State v. Richard L. Bork

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.
October 25, 2023
A party may file with the Supreme Court a
Samuel A. Christensen 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. 2022AP616-CR Cir. Ct. No. 2020CF416

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT II

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

RICHARD L. BORK,

DEFENDANT-APPELLANT.

APPEAL from a judgment and an order of the circuit court for
Fond du Lac County: DALE L. ENGLISH, Judge. Affirmed.

Before Gundrum, P.J., Neubauer and Lazar, 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. 2022AP616-CR

¶1 PER CURIAM. Richard L. Bork appeals from a judgment of
conviction and from an order denying his postconviction motion. Bork asserts that
he is entitled to resentencing because the circuit court’s sentencing remarks
demonstrated judicial bias. We affirm.

¶2 The State charged Bork with one count of operating while under the
influence (OWI), seventh, eighth, or ninth offense, in violation of WIS. STAT.
§ 346.63(1)(a) (2021-22)1 and one count of operating with prohibited alcohol
concentration, seventh, eighth, or ninth offense, in violation of § 346.63(1)(b).
Bork pled no contest to the OWI charge, and the circuit court dismissed the
operating with a prohibited alcohol concentration charge. The State agreed to
recommend a sentence of six years of initial confinement and four years of
extended supervision.

¶3 After accepting Bork’s plea, the circuit court ordered a presentence
investigation report (PSI), which recommended five to six years of initial
confinement and two to three years of extended supervision consecutive to a
sentence he was then serving. In recounting Bork’s criminal history, the PSI noted
that he had been sentenced to five years of initial confinement and three years of
extended supervision for his seventh OWI conviction in 2011.

¶4 At sentencing, the State recommended six years of initial
confinement and four years of extended supervision, to be served consecutively to
any other sentence; Bork asked for four years of initial confinement and four years
of extended supervision. After Bork’s counsel made her recommendation, the

1
All references to the Wisconsin Statutes are to the 2021-22 version unless otherwise
noted.

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No. 2022AP616-CR

court asked her why it would “make any sense to give him a lesser sentence this
time than he received for [his] seventh offense … when he completed ERP, got
out, was on extended supervision, drove drunk again, and now he’s back here.” In
response, Bork’s counsel replied that it was her understanding that part of Bork’s
sentence for his seventh OWI conviction “was aimed at” a recklessly endangering
safety count that was charged with the seventh OWI. The court noted that,
according to the PSI, Bork “felt he was treated unfairly when he got the five
years” on his seventh OWI conviction and “felt he was treated unfairly … with
that sentence and now you’re asking that I go lesser” and remarked that “[i]t’s
probably not going to happen, but continue on.”

¶5 After Bork’s counsel finished her remarks, the court questioned
Bork during his allocution, asking what needed to happen for him to “make the
right choice” and why the court should “put the public at risk” given Bork’s
history of impaired driving. When Bork finished speaking, the court began its
analysis under the Gallion factors—the gravity of the offense, the rehabilitative
needs of the defendant, and the need to protect the public. See State v. Gallion,
2004 WI 42, ¶23, 270 Wis. 2d 535, 678 N.W.2d 197. First, it described Bork’s
eighth OWI as “a high-severity offense” with several “aggravating factors”:
(1) Bork’s blood alcohol concentration was eleven times above the legal limit;
(2) he drove partway into an oncoming lane of traffic; (3) he lied to the arresting
officer about having been drinking; and (4) he “yelled insults at the officer.”
Turning to Bork’s character and rehabilitative needs, the court noted several
positive aspects of his character, including his “good childhood,” “good work
history,” and acquisition of a high school equivalency degree while incarcerated.
It also highlighted several negative factors, including that he continues to drive
drunk “[d]espite probation, jail, prison and intensive treatment,” has a lengthy

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No. 2022AP616-CR

criminal history, “minimizes the severity of his conduct,” believes his sentence for
his seventh OWI conviction was unfair, and is apparently not interested in
maintaining sobriety.

¶6 These considerations led the court to conclude that Bork “is an
accident or a fatality waiting to happen” and that “the need to protect the public is
extremely high.” They also led the court to reject Bork’s proposed sentence:

He’s not getting concurrent time. There’s no way that’s
going to happen here. That would unduly depreciate the
severity of the offense. It makes no sense to me to give
him a lesser sentence this time than he received for the
seventh offense. Although, I understand that there were
factual differences there that made that offense factually
more severe.

… And as I indicated, he was out on—after
successfully completing ERP, he was out on extended
supervision and then he commits this offense. So it makes
factually no sense to me to give him a lesser sentence now
after he’s done the same thing again for his eighth offense.

The court sentenced Bork to seven years of initial confinement followed by four
years of extended supervision consecutive to any other sentence, noting that this
sentence was “a step up from the prior sentence.”

¶7 Bork moved for resentencing, arguing that the circuit court exhibited
objective bias because it decided Bork’s sentence before he and his counsel
finished speaking and because it applied a preconceived sentencing policy of
imposing a longer sentence than he received for his seventh OWI. The court
disagreed, concluding that the sentencing hearing transcript reflected “the [c]ourt’s
specific analysis” underlying Bork’s sentence. The court acknowledged that it
interjected and “ask[ed] questions of defense counsel when they came to [mind
because] … that’s a practice that I have.” The court acknowledged that its

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No. 2022AP616-CR

questions to Bork’s counsel “did indicate skepticism” about her recommendation
but “strongly disagree[d]” that they were “disparaging.” The court also denied
having a “hard and fast policy” of imposing longer sentences for repeat offenders
but acknowledged a general belief “that if somebody keeps doing something there
should be a greater punishment to try to keep that from happening again.” Finally,
the court recapitulated its sentencing analysis, emphasizing how it had applied the
Gallion factors to the facts in Bork’s case. Based on that fact-specific analysis,
the court concluded that it neither prejudged Bork’s sentence nor applied a
preconceived sentencing policy. Bork appeals.

¶8 We begin by noting that sentencing is left to the discretion of the
circuit court, and thus our review is limited to whether the court erroneously
exercised that discretion. Gallion, 270 Wis. 2d 535, ¶17. We presume that a
judge acts fairly, impartially, and without bias when sentencing a defendant. State
v. Herrmann, 2015 WI 84, ¶24, 364 Wis. 2d 336, 867 N.W.2d 772. To overcome
that presumption, the party asserting judicial bias must show bias by a
preponderance of the evidence. Id.

¶9 “In evaluating whether a party has rebutted the presumption,
Wisconsin courts have taken both a subjective and objective approach.” Miller v.
Carroll, 2020 WI 56, ¶21, 392 Wis. 2d 49, 944 N.W.2d 542. Here, Bork raises an
objective bias claim, which focuses on whether there is “a serious risk of actual
bias—based on objective and reasonable perceptions.” Id., ¶24 (quoting Caperton
v. A.T. Massey Coal Co., 556 U.S. 868, 884 (2009)). “[P]roof of a ‘serious risk of
actual bias can objectively rise to the level of a due process violation.’” Miller v.
Zoning Bd. of Appeals, 2023 WI 46, ¶13, 407 Wis. 2d 678, 991 N.W.2d 380
(quoting Carroll, 392 Wis. 2d 49, ¶¶21-22). To determine whether the circuit
court exhibited a serious risk of actual bias, we must examine “whether the

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No. 2022AP616-CR

circumstances ‘would offer a possible temptation to the average … judge to …
lead him not to hold the balance nice, clear and true.’” Carroll, 392 Wis. 2d 49,
¶24 (quoting Caperton, 556 U.S. at 885; omissions in original). “[I]t is the
exceptional case with ‘extreme facts’ which rises to the level of a ‘serious risk of
actual bias.’” Carroll, 392 Wis. 2d 49, ¶24 (quoting Caperton, 556 U.S. at
886-87). Whether the court was objectively biased is a question of law that this
court reviews de novo. Herrmann, 364 Wis. 2d 336, ¶23.

¶10 On appeal, Bork first argues the circuit court exhibited an
appearance of bias when it said that Bork’s recommended sentence was “probably
not going to happen” before hearing the parties’ full arguments or Bork’s
allocution. Bork rests his bias argument principally on this court’s unpublished
opinion in State v. Lamb, No. 2017AP1430-CR, unpublished slip op. (WI App
Sept. 25, 2018), but that case is materially distinguishable. In Lamb, the circuit
court had a dialogue with the defendant at the start of the sentencing hearing in
which the defendant mentioned probation and “the possibility of leaving today,” to
which the court responded by saying, “Not really. Okay. Just thought I’d tell you
that so you don’t have any false hopes. I mean, there’s a possibility, but it’s
probably not going to happen.” Id., ¶5. On review, this court determined that the
circuit court’s comments “reasonably conveyed to Lamb that, before the court had
heard any sentencing arguments, it had effectively decided against ordering
probation.” Id., ¶17.

¶11 Here, in contrast, the remark on which Bork relies came after the
State’s argument and after Bork’s counsel made her sentence recommendation.
The comment was made as part of a colloquy with Bork’s counsel in which the
circuit court pressed her to explain why it should impose a shorter sentence than
Bork had received for his previous OWI conviction. In addition, unlike in Lamb,

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No. 2022AP616-CR

the court reviewed the PSI before the sentencing hearing, which contained
“essential sentencing information about the offense and [Bork]’s character, as well
as an additional sentencing recommendation.” See id., ¶15. The PSI served as an
additional source of information that would otherwise have only been available to
the court through the parties’ sentencing remarks. Finally, before it pronounced
sentence, the court set forth reasons underlying the sentence that were tethered to
the Gallion factors as required under Wisconsin law. These considerations lead us
to conclude that a reasonable observer would not interpret the court’s “probably
not going to happen” remark as evidence of prejudgment.

¶12 Bork relies on three other cases, but each involved remarks
indicative of bias in both their timing and substance. In State v. Gudgeon, the
circuit court wrote a note to the defendant’s probation agent and former counsel
before an extension hearing stating “I want his probation extended,” which the
court later did at the hearing. 2006 WI App 143, ¶¶3-4, 295 Wis. 2d 189, 720
N.W.2d 114. Similarly, in State v. Goodson, the circuit court told the defendant at
a sentencing hearing that he would “get the maximum” if his extended supervision
was revoked and then later referenced that remark during a revocation hearing at
which it sentenced the defendant to the maximum amount of confinement
available. 2009 WI App 107, ¶¶2, 5, 320 Wis. 2d 166, 771 N.W.2d 385. Finally,
in State v. Marcotte, the circuit court told the defendant during a drug court
hearing that he would be sentenced to prison if he did not succeed in drug court
and then later “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.” 2020 WI App 28, ¶19, 392 Wis. 2d 183, 943 N.W.2d 911.
In each of these cases, the courts made statements before sentencing hearings in
which they communicated unequivocally what the defendant’s sentence would be

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No. 2022AP616-CR

if certain events happened. Here, in contrast, the circuit court’s statement that a
lesser sentence was “probably not going to happen” was made after the State and
Bork’s counsel had made their sentencing recommendations and was part of the
court’s attempt to understand the rationale underlying Bork’s counsel’s
recommendation.

¶13 Bork’s second argument is that the circuit court applied a
preconceived sentencing policy that an OWI sentence should not be shorter than
that imposed for a prior OWI conviction, rather than imposing a sentence on the
specific facts of this case. A sentencing court may reasonably “impose escalating
… penalties by way of increased sentences” where an offender commits
successive or repeat offenses. State v. Ziegler, 2006 WI App 49, ¶35, 289 Wis. 2d
594, 712 N.W.2d 76. Such was the case here: Bork completed intensive treatment
while incarcerated in connection with his seventh OWI yet committed the same
offense after being released. As in Ziegler, the logic behind the court’s decision to
impose a longer sentence than Bork received for the prior conviction “is
unassailable under the facts of this case.” See id.

¶14 Bork also relies on State v. Ogden, 199 Wis. 2d 566, 544 N.W.2d
574 (1996), but that case is also materially distinguishable. In Ogden, the
sentencing court denied the defendant “Huber privileges for child care” pursuant
to a “mechanistic sentencing approach” under which it never granted such
privileges for that purpose because of past experiences in which defendants
“use[d] it only as a means of getting out of jail.” Id. at 572. Here, although the
circuit court was skeptical that a shorter sentence was appropriate, it grounded the
sentence it imposed on the specific facts of Bork’s eighth OWI offense, his
character and rehabilitative needs, and the court’s perception of what sentence was
necessary to protect the public. The supreme court made clear in Ogden that a

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sentencing court can entertain “general predispositions” so long as it grounds a
sentence in the particular facts of the case. Id. at 573. The circuit court did so
here.

¶15 Because Bork has not rebutted the presumption that the circuit court
acted fairly, impartially, and without bias in sentencing him, we affirm Bork’s
conviction and the court’s denial of his postconviction motion.

By the Court.—Judgment and order affirmed.

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

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