State v. Loomis

881 N.W. 2d 749 (2016)


P contends that D was the driver in a drive-by shooting. D was charged with five counts, all as a repeater: (1) First-degree recklessly endangering safety (PTAC); (2) Attempting to flee or elude a traffic officer (PTAC); (3) Operating a motor vehicle without the owner's consent; (4) Possession of a firearm by a felon (PTAC); (5) Possession of a short-barreled shotgun or rifle (PTAC). D denied involvement in the drive-by shooting. D waived his right to trial and entered a guilty plea to only two of the less severe charges, attempting to flee a traffic officer and operating a motor vehicle without the owner's consent. The plea agreement stated that the other counts would be dismissed but read in: The other counts will be dismissed and read in for sentencing, although D denies he had any role in the shooting, and only drove the car after the shooting occurred. P believes he was the driver of the car when the shooting happened. The court accepted the plea and a presentence investigation report (PSI) which included an attached COMPAS risk assessment. COMPAS is a risk-need assessment tool designed by Northpointe, Inc. to provide decisional support for the Department of Corrections when making placement decisions, managing offenders, and planning treatment. It is based upon information gathered from the defendant's criminal file and an interview with the defendant. The report is a risk assessment designed to predict recidivism and a separate needs assessment for identifying program needs in areas such as employment, housing, and substance abuse. It generates risk scores displayed in the form of a bar chart representing pretrial recidivism risk, general recidivism risk, and violent recidivism risk. These risk scores are intended to predict the general likelihood that those with a similar history of offending are either less likely or more likely to commit another crime following release from custody. COMPAS risk assessment does not predict the specific likelihood that an individual offender will re-offend but provides a prediction based on a comparison of information about the individual to a similar data group. D's risk scores indicated that he presented a high risk of recidivism on all three bar charts. D's PSI included a description of how the COMPAS risk assessment should be used and cautioned against its misuse, instructing that it is to be used to identify offenders who could benefit from interventions and to target risk factors that should be addressed during supervision. The PSI also cautions that a COMPAS risk assessment should not be used to determine the severity of a sentence or whether an offender is incarcerated. At sentencing, P argued that the circuit court should use the COMPAS report when determining an appropriate sentence. The circuit court referenced the COMPAS risk score along with other sentencing factors in ruling out probation. The circuit court also considered the read-in charges at sentencing. For sentencing purposes, it assumed that the factual bases for the read-in charges were true and that D was at least involved in conduct underlying the read-in charges. The circuit court explained that D 'needs to understand that if the shooting-related charges are being read in that the court was going to view that as a serious, aggravating factor at sentencing. D protested the circuit court's assumption that the read-in charges were true and explained that D did not concede that he was involved in the drive-by shooting. Before the court, D understood the fact that his plea allowed the read in and that it would expose D to the likelihood of a higher sentence within the sentencing range. The maximum penalty for both charges was seventeen years and six months imprisonment. The court sentenced him within the maximum on the two charges for which he entered a plea. D filed a motion for post-conviction relief requesting a new sentencing hearing. D argues that the circuit court's consideration of the COMPAS risk assessment at sentencing violated his due process rights. D asserts that the circuit court erroneously exercised its discretion by improperly assuming that the factual bases for the read-in charges were true. D offered the testimony of an expert witness, Dr. David Thompson, regarding the use at sentencing of a COMPAS risk assessment. Dr. Thompson opined that a COMPAS risk assessment should not be used for decisions regarding incarceration because a COMPAS risk assessment was not designed for such use. A circuit court's consideration at sentencing of the risk assessment portions of COMPAS runs a 'tremendous risk of overestimating an individual's risk and . . . mistakenly sentencing them or basing their sentence on factors that may not apply . . . .' Dr. Thompson further testified that sentencing courts do not know how the COMPAS compares that individual's history with the population that it's comparing them with. The Court doesn't even know whether that population is a Wisconsin population, a New York population, a California population. . . . There's all kinds of information that the court doesn't have, and what we're doing is we're misinforming the court when we put these graphs in front of them and let them use it for sentence. The circuit court explained that it used the COMPAS risk assessment to corroborate its findings and that it would have imposed the same sentence regardless of whether it considered the COMPAS risk scores. D appealed and the court of appeals certified the appeal