEN and ANTHONY J. STELLA, JR., Judges.
Affirmed.

Before Stark, P.J., Hruz and Gill, 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. 2022AP184-CR

¶1 PER CURIAM. James Lussier appeals a judgment convicting him
of one count of felony murder and two counts of harboring or aiding a felon, all
counts as a party to the crime. Lussier also appeals an order denying his
postconviction motion for resentencing.1 Lussier contends that he is entitled to
resentencing because the circuit court relied on inaccurate information when
imposing his sentences. We reject Lussier’s arguments and affirm.

BACKGROUND

¶2 On February 7, 2018, the State charged Lussier and four
codefendants with two counts each in connection with the December 2017 death
of Wayne Valliere: conspiracy to commit first-degree intentional homicide, as a
party to the crime and while armed with a dangerous weapon; and hiding a corpse,
as a party to the crime and as a repeater. On the same day that the criminal
complaint was filed in Iron County, a warrant was issued for Lussier’s arrest. Two
days later—on February 9, 2018—Lussier attempted to turn himself in to the
Vilas County Sheriff’s Department. Vilas County deputies turned Lussier away,
however, and told him to go to Iron County. Lussier did not do so, and he was
subsequently arrested in Winnebago County on February 18, 2018.

¶3 Lussier and the State ultimately entered into a plea agreement. The
State agreed to amend the first-degree intentional homicide charge to felony
murder and to amend the hiding a corpse charge to two counts of harboring or
aiding a felon. Lussier agreed to enter guilty pleas to all three of the amended

1
The Hon. Patrick J. Madden presided over Lussier’s sentencing hearing. The
Hon. Anthony J. Stella, Jr., entered the subsequent order denying Lussier’s postconviction motion
for resentencing.

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No. 2022AP184-CR

charges, to provide truthful testimony regarding all of his codefendants, and to
provide a full statement to law enforcement. The circuit court accepted Lussier’s
pleas and found him guilty of the amended charges.

¶4 During Lussier’s sentencing hearing, the State erroneously stated
three times that at the time Lussier committed the offenses charged in this case, he
had a pending Vilas County charge for possession of methamphetamine. As
reflected in the presentence investigation report (PSI), Lussier’s pending
Vilas County charge was actually for possession of narcotic drugs.

¶5 The State also addressed Lussier’s cooperation with law
enforcement during its sentencing remarks. The State acknowledged that Lussier
was “entitled to credit for the cooperation that he has given in this case, and he has
gotten some of that credit to start with, by reduction of his offenses from a Class A
felony, a felony that would have required this Court to impose a life sentence.”
The State then argued that because of Lussier’s cooperation, “something less than
the maximum would certainly be appropriate.” Nevertheless, the State asserted:

[I]t’s also important to note the Defendant had time to
cooperate right away. He could have said something in
December, he chose not to. He didn’t come seeking out
law enforcement, they had to go find him and seek him out.
And only after [Valliere’s] body had been found, and others
were talking, and others were providing information, that
the Defendant did come—not come forward, but responded
when law enforcement came and talked him, and gave
information. Only after they already knew of his
involvement did he answer[] the questions of law
enforcement.

So, his cooperation certainly justifies something less than
the maximum. It’s justified a reduction in the charges from
a Class A felony, but it certainly does not justify, and
should not justify a short prison term, or probation in this
case.

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No. 2022AP184-CR

¶6 Ultimately, the State recommended that the circuit court sentence
Lussier to fifteen years’ initial confinement followed by fifteen years’ extended
supervision on the felony murder charge. On the two charges of harboring or
aiding a felon, the State recommended that the court withhold sentence and
impose a term of eight years’ probation on each count, concurrent with each other
but consecutive to Lussier’s sentence on the felony murder charge. The court
followed the State’s sentencing recommendation.

¶7 Lussier subsequently filed a postconviction motion for resentencing,
arguing that the circuit court had relied on inaccurate information when sentencing
him. Specifically, Lussier cited the prosecutor’s statements that: (1) Lussier had a
pending Vilas County charge for possession of methamphetamine when he
committed the offenses charged in this case; and (2) Lussier “didn’t come seeking
out law enforcement, they had to go find him and seek him out.”

¶8 In response to Lussier’s motion, the State conceded that the
prosecutor’s statements regarding the nature of the Vilas County charge were
inaccurate. The State argued, however, that the circuit court did not actually rely
on those statements when sentencing Lussier. The State further argued that the
prosecutor’s statement that Lussier did not “come seeking out law enforcement”
was accurate, when read in context. Regardless, the State also argued that the
court did not actually rely on that statement at sentencing.

¶9 The circuit court agreed with the State that the sentencing court did
not rely on “the mistaken statements indicating [Lussier] was charged with meth
possession, as opposed to narcotics possession.” The court also agreed with the
State that the prosecutor’s comment about Lussier failing to seek out law

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No. 2022AP184-CR

enforcement was not inaccurate. The court therefore denied Lussier’s
postconviction motion. Lussier now appeals.

DISCUSSION

¶10 A criminal defendant has a constitutional due process right to be
sentenced based upon accurate information. State v. Tiepelman, 2006 WI 66, ¶9,
291 Wis. 2d 179, 717 N.W.2d 1. “Whether a defendant has been denied this due
process right is a constitutional issue that an appellate court reviews de novo.”2
Id.

¶11 A defendant seeking resentencing based upon inaccurate information
must show both that the information in question was inaccurate and that the circuit
court actually relied on the inaccurate information when imposing the defendant’s
sentence. Id., ¶26. Inaccurate information refers to information that is
“extensively and materially false.” See State v. Travis, 2013 WI 38, ¶18, 347
Wis. 2d 142, 832 N.W.2d 491. Actual reliance, in turn, depends upon whether the
sentencing court gave “explicit attention” or “specific consideration” to the
inaccurate information, “so that the misinformation ‘formed part of the basis for
the sentence.’” Tiepelman, 291 Wis. 2d 179, ¶14 (citation omitted).

2
On appeal, the State argues that Lussier forfeited his inaccurate information claims by
failing to object to the allegedly inaccurate information during his sentencing hearing. We reject
Lussier’s inaccurate information claims on their merits. As such, we need not address the State’s
forfeiture argument. See Turner v. Taylor, 2003 WI App 256, ¶1 n.1, 268 Wis. 2d 628, 673
N.W.2d 716 (court of appeals need not address all issues raised by the parties if one is
dispositive).

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No. 2022AP184-CR

I. Vilas County charge

¶12 Lussier first argues that he is entitled to resentencing based upon the
prosecutor’s repeated misstatement that Lussier had a pending Vilas County
charge for possession of methamphetamine at the time he committed the offenses
at issue in this case. On appeal, it is undisputed that the prosecutor misspoke, as
the pending Vilas County charge was actually for possession of narcotic drugs.
Nevertheless, we agree with the State that Lussier is not entitled to relief on this
basis because the circuit court did not actually rely on the prosecutor’s
misstatement regarding the nature of the pending charge. The court did not even
mention the pending charge during its sentencing remarks, much less give
“explicit attention” or “specific consideration” to that charge. See id. (citation
omitted). Nothing in the court’s sentencing remarks would support a conclusion
that the prosecutor’s misstatements about the pending charge “formed part of the
basis for [Lussier’s] sentence.” See id. (citation omitted).

¶13 In arguing to the contrary, Lussier emphasizes that the circuit court
made two references to methamphetamine, in general, during its sentencing
remarks. He contends that those comments “made it sound like Lussier was a
regular user of methamphetamines and that he had a serious drug problem and that
his meth problem contributed in some way to the victim’s death.” As the State
correctly notes, however, the court’s comments regarding Lussier’s involvement
with methamphetamine were supported by information in the PSI and the criminal
complaint—information that Lussier does not argue is inaccurate.

¶14 First, the circuit court stated during its sentencing remarks that
Valliere’s death was “further evidence to this Court that meth is death, and that
[Lussier] is an individual … who has been providing all the characteristics of

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No. 2022AP184-CR

someone who is irresponsible, and [not] taking responsibility for himself, and for
his friends.” This remark related directly to the facts surrounding Valliere’s
murder. According to the criminal complaint, a witness told police that she was
riding in a van with Valliere, Lussier, and two of Lussier’s codefendants on the
night of Valliere’s murder, and “[the two codefendants] were yelling at [Valliere]
over money and a meth pipe that [Valliere] had supposedly stolen,” and one of the
codefendants “was asking [Valliere] where his ‘shit’ was.” Another witness told
police that Valliere was killed because he was planning to become a confidential
informant. According to that witness, Valliere, Lussier, and Lussier’s
codefendants left a party on the night of Valliere’s murder and “went for a ride.”
“During the ride, they were giving [Valliere] methamphetamine,” and “[Valliere]
knew this was to be his last ride.” We agree with the State that these allegations—
the accuracy of which Lussier does not dispute—show that methamphetamine was
“a key piece of the puzzle that resulted in [Valliere’s] death.” The court’s
comment that “meth is death” related to this accurate information, rather than to
the inaccurate information regarding the nature of Lussier’s pending Vilas County
charge.

¶15 The circuit court’s second reference to methamphetamine at
sentencing expressly referred to Lussier’s history of substance abuse, which
included the use of methamphetamine. Citing the PSI, the court stated that Lussier
was

accustomed to taking mass quantities of whatever
substance he can get his hands on, which is not a good
character trait. And not someone who would make a good
candidate for probation. And not someone who could be
dealt with in the community, and that the community would
then be—have a feeling of safety is that this young man has
now decided to quit drinking until he passes out, to quit
doing meth until he is dysfunctional, to quit doing every

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No. 2022AP184-CR

imaginable drug in the quantities that were made available
to him.

¶16 Information in the PSI supports the circuit court’s comments
regarding Lussier’s drug use. When speaking to the PSI author, Lussier
self-reported “a history of substance use which includes acid, cocaine, cough
syrup, downers, gasoline, heroin, marijuana, morphine, mushrooms, and meth.”
He specifically admitted to using methamphetamine on a “[m]onthly” basis. He
further admitted that “every time he is on dope or any other type of drug he gets in
trouble.” Lussier does not argue that the information in the PSI regarding his drug
use—and, specifically, his use of methamphetamine—is inaccurate. As such,
Lussier cannot argue that the court relied on inaccurate information at sentencing
when it referenced his use of methamphetamine, as a general matter.

¶17 In summary, although there was inaccurate information before the
circuit court at sentencing regarding the nature of Lussier’s pending Vilas County
charge, the court did not rely on that inaccurate information when sentencing
Lussier. While the court made two general references to methamphetamine during
its sentencing remarks, those comments were not based upon inaccurate
information. Accordingly, Lussier has failed to show that he is entitled to
resentencing on these grounds.

II. Lussier’s failure to come forward following Valliere’s death

¶18 Lussier also argues that he is entitled to resentencing based on the
prosecutor’s comment that he “didn’t come seeking out law enforcement, they had
to go find him and seek him out.” Lussier asserts that this comment was
inaccurate because it is undisputed that he attempted to turn himself in to the Vilas
County Sheriff’s Department on February 9, 2018.

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No. 2022AP184-CR

¶19 We agree with the State that, when read in context, the prosecutor’s
comment is not inaccurate. Valliere was killed in December 2017, and Lussier did
not attempt to turn himself in until February 2018. While discussing the credit
that the circuit court should grant Lussier for his cooperation with law
enforcement, the prosecutor observed, “[I]t’s also important to note the Defendant
had time to cooperate right away. He could have said something in December, he
chose not to.” (Emphasis added.) Immediately thereafter, the prosecutor stated
that Lussier “didn’t come seeking out law enforcement, they had to go find him
and seek him out.” In context, it is clear that the prosecutor’s statement that
Lussier “didn’t come seeking out law enforcement” was referring to Lussier’s
failure to seek out law enforcement in December 2017, shortly after the homicide
occurred.

¶20 The prosecutor’s comments about Lussier’s failure to cooperate with
law enforcement in December 2017 were not inaccurate. Again, it is undisputed
that Lussier waited until February 2018, after a warrant had been issued for his
arrest, to attempt to turn himself in to the Vilas County Sheriff’s Department.
Moreover, after that attempt failed, Lussier did not attempt to turn himself in to
Iron County authorities, as directed by the Vilas County deputies. Instead, Lussier
was apprehended over one week later in Winnebago County. On this record, the
prosecutor’s comments about Lussier’s failure to cooperate with law enforcement
in December 2017 were not “extensively and materially false.” See Travis, 347
Wis. 2d 142, ¶18.

¶21 In addition, Lussier has failed to show that the circuit court actually
relied on the prosecutor’s comments about his failure to cooperate with law
enforcement. Lussier concedes that the court “did not explicitly refer to Lussier’s
failure to initially come forward when it sentenced him.” He notes, however, that

9
No. 2022AP184-CR

the court stated the prosecutor’s analysis was “sound” and “reasonable” and that
the court would “follow the recommendation that the State requested.” Lussier
argues that the court’s “adoption of the State’s ‘analysis’” shows that the court
“relied on the State’s rationale.” He then asserts that when the court “adopted the
State’s rationale, it relied on the fact that Lussier had not come forward, which
was not at all accurate.”

¶22 This argument is unpersuasive. Lussier cites no authority in support
of the proposition that we may conclude a circuit court actually relied on a specific
piece of inaccurate information in a case where the court merely stated, as a
general matter, that the prosecutor’s sentencing arguments were “sound” and
“reasonable.” To the contrary, in order to demonstrate actual reliance, Lussier
must show that the court gave “explicit attention” or “specific consideration” to
the inaccurate information, such that the misinformation formed part of the basis
for his sentence. See Tiepelman, 291 Wis. 2d 179, ¶14 (citation omitted). Here,
nothing in the court’s sentencing remarks shows that it gave explicit attention or
specific consideration to the prosecutor’s comments about Lussier failing to
cooperate with law enforcement in December 2017. Lussier has therefore failed to
show that the court actually relied on those comments.

¶23 In his reply brief on appeal, Lussier asserts for the first time that the
circuit court failed to follow State v. Gallion, 2004 WI 42, 270 Wis. 2d 535, 678
N.W.2d 197, because it did not “explain its reasons for imposing the sentence that
it did, other than to say it found the State’s analysis sound and it was going to
follow it.” We need not address arguments that are raised for the first time on
appeal, see Tatera v. FMC Corp., 2010 WI 90, ¶19 n.16, 328 Wis. 2d 320, 786
N.W.2d 810, or for the first time in a reply brief, see A.O. Smith Corp. v. Allstate
Ins. Cos., 222 Wis. 2d 475, 492, 588 N.W.2d 285 (Ct. App. 1998). We therefore

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No. 2022AP184-CR

decline to address Lussier’s new claim that the court erred by failing to follow
Gallion.

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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