State v. Jill M. Jazdzewski

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.
March 5, 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. 2018AP848-CR Cir. Ct. No. 2015CF176

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT IV

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

JILL M. JAZDZEWSKI,

DEFENDANT-APPELLANT.

APPEAL from a judgment and an order of the circuit court for
Jefferson County: DAVID WAMBACH and LEE S. DREYFUS, JR., Judges.
Affirmed.

Before Fitzpatrick, P.J., Graham 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).
No. 2018AP848-CR

¶1 PER CURIAM. Jill Jazdzewski appeals a judgment of conviction
and an order denying her motion for postconviction relief.1 The issue is whether
the sentencing judge was objectively biased due to his own past experience in a
fatal accident. We affirm.

¶2 Jazdzewski pled no contest to one count of homicide by intoxicated
use of a vehicle. The complaint alleged that she was the driver of a vehicle that
crossed the center line and struck an oncoming vehicle, and that Jazdzewski’s
blood contained a detectable amount of a restricted controlled substance.

¶3 The court imposed the maximum initial confinement period of
fifteen years, with four years of extended supervision. In Jazdzewski’s
postconviction motion she argued that the judge was objectively and subjectively
biased. However, she withdrew the subjective bias claim before the hearing. The
objective bias claim was based on a combination of factual allegations relating to
the judge’s own involvement in a fatal accident, the judge’s emotional reactions
during sentencing of Jazdzewski, and the judge’s discussion of “survivor’s guilt.”

¶4 The circuit court, by a different judge, held an evidentiary hearing at
which Jazdzewski’s trial counsel and the sentencing judge testified. The circuit
court denied the motion.

¶5 In deciding whether the judge was objectively biased, the question is
whether there was an appearance of bias that reveals a great risk of actual bias.

1
The Honorable David Wambach entered the judgment of conviction following a no
contest plea. The Honorable Lee S. Dreyfus, Jr., entered the order denying the defendant’s
postconviction motion.

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No. 2018AP848-CR

See State v. Hermann, 2015 WI 84, ¶46, 364 Wis. 2d 336, 867 N.W.2d 772. This
is a question of law that we review independently. Id., ¶23.

¶6 Jazdzewski argues that there are four bases to conclude that the
sentencing judge showed an appearance of bias. She argues that these bases gave
the appearance that the judge was not able to weigh the retribution factor in
sentencing in a neutral and detached way because he identified excessively with
the victim’s family.

¶7 The first basis is that the sentencing judge, like the family members
of the victim in this case, suffered a personal loss in a motor vehicle accident.
During the postconviction motion hearing, the sentencing judge testified that he
has been involved in an accident as the operator of a motorcycle, and that his “life
partner,” riding as a passenger, died as a result of injuries sustained in the
accident.

¶8 Jazdzewski argues that the judge’s own loss would lead him to
identify with the family of the victim in this case and to place more emphasis on
their desire for retribution than would a neutral judge who did not have a similar
experience. She argues that this identification was shown at sentencing by the
judge giving the family advice, based on his own experience, about using a grief
counselor.

¶9 We do not agree that giving advice of this sort to a victim’s family
shows excessive identification with the family. This comment did not give the
appearance of bias.

¶10 Jazdzewki argues that the second basis showing an appearance of
bias is that the sentencing judge appeared to have been affected by survivor’s

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No. 2018AP848-CR

guilt. This argument is based on the judge’s own accident experience and his
reference to one of the victim’s sisters describing feelings of survivor’s guilt. The
argument is further based on an academic article. Citing the article, Jazdzewski
asserts that “feelings of guilt by survivors of traumatic events, and how those
feelings manifest in the survivor’s actions, are a well-studied psychological
phenomenon.”

¶11 Jazdzewski does not rely on any testimony by the sentencing judge
about whether he experiences survivor’s guilt. Nor does she rely on findings by
the postconviction court on this subject. The sentencing court’s reference to
survivor’s guilt was clearly in the context of describing the effect the crime had on
a specific member of the victim’s family who had expressed such a feeling. This
is an appropriate consideration. The judge did not refer to his own loss at that
point. Jazdzewski asserts that the judge “alluded to his own feelings of guilt” with
this reference to survivor’s guilt, but we do not see any basis to interpret his
comment in that way.

¶12 In sum, there is no evidentiary basis to conclude that the sentencing
judge experiences survivor’s guilt or that it affected Jazdzewski’s sentence. And,
while the academic article may provide support for the idea that a person with the
experience of the sentencing judge could experience survivor’s guilt, the article is
not a substitute for actual evidence, either at sentencing or at the postconviction
hearing, that the judge does experience survivor’s guilt.

¶13 The third indicator of bias that Jazdzewski relies on is that the
sentencing judge was emotional during sentencing. Jazdzewski’s trial counsel
testified that there were two specific points during the hearing when the judge was
“weeping.” The sentencing judge testified that he recalled being “emotional”

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No. 2018AP848-CR

during the hearing, but did not recall crying or having to pause to compose
himself. He recalled “a point or two in which I was what most commonly would
be referred to as choked up where you catch a lump in your throat.”

¶14 The postconviction court, in making its decision, acknowledged the
differing testimony that the sentencing judge “may or may not have been crying
depending upon the – whom you listened to.” The court did not expressly make a
finding on that point, but stated, “whether he was weeping, whether he was choked
up, there’s very little question when you review the transcript that he was in fact
emotional.” The court then reviewed the two portions of the transcript aloud and
concluded: “Now, I would note that he did not end up having to recess the
proceedings. It seems that it did take him a few moments to – certainly, the first
time, to compose himself, and the proceeding continued…. Certainly there isn’t
any question but that he showed emotion.”

¶15 Jazdzewski argues that, regardless of the precise extent of the
sentencing judge’s emotional response, that response gave the appearance that he
was identifying with the victim’s family and was unable to impartially weigh the
sentencing factors. We do not agree. As the postconviction court stated, judges
“are not and should not be automatons.” Homicides are among the most
emotionally charged types of cases. When considering the loss felt by a victim’s
family, and their need to heal from that loss, it is natural that a judge may have an
emotional response. We do not regard the fact that these emotions were visible in
the courtroom as creating an appearance of bias.

¶16 The fourth and final indicator of bias that Jazdzewski relies on is the
fact that the judge sentenced her to the maximum term of fifteen years of initial
confinement, well above the State’s argument for six years. She points out that the

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No. 2018AP848-CR

judge, in his sentencing remarks, described the victim’s family as having
“embraced” the “concept of retribution.” She argues that this again shows
excessive identification with the victim’s family.

¶17 We do not agree that exceeding the State’s recommendation and
imposing the maximum sentence are bases for inferring the appearance of bias.
Jazdzewski does not offer any case law in which these features of a sentence have
been held to show, either alone or with other facts, an appearance of bias.

¶18 Beyond these potential indicators of bias, Jazdzewski does not argue
that the sentencing court erroneously exercised its discretion by failing to consider
required factors or considering improper factors.

By the Court.—Judgment and order affirmed.

This opinion will not be published. See WIS. STAT. RULE
809.23(1)(b)5 (2017-18).

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