State v. Timothy D. Russell, 2014AP451-CR, District 1, 12/23/14 (not recommended for publication); case activity
When sentencing Russell for a series of thefts committed while he was deputy chief of staff to the Milwaukee County Executive, the circuit court referred to the charge to which Russell pled as “misconduct in public office, … not a theft as I think has been reported.” (¶8). The court of appeals holds that the sentencing transcript, when read as a whole, makes it clear that the circuit court did not erroneously believe it was sentencing Russell for the offense of misconduct in public office, but merely intended to note that Russell committed the offense of theft by virtue of his public position as deputy chief of staff to the Milwaukee County Executive.
A defendant has a due process right to be sentenced upon accurate information, State v. Tiepelman, 2006 WI 66, ¶9, 291 Wis. 2d 179, 717 N.W.2d 1. When claiming that the circuit court used inaccurate information at sentencing, the defendant must show both that the information was inaccurate and that the court actually relied on the inaccurate information in the sentencing, id., ¶26. Russell hasn’t shown that the circuit court inaccurately sentenced him for the offense of misconduct in public office:
¶20 Russell argues that the circuit court’s remarks at sentencing reflect that, at the time it imposed sentence, the court believed it was sentencing Russell for the offense of misconduct in public office, an offense that is separate and distinct from the crime of theft. See Wis. Stat. §§ 946.12 & 943.20(1)(b)….. Indeed, some of the circuit court’s statements at sentencing, when viewed in isolation, suggest that the circuit court mistakenly thought that Russell was pleading guilty to the crime of misconduct in public office. However, upon reading the transcript as a whole, it is clear that the circuit court knew that Russell was pleading guilty to theft and sentenced him appropriately.
¶21 First, … [i]mmediately after the sentencing hearing, the court realized some of its statements referencing misconduct in public office could be misconstrued and reconvened the parties that afternoon to clarify its comments. When the court was able to reconvene the parties a few hours after the initial sentencing, it explained that its “reference to misconduct in public office was a reference to him being deputy chief of staff at the time. It was a characterization. I was viewing this as a fact, not as a charge, because this happened while he was in public office.” The circuit court went on to explicitly state that it “did not sentence him … for misconduct in public office but for the felony theft case.”
¶22 Second, even if the circuit court had not clarified its statements regarding misconduct in public office, it is clear from the record that the court properly sentenced Russell to the theft charge to which he pled. The court began its sentencing remarks by correctly stating that “[t]he defendant pled guilty to count one, a series of thefts from the Heritage Guard Preservation Society [HGPS]. It’s a 10-year felony. Five years of confinement. Five years of extended supervision is the maximum penalty.” In other words, the trial court began the sentencing hearing by explicitly noting that Russell was pleading guilty to theft, not misconduct in public office, and the court then correctly recited the maximum penalties for theft. The court then noted that the two charges that were dismissed were also theft counts. The court also made many references to Russell’s acts of theft, stating that Russell “st[ole] funds from a charity”; engaged in a “brazen act of greed”; “stole … 50 cents for every dollar that was raised”; and “took out some money as soon as [he] took control of the corporation.” ….
Russell also argued that the restitution order shouldn’t include HGPS funds used to rent office space because the office was used for HGPS business. The court of appeals disagrees, holding the state proved a causal nexus between Russell’s theft conviction and the funds used for the office space based on evidence showing Russell used the office primarily for his personal benefit rather than HGPS’s business:
¶29 First, investigators found very little evidence of HGPS activity in the office …. However, investigators found plenty of evidence in the office demonstrating that Russell used the office primarily to support his personal business and political activity ….
¶30 Second, the State presented evidence demonstrating that, at the time Russell rented the office space in August 2010, HGPS had no ongoing activity that required office space. The last HGPS-sponsored event had been held more than a month earlier in July 2010, and preparation for the next event, assuming another would ever have been held, would not begin until December or January. Yet, HGPS alone paid the security deposit and rent on the office space from August 10, 2010, until July 31, 2011.
