State v. Deborah A. Turner

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 30, 2025
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. 2024AP392-CR Cir. Ct. No. 2020CF863

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT II

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

DEBORAH A. TURNER,

DEFENDANT-APPELLANT.

APPEAL from a judgment and an order of the circuit court for
Kenosha County: GERAD T. DOUGVILLO, 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. 2024AP392-CR

¶1 PER CURIAM. Deborah A. Turner appeals from a judgment of
conviction and a postconviction order in which the circuit court refused to modify
its finding that she was ineligible for the Wisconsin substance abuse program
(SAP).

¶2 Turner hosted a house party at which one person died from a drug
overdose and four other partygoers, including Turner’s own daughter, suffered
from overdoses although none of the other four died as a result. Pursuant to a plea
agreement, Turner entered pleas of no contest to one count of second-degree
reckless homicide and three counts of second-degree recklessly endangering safety
based on the events at her house. Turner faced a total of thirty years of initial
confinement and twenty-five years of extended supervision. See WIS. STAT.
§§ 940.06(1), 941.30(2), 973.01(2)(b)4., (2)(b)7., and (d)3 (2023-24)1.

¶3 The circuit court ordered the department of corrections to prepare a
presentence investigation report (PSI) after Turner entered her pleas, and Turner’s
attorney also had a private sentencing memorandum prepared on Turner’s behalf.
During the sentencing hearing, the court fully explained its sentencing rationale
before making an erroneous statement, in passing, that Turner was not statutorily
eligible for the challenge incarceration program or the SAP.2 Upon considering
the PSI, private sentencing memorandum, arguments of counsel, statements from
one of the surviving overdose victims and Turner, a letter on Turner’s behalf, and

1
All references to the Wisconsin Statutes are to the 2023-24 version.
2
The Wisconsin substance abuse program is a prison treatment program, and an inmate
who successfully completes it may convert his or her remaining initial confinement time to
extended supervision time. See WIS. STAT. §§ 302.05(1)(am), 302.05(3)(c)2. The challenge
incarceration program is another prison treatment program that also allows for an early release
from confinement.

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No. 2024AP392-CR

the appropriate sentencing factors, the court sentenced Turner to ten years of
initial confinement and nine years of extended supervision.

¶4 After sentencing, Turner filed a postconviction motion asking the
circuit court to amend the judgment of conviction to make Turner eligible for the
SAP. Turner argued that, although not eligible for the SAP on her
reckless-homicide conviction, the court should have found Turner eligible for the
SAP on her three reckless-endangerment convictions. See WIS. STAT.
§ 302.05(3)(a). The court denied the motion, explaining as follows:

The court carefully considered eligibility for such
programming and ultimately denied it. The court believed
at the time, and still does, that it would unduly depreciate
the seriousness of the offense for the defendant to serve
anything less than the full amount ordered by the court at
the time of sentencing.

¶5 The court further explained that Turner had presented no evidence
demonstrating an erroneous exercise of discretion, noting that “[n]ew levels of
dissatisfaction related [to] eligibility in the SAP are not legal grounds for a
sentence modification.” Turner appeals, asking this court to reverse the circuit
court’s finding that she is not eligible for participation in the SAP.3

¶6 As we noted in footnote two, the SAP is a prison treatment program
that provides inmates who successfully complete the program an opportunity to
gain early release from the confinement portion of a bifurcated sentence. See WIS.
STAT. §§ 302.05(1)(am), 302.05(3)(c)2. Pursuant to statute, a person convicted of

3
The State argues that Turner forfeited her right to appeal the circuit court’s
determination that she is not eligible for the SAP. We reject this argument because, as Turner
correctly states, our supreme court has held that filing a postconviction motion, as Turner did, “is
a timely means of raising an alleged error by the circuit court during sentencing.” See State v.
Grady, 2007 WI 81, ¶14 n.4, 302 Wis. 2d 80, 734 N.W.2d 364.

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No. 2024AP392-CR

certain specified crimes is disqualified from participating in the program. See
§ 302.05(3)(a)1. Turner’s reckless-endangerment convictions did not statutorily
disqualify her from participation. See id. When sentencing a person who is not
statutorily disqualified, the circuit court is required to determine, in the exercise of
its discretion, whether the person is eligible to participate in the program. See
WIS. STAT. § 973.01(3g); see also State v. Owens, 2006 WI App 75, ¶¶6-7, 291
Wis. 2d 229, 713 N.W.2d 187.

¶7 On appeal, Turner argues that “[t]he court did not properly exercise
its discretion when it determined that [she] was not eligible for [the] SAP.” “A
circuit court exercises its discretion at sentencing, and appellate review is limited
to determining if the court’s discretion was erroneously exercised.” State v.
Brown, 2006 WI 131, ¶19, 298 Wis. 2d 37, 725 N.W.2d 262.

¶8 A circuit court’s decision regarding eligibility for the program
represents an appropriate exercise of discretion “so long as the overall sentencing
rationale ... justifies the ... determination.” Owens, 291 Wis. 2d 229, ¶9. To
properly exercise sentencing discretion, a circuit court must identify the objectives
of the sentence. See State v. Gallion, 2004 WI 42, ¶40, 270 Wis. 2d 535, 678
N.W.2d 197. In seeking to fulfill the sentencing objectives, the court must
consider the primary sentencing factors of “the gravity of the offense, the
character of the defendant, and the need to protect the public.” State v. Ziegler,
2006 WI App 49, ¶23, 289 Wis. 2d 594, 712 N.W.2d 76. The court may also
consider a wide range of other factors concerning the defendant, the offense, and
the community. See id. The court has discretion to determine both the factors that
are relevant to the sentencing decision and the weight to assign to each relevant
factor. State v. Stenzel, 2004 WI App 181, ¶16, 276 Wis. 2d 224, 688 N.W.2d 20.
Strong public policy dictates against appellate interference with a circuit court’s

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No. 2024AP392-CR

sentencing discretion, and we presume the court acted reasonably in exercising
that discretion. See id., ¶7.

¶9 Our review of the record here shows that the circuit court did not
erroneously exercise its discretion in finding Turner ineligible for the SAP. At
sentencing, the court properly observed that it must consider “the gravity of the
offense, the character of the offender[,] and the need to protect the public.” See,
e.g., Ziegler, 289 Wis. 2d 594, ¶23. The court then provided careful analysis of
Turner’s convictions in light of these standards.

¶10 Regarding the gravity of the offense, the circuit court highlighted the
charges and the horrifying scene encountered by officers upon their arrival at
Turner’s house (with one person not breathing and unresponsive, while other
partygoers gradually fell victim to the drugs before the officers’ eyes). The court
reviewed the counts of the third amended information that Turner entered no
contest pleas to—one count of second-degree reckless homicide and three counts
of second-degree recklessly endangering safety. The court stated the reason for
the charges was “not because [Turner] had a barbecue at [her] house, [but] because
[she] brought heroin to a barbecue which everybody thought was cocaine, and
they all ingested it and then they all overdosed and [one victim] is dead.” The
court also found that the seriousness of Turner’s conduct was amplified by the fact
that she left the scene, her own house, while people all around her were dropping
from drug overdoses.

¶11 The circuit court next considered Turner’s character. The court
recognized that “Turner does have a number of positive pro-social qualities” that
weighed in her favor at sentencing. It also credited Turner for having a number of
people in her life who are supportive and loving toward her. On the flip side of

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No. 2024AP392-CR

her character, however, the court noted that Turner continued, even at sentencing,
to deflect responsibility for the overdoses in what the court called a “borderline
veiled attempt of acceptance of accountability.” In sum, the court did not believe
that Turner was remorseful for her actions.

¶12 Finally, the circuit court considered the need to protect the public. It
indicated that “protection of the community [is absolutely] a tenet here.” The
court further observed that “as a proper deterrence to the community at-large and
as a proper punishment to [ ] Turner, the [c]ourt is going to impose a prison
sentence on these matters.”

¶13 In its order denying Turner’s postconviction motion to make her
eligible for the SAP, the circuit court repeated its rationale for denying Turner
eligibility at sentencing. As quoted above, the court noted that it was not
appropriate to make Turner eligible for an early release program under the
circumstances. It noted that at sentencing it had “carefully considered eligibility
for such programming and ultimately denied it.” The court found that granting
Turner eligibility for early release would “unduly depreciate the seriousness of the
offense for [Turner] to serve anything less than the full amount ordered by the
court at the time of sentencing.”

¶14 In sum, the circuit court considered appropriate and relevant factors
in fashioning Turner’s aggregate sentence and concluded that any disposition
potentially resulting in less than ten years of initial confinement would undermine
the purposes of that sentence. Accordingly, the court properly exercised its
discretion by declaring Turner ineligible for the Wisconsin substance abuse
program to ensure that she served the necessary period of initial confinement. See
Owens, 291 Wis. 2d 229, ¶9.

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No. 2024AP392-CR

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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