State v. Santiago B. Rios

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.
September 29, 2021
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. 2020AP2132-CR Cir. Ct. No. 2019CF151

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT II

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

SANTIAGO B. RIOS,

DEFENDANT-APPELLANT.

APPEAL from a judgment and an order of the circuit court for
Racine County: FAYE M. FLANCHER, Judge. Order entered.

¶1 GROGAN, J. Santiago B. Rios appeals from a judgment entered on
his no contest pleas to three misdemeanors: (1) criminal trespass to dwelling;
(2) criminal damage to property; and (3) disorderly conduct. He also appeals from
an order denying his postconviction motion seeking resentencing or sentence
modification. On appeal, he raises two claims: (1) the circuit court erroneously
No. 2020AP2132-CR

exercised its discretion because it failed to adequately consider his drug addiction
in imposing sentence; and (2) the disruption to drug treatment programming
caused by the COVID-19 pandemic constitutes a new factor warranting sentence
modification.

¶2 WISCONSIN STAT. RULE 809.19 (2019-20)1 requires a respondent to
file a response brief. The Respondent in this case, the State of Wisconsin, has not
done so. This court issued two orders reminding the Respondent of its obligation.
On July 19, 2021, this court entered an order notifying the Respondent that its
response brief was delinquent and ordered the Respondent to file its brief or seek
an extension “within five days.” The Respondent did neither. Subsequently, on
August 10, 2021, this court entered a second order “that on or before August 25,
2021, the State shall file a respondent’s brief which complies with the rules of
appellate procedure.” This order warned the Respondent that its failure to file a
brief as required by the rules may result in the court assuming it “concedes the
issues raised by the appellant” and result in this court summarily reversing the
circuit court “provided we determine that the respondent has abandoned the
appeal, acted egregiously or acted in bad faith.”

¶3 The court has heard nothing from the Respondent. The court’s
orders have apparently been ignored. No response brief was filed and no
correspondence was sent in response to the court’s order. This court has made
clear that it will not act as both advocate and judge by independently developing a
litigant’s argument. State v. Pettit, 171 Wis. 2d 627, 647, 492 N.W.2d 633 (Ct.

1
All references to the Wisconsin Statutes are to the 2019-20 version unless otherwise
noted.

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No. 2020AP2132-CR

App. 1992); Gardner v. Gardner, 190 Wis. 2d 216, 239 n.3, 527 N.W.2d 701 (Ct.
App. 1994). It is the party’s obligation to give reasons to sustain its position, and
if the party defaults in that obligation, it is not the court’s function to assume its
burden. See Raz v. Brown, 2003 WI 29, ¶36, 260 Wis. 2d 614, 660 N.W.2d 647.
This court’s review of the record persuades the court that a Respondent’s brief in
compliance with WIS. STAT. RULE 809.19 is necessary to decide this appeal.

¶4 Therefore, the court enters the following order:

IT IS HEREBY ORDERED that the State of Wisconsin
shall file a respondent’s brief on this appeal that fully
complies with WIS. STAT. RULE 809.19, and, in conformity
with RULE 809.19(3)(a)1a, the brief shall be filed within
thirty days of the issuance of this order. Rios will then
have fifteen days to file a reply brief or a letter that he will
not file a brief. See RULE 809.19(4).

IT IS ALSO HEREBY ORDERED that if the State of
Wisconsin does not file the brief required by the previous
paragraph, such failure will be taken as an egregious act
amounting to its abandonment of its right to contest Rios’
appeal, and, accordingly, this court will summarily reverse
the circuit court’s postconviction order and remand the
matter to the circuit court with directions to conduct a
resentencing. See Charolais Breeding Ranches, Ltd. v.
FPC Sec. Corp., 90 Wis. 2d 97, 109, 279 N.W.2d 493 (Ct.
App. 1979) (“Respondents on appeal cannot complain if
propositions of appellants are taken as confessed which
they do not undertake to refute.” (citation omitted)).

By the Court.—Order entered.

This opinion will not be published. See WIS. STAT.
RULE 809.23(1)(b)4.

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