State v. McDade
State v. McDade
Opinion of the Court
¶1 Damien D. McDade appeals from a judgment of conviction, entered upon his guilty pleas, for five felonies. He also appeals from an order denying his postconviction motion for sentence modification. McDade seeks sentence modification on grounds that his total sentence is "unduly harsh and severe, especially in light of the sentences" imposed on two co-defendants. (Capitalization and bolding omitted.) We affirm the judgment and order.
BACKGROUND
¶2 The criminal complaint charged McDade with five felonies, including one that was committed on October 14, 2015; one that was committed on November 17, 2015; and three that were committed on November 24, 2015. The October 14, 2015 crime was delivery of a controlled substance (heroin), as a party to a crime and as a subsequent offense. The complaint alleged that McDade and a co-defendant, Chad Boruch, sold heroin to a confidential informant. The complaint charged Boruch with one count of delivery of a controlled substance (heroin), as a party to a crime, for participating in that drug sale.
¶3 The November 17, 2015 crime was also delivery of a controlled substance (heroin), as a subsequent offense. The complaint alleged that McDade sold heroin to a confidential informant.
¶4 McDade was charged with three felonies related to the execution of a search warrant at his home on November 24, 2015. Those crimes included: (1) possession with intent to deliver a controlled substance (heroin) by use of a dangerous weapon, as a party to crime and as a subsequent offense; (2) being a felon in possession of a weapon; and (3) keeping a drug house, as a subsequent offense. The complaint alleged that when the officers executed the search warrant, McDade was not at home, but the officers encountered a woman named Tartianna Merrill, whose purse contained heroin, a digital scale, and a gun, all of which she said belonged to McDade. Merrill was charged with one count of possession with intent to deliver a controlled substance (heroin) by use of a dangerous weapon, as a party to a crime, for having those items in her purse.
¶5 On the day McDade's case was scheduled for trial, he decided to plead guilty as charged in the amended information.
¶6 The defense also discussed McDade's co-defendants. Trial counsel asserted that "Boruch is not an innocent dupe" and noted that he was the person contacted by the confidential informant to provide drugs. The defense further asserted that Merrill was not "an innocent bystander either," emphasizing that Merrill cooperated with the State to avoid a felony conviction.
¶7 The sentencing court sentenced McDade to a total of nine years of initial confinement and nine years of extended supervision.
¶8 The sentencing court also discussed the roles of Boruch and Merrill, both of whom the court sentenced after they pled guilty to reduced charges. The sentencing court said: "Who is the most culpable of the three in this group? Clearly it is [McDade], there's no doubt in my mind about that." The sentencing court noted that Boruch was motivated by his heroin addiction and that McDade took advantage of Merrill's vulnerability.
¶9 Represented by postconviction counsel, McDade filed a postconviction motion seeking modification of his sentence. His motion asserted that his total sentence is "unduly harsh and severe, especially in light of the sentences of the two co-defendants, who were sentenced only to probation." (Bolding omitted.)
¶10 The postconviction court denied the sentence modification motion in a written order, rejecting McDade's argument that his sentence is unduly harsh on its own and when compared to the sentences imposed on his co-defendants.
By itself, a disparity between the sentences of co-defendants fails to support a claim of undue harshness. A mere disparity is not improper if the individual sentences are based upon individual culpability and rehabilitative needs.... [McDade] plainly was not similarly situated with Merrill and Boruch in terms of his culpability and rehabilitative needs.... [McDade] was convicted of substantially more offenses than his [co-]actors. He presented with an extensive criminal record involving guns, drugs and violence. The defendant was given an opportunity on probation, but it failed to curb his behavior. The [sentencing] court determined that the defendant was the most culpable among his co-actors, and the record supports that determination. The court also explained how the defendant manipulated his co-actors and took advantage of their vulnerabilities, which aggravated his case.
In sum, the defendant was convicted of multiple, serious offenses, he demonstrated extensive rehabilitative needs, as exemplified by his prior record and his character for manipulation, and he presented a serious risk to the community by his willingness to disseminate a highly addictive and potentially lethal drug purely for financial gain. The [sentencing] court weighed all of these factors when it found a high need to protect the community from the defendant's dangerous and escalating criminality. The sentence imposed was intended to punish the defendant, to deter him and others from distributing heroin, to promote his rehabilitation and to protect the community. In order to accomplish those sentencing goals, the court determined that the total sentence necessary in this case was nine years of initial confinement and nine years of extended supervision. The sentence imposed is significant, but it is not unduly harsh or severe under the circumstances, whether viewed by itself or compared to the co-actors' sentences.
(Citation omitted; single paragraph divided into two paragraphs.) This appeal follows.
DISCUSSION
¶11 Wisconsin recognizes the importance of "individualized sentencing." See State v. Gallion ,
¶12 "Within certain constraints, Wisconsin [trial] courts have inherent authority to modify criminal sentences." State v. Cummings ,
¶13 On appeal, "[w]e review a trial court's conclusion that a sentence it imposed was not unduly harsh and unconscionable for an erroneous exercise of discretion."
¶14 Here, McDade does not seek sentence modification on new factor grounds. Rather, he seeks sentence modification on grounds that his total sentence is "unduly harsh and unconscionable," especially when compared to the sentences of his co-defendants. See
¶15 Further, we are not persuaded that the postconviction court erroneously exercised its discretion when it concluded that the differences in the sentences imposed on McDade's co-defendants did not support McDade's claim that his sentence is unduly harsh or unconscionable. "Although a sentence given to a similarly situated codefendant is relevant to the sentencing decision, it is not controlling." State v. Giebel ,
¶16 Moreover, we agree with the postconviction court that Boruch and Merrill were not similarly situated to McDade. Boruch pled guilty to one count of delivery of heroin (less than three grams), as a party to a crime, which is a Class F felony. It was Boruch's first criminal conviction, although he previously had a narcotics case dismissed after he completed a deferred prosecution agreement. The sentencing court imposed and stayed a sentence of one year of initial confinement and one year of extended supervision, and it placed Boruch on probation for two and one-half years. Merrill pled guilty to one count of resisting or obstructing an officer, which is a Class A misdemeanor. It was her first conviction. The sentencing court imposed and stayed a sentence of 120 days in jail and placed Merrill on probation for one year.
¶17 In contrast, McDade pled guilty to five felonies based on crimes he committed on three different days. He had previously been convicted of a felony and a misdemeanor, and he had experienced difficulties on probation in the past. Finally, the sentencing court determined that McDade was "the most culpable of the three" defendants. In light of these significant differences, we do not agree that the postconviction court erroneously exercised its discretion when it concluded that the differences in the sentences "fail[ed] to support a claim of undue harshness."
¶18 Finally, we turn to McDade's argument that the sentencing court was "required to fully explain the differences in the conduct of the co-actors, the differences in their prior records, and the differences in their relative remorse for their actions when it impose[d] sentences on the co-actors because they are all pertinent to the sentencing decision." In support of this proposition, McDade cites State v. Schael ,
Schael argues that his sentence was unduly disproportionate to the sentences imposed on the accomplices. The trial court, at sentencing, fully explained the differences in the conduct of the actors, their prior records and their relative remorse. We are unpersuaded that these are considerations not pertinent to proper sentencing discretion.
See
¶19 In summary, we discern no erroneous exercise of discretion in either the sentencing court's original sentence or in the postconviction court's determination that McDade's total sentence is not unduly harsh on its own or in comparison to the sentences imposed on his co-defendants. Therefore, we affirm.
By the Court. -Judgment and order affirmed.
This opinion will not be published. See WIS. STAT. RULE 809.23(1)(b)5.
Count one was amended to delivery of three grams or less of heroin, rather than three to ten grams, based on a crime lab report indicating the amount of heroin seized was slightly less than three grams.
The Honorable Carolina Stark sentenced McDade. We will refer to Judge Stark as the sentencing court.
The Honorable Frederick C. Rosa denied the postconviction motion. We will refer to Judge Rosa as the postconviction court.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.