State v. Anthony J. LaRose, 2022AP647-CR, District 3, 3/25/25 (not recommended for publication); case activity (including briefs)
LaRose appeals an order denying his postconviction motion for resentencing on his conviction for first-degree sexual assault of a child, in which he claimed that the circuit court judge was biased against him based on three sets of facts. COA rejects all of LaRose’s arguments and affirms, holding that the court’s comments were related to appropriate sentencing factors and LaRose failed to establish sufficient risk of actual bias.
LaRose pleaded to an amended charge of first-degree sexual assault of a child after he was charged with assaults involving a nine-year old victim. The parties to jointly recommend a prison sentence consisting of 14 to 17 years of initial confinement and 20 years of extended supervision. (¶4). The PSI contained information about LaRose’s criminal record and correctional experience, his employment history, and his sexual behavior generally, as well as statements from his family and the victim. The PSI ultimately recommended a prison sentence of 30 to 35 years IC, and 7 to 10 years ES.
At sentencing, the circuit court commented about LaRose’s juvenile record, his “undesirable behavior patterns” including smoking marijuana, having an extramarital affair, allowing his wife to support him financially, and “narcissistic tendencies.” (¶¶14-16). As to the affair, the judge referenced a divorce he had presided over that morning for the woman with whom LaRose had fathered a child, musing whether the now-divorced woman was also a “victim of what happened or what you do[.]” (¶17). The court then sentenced LaRose to 25 years IC and 20 years ES. (¶18).
LaRose raised various claims for resentencing in a postconviction motion, and the circuit court held a non-evidentiary hearing at which it further explained its sentencing comments and rationale. (¶¶19-23). The court denied the motion, concluding that LaRose had not shown it exhibited objective bias. (¶24). On appeal, LaRose argues that the circuit court judge predetermined that LaRose needed to have prison time at a 2009 hearing, the judge conducted an independent investigation into his criminal/juvenile history, and the judge made “expressions of antipathy” toward LaRose at his sentencing, individually and taken together, show that the court was objectively biased.
Given that LaRose’s appellate arguments are limited to objective bias, COA addresses only whether he has rebutted the presumption that the judge acted fairly, impartially, and without bias by showing that his comments gave rise to a serious risk of actual bias. (¶25). Appellate courts review objective bias de novo, as a matter of law. Miller v. Carroll, 2020 WI 56, ¶15, 392 Wis. 2d 49, 944 N.W.2d 542.
As to the first issue LaRose raised, COA concludes the judge’s comments from the earlier sentencing hearing were warnings to LaRose, rather than a predetermined sentence, and were far too attenuated—both in substance and in time—from the sentencing in this case. LaRose pointed to the judge’s comments at a 2009 sentencing hearing, which he argued show that the judge had “predetermined the necessity of prison should . . . LaRose eventually face sentencing for a felony.” COA conducts an analysis of the relevant case law and determines that the judge’s 2009 comments were admonitions that sound nothing like the “unequivocal promises” that is has held to be problematic. Rather, “[t]hey were a warning of what LaRose could face if he continued with his increasingly serious criminal behavior, and they spoke only of possibilities in the form of what could happen should LaRose not discontinue his criminal behavior . . . .” (¶36). And the comments had no connection to the present case. (¶37).
Second, COA rejects LaRose’s argument that the judge’s comments regarding his juvenile and adult criminal history based on the judge’s independent investigation were already known to the parties and to the judge because they were noted in the PSI. COA focuses on the availability of this information to conclude that the court’s conduct here is insufficient to rebut the presumption that the judge acted fairly, impartially, and without bias under the circumstances “primarily because the information the judge noted in his sentencing comments was referenced in the PSI, and LaRose did not—and does not—argue that the information in the PSI was inaccurate.” Therefore, “[u]nder these circumstances, the judge’s failure to follow the rule that “[a] judge must not independently investigate facts in a case and must consider only the evidence presented,” SCR 60.04(1)(g)(cmt) is materially different from cases in which similar actions by judges were deemed improper. However, the court notes:
We agree with LaRose that a sentencing judge must provide the parties with notice and an opportunity to respond when he or she conducts an independent investigation. Although the better course of action would have been for the circuit court judge to alert both parties of his investigation into LaRose’s juvenile record and adult criminal record and give the parties an opportunity to review them prior to sentencing, the mere fact that the judge conducted an independent investigation into what were otherwise plainly relevant facts that were available to the parties, by itself, is insufficient to rebut the presumption of impartiality under these circumstances.
(¶¶39-48).
Third, COA concludes the judge’s comments regarding the divorce proceeding and LaRose’s sexual behavior were based on an appropriate sentencing factor that the judge considered, negative facts about LaRose presented in the PSI, and the overall nature of the offense LaRose committed. Essentially, these were all related to proper sentencing factors, and did “not reveal a high degree of antagonism toward LaRose[.]” (¶¶49-54).
