State v. Samsa

359 Wis.2d 580

859 N.W.2d 149

STATE of Wisconsin, Plaintiff–Respondent

v.Jordan John SAMSA, Defendant–Appellant.^†

No. 2013AP2535–CR.

Court of Appeals of Wisconsin.

Submitted on Briefs Oct. 7, 2014.

Opinion Filed Dec. 16, 2014.

On behalf of the defendant-appellant, the cause was submitted on the briefs of Steven D. Grunder, assistant state public defender, Madison.

On behalf of the plaintiff-respondent, the cause was submitted on the brief of J.B. Van Hollen, attorney general, and Christine A. Remington, assistant attorney general.

Before HOOVER, P.J., STARK and HRUZ, JJ.

Opinion

HOOVER, P.J.

Jordan Samsa appeals a judgment of conviction for third-degree sexual assault and an order denying his postconviction motion. Samsa seeks resentencing or, alternatively, sentence modification. He argues that the circuit court erroneously interpreted and applied the criminogenic-needs portion of a COMPAS assessment and that accurate information concerning COMPAS constitutes a new factor for sentencing purposes.¹ We reject Samsa's arguments and affirm.

BACKGROUND

¶ 2 According to the criminal complaint, A.N., then fourteen years old, reported she had been sexually assaulted by Samsa. Samsa had been dating A.N.'s older sister and living with A.N.'s family for approximately five months. Samsa told police he and A.N. had consensual sexual intercourse for approximately one minute on one occasion.

¶ 3 Samsa ultimately entered a no-contest plea to one count of third-degree sexual assault. The parties jointly recommended a presentence investigation (PSI), but remained free to argue the sentence. The Department of Corrections' PSI recommended withholding sentence and imposing five years of probation with one year in jail as a condition. The State requested four years of initial confinement followed by four years of extended supervision. The defense joined in the PSI's recommendation for probation and conditional jail time.

The court discussed the nature of the crime, finding it aggravated due to the impact on A.N. and her family, as well as the trusting relationship between Samsa and the family prior to the assault. Regarding Samsa's character, the court observed Samsa had no prior criminal record, although he had been cited for marijuana and paraphernalia possession. The court also noted Samsa had some mild cognitive limitations, potentially arising from lead exposure. The court agreed with the PSI writer and the State that Samsa failed to take responsibility for his actions.

¶ 5 The court next discussed the “Criminogenic Need” section of the COMPAS report that was appended to the PSI. The court explained:

Final factor is needs of society and we do have this COMPAS Assessment now. And, frankly, I am at a loss to figure out this agent's recommendation. I look at the chart here and current violence is listed as high under relationships and lifestyle. Criminal opportunity, highly probable, and this is for a criminogenic needs type of thing. Leisure and recreation, highly probable. Substance abuse, probable. Criminal associates and peers, probable. Under personality, criminal personality, highly probable. Family criminality, highly probable. Under vocation and education, highly probable. Under residential instability, highly probable.

I mean, there's a number of these that are on the low side as well like history of violence, history of noncompliance, criminal involvement, but everything associated with this is off the charts, but yet the agent is recommending probation. And I just—I disagree. I think that you are a poor risk and I think you are going to take advantage of any opportunity that you have to satisfy whatever need you might have at the particular time. And if it's ... sexual intercourse that you want with someone and if you're in a position that you can do it and you don't think you're going to get caught, you're going to go ahead and do it.

The court imposed the maximum sentence of five years' initial confinement and five years' extended supervision.

¶ 6 Samsa moved for postconviction relief, arguing the criminogenic-needs section of the COMPAS identifies areas in which the offender needs correctional or community intervention, and is not intended to be an indicator of danger to the community. The court denied Samsa's motion following a hearing. Samsa appeals.

DISCUSSION

¶ 7 Samsa renews the arguments presented in his postconviction motion, both of which rely on the underlying premise that the circuit court misapplied the criminogenic-needs section of the COMPAS assessment. Samsa seeks resentencing based on the court's alleged misapplication of the COMPAS or, alternatively, sentence modification because correct information concerning the COMPAS constituted a new sentencing factor.

¶ 8 Samsa primarily argues he is entitled to resentencing due to the circuit court's sentencing error. Sentencing is subject to the court's “great discretion.” State v. Jackson, 110 Wis.2d 548, 552, 329 N.W.2d 182 (1983). However, the sentencing court must consider three primary sentencing factors: (1) the gravity of the offense, (2) the character and rehabilitative needs of the offender, and (3) the need for protection of the public. State v. Gallion, 2002 WI App 265, ¶ 26, 258 Wis.2d 473, 654 N.W.2d 446, aff'd 2004 WI 42, 270 Wis.2d 535, 678 N.W.2d 197. Sentencing decisions are generally accorded a strong presumption of reasonableness because the circuit court is best suited to consider the relevant factors and assess the defendant's demeanor. Id. A defendant can rebut the presumption of reasonableness only by showing an unreasonable or unjustifiable basis for the sentence in the record. Id., ¶ 27. A sentencing court erroneously exercises its discretion when it fails to state the relevant and material factors that influenced its decision, relies on immaterial factors, or gives too much weight to one factor in the face of other contravening factors. Id. “An improper sentencing factor is a factor that is ‘totally irrelevant or immaterial to the type of decision to be made.’ ” Id., ¶ 16 (quoting Elias v. State, 93 Wis.2d 278, 282, 286 N.W.2d 559 (1980) ).

¶ 9 Samsa argues the court relied on an improper factor by using criminogenic needs to assess his dangerousness. He asserts that because the criminogenic-needs section of the COMPAS was not intended to assess dangerousness, the court improperly inferred he was more dangerous than the COMPAS risk assessment indicated.

¶ 10 In support of Samsa's postconviction motion, he filed a five-page, single-spaced report that described the basic principles of the COMPAS assessment.² The following summary prefaced the report:

The COMPAS is a Risk and Needs Assessment tool utilized by the Wisconsin Department of Corrections as a means to identify an offender's risk as well as his or her treatment and programming needs. Risk levels (Low, Medium, or High) are meant to assist corrections professionals in deciding the level of supervision an offender requires. The [criminogenic] Needs scales are designed to highlight areas in which the offender may need correctional services (i.e. treatment and programming). By only looking at the Needs scales, without considering the Risk level, an inaccurate interpretation of the individual's risk can be made. Mr. Samsa's COMPAS assessment revealed that there are several areas in which he needs programming. However, his actuarial risk of reoffense was determined to be low, suggesting that services be provided at a low level of supervision. Without training on the COMPAS assessment, it would be easy to misinterpret the results, which are often displayed in bar chart form. The following is a brief description of the basic principles behind the COMPAS assessment and its interpretation.

¶ 11 Samsa asserts the court could not permissibly rely on the COMPAS need assessment scores to determine he was a high risk despite the COMPAS assessment that he presented a low risk of reoffense. We disagree. Samsa's argument is essentially that a sentencing court's discretion must yield to the COMPAS actuarial assessment. That is an untenable position.

¶ 12 At sentencing, the circuit court addressed the requisite sentencing objectives and also explained it disagreed with the COMPAS's and DOC...