State v. Stacey T. Weiher

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.
June 15, 2022
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. 2021AP1032-CR Cir. Ct. No. 2018CF843

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT II

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

STACEY T. WEIHER,

DEFENDANT-APPELLANT.

APPEAL from a judgment and an order of the circuit court for
Kenosha County: BRUCE E. SCHROEDER, Judge. Affirmed.

Before Gundrum, P.J., Neubauer and Kornblum, 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. 2021AP1032-CR

¶1 PER CURIAM. Stacy T. Weiher appeals a judgment of conviction,
entered on her guilty plea, for delivering less than one gram of cocaine, as well as
an order denying her postconviction motion. She argues the circuit court
sentenced her based on her race in violation of her due process rights. She also
argues the court erroneously exercised its sentencing discretion by relying on
inaccurate information. We reject her arguments and affirm.

BACKGROUND

¶2 Weiher was charged with several offenses, eventually entering a plea
to a single count of delivering less than one gram of cocaine without any penalty
modifiers. The State dismissed the remaining charges and agreed to a joint
recommendation of probation. After receiving a presentence investigation report
and conducting a sentencing hearing, the circuit court imposed two years’ initial
confinement and five years’ extended supervision for the crime. The State noted
at the hearing that this case, along with another of Weiher’s, had been previously
referred to drug court, which Weiher had failed.

¶3 Weiher filed a motion for sentence modification, seeking a
probationary sentence. First, she argued that the circuit court improperly relied on
her race when it noted the number of opportunities she had been given to conform
her conduct to the requirements of the law.1 The court stated at sentencing,
amongst other things, that “if I were going to make the case for disparate treatment
between the races in the courts and claim that blacks, for example, are treated
more harshly than white people, this would be Exhibit A.” The court opined that

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Weiher is white.

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“if she were black, she would have been in prison a long time ago, sad to say.” It
continued:

So this woman has been dealt with very permissively. She
has been involved in a lot of serious criminal misbehavior,
and she has been given chance after chance after chance,
and I had that fear that this was going to continue with the
whole business of the drug court. I was flabbergasted that
she was selected for drug court, and again I don’t want to
comment on anybody, and I’m certainly not suggesting that
anyone in this system has purposely discriminated against
anyone. I really don’t believe that, and I know these people
very, very well, and I truthfully don’t believe that there is
any discrimination involved, but I do believe that this
woman has been given too much, and it’s ended up in
harm.

¶4 Second, Weiher’s sentence modification motion argued the circuit
court had erroneously relied on inaccurate information. The court had discussed
Weiher’s drug use during the sentencing hearing. The court paused to clarify that
Weiher was not being sentenced for using drugs; rather, it remarked that “while
[Weiher] was, quote, helping the police, she was also out dealing heroin, so she is
a big heavy-duty offender, and that’s why she is going to prison today.” The court
discussed the risks posed to society by drug distribution, remarking, “I think it’s a
ghastly mistake to have people who are selling cocaine, selling heroin, and let
them go through some kind of a treatment program as an alternative to punishing
them for their wrongfulness.” Weiher argued the court’s observations were
premised on inaccurate information, as she had been selling crack cocaine—not
heroin—while on bond, and had not been working with the police while doing so.

¶5 The circuit court denied Weiher’s sentence modification motion.
The court denied having any racially discriminatory intent, asserting it had
“mentioned it only as illustrative of circumstances in which, with no deliberate
purpose to favor one offender over the other on account of race, preferential

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No. 2021AP1032-CR

treatment is ultimately enjoyed by some and not by others.” The court further
rejected the notion that it had relied on inaccurate information, concluded dealing
heroin or cocaine was “a distinction without a difference.” Weiher now appeals.

DISCUSSION

¶6 Weiher argues the circuit court impermissibly relied on her race at
sentencing. We review a court’s sentencing decision for an erroneous exercise of
discretion. State v. Dodson, 2022 WI 5, ¶8, 400 Wis. 2d 313, 969 N.W.2d 225. A
court erroneously exercises it sentencing discretion when it “actually relies on
clearly irrelevant or improper factors.” Id. Accordingly, a defendant must
demonstrate by clear and convincing evidence both that: (1) the challenged factor
was irrelevant or improper; and (2) the circuit court actually relied on that factor at
sentencing. Id.

¶7 A defendant has a constitutional due process right not to be
sentenced on the basis of his or her race. State v. Harris, 2010 WI 79, ¶33, 326
Wis. 2d 685, 786 N.W.2d 409. Here, the circuit court made passing references to
racial inequality, comparing the number of opportunities Weiher was given to a
hypothetical black defendant. Weiher argues a “reasonable presumption is that to
compensate for this perceived disparate treatment, the Court did not follow the
parties’ negotiated disposition of probation” and instead sentenced her to prison.

¶8 We agree with the State that this is not an accurate characterization
of the circuit court’s comments. At best for Weiher, the court’s comments can be
interpreted as mere speculation regarding why Weiher had avoided more stringent
punishment in the past. The record does not substantiate the inference Weiher
draws though, that as a result the court wanted to punish her more harshly in this
instance to make up for a perceived racial disparity in her previous dealings with

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No. 2021AP1032-CR

the justice system. Rather, the court’s apparent, and expressed, concern was that
despite being caught in the past, she continued to distribute drugs into the
community. As the State explains, the court’s comments therefore bore a
reasonable nexus to relevant and appropriate sentencing factors, including
Weiher’s character and the need to protect the public. See Harris, 326 Wis. 2d
685, ¶59.

¶9 Moreover, the circuit court at sentencing expressed dismay at the
notion that anyone in the justice system would purposefully discriminate against a
defendant on the basis of his or her race. While not dispositive, we note Weiher’s
argument would require us to conclude that the court uttered these comments only
to then immediately ignore them and hand down a harsher sentence. To the
contrary, “our obligation is to review the sentencing transcript as a whole, and to
review potentially inappropriate comments in context.” Id., ¶45. Under the
circumstances of this case, the sentencing transcript does not reveal the
impermissible consideration of race.

¶10 Weiher also argues the circuit court relied on inaccurate information
that she sold heroin while she was cooperating with law enforcement on another
case. A defendant has a due process right to be sentenced based on accurate
information. State v. Coffee, 2020 WI 1, ¶37, 389 Wis. 2d 627, 937 N.W.2d 579.
The defendant must show, by clear and convincing evidence, that: (1) some
information at the sentencing was inaccurate; and (2) the circuit court actually
relied on the inaccurate information at sentencing. Id., ¶38.

¶11 Here, Weiher has not demonstrated the information was inaccurate.
It is undisputed that Weiher had previously been charged with several counts of
delivering heroin in Kenosha County case No. 2017CF587, one of which she pled

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No. 2021AP1032-CR

guilty to. That offense occurred in 2016, Weiher was charged in June of 2017, and
her cash bond was converted to a signature bond in August 2017. It is also
undisputed that she was cooperating with police at some point, and through that
cooperation she obtained a referral to drug court.

¶12 Weiher acknowledges, however, that the record is uncertain when,
precisely, she was actively cooperating with police. She merely posits that
because she was referred to drug court, a “reasonable presumption” is that she
started working with law enforcement after the June 2017 charges were filed, and
there is no evidence she was dealing heroin after she was charged. This
“reasonable presumption” falls short of the evidentiary burden defendants bear—
—i.e., clear and convincing evidence—to show that information was inaccurate.

¶13 In any event, we agree with the State that there was also insufficient
evidence that the circuit court actually relied on the information, even if it was
arguably inaccurate. “A circuit court actually relies on incorrect information when
it gives ‘explicit attention’ or ‘specific consideration’ to it, so that the
misinformation ‘formed part of the basis for the sentence.’” Coffee, 389 Wis. 2d
627, ¶38 (quoting State v. Tiepelman, 2006 WI 66, ¶14, 291 Wis. 2d 179, 717
N.W.2d 1).

¶14 To demonstrate reliance, Weiher points to the circuit court’s
comment—which occurred directly after the court’s statement about Weiher
dealing heroin while she was working with the police—that “she is a big heavy-
duty offender, and that’s why she is going to prison today.” Weiher argues this
comment created a causal connection between the inaccurate information and her
prison sentence. Moreover, she takes issue with the circuit court’s postconviction
reasoning that the particular drug she was dealing was a “distinction without a

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No. 2021AP1032-CR

difference.” Weiher notes that there is a one-level difference in the felony
classification level for dealing cocaine versus dealing heroin.

¶15 In highlighting the circuit court’s decision to send her to prison,
Weiher inadvertently undermines her own argument. The sentencing transcript is
clear that the basis for her prison sentence was not her dealing in any particular
drug while working with police, but the fact that she was dealing drugs after
already having been charged with distributing heroin and cocaine in 2017. After
mentioning that the court regarded Weiher as a “big heavy-duty offender,” the
court noted that it would imprison drug offenders only “because of the risk they
pose to society in … ways” other than their drug use. The court continued:

It all needs to be examined from the likelihood of continued
wrongdoing and for the protection of the public, and the
motivation, whether it’s to get more drugs for herself or
whether it’s to do it as a profit business, I don’t think it
makes that much difference. I think this woman has
committed terrible, terrible crimes, and I think that she has
to be brought to justice for them.

In short, it is apparent the decision to sentence Weiher to prison and not probation
was based on the court’s calculation of the risk that she presented to the public, her
own previous failures to conform her conduct to the law, and the gravity of the
offense.

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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