State v. Leopoldo R. Salas Gayton

2016 WI 58

SUPREME COURT OF WISCONSIN
CASE NO.: 2013AP646-CR
COMPLETE TITLE: State of Wisconsin,
Plaintiff-Respondent,
v.
Leopoldo R. Salas Gayton,
Defendant-Appellant-Petitioner.

REVIEW OF A DECISION OF THE COURT OF APPEALS
(Reported at 358 Wis. 2d 709, 856 N.W.2d 345)
(Ct. App. – Unpublished)

OPINION FILED: July 6, 2016
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: March 14, 2016

SOURCE OF APPEAL:
COURT: Circuit
COUNTY: Dennis R. Cimpl and Ellen R. Brostrom
JUDGE: Milwaukee

JUSTICES:
CONCURRED: BRADLEY, A. W., J. and ABRAHAMSON, J. concur
(Opinion filed).
DISSENTED:
NOT PARTICIPATING: ROGGENSACK, C. J. did not participate.

ATTORNEYS:
For the defendant-appellant-petitioner, there were briefs
by Colleen D. Ball, assistant state public defender, and oral
argument by Colleen D. Ball.

For the plaintiff-respondent, the cause was argued by
Christopher G. Wren, assistant attorney general, with whom on
the brief was Brad D. Schimel, attorney general.

There was an amicus curiae brief by Jeffrey O. Davis, Haar
Katta, and Quarles & Brady LLP, Milwaukee, WI on behalf of the
Irrevocable Trust for the Benefit of Hayden Isabella Lamb.
 There was an amicus curiae brief by Matthew S. Pinix, Karyn
Rotker, and ACLU of Wisconsin Foundation, Milwaukee, Claudia
Valenzuela (pro hac vice) and National Immigrant Justice Center,
Chicago, IL, Barbara J. Graham and Catholic Charities Legal
Services for Immigrants, Milwaukee, and Stacy Taeuber,
University of Wisconsin Law School Immigrant Justice Clinic.
Oral argument by Matthew S. Pinix.

2
 2016 WI 58
NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2013AP646-CR
(L.C. No. 2011CF73)

STATE OF WISCONSIN : IN SUPREME COURT

State of Wisconsin,

Plaintiff-Respondent,
FILED
v.
JUL 6, 2016
Leopoldo R. Salas Gayton,
Diane M. Fremgen
Defendant-Appellant-Petitioner. Clerk of Supreme Court

REVIEW of a decision of the Court of Appeals. Affirmed.

¶1 DAVID T. PROSSER, J. This is a review of an
unpublished decision of the court of appeals affirming the

Milwaukee County Circuit Court's denial of a postconviction

motion by Leopoldo Salas Gayton (Salas Gayton).1

¶2 Salas Gayton pled no contest to two charges that arose

after he killed Corrie Damske while he was driving under the

influence of alcohol in the wrong direction on a Milwaukee

1
State v. Salas Gayton, No. 2013AP646-CR, unpublished slip
op. (Wis. Ct. App. Oct. 7, 2014).
 No. 2013AP646-CR

freeway. At sentencing, the circuit court focused its remarks

on the serious crime of drunk driving and its potential

consequences. It ultimately sentenced Salas Gayton to 15 years

of initial confinement, the statutory maximum, followed by 7

years of extended supervision. On several occasions during its

remarks, the circuit court mentioned Salas Gayton's immigration

status, describing him as an "illegal alien," "here illegally,"

and an "illegal." However, the court made clear that any

unlawful conduct related to immigration represented no more than

a "minor factor" or "minor character flaw."

¶3 In a postconviction motion, Salas Gayton argued, among

other things, that the sentencing court erroneously exercised

its discretion by relying upon an improper factor when it

considered his immigration status at sentencing. The circuit

court denied his motion, and the court of appeals affirmed.

Because we conclude that the circuit court's comments do not

demonstrate reliance on an improper factor at sentencing and

therefore did not deny Salas Gayton due process of law, we
affirm the decision of the court of appeals.

I. FACTUAL AND PROCEDURAL BACKGROUND

¶4 While driving drunk on Interstate 94 in Milwaukee on

the morning of January 1, 2011, Salas Gayton struck a vehicle

driven by Corrie Damske, who died at the scene shortly after the

collision. The collision occurred at approximately 7:20 a.m.

2
 No. 2013AP646-CR

Salas Gayton entered the freeway2 near 35th Street and began

traveling in the wrong direction in the westbound lanes. He

struck one vehicle before colliding head-on with Damske near

20th Street, at the southwest corner of the Marquette University

campus. His vehicle ricocheted and struck a third vehicle after

his collision with Damske. Salas Gayton broke his foot as a

result of the collisions.

¶5 In the hours before the collision, Salas Gayton

consumed 2 beers at home before consuming a 12-pack of beer

while driving around Milwaukee. He tossed empty cans out the

car window as he drove. After the collision, he could not

account for a large period of time and could not remember when

he consumed his last beer. A test of Salas Gayton's blood

approximately 2 hours and 20 minutes after the collision

returned a blood alcohol content of .145.

¶6 When officers questioned Salas Gayton after his

arrest, he told them that he entered the freeway because he saw

police lights flashing in his mirror and he traveled in the

2
Wisconsin Stat. § 990.01(7a) (2013-14) defines an
"expressway" as "a divided arterial highway for through traffic
with 'full' or 'partial' control of access and generally with
grade separations at intersections." A freeway, in contrast,
"means a highway with full control of access and with all
crossroads separated in grade from the pavements for through
traffic." Wis. Stat. § 990.01(9a). Although Interstate 94
seems to meet both definitions, we use the term "freeway"
throughout the opinion.

All subsequent references to the Wisconsin Statutes are to
the 2013-14 version unless otherwise indicated.

3
 No. 2013AP646-CR

wrong direction out of confusion as he attempted to evade

police. He wanted to avoid being pulled over because he feared

going to jail for driving without a valid license. A report

from the Milwaukee County Sheriff's Office indicates that at the

time of his arrest he informed officers that he immigrated to

the United States illegally and that he had lived in the United

States for approximately 13 years before the collision.3 Salas

Gayton is originally from Mexico, and he is not an American

citizen. At the time of the collision, he was 41 years old.

¶7 A criminal complaint and information filed in the

Milwaukee County Circuit Court on January 6, 2011, charged Salas

Gayton on three counts: (1) homicide by intoxicated use of a

vehicle, contrary to Wis. Stat. §§ 940.09(1)(a) and

939.50(3)(d); (2) homicide by intoxicated use of a vehicle

(prohibited alcohol concentration), contrary to Wis. Stat.

§§ 940.09(1)(b) and 939.50(3)(d); and (3) operating without a

license, causing death, contrary to Wis. Stat.

§§ 343.05(5)(b)3.d. and 939.51(3)(a).4 Although Salas Gayton
initially entered not guilty pleas to all three charges, he

3
Salas Gayton submitted a copy of the document from the
Milwaukee County Sheriff's Office as an exhibit attached to his
postconviction motion.
4
The statutes cited in the complaint referred to the 2009-
10 version of the Wisconsin Statutes.

4
 No. 2013AP646-CR

ultimately agreed to plead no contest to the first and third

counts.5

¶8 The Milwaukee County Circuit Court, Dennis Cimpl,

Judge, conducted a lengthy sentencing hearing on July 22, 2011,

at which the court heard statements on behalf of Damske and on

behalf of Salas Gayton.6 After an initial discussion between the

court and the parties regarding letters sent to the court on

behalf of the victim and the defendant,7 the hearing proceeded

with the State's presentation.

¶9 The attorney for the State began with a lengthy

summary of the reasons why the State was "recommending . . . a

substantial period of confinement":

Corrie Damske was a woman who simply was driving
on the freeway. She was going home as many people
were going and traveling on January 1st, the holiday,
2011.

5
At the plea hearing, the circuit court indicated that the
second count would be dismissed "by operation of law" as a
result of the conviction resulting from the plea on the first
count. See Wis. Stat. § 940.09(1m)(a)-(b). The circuit court
also explained the dismissal at sentencing.
6
In the following paragraphs, we quote at length from
statements in the transcript of the sentencing hearing. To
enhance readability, we have clarified punctuation and corrected
several misspellings in the transcript, such as the first name
of the deceased victim. The unmarked alterations to quotations
from the transcript are also reflected in subsequent quotations
in the opinion.
7
The court received six letters on behalf of Damske and one
on behalf of Salas Gayton. Although not originally included in
the record on appeal, the letters were added to the record by a
December 9, 2015 order from this court.

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 No. 2013AP646-CR

She was secured in the fact that she was
traveling properly in the right lane when something
happened that could happen to make any of us victims
of a homicide, and that is that the defendant made a
choice——perhaps, because he was intoxicated, not a
knowing choice——but he made a choice to get on the
freeway and drive the wrong way.

As the Court knows, it's probably the busiest
freeway . . . in the whole State of Wisconsin; it's a
freeway that leads west from downtown Milwaukee and is
as heavily traveled as any freeway in the State of
Wisconsin.

The defendant traveling down that freeway had
numerous opportunities to stop his car and realize
that he was going the wrong way. But he went a
significant distance traveling the wrong way down that
freeway almost hitting other cars.

. . . .

. . . He nipped a car and caused a bit of damage
to another car, and then another woman also had her
car damaged by the defendant, I believe after he hit
Ms. Damske's car.

The man that was almost hit, he actually was hit
but he did not sustain any injuries, was a fireman for
the City of Milwaukee Fire Department; and the
defendant, even after that, continued travelling the
wrong way down the freeway.

The defendant killed a beautiful, loving mother.
She was 34 years old.

. . . She had a young child who has to live the
rest of her life without her mother, and I don't know
how one explains to a child what happened here . . . .
That child is going to have to live the rest of her
life without her mother because of what the defendant
did.

The defendant's blood level was .145, close to
twice the amount of the legal amount allowed in the
State of Wisconsin for a prima facie case for
intoxication.

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 No. 2013AP646-CR

. . . .

The defendant, as the Court knows, was not
supposed to be driving. He did not have a valid
driver's license; and not only that, he had been
convicted of operating without a license two separate
times. . . .

. . . .

Quite frankly, the public would have been safer
if he was firing bullets down the freeway, rather than
driving a vehicle the wrong way down the freeway at
the speed that he was driving. It was a weapon.

Literally, the car was a weapon on that freeway,
and anyone that came in contact with him or saw him
coming down the freeway at the speed he was coming
down the freeway the wrong way, obviously, would have
been terrified and endangered.
¶10 Following that introductory statement, the circuit

court heard statements on Damske's behalf. The first statement

came from Damske's mother, Sharon Hvala, who made a few remarks

before reading from a prepared statement, which began,

Everyday I wake up to the unbelievable, that I will
never see my daughter again. The darkest day of my
life is when the detective came to the door and showed
me pictures to identify her, [a] parent's worst
nightmare.

I was never able to say goodbye or hold her in my
arms or tell her how much I loved her and how much she
meant to me. She died alone in the most tragic way on
that cold highway.
As she neared the end of her statement, Damske's mother

specifically requested that the court impose a harsh punishment:

Your Honor, I know that there is nothing that
will ever bring my daughter back. But I do ask that
the judgment would be a fair one, and one that will
perhaps give others pause before they get behind the
wheel.

7
 No. 2013AP646-CR

Mr. Gayton made a choice, a choice to live for
years in this country without citizenship, a choice to
drive without a valid license after being stopped
twice by police, a choice again to elude police by not
stopping, driving drunk and going the wrong way on the
expressway. And all of these choices that he made
ultimately claimed the life of my daughter.

Mr. Gayton will eventually be able to go on with
his life. While I'll be visiting my daughter at her
grave. I can't imagine life without her.

. . . Corrie and our family have been given a
life sentence.
¶11 Next, the circuit court heard from Michele Friedman,

Damske's close friend. Friedman began by describing the severe

impact of Damske's death on her friends and family; she then

also asked the court to impose a harsh sentence:

The fact of the matter is his punishment should
follow the strictest penalties allowed by law. He not
only committed the crime of vehicular homicide, but he
has committed others as well, such as being pulled
over twice for driving without a license.

Killing Corrie was not his first act of
lawlessness. It was just one of a series of times for
which he was caught. He had no intentions of
complying with any of the laws in this country, and
that was proven when his feet hit U.S. soil as an
illegal immigrant.

At the time of this homicide, he had no license,
no insurance and no intention of respecting the law
that governs our country.

He came to this country and availed himself of
the privileges we provided to our citizens, but he had
no intentions to complying with our laws. Then he
stepped up his lawlessness by killing a productive,
passionate, beautiful and loving individual.

. . . .

8
 No. 2013AP646-CR

The issue of punishment is one that some judges
are remiss to do in similar cases and give him the
maximum. 15 years in prison and after that a swift
deportation is a well-deserved punishment. Please
give him every hour of prison he deserves and let him
sit behind bars for as long as the law allows.

. . . .

A punishment of less than the maximum, 15 years
in jail and 10 years of supervision, a/k/a,
deportation, would also unduly depreciate the
seriousness of this crime.
¶12 Following the statements on Damske's behalf, Salas

Gayton's attorney, Heather Johnson, spoke on behalf of her

client. She began by extending condolences to Damske's family

and friends and by acknowledging that "[t]his is a serious

offense, and there is just no two ways around that." Asking the

circuit court to treat Salas Gayton the same as it would treat

any other offender under similar circumstances, she noted that

drunk driving "is an offense committed across the board in the

community by people of all ages, races, background, citizens and

non-citizens [alike]." In response to the statements made on

Damske's behalf, she reviewed Salas Gayton's "almost completely
clean criminal record" and argued that "to say that he had no

intention of following the laws of this country and basically

has broken every law that he had an opportunity to do, it's just

not true." She focused instead on his work history, noting,

He is proud to say that he has always supported
himself, despite knowing that the community is upset
that he is here. He wants people to know that he has
never received or applied for any help from the
government, government aid or any other community
resources. He has always maintained himself and tried
to help his family and friends.

9
 No. 2013AP646-CR

¶13 Salas Gayton's attorney later returned to the issue of

citizenship status and engaged in a brief exchange with the

court on the matter:

[MS. JOHNSON:] The fact as I see it that Mr.
Salas is not a citizen in my opinion, as it relates to
this case, is not terribly relevant. He came——

THE COURT: It goes to character.

MS. JOHNSON: I agree. He did come to this
country to work. He has positively supported himself
in the community. For the most part, he has stayed
out of the criminal justice system. To say that he
does not value our laws [or has] been a detriment to
the community, I don't think is an honest statement.
¶14 She concluded her comments by asking the court to

impose less than the maximum period of confinement, followed by

extended supervision. Following her comments, the circuit court

heard from the mother of Salas Gayton's girlfriend and from

Salas Gayton himself.8

¶15 After hearing all of these statements, the court

imposed a sentence——15 years confinement followed by 7 years of

extended supervision9——and explained its reasons for doing so.

We reproduce the court's statement in full:

8
Salas Gayton addressed the court through an interpreter.
9
Homicide by intoxicated use of a vehicle is a Class D
felony. Wis. Stat. § 940.09(1)(a), (1c) (2009-10). The
punishment for a Class D felony is "a fine not to exceed
$100,000 or imprisonment not to exceed 25 years, or both." Wis.
Stat. § 939.50(3)(d) (2009-10). Of the maximum 25 years
imprisonment "[f]or a Class D felony, the term of confinement in
prison may not exceed 15 years." Wis. Stat. § 973.01(2)(b)4.
(2009-10).

10
 No. 2013AP646-CR

THE COURT: When I sentence somebody, I have to
set goals with my sentencing. One of the goals is
restitution. In this case, that was very easy. As in
most cases, it's very easy. It's $11,075.

I wish the other goals were as easy. They're
not. The other goals are punishment, deterrence.
That means sending a message to you, Mr. Salas, as
well as everybody in the community, that you just
can't get behind a wheel of a car, 4,000 pounds, a
4,000 pound weapon, if you're intoxicated, without
suffering the consequences. That's deterrence.

Then the last goal is rehabilitation, and that's
somewhat hampered in this case by your status.
Because I don't know what the United States Government
is going to do with you when this sentence is over. I
don't know if they are going to deport you. I have no
power in that regard.

How do I accomplish these goals? Well, the first
thing I look at is the serious nature of the crime.
Then I look at what the community wants and demands,
and I don't just speak for Corrie.

I don't just speak for anybody that died as a
result of a drunk driver. I speak for the entire
community, the victim's side and the defendant's side.
They're also victims.

Then the last thing I have to do is consider your
character and everything that Leopoldo Salas is.
Let's talk about the serious nature of the crime.

A young woman is dead, 34 years old, beautiful,
out on the first day of the year driving. Minding her
own business and tragically taken away from us.

You were driving drunk the wrong way on the
freeway. There was some indication that you were
afraid that you were going to be stopped for driving.
You apparently had been warned by somebody, maybe the
judge in Racine County, that you can't drive.

There is a reason that we have licenses in this
country and all the world, and that is we just don't
let anybody get behind that automobile which can be a
weapon.

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 No. 2013AP646-CR

Mr. Williams said in your state you might have
been better shooting a gun at the freeway. You
probably would have missed everybody, rather than
aiming the weapon that you did.

You, by all accounts, didn't try to do anything
about it. You entered on 35th Street. This happened
on 20th Street. That's a good mile. You're driving
freeway speeds, 50 miles an hour. You sideswiped a
firefighter. You don't stop. You told me in your
letter, quote, I didn't even know I was driving.

THE INTERPRETER: That's the truth.

THE COURT: Yes, I know. The fact that you're an
illegal alien doesn't enter into the serious nature of
the crime or the need to protect the community. It
goes to character. It's a minor character flaw very
honestly.

The fact that you didn't have a driver's license
entered into it, the fact that you were driving the
wrong way, the fact that you were speeding, the fact
you went a mile, the fact that didn't know, didn't
even know that you were driving, that enters into it,
because that makes what you did that much worse.

And you were drunk, .145, and apparently this is
the first time that you've ever been driving drunk, at
least according to the law. Is that the case? I
don't know.

But I am struck by a statistic I read some place,
and I don't know the exact statistic, but that drunk
drivers who kill aren't the ones that are driving four
or five times as drunk drivers. It's the first time.

That leads me to——well, a little bit more about
the problems; apparently, you had an argument,
disagreement, call it what you want, so you had a
couple of beers at home, and you had 12 beers in your
car. You were driving around throwing beer cans out
of the car, according to the complaint. I don't know.

It leaves me what the community wants. I mean,
the newspapers, the media has just been full of
articles and stories about drunk drivers. Our
newspaper did a whole year where they talked every day

12
 No. 2013AP646-CR

about another tragedy, about drunk drivers, people
that died.

Look around in the courtroom, four televisions.
We've got four major television stations, four cameras
in this courtroom, because the community wants to know
what happens to you. They want to know what happens
to somebody who takes a car, a weapon, and drives
drunk and kills somebody. That's the message that I
have to get out to the community.

I was joking with my bailiff before the case
started about face time that I get or he gets on TV.
That doesn't make any difference. If I had one wish,
what I would ask is that the television stations say,
you drive drunk——first time, second time, third time,
fourth time, fifth time——you go to prison.

I would——everybody in this community thinks,
pauses, as this victim's mother said, before getting
behind a wheel when you have a couple of pops.

We talked about the victim. Mr. Williams talks
about my last week in this court. Yeah, it is. I've
seen too many young people killed. Too many parents
have come here and said they're tired of burying
[their] kids. It is a parent's worst nightmare to
have to bury your child. I hope this gives you
closure.

There was no intent to kill here. There was an
intent to drive drunk. He knew it. You knew you
couldn't handle that car. That's the intent. He
didn't set out to kill somebody that day, but you did
set out to drive drunk.

I have read the letters. It's going to be tough
for [Damske's daughter] to get along. She's young.
She has got a very good support network.

So now we talk about you, which is the last thing
that I have to consider. And other than January 1st
of 2011, you seem to be a pretty decent guy.

I ignore what went on with the presentence
writer. I can understand that happened, your lack of
cooperation. You're in this country. You don't
understand the way we do things. I can understand it.

13
 No. 2013AP646-CR

I don't excuse it. It would help if I got the
information anyway.

You're from the nation of Mexico. You've got a
fifth grade education. You're in this county for 13
and a half years, Milwaukee for two years. You’ve got
three kids in Mexico.

You've apparently got a temper. That's why the
mother of the children left you in Chicago. Something
about a restraining order is what she told Dr.
Pankiewicz.

You've got sporadic employment, trying to better
yourself. That's why you're in this country.
Although you're here illegally, it's a factor, a minor
factor, but it goes to your character.

It was interesting to read in Dr. Pankiewicz's
report that you apparently were sober for three and a
half years. There it is, on page 2. "Mr. Salas
indicates . . . he has had a drinking problem for many
years. He has been able to stop drinking for long
periods of time intermittently."

"He states his last episode of sobriety was for
three and a half years" without relapsing. The
drinking occurring on Christmas Day, 2010, and then
your mother-in-law-to-be tells me about the
disagreement that you had with your fiance. So I
guess I know why you were drinking on New Years Eve.

I tend to buy that, given the letter she wrote
me, that the change you apparently made in your life.
She talked about how one of the children knew you.

Alexis knew you as Miguel, knew you in a very bad
period of time and how she said you've changed and how
you were good to her and her kids. "He showed me a
whole new world, a world I never knew. That world
[is] his world[, a] world of God."

"I started going to church with him. I got to
meet his church family. I really enjoy this new life.
I[t] felt like this is where I should be."

14
 No. 2013AP646-CR

That tends to corroborate the fact that you were
sober for three and a half years, and something set
you off. Unfortunately, it resulted in a tragedy.

Dr. Pankiewicz diagnosed you as an alcoholic.
That's true. You accepted responsibility. You didn't
put this family through the trial, of looking at the
gruesome autopsy pictures, of sitting here in this
courtroom for a week listening to people describe what
happened to their daughter and friend.

Mr. Williams talks a little bit about it and they
burst into tears. You deserve some credit for that.
I see the remorse. Rarely does a defendant come in
here like you and exhibit tears that you did, and
they're genuine. I see that.

Like so much else, I have to weigh everything.
So you are going to go to prison. I can't put him on
probation. That would unduly depreciate the
seriousness of what he did.

When he gets out, if he's allowed to live in this
country, well, then he'll be subject to the rules of
extended supervision. And if he violates those rules,
he goes back to prison for the time that I'm about to
give him on extended supervision.

What are the rules? No new law violations rising
to the level of probable cause. Cooperate with his
agent. No contact with weapons of any kind. No
contact at all with the family of Corrie.

He will cooperate and participate with alcohol
and drug assessment. Follow through with the
recommended treatment. Ms. Johnson correctly stated
that it never intervened in his life. Never had a
serious enough crime for us to try and intervene. But
he could have done that on his own, even as an illegal
in this country.

There's plenty of places on the south side of
Milwaukee that cater to Latinos that would help them
with their drinking problems. He could have done it
on his own. He didn't.

He will be subject to random urines. No use or
possession of any alcohol, illegal drugs or drug

15
 No. 2013AP646-CR

paraphernalia. No contact with drug dealers. No
contact with drug users or drug houses.

The Department of Corrections has got to give him
some grief counselling. He's dealing with this too.
He has punished himself, and he will continue to
punish himself for the rest of his life.

He asked me for forgiveness. That is not within
my power. I can't forgive. Judges don't do that.

Absolutely no driving, any motor vehicle, unless
you have a license. I will revoke his driving
privileges in the State of Wisconsin for five years as
I'm required to do under this law.

When you get out, if you're allowed to be in this
country, you will seek and maintain full-time
employment. While you are in prison, you get yourself
a GED or an HSED; so that even if you're not allowed
back in this country and you go back to Mexico, you
have those skills.

You will give a DNA test, be responsible for all
of the costs of this action, including a DNA
surcharge. That is part of the punishment, part of
the rehabilitation. The restitution will come first
and then the costs. We will take the costs and the
restitution out of his prison account of 25 percent.

The term of extended supervision finally will
result in judgment. He's not eligible for the
Challenge Incarceration Program or the Earned Release
Program. Due to the serious nature of the offense, I
will not give him a risk reduction sentence.

The fact that you took remorse, that you showed
remorse, the fact that you've accepted responsibility
does not outweigh what you did and in the matter that
you did it on January 1, 2011.

So, therefore, the sentence of this Court is
serving a term of confinement in the Wisconsin State
Prison of 22 years, 15 years of initial confinement,
seven years of extended supervision Count 1. Credit
for 203 days. On Count 3, nine months, concurrent to
the time in Count 1. Credit for 203 days.

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 No. 2013AP646-CR

I have tried to be fair with you. If you don't
feel I've been fair with you, your lawyer will tell
you how you can appeal my decision. Basically, you
have 20 days.
¶16 After receiving multiple extensions from the court of

appeals, Salas Gayton filed a motion for postconviction relief

pursuant to Wis. Stat. § (Rule) 809.30 and Wis. Stat.

§ 971.08(2). He sought an order vacating his plea and

conviction on the grounds that the circuit court failed to

properly advise him of the immigration consequences of his no

contest pleas, as required by Wis. Stat. § 971.08(1)(c). In the

alternative, he sought an order vacating his sentence and

ordering a new sentencing hearing on the grounds that the

circuit court erroneously exercised its discretion because it

failed to set forth an adequate explanation for the imposition

of its sentence. For similar reasons, he also requested an

order vacating imposition of the DNA surcharge. The Milwaukee

County Circuit Court10 denied his motion.

¶17 The court of appeals affirmed the circuit court's

denial of Salas Gayton's postconviction motion. State v. Salas

Gayton, No. 2013AP646-CR, unpublished slip op., ¶1 (Wis. Ct.

App. Oct. 7, 2014). Salas Gayton renewed his argument that the

circuit court failed to provide an appropriate basis for

imposing the maximum initial confinement period of 15 years, but

the court of appeals concluded that the circuit court provided a

sufficient explanation. Id., ¶¶16-17. Additionally, the court

10
Ellen R. Brostrom, Judge.

17
 No. 2013AP646-CR

of appeals rejected his argument that the circuit court

improperly relied on his alien status when imposing its

sentence. Id., ¶¶18-19. The court of appeals agreed with the

circuit court that Salas Gayton's "willingness to violate this

country's immigration laws was a reflection of his character,"

adding that, "as the circuit court also opined, it was nowhere

near dispositive." Id., ¶19. Finally, the court of appeals

also rejected his argument that the circuit court failed to

provide a sufficient reason for imposing the DNA surcharge.

Id., ¶¶20-22.

¶18 Salas Gayton filed a petition for review, which this

court granted on November 5, 2015. This court's order granted

review of a single issue: "[W]hether a sentencing court may rely

on a defendant's illegal immigrant status as a factor in

fashioning a sentence; and if such reliance is improper, whether

it is a structural error or subject to a harmless error

analysis . . . ."

II. DISCUSSION
¶19 We review a circuit court's sentencing determination

for erroneous exercise of discretion. State v. Gallion, 2004 WI

42, ¶17, 270 Wis. 2d 535, 678 N.W.2d 197. An exercise of

discretion "contemplates a process of reasoning. This process

must depend on facts that are of record or that are reasonably

derived by inference from the record and a conclusion based on a

logical rationale founded upon proper legal standards." State

v. Taylor, 2006 WI 22, ¶17, 289 Wis. 2d 34, 710 N.W.2d 466

18
 No. 2013AP646-CR

(internal quotation mark omitted) (quoting McCleary v. State, 49

Wis. 2d 263, 277, 182 N.W.2d 512 (1971)).

¶20 A circuit court must state the reasons for its

sentencing decision on the record. Wis. Stat. § 973.017(10m);

Gallion, 270 Wis. 2d 535, ¶40. Under the erroneous exercise of

discretion standard, "the circuit court's determination will be

upheld on appeal if it is a reasonable conclusion, based upon a

consideration of the appropriate law and facts of record."

Peplinski v. Fobe's Roofing, Inc., 193 Wis. 2d 6, 20, 531

N.W.2d 597 (1995) (citing Hartung v. Hartung, 102 Wis. 2d 58,

66, 306 N.W.2d 16 (1981)). "[A] reviewing court may search the

record for reasons to sustain the circuit court's exercise of

discretion." State v. LaCount, 2008 WI 59, ¶15, 310 Wis. 2d 85,

750 N.W.2d 780; see also Peplinski, 193 Wis. 2d at 20 (exercise

of discretion "will be upheld if the appellate court can find

facts of record which would support the circuit court's

decision" (citing Maier Constr., Inc. v. Ryan, 81 Wis. 2d 463,

473, 260 N.W.2d 700 (1978))).
¶21 "Sentencing decisions of the circuit court are

generally afforded a strong presumption of reasonability because

the circuit court is best suited to consider the relevant

factors and demeanor of the convicted defendant." Gallion, 270

Wis. 2d 535, ¶18 (alteration omitted) (quoting State v. Borrell,

167 Wis. 2d 749, 781-82, 482 N.W.2d 883 (1992)); see also State

v. Grady, 2007 WI 81, ¶32, 302 Wis. 2d 80, 734 N.W.2d 364; State

v. Harris (Denia), 119 Wis. 2d 612, 622, 350 N.W.2d 633 (1984).

19
 No. 2013AP646-CR

¶22 When making a sentencing determination, a court must

consider the protection of the public, the gravity of the

offense, and the rehabilitative needs of the defendant, as well

as any appropriate mitigating or aggravating factors. Wis.

Stat. § 973.017(2); State v. Naydihor, 2004 WI 43, ¶¶26, 78, 270

Wis. 2d 585, 678 N.W.2d 220; Gallion, 270 Wis. 2d 535, ¶40. Our

cases have detailed various additional factors that a circuit

court might consider within its discretion:

(1) Past record of criminal offenses; (2) history of
undesirable behavior pattern; (3) the defendant's
personality, character and social traits; (4) result
of presentence investigation; (5) vicious or
aggravated nature of the crime; (6) degree of the
defendant's culpability; (7) defendant's demeanor at
trial; (8) defendant's age, educational background and
employment record; (9) defendant's remorse, repentance
and cooperativeness; (10) defendant's need for close
rehabilitative control; (11) the rights of the public;
and (12) the length of pretrial detention.
State v. Harris (Landray M.), 2010 WI 79, ¶28, 326 Wis. 2d 685,

786 N.W.2d 409 (quoting Harris (Denia), 119 Wis. 2d at 623-24);

see also Gallion, 270 Wis. 2d 535, ¶43 & n.11 (citing Harris
(Robert Lee) v. State, 75 Wis. 2d 513, 519-20, 250 N.W.2d 7

(1977)).

¶23 The sentencing court considers a variety of factors

because it has a responsibility "to acquire full knowledge of

the character and behavior pattern of the convicted defendant

before imposing sentence." Elias v. State, 93 Wis. 2d 278, 285,

286 N.W.2d 559 (1980). "[A] sentencing court needs the fullest

amount of relevant information concerning a defendant's life and
characteristics." State v. Frey, 2012 WI 99, ¶45, 343

20
 No. 2013AP646-CR

Wis. 2d 358, 817 N.W.2d 436 (citing Williams v. New York, 337

U.S. 241, 247 (1949)). Accordingly, "The sentencing court or

jury must be permitted to consider any and all information that

reasonably might bear on the proper sentence for the particular

defendant, given the crime committed." State v. Guzman, 166

Wis. 2d 577, 591, 480 N.W.2d 446 (1992) (quoting Wasman v.

United States, 468 U.S. 559, 563-64 (1984)). The scope of the

information that a court may consider includes "not only

'uncharged and unproven offenses' but also facts related to

offenses for which the defendant has been acquitted.'" Frey,

343 Wis. 2d 358, ¶47 (quoting State v. Leitner, 2002 WI 77, ¶45,

253 Wis. 2d 449, 646 N.W.2d 341).

¶24 Despite the broad range of factors that a sentencing

court may consider, its discretion is not unlimited. Imposing a

sentence "based on or in actual reliance upon clearly irrelevant

or improper factors" constitutes an erroneous exercise of

discretion. Harris (Landray M.), 326 Wis. 2d 685, ¶30 (emphasis

omitted). A defendant will prevail on a challenge to his or her
sentence if he or she proves by clear and convincing evidence

that the circuit court actually relied on an improper factor at

sentencing. Id., ¶34.

¶25 A defendant's nationality is one of several factors

that a court may not rely upon when imposing a sentence that is

consistent with a defendant's due process rights. See Pepper v.

United States, 562 U.S. 476, 489 n.8 (2011) ("A defendant's race

or nationality may play no adverse role in the administration of
justice, including at sentencing." (quoting United States v.

21
 No. 2013AP646-CR

Leung, 40 F.3d 577, 586 (2d Cir. 1994)); State v. Alexander,

2015 WI 6, ¶23, 360 Wis. 2d 292, 858 N.W.2d 662.

¶26 Salas Gayton now contends that the circuit court

improperly relied upon his alienage and immigration status as

aggravating factors when making its sentencing determination.

He argues that reference to his status as an "illegal alien"

invoked prejudicial stereotypes and was an intrinsically

improper factor. He further suggests that use of such terms

implicitly invoked his Mexican nationality and therefore was a

thinly-veiled substitute for sentencing him based on his

national origin.

¶27 The State responds that barring a court from ever

mentioning or considering a defendant's immigration status would

be inconsistent with the longstanding principles favoring

circuit courts having access to as much information as possible

when sentencing a defendant. According to the State, a

defendant's immigration status or the fact that a defendant

immigrated to the United States illegally can be relevant to the
conduct for which a court imposes a sentence.

¶28 At the outset, we observe that the sentencing

transcript demonstrates that when considering the protection of

the public, the gravity of Salas Gayton's offense, and Salas

Gayton's rehabilitative needs, the circuit court placed an

overwhelming emphasis on the perils of drunk driving. As the

circuit court imposed sentence on a person who, without knowing

what he was doing, drunkenly drove in the wrong direction on a
major freeway and caused a tragic, fatal collision, the court

22
 No. 2013AP646-CR

made clear its objective, explaining that if it "had one wish,"

it would be that the publicity surrounding the case would

reinforce in the public's mind that if "you drive drunk——first

time, second time, third time, fourth time, fifth time——you go

to prison." Expanding on that objective, the circuit court

added its hope that "everybody in this community thinks,

pauses, . . . before getting behind a wheel" after drinking.

¶29 The circuit court specifically noted that Salas

Gayton's immigration status did not "enter into [its evaluation

of] the serious nature of the crime or the need to protect the

community." Rather, as the circuit court discussed the

seriousness of the offense together with the protection of the

public, it compared Salas Gayton's vehicle to a "weapon" that,

under the circumstances, was more dangerous than a gun fired

indiscriminately down the freeway. Anything short of sending

Salas Gayton to prison "would unduly depreciate the seriousness

of what he did."

¶30 Salas Gayton's personal struggles with alcoholism and
maintaining sobriety were also a predominant factor for the

circuit court when considering Salas Gayton's rehabilitative

needs. The circuit court acknowledged that, aside from Salas

Gayton's conduct that resulted in tragic consequences on January

1, 2011, he "seem[ed] to be a pretty decent guy." Although he

had "been able to stop drinking for long periods of time

intermittently," he had never sought formal treatment——which "he

could have done . . . on his own, even as an illegal in this
country"——and the time in prison would give him an opportunity

23
 No. 2013AP646-CR

for treatment following a full alcohol and drug assessment, as

well as skills training through a GED or HSED program.

¶31 Relative to the circuit court's emphasis on the

dangers of drunk driving, Salas Gayton's immigration status

constituted no more than a "minor factor" in the court's

sentencing determination. Twice, the circuit court indicated

that it considered Salas Gayton's immigration status when

evaluating his character, first noting, "The fact that you're an

illegal alien . . . goes to character. It's a minor character

flaw very honestly." Later, the court added, "Although you're

here illegally, it's a factor, a minor factor, but it goes to

your character." When discussing rehabilitation for Salas

Gayton, the court also observed that the possibility of eventual

deportation complicated the court's decision by making it

difficult to predict Salas Gayton's circumstances upon release

from confinement.

¶32 We are not persuaded by Salas Gayton's contention that

the circuit court in this case denied him due process of law by
considering his immigration status as a minor aggravating factor

when imposing his sentence. Because Salas Gayton has previously

engaged in conduct contrary to federal immigration law, his

prior disregard for the law was an acceptable factor for the

circuit court to include in its assessment of his character.

¶33 Further, we note that his immigration status was

directly relevant to one of the charges for which he received a

24
 No. 2013AP646-CR

sentence: driving without a license.11 In Wisconsin, a

noncitizen may obtain a driver's license by presenting certain

documentation that proves lawful admission to, permanent

residency in, or temporary residency in the United States. See

Wis. Stat. § 343.14(2)(es). There is no indication in the

record that Salas Gayton possessed any documentation that would

have allowed him to obtain a driver's license as a noncitizen;

therefore, his unlawful entry into the United States prevented

him from possessing a license to operate the vehicle that he

used on the day of the collision. Because his unlawful entry

related to an element of a crime for which he was convicted, it

was not improper for the circuit court to consider his

immigration status as an aspect of his character for sentencing

purposes. Cf. Frey, 343 Wis. 2d 358, ¶47.

¶34 Moreover, the cases that Salas Gayton cites for the

proposition that a court may not consider a defendant's

immigration status at sentencing do not absolutely foreclose

consideration of unlawful conduct related to immigration.
¶35 Unlike the sentencing court in Salas Gayton's case,

which referred to his immigration status in a limited way

11
Wisconsin Stat. § 343.05(5)(b)3.d. (2009-10) provided:

Any person who, in the course of operating a motor
vehicle which is not a commercial motor vehicle upon a
highway in this state knowingly without a valid
operator's license issued to the person by the
department . . . , causes the death of another person
is guilty of a Class A misdemeanor.

25
 No. 2013AP646-CR

related to his conduct of immigrating illegally, the trial

courts in some of the cited cases articulated an overt

deterrence objective based on nationality. See, e.g., Leung, 40

F.3d at 585 ("The purpose of my sentence here is to punish the

defendant and to generally deter others, particularly others in

the Asiatic community because this case received a certain

amount of publicity in the Asiatic community, and I want the

word to go out from this courtroom that we don't permit dealing

in heroin and . . . it is against the customs of the United

States, and if people want to come to the United States they had

better abide by our laws."). In particular, the district

court's comments under review in United States v. Borrero-Isaza,

887 F.2d 1349 (9th Cir. 1989), left the "unavoidable" conclusion

that the defendant "was penalized because of his national

origin, and not because he trafficked in drugs that emanated

from a source country":

[H]e comes from a country of origin, namely, Colombia,
which is a country that supplies much of the narcotics
to this country.

. . . [They] are the total scourge of this
country right now, and I am not going to tolerate it,
and I want the message to go to Colombia that we are
not going to accept this kind of thing.
887 F.2d at 1353, 1355. The circuit court in Salas Gayton's

case certainly matched the fervor of the sentencing courts in

Leung and Borrero-Isaza, but the court here spoke with passion

about the evil of drunk driving and its concomitant effect on

Salas Gayton's sentence, rather than suggesting that Salas

26
 No. 2013AP646-CR

Gayton's nationality or immigration status mandated a stiff

sentence.

¶36 Other cases that Salas Gayton cites note the principle

that sentencing courts may not constitutionally impose a

sentence based on national origin——a principle that this court

unquestionably embraces. See Alexander, 360 Wis. 2d 292, ¶23.

But those cases nevertheless leave open the possibility that a

sentencing court might consider a defendant's relevant illegal

conduct related to immigration without denying the defendant due

process of law. See, e.g., Yemson v. United States, 764 A.2d

816, 819 (D.C. 2001) ("This does not mean . . . that a

sentencing court, in deciding what sentence to impose, must

close its eyes to the defendant's status as an illegal alien and

his history of violating the law, including any law related to

immigration."). Even the most inflexible of the cases that

Salas Gayton cites——which holds that "immigration status per se

is not relevant"——acknowledges that "circumstances that

demonstrate a defendant's unwillingness to conform his conduct
to legal requirements, whether or not there are criminal

consequences, may be" relevant to a sentencing determination.

State v. Zavala-Ramos, 840 P.2d 1314, 1316 (Or. Ct. App. 1992).

"Faced with the responsibility of sentencing . . . , the judge

[cannot], and would . . . [be] remiss if he did, ignore the

realities of the case." United States v. Gomez, 797 F.2d 417,

420 (7th Cir. 1986) (concluding that when defendant's "entry

into this county had been illegal," that "illegal act is no

27
 No. 2013AP646-CR

different than any other recent prior illegal act of any

defendant being sentenced for any offense").

¶37 Review of the circuit court's sentencing comments in

their entirety thus satisfy us that the court imposed a harsh

sentence on Salas Gayton because of his dangerous conduct

operating a vehicle while intoxicated and the tragic

consequences of that act. Any references to his immigration

status implicated the unlawful aspects of his presence in the

United States, which were directly relevant to his conviction

for homicide while operating a vehicle without a driver's

license.

¶38 Accordingly, we conclude that Salas Gayton has not

demonstrated that the circuit court erroneously exercised its

discretion by imposing a sentence with the maximum period of

confinement for homicide resulting from intoxicated operation of

a vehicle in the wrong direction on a busy freeway. Because we

conclude that the circuit court did not rely upon an improper

factor at sentencing, we do not evaluate whether its references
to Salas Gayton's immigration status constituted harmless error.

III. CONCLUSION

¶39 Salas Gayton pled no contest to causing the untimely

death of Corrie Damske by his action of driving a vehicle in the

wrong direction on a freeway after consuming a substantial

quantity of alcohol. At sentencing, the circuit court imposed

the maximum 15-year period of confinement, as well as a 7-year

period of extended supervision, and in doing so the court
discussed the seriousness of the crime and the importance of

28
 No. 2013AP646-CR

imposing a sentence that would deter people from engaging in

similar conduct in the future. As a minor aspect of its

comprehensive evaluation of Salas Gayton's character, the

circuit court also mentioned his immigration status, which was

relevant to his conviction for causing a death while operating a

motor vehicle without a license. Because we conclude that the

circuit court's comments did not deny Salas Gayton due process

in the form of reliance on an improper sentencing factor, we

affirm the decision of the court of appeals.

By the Court.—The decision of the court of appeals is

affirmed.

¶40 PATIENCE DRAKE ROGGENSACK, C.J., did not participate.

29
 No. 2013AP646-CR.awb

¶41 ANN WALSH BRADLEY, J. (concurring). After parsing and

reframing the issues raised by the petitioner, this court

ultimately asked the parties to address issues including the

following: "whether a sentencing court may rely on a

defendant's illegal immigrant status as a factor in fashioning a

sentence."1 The majority declines to address this important

question of first impression.

¶42 Because appeals claiming error based on a sentencing

court's multiple referrals to a defendant's immigration status

appear to be on the rise,2 I write separately to provide guidance

in this ever expanding area of law.

¶43 Rather than focusing on the facts of this individual

case, I discuss the broader principles of law and examine the

question the parties were asked to brief but remains unaddressed

by the majority.

1
Unless it is included in quoted text, I avoid using the
term "illegal alien." I chose to use the term "undocumented
immigrant" instead. Although no shorthand term may be perfect,
I join the United States Supreme Court as well as other courts
that use the term "undocumented immigrant." Mohawk Indus.,
Inc. v. Carpenter, 558 U.S. 100 (2009); De La Paz v. Coy, 804
F.3d 1200 n.1 (5th Cir. 2015) (Prado, J., dissenting); In re
Garcia, 315 P.3d 117, 120 n.1 (Cal. 2014). Use of this term
avoids some of the problematic and pejorative connotations of
alternative terms.
2
As court of appeals Judge Kessler observed in her
concurrence, appeals claiming error in sentencing based on the
sentencing court's multiple referrals to a defendant's race,
ethnicity, or immigration status appear to be on the rise.
State v. Gayton, No. 2013AP646-CR, unpublished slip op., ¶23
(Wis. Ct. App. Oct. 7, 2014) (Kessler, J., concurring).

1
 No. 2013AP646-CR.awb

¶44 Additionally, I write separately because the majority

creates an explanation for the circuit court's exercise of

discretion not set forth on the record. By creating its own

explanation, the majority contravenes Wisconsin's long-standing

jurisprudence, which does not permit appellate courts to invent

a rationale for sentencing decisions not found in the record.

¶45 Instead, circuit courts must clearly set forth the

rationale for sentencing so that it can be subject to meaningful

appellate review. State v. Gallion, 2004 WI 42, ¶49, 270

Wis. 2d 535, 678 N.W.2d 197. This requirement was established

in McCleary v. State, 49 Wis. 2d 263, 182 N.W.2d 512 (1971),

reinvigorated in Gallion, and is sub silencio eroded by the

majority opinion.

¶46 Accordingly, I respectfully concur.

I

¶47 There are three broad principles of law implicated in

this discussion: alienage, immigration status, and the act of

unlawful entry into the United States. I address each in turn.

A
¶48 At the onset, as the majority correctly observes, this

court has repeatedly stated that nationality and national origin

are improper sentencing factors.3 Majority op., ¶25 (citations

omitted). However, we have yet to provide similar guidance with

3
National origin refers to the country where a person was
born, or, more broadly, the country from which his or her
ancestors came. Espinoza v. Farah Mfg. Co., Inc., 414 U.S. 86,
88-89 (1973). Thus it is "an immutable characteristic
determined solely by the accident of birth." Frontiero v.
Richardson, 411 U.S. 677, 686 (1973).

2
 No. 2013AP646-CR.awb

respect to reliance on a defendant's alienage as an aggravating

factor at sentencing.

¶49 The term "alien" refers to any person who is not a

citizen of the United States.4 8 U.S.C. § 1101(a)(3).

"Alienage" is the condition of being a noncitizen. Black's Law

Dictionary 88 (10th ed. 2014).

¶50 In Graham v. Richardson, the United States Supreme

Court explained that "classifications based on alienage, like

those based on nationality or race, are inherently suspect and

subject to close judicial scrutiny" and that "[a]liens as a

class are a prime example of a 'discrete and insular' minority

for whom [] heightened judicial solicitude is appropriate." 403

U.S. 365, 372 (1971) (internal citations omitted).

¶51 Constitutional protections afforded to noncitizens

include the rights of due process and equal protection. Plyler

v. Doe, 457 U.S. 202, 210 (1982) ("Aliens, even aliens whose

presence in this country is unlawful, have long been recognized

as 'persons' guaranteed due process of law by the Fifth and

Fourteenth Amendments."); Hines v. Davidowitz, 312 U.S. 52, 69
(1941) ("Our Constitution and our Civil Rights Act have

guaranteed to aliens 'the equal protection of the laws'. . ..").

¶52 In Plyler v. Doe, the United States Supreme Court

struck down a Texas statute that allowed schools to deny

4
Finding the use of the term "alien" to be offensive, the
Sixth Circuit has urged Congress to eliminate the term from the
U.S. Code. Flores v. U.S. Citizenship and Immigration Servs.,
718 F.3d 548, 551 n.1 (6th Cir. 2013). I refer to it here only
because it remains a term of art in federal immigration
statutes.

3
 No. 2013AP646-CR.awb

enrollment to undocumented immigrant children. 457 U.S. 202.

In so doing, the Court clarified that both due process and equal

protection rights apply to all noncitizens within its

jurisdiction. Id. at 210-15. As the Plyer court explained, the

Fourteenth Amendment applies to "any person within its

jurisdiction" and that noncitizens——no matter their immigration

status——are "surely [] 'person[s]' in any ordinary sense of that

term." Id. at 210. Further, the Court rejected the notion that

due process is of greater stature than equal protection and

therefore available to a larger class of persons, explaining

that "both provisions were fashioned to protect an identical

class of persons, and to reach every exercise of state

authority." Id. at 213.

¶53 Similarly in Hines, the Supreme Court struck down a

Pennsylvania Act that imposed registration requirements on all

adult noncitizens. 312 U.S. at 74. The Hines court explained

that the promise and guarantee of broad rights and privileges to

noncitizens has been vital to the federal government's efforts

to secure treaties and advance international practices that
provide the same protections to United States citizens abroad.

Id. at 64-65. It considered "the treatment of aliens, in

whatever state they may be located, a matter of national moment"

and that discriminatory policies directed at aliens constituted

"a departure from our traditional policy of not treating aliens

as a thing apart." Id. at 73.

¶54 Based on these constitutional implications, the State

acknowledged at oral argument: "it is not permissible to

4
 No. 2013AP646-CR.awb

sentence a person based on alienage . . ." I agree that courts

may not rely on alienage as an aggravating factor at sentencing.5

¶55 This prohibition is consistent with the determinations

in other jurisdictions. See, e.g., Yemson v. United States, 764

A.2d 816, 819 (D.C. 2001) (citing United States v. Gomez, 797

F.2d 417, 419 (7th Cir. 1986) for the proposition that treating

a defendant more harshly at sentencing because of alien status

"obviously would be unconstitutional."); United States v. Leung,

40 F.3d 577, 586-87 (2d Cir. 1994) (remanding for resentencing

before a different judge because there was a sufficient risk

that a reasonable observer might infer that the defendant's

alien status played a role in determining her sentence).

5
Empirical evidence indicates that a "citizenship penalty"
exists when noncitizens——and undocumented immigrants in
particular——face harsher criminal penalties than citizens. A
study of data from U.S. federal courts revealed strong and
consistent evidence that non-citizens are sentenced far more
harshly than citizens among all racial and ethnic groups.
Michael T. Light, Michael Massoglia, and Ryan D. King,
Citizenship and Punishment: The Salience of National Membership
in U.S. Criminal Courts, 79 Am. Sociological Rev. 827, 837, 841,
843-44 (Oct. 2014).

Specifically, documented immigrants are reported as twice
as likely as citizens to be imprisoned, and undocumented
immigrants are seven times more likely to be incarcerated than
citizens. Id. at 837. The study further indicates that
noncitizens receive longer prison sentences compared to U.S.
citizens. Id. at 839. Additionally, citizenship status——for
both legal and undocumented immigrants——appears more
consequential for sentencing outcomes today than it was two
decades ago. Id. at 840 (explaining that the "citizenship
penalty" more than doubled between 1992 and 2008).

5
 No. 2013AP646-CR.awb

B

¶56 Having addressed the question of whether a sentencing

court can rely on alienage (non-citizenship) as an aggravating

factor at sentencing, I now narrow the focus to consider only

those noncitizens who are undocumented. More precisely I

examine the question the parties were asked to brief: "whether

a sentencing court may rely on a defendant's illegal immigrant

status as a factor in fashioning a sentence."

¶57 Unlike the alienage discussion above, I offer no

definitive answer because the law is not well-settled. Some

jurisdictions clearly prohibit sentencing courts from relying on

a defendant’s undocumented status as an aggravating factor at

sentencing.6 Others appear to.7 And still others offer a more

nuanced approach.8

6
See, e.g., State v. Mendoza, 638 N.W.2d 480, 484 (Minn.
Ct. App. 2002) (determining that the sentencing court erred by
considering the defendant's immigration status and possible
deportation); Martinez v. State, 961 P.2d 143, 145 (Nev. 1998)
(concluding that basing a sentencing decision, in part, upon a
defendant's undocumented immigration status would violate the
defendant's due process rights); State v. Zavala-Ramos, 840 P.2d
1314, 1316 (Or. Ct. App. 1992) ("a defendant's current illegal
immigration status cannot, per se, be considered to be an
aggravating factor" because it is not relevant).

6
 No. 2013AP646-CR.awb

¶58 Even without a definitive resolution, it is still

apparent that the inquiry gives rise to significant thorny

issues and caution must be observed. The law may be unsettled

as to the direct inquiry presented, but it is well settled that

reliance on undocumented immigrant status as an aggravating

factor at sentencing can raise significant constitutional

concerns. Due process requires that sentencing be

individualized, avoiding reliance on stereotypes or other

7
See, e.g., People v. Hernandez-Clavel, 186 P.3d 96, 100
(Colo. App. 2008) (concluding that the sentencing court did not
err in considering the circumstances surrounding the defendant's
status as an undocumented immigrant when deciding whether to
grant or deny probation); Trujillo v. State, 698 S.E.2d 350, 354
(Ga. Ct. App. 2010) (determining that the trial court did not
violate the defendant's constitutional rights by considering his
undocumented immigration status as a relevant factor in
formulating an appropriate sentence); People v. Cesar, 14 N.Y.S.
3d 100, 102 (2d Dep't. 2015) (concluding that "while a
defendant's undocumented immigration status may be considered by
sentencing courts as one factor in determining whether an
appropriate sentence should include incarceration, probation, or
a combination of both, courts may not rely solely upon a
defendant's undocumented immigration status in imposing a
sentence of incarceration to the exclusion of all other relevant
factors.").
8
See, e.g., United States v. Flores-Olague, 717 F.3d 526,
535 (7th Cir. 2013) (determining it was not improper for the
sentencing court to state in non-hyperbolic fashion that the
defendant was in the country unlawfully and did not speak
English because those statements were relevant to reflect the
strength of the defendant's ties to the community as they relate
to the likelihood of his successful post-incarceration
adjustments to society); United States v. Ramirez-Fuentes, 703
F.3d 1038, 1047 (7th Cir. 2013) ("Although a sentencing court
can, in its discretion, take into account a defendant's status
as a deportable alien, it need not take into account those
arguments that are frivolous or, in the context of the case,
'stock' arguments without specific application to the
defendant") (internal citations omitted).

7
 No. 2013AP646-CR.awb

inaccurate information. State v. Harris, 2010 WI 79, ¶71, 326

Wis. 2d 685, 786 N.W.2d 409 (Ann Walsh Bradley, J., concurring);

State v. Tiepelman, 2006 WI 66, ¶9, 291 Wis. 2d 179, 717

N.W.2d 1; Gallion, 270 Wis. 2d 535, ¶48.

¶59 "Individualized sentencing . . . has long been a

cornerstone to Wisconsin's criminal justice jurisprudence."

Gallion, 270 Wis. 2d 535, ¶48. Sentences must "be

individualized to the defendant and his criminal conduct,

and . . . bear a reasonable nexus to the recognized sentencing

factors and objectives." Harris, 326 Wis. 2d 685, ¶101 (Ann

Walsh Bradley, J., concurring); see also McCleary, 49 Wis. 2d at

275 (explaining that offenders are to be sentenced according to

the needs of the particular case as determined by the offenders'

degree of culpability and upon the mode of rehabilitation that

appears to be of greatest efficacy).

¶60 Tailoring a sentence to address an individual

defendant requires that sentencing courts refrain from relying

on stereotypes, which are improper sentencing factors.9 Harris,

326 Wis. 2d 685, ¶71 (Ann Walsh Bradley, J., concurring)
(explaining that "[w]e all agree that stereotypes constitute

improper sentencing factors . . .").

9
Similarly, punishment based on a particular "status" is
prohibited. See, e.g., Robinson v. California, 370 U.S. 660,
665-667 (1962) (determining that a California statute
criminalizing the "status" of being addicted to narcotics was
unconstitutional); United States v. Diamond, 561 F.2d 557, 559
(4th Cir. 1977) (concluding it is improper to consider a
defendant's status as a nonresident of the state at sentencing);
see also Jackson v. State, 772 A.2d 273, 282 (Md. 2001) (stating
that a defendant's geographical origins "would clearly be an
improper factor upon which to base a defendant's sentence").

8
 No. 2013AP646-CR.awb

¶61 Negative stereotypes about immigrants——and

undocumented immigrants in particular——abound in some sectors.

In response to such stereotypes, this court has recognized that

evidence of an individual's undocumented immigration status has

an "obvious prejudicial effect" on a jury when assessing loss of

earning capacity in a negligence action. Gonzalez v. City of

Franklin, 137 Wis. 2d 109, 139-40 (1987). Concerned about the

effects of prejudice, the Gonzalez court explained that evidence

of undocumented immigration status can only be introduced at the

damages——but not the liability——phase of trial. Id. Similarly,

circuit courts are prohibited from requiring defendants to

disclose their citizenship status at the time a defendant enters

a plea. Wis. Stat. § 971.06(3).

¶62 Defendants also have a constitutionally protected due

process right to be sentenced upon accurate information. United

States v. Tucker, 404 U.S. 443, 447 (1972); Tiepelman, 291

Wis. 2d 179, ¶9.

¶63 As this court has warned, "immigration law can be

complex, and it is a legal specialty of its own." State v.
Shata, 2015 WI 74, ¶42, 364 Wis. 2d 63, 868 N.W.2d 93.

Accordingly, determinations about an individual's actual

immigration status are left to specialized federal immigration

courts and agencies. Arizona v. United States, 132 S. Ct. 2492,

2498-99 (2012) (stating that determinations about immigration

status falls within the exclusive jurisdiction of the federal

government).

¶64 Of the estimated 11 million undocumented immigrants in
the United States, 76,000 live in Wisconsin, a group that

9
 No. 2013AP646-CR.awb

encompasses a great diversity of individuals and experiences.10

Despite a perception held by some that all undocumented

immigrants are law breakers or criminals, many immigrants are

undocumented due to circumstances beyond their control. For

example, so-called DREAMERS are undocumented immigrants who were

brought to the United States when they were young. Plyler v.

Doe, 457 U.S. at 219-20 (explaining that children who were

brought to the United States unlawfully are not similarly

situated to adults who entered the country unlawfully).

¶65 Other groups of immigrants who may at times be

undocumented include asylum seekers fleeing persecution and

victims of human trafficking. Further, undocumented victims of

domestic violence may lack legal status solely because their

abusers decline to file immigration papers on their behalf.11

Many are subsequently granted permission to remain in the United

States.12

10
Jie Zong and Jeanne Batalova, Frequently Requested
Statistics on Immigrants and Immigration in the United States,
Migration Policy Institute (MPI) (Apr. 14, 2016),
http://www.migrationpolicy.org/article/frequently-requested-
statistics-immigrants-and-immigration-united-states.
11
See, e.g., Mary Ann Dutton, Leslye E. Orloff, and Giselle
Aguilar Hass, Characteristics of Help-Seeking Behaviors,
Resources and Service Needs of Battered Immigrant Latinas:
Legal and Policy Implications, 7 Geo. J. on Poverty L. & Pol'y
245, 259 (Summer 2000).
12
Memorandum from Janet Napolitano, Sec'y, Dep't of
Homeland Sec., to David Aguilar, Acting Comm'r, U.S. Customs and
Border Prot., et al., Exercising Prosecutorial Discretion with
Respect to Individuals Who Came to the United States as Children
(June 15, 2012) ("DACA Memo"),
https://www.dhs.gov/xlibrary/assets/s1-exercising-prosecutorial-
discretion-individuals-who-came-to-us-as-children.pdf; 8 U.S.C.
(continued)
10
 No. 2013AP646-CR.awb

¶66 Additionally, immigration status is mutable and can

change frequently. Plyler v. Doe, 457 U.S. at 226 (explaining

that undocumented immigrants may be granted permission to remain

in the United States or even become citizens). Indeed, nearly

half of all undocumented immigrants entered the United States

legally, but later violated the terms of their admission.13

¶67 Given that immigration status is often a moving

target, and may even change during the course of criminal

proceedings, care should be taken to avoid making assumptions

that may very well turn out to be false. See Gallion, 270

Wis. 2d 535, ¶36 ("Experience has taught us to be cautious when

reaching high consequence conclusions about human nature that

seem to be intuitively correct at the moment. Better instead is

a conclusion that is based on more complete and accurate

information and reached by an organized framework for the

exercise of discretion."); United States v. Velasquez Velasquez,

524 F.3d 1248, 1253 (11th Cir. 2008) (remanding for resentencing

because "a judge may not impose a more severe sentence than he

§ 1101(a)(15)(T)-(U) (relief for victims of human trafficking
and other crimes who assist in the investigation or prosecution
of criminal activity); 8 U.S.C. § 1154 (protection for some
battered spouses of U.S. citizens); 8 U.S.C. § 1158(a)(1) ("any
alien who is physically present in the United
States . . . irrespective of such alien's status, may apply for
asylum"); United States v. Velasquez Velasquez, 524 F.3d 1248,
1253 (11th Cir. 2008) (explaining that "because oppressive
regimes do not easily permit their citizens to leave the
country, many escape by using false papers; doing so does not
disqualify them from seeking asylum.").
13
Pew Hispanic Center, Modes of Entry for the Unauthorized
Migrant Population, at 1 (May 22, 2006),
http://www.pewhispanic.org/files/factsheets/19.pdf.

11
 No. 2013AP646-CR.awb

would have otherwise based on unfounded assumptions regarding an

individual's immigration status or on his personal views of

immigration policy").

¶68 In sum, relying on a defendant's undocumented

immigrant status as an aggravating factor may lead sentencing

courts down a slippery slope, potentially raising significant

constitutional concerns. Care must be taken to ensure that

sentences are individualized and do not rely on stereotypes,

assumptions, or other inaccurate information.

C

¶69 I address next how a circuit court may consider a

defendant's act of unlawful entry into the United States.

¶70 It is not a crime for an undocumented immigrant to

remain in the United States. Additionally, removal proceedings

of immigrants who are in the United States unlawfully are civil,

not criminal, proceedings. Arizona v. United States, 132 S. Ct.

at 2499. However, the act of unlawful entry into the United

States is a federal crime, punishable by a fine and/or

imprisonment of not more than six months for a first offense. 8
U.S.C. § 1325(a).

¶71 As the majority correctly states, sentencing courts

may consider uncharged and unproven offenses as well as facts

related to offenses for which the defendant has been acquitted.

Majority op., ¶23 (citing State v. Frey, 2012 WI 99, ¶47, 343

Wis. 2d 358, 817 N.W.2d 436).

¶72 It follows that upon reliable and accurate

information, sentencing courts may consider a defendant's act of
unlawful entry into the United States in the same way that it

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 No. 2013AP646-CR.awb

would consider any other unlawful or uncharged conduct. Gomez,

797 F.2d at 420 (explaining that unlawful entry is an act "no

different than any other recent prior illegal act of any

defendant being sentenced for any offense"); State v. Zavala-

Ramos, 840 P.2d 1314, 1316 (Or. App. 1992) (concluding that

"[i]mmigration status per se is not relevant. However,

circumstances that demonstrate a defendant's unwillingness to

conform his conduct to legal requirements, whether or not there

are criminal consequences, may be.").

¶73 However, circuit courts that consider a defendant's

act of unlawful entry should set forth clearly on the record how

any unlawful entry is relevant to the sentence. See Gallion,

270 Wis. 2d 535, ¶¶42-43, 46. Sentencing courts must provide a

"rational and explainable basis" for the sentence imposed. Id.,

¶39 (citing McCleary, 49 Wis. 2d at 276). Implied rationale is

insufficient. Id., ¶38. By explaining this linkage on the

record, "courts will produce sentences that can be more easily

reviewed for a proper exercise of discretion." Id., ¶46.

¶74 Other jurisdictions emphasize the importance of
establishing a linkage between the act of unlawful entry and the

defendant's individualized sentence. In Yemson, the sentencing

court discussed the defendant's pending and prior charges

including convictions for unlawful reentry into the United

States. 764 A.2d at 818. The District of Columbia Court of

Appeals upheld the sentence, concluding that the defendant's

immigration status did not serve as the basis for the sentence,

but rather that the sentence was based on the defendant's
"unlawful conduct." Id. at 820.

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 No. 2013AP646-CR.awb

¶75 Yemson explained that sentencing courts may consider a

defendant's prior acts of unlawful reentry into the United

States as such acts are relevant to the defendant's history of

violating the law. Id. at 819. To successfully challenge such

references, the defendant must demonstrate that the sentencing

court's comments about his undocumented immigration status "bore

no reasonable relationship to his established pattern of

misconduct and that those comments formed the actual basis for

the imposition of an enhanced sentence." Id.

¶76 Thus, sentencing courts that consider a defendant's

prior act of unlawful entry into the United States can do so

only upon accurate information that the defendant actually

entered the country unlawfully, in the same way that it would

consider any other unlawful or uncharged conduct. Additionally,

sentencing courts should set forth clearly on the record how a

defendant's act of unlawful entry is relevant to the sentence

imposed.

II

¶77 Finally, I write because Wisconsin's long-standing
jurisprudence examining review of sentencing decisions does not

permit appellate courts to invent a rationale not found in the

record.

¶78 Instead, circuit courts must clearly set forth the

sentencing rationale so that it can be subject to meaningful

appellate review. Gallion, 270 Wis. 2d 535, ¶49. This

requirement was established in McCleary, reinvigorated in

Gallion, and has become an essential part of the fabric of
Wisconsin's sentencing law.

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 No. 2013AP646-CR.awb

¶79 Nevertheless, the majority rests its conclusion that

the circuit court properly exercised its discretion on a non-

existent sentencing court rationale. In so doing, it appears to

turn back the clock and erode the advances made in improving

transparency and review of sentencing decisions.

¶80 The majority posits that the circuit court considered

Salas Gayton's undocumented immigration status only when

discussing the nature of the offense of operating without a

license. It explains that Salas Gayton's "immigration status

was directly relevant to one of the charges for which he

received a sentence: driving without a license." Majority op.,

¶33. Further, it contends that Salas Gayton's unlawful entry

into the United States prevented him from possessing a driver's

license and therefore "his unlawful entry related to an element

of a crime for which he was convicted . . . ." Id. Reiterating

its own rationale, the majority concludes that "any" references

to Salas Gayton's immigration status were "directly relevant to

his conviction for homicide while operating a vehicle without a

driver's license." Majority op., ¶37.
¶81 The record reflects otherwise. Rather than linking

Salas Gayton's undocumented immigration status with the nature

of the offense, the circuit court emphasized that Gayton's

immigration status was relevant only to its analysis of his

"character" (emphasis added).

¶82 The sentencing record contains no expressed linkage

between Salas Gayton's immigration status and the nature of the

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 No. 2013AP646-CR.awb

offense of operating a vehicle without a license.14 Indeed, the

sentencing court explicitly disclaimed it: "The fact that

you're an illegal alien doesn't enter into the serious nature of

the crime or the need to protect the community. It goes to

character. It's a minor character flaw very honestly."

Majority op., ¶15.

¶83 Thus, by determining that references to Salas Gayton's

immigration status were related to the offense of operating

without a license, the majority creates a rationale not

expressed by the circuit court. Majority op. ¶¶33, 37.

¶84 To support its creation of an explanation for the

sentencing decision, the majority relies on caselaw unrelated to

sentencing. It contends that an appellate court that reviews

the exercise of sentencing discretion "may search the record for

reasons to sustain the circuit court's exercise of discretion"

and that a sentencing court's exercise of discretion "will be

14
The sentencing court referred to the charge of driving
without a license twice. First it stated:

You apparently had been warned by somebody, maybe the judge
in Racine County, that you can't drive. There is a reason
that we have licenses in this country and all the world,
and that is we just don't let anybody get behind that
automobile which can be a weapon.

Later, when discussing the serious nature of the crime, the
circuit court explained:

The fact that you didn't have a driver's license entered
into it, the fact that you were driving the wrong way, the
fact that you were speeding, the fact you went a mile, the
fact that you didn't know, didn't even know that you were
driving, that enters into it, because that makes what you
did that much worse.

16
 No. 2013AP646-CR.awb

upheld if the appellate court can find facts of record which

would support the circuit court's decision." Majority op., ¶20

(citing State v. LaCount, 2008 WI 59, ¶15, 310 Wis. 2d 85, 750

N.W.2d 780) (discussing whether a circuit court erroneously

admitted an attorney's expert opinion testimony about the

defendant at trial); Peplinski v. Fobe's Roofing, Inc., 193

Wis. 2d 6, 20, 531 N.W.2d 597 (1995) (a negligence case

examining the standard of review to be applied when addressing

the sufficiency of the evidence for a res ipsa loquitur jury

instruction)).

¶85 However, Wisconsin's long-standing sentencing

jurisprudence does not permit appellate courts to search the

record to support sentencing rationales never expressed.

¶86 Over four decades ago, this court in McCleary embraced

a requirement that sentencing rationale be set forth on the

record. The McCleary court clarified that "[d]iscretion is not

synonymous with decision-making. Rather, the term contemplates

a process of reasoning." 49 Wis. 2d at 277 (emphasis added).

Emphasizing the import of the decision-making process, McCleary
explained that "a principal obligation of the judge is to

explain the reasons for his actions." Id. at 280-81.

Accordingly, appellate review of sentencing decisions focuses on

the circuit court's decision-making process, not just the

sentence imposed. Id.

¶87 Gallion subsequently reinvorgated McCleary,

reiterating that a sentencing decision cannot be understood or

reviewed by appellate courts "unless the reasons for decisions
can be examined." 270 Wis. 2d 535, ¶1 (citing McCleary, 49

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 No. 2013AP646-CR.awb

Wis. 2d at 280-81). A circuit court's rationale for its

decision serves to demonstrate that the sentencing decision was

exercised on a "rational and explainable basis." Id., ¶49

(citing McCleary, 49 Wis. 2d at 276).

¶88 Relying on this distinction between making a decision

and the process of decision-making, the Gallion court concluded

by setting forth the requirements for appellate review of

sentencing: appellate courts are to review the circuit court's

linkages between the relevant facts, sentencing factors, and

sentencing objectives evident on the record and closely

scrutinize the record to ensure that the basis of the circuit

court's exercise of discretion is set forth. 270 Wis. 2d 535,

¶¶46, 76.

¶89 Because the majority opinion erodes this requirement,

I respectfully concur.

¶90 I am authorized to state that Justice SHIRLEY S.

ABRAHAMSON joins this concurrence.

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1