State v. Somkith Neuaone, 2005 WI App 124
For Neuaone: Ralph Sczygelski
Issue/Holding: Where the sole basis for recusal is a claim that the judge was exposed to relevant sentencing information that he was entitled to hear, the very premise for the claim is flawed, ¶17.
¶16 Whether a judge was a “neutral and detached magistrate” is a question of constitutional fact which we review de novo and without deference to the trial court’s ruling. State v. Santana, 220 Wis. 2d 674, 684, 584 N.W.2d 151 (Ct. App. 1998). We begin with a presumption that the judge is free of bias and prejudice and the burden is on the party asserting judicial bias to show by a preponderance of the evidence that the judge is biased or prejudiced. Id. In determining the question, we apply both a subjective and an objective test. Id. We first look to the challenged judge’s own determination of whether the judge will be able to act impartially. Id. Next, we look to whether there are objective facts demonstrating that the judge was actually biased. Id. at 685. This requires that the judge actually treated the defendant unfairly. Id.
¶17 In answering Neuaone’s argument, we need not even get to the two-prong test for judicial bias because the premise for the argument is fatally flawed. Neuaone’s sole basis for seeking Judge Langhoff’s recusal was the fact that the judge had acquired information detrimental to Neuaone’s sentencing interests via the State’s breach of the plea agreement. But, as Judge Langhoff explained in his decision and as we have further explained in this opinion, the plea agreement was contrary to public policy and thus the judge was entitled to the information in the first instance. Moreover, the same would be true of any other judge who might have been assigned to conduct Neuaone’s sentencing if Judge Langhoff had recused himself. It goes without saying that a judge’s consideration of relevant sentencing information to which the judge is rightfully entitled cannot, without more, form the basis for recusal under a WIS. STAT. § 757.19(2)(g) motion. Other than arguing that the content of the audiotapes reflected poorly on him, Neuaone fails to otherwise demonstrate how this information translates into subjective or objective bias on the part of Judge Langhoff. We uphold the denial of Neuaone’s request for recusal.
