Gretchen Schuldt
Court Watch

Judge’s Comments on Guns Sustained

Defendant claims Judge Donald’s sentencing shows bias against gun owners, Appeals Court upholds judge.

By , Wisconsin Justice Initiative - Sep 8th, 2020 01:59 pm
Joe Donald. Photo courtesy of Donald for Justice

Joe Donald. Photo courtesy of Donald for Justice

It was not improper for a judge to comment during a sentencing hearing on the changes he saw in people when they possess guns, the State Court of Appeals has ruled.

The unsigned opinion by a District I Court of Appeals panel upholds a post-conviction ruling by Milwaukee County Circuit Judge Carolina Stark denying Octavia W. Dodson‘s request for resentencing for second-degree intentional homicide.

M. Joseph Donald now is a judge on the State Court of Appeals.

Dodson alleged that then-Circuit Judge Donald considered an improper factor – legal gun ownership – during the sentencing.

Dodson argued that Donald believed him to be “a threat to society and had a ‘distorted view of the world’ because he was a lawful gun owner.”

The appeals panel disagreed.

“When viewed in context…the trial court’s comments about Dodson’s unlawful use of his firearm were not improper,” the judges said. “The trial court never stated, explicitly or implicitly, that it was basing its sentence on the fact that Dodson chose to exercise his right, as the holder of a concealed carry permit, to carry a concealed weapon.”

The panel included Judges William W. Brash III, Brian W. Blanchard, and Timothy G. Dugan.

Dodson did not have a criminal record before he shot Deshun T. Freeman to death after being rear-ended in his car on March 25,  2016.

After the he was rear-ended, Dodson saw the other car involved, a Buick, back up. Dodson drew a semi-automatic handgun from its holster and the Buick left the scene. Dodson drove after it so he could, he said, get a license plate number.

As he drove, he switched out the gun’s 10-round magazine for an extended  17-rounder, according to the decision.

Dodson eventually saw a car he thought was the one that hit him. Both cars parked on the side of the street. Dodson said a man got out of the Buick and ran toward him. Dodson later said he thought the man was pulling something out of his pockets or from under his shirt. Dodson, now standing outside his car, shot him – evidence indicated Dodson fired six times – then drove to his girlfriend’s house, according to the decision. They talked, and Dodson drove to his father’s house, calling 911 on the way.

Police were unable to confirm that the car driven by Freeman was involved in the accident.

Dodson pleaded guilty to second-degree intentional homicide and Donald sentenced him to 14 years in prison and six years of extended supervision, longer than the term recommended in a pre-sentence report, which was five to nine years in prison followed by a five-to-six-year term of extended supervision.

“In reviewing this case, I have to say I am completely baffled as to why this happened,” Donald said during the sentencing hearing. “And I don’t think that there is any rational way of trying to explain it. I can tell you this, Mr. Dodson, that in my experience as a judge, I have seen over time how individuals when they are possessing a firearm, how that in some way changes them.”

He continued: “It changes how they view the world. It changes how they react and respond to people. I know that this is only speculation on my part, but I do strongly feel that the day that you applied for that concealed carry permit and went out and purchased that firearm, and that extended magazine, (whatever) your rational beliefs for possessing it, whether you felt the need to somehow arm yourself and protect yourself from essentially the crime that is going on in this community, I think on that day set in motion this circumstance.”

Later, Donald added it was “clear to me that you were operating under some misguided belief, some distorted view of the world that somehow Deshun Freeman was a threat to you when in reality it was nothing further from the truth.”

Dodson appealed, seeking resentencing.

Dodson contended Donald blamed him “not merely for the homicide, but for what the court viewed as putting himself on a path toward violence by lawfully obtaining a gun and a license to carry it. This assumption violated Mr. Dodson’s Second Amendment right to possess the firearm.”

Dodson also alleged that Donald made assumptions about gun owners and attributed negative beliefs he had about gun owners to Dodson.

The panel, in upholding Donald and Stark, wrote, “We are not persuaded that the trial court’s comments suggested that the trial court was punishing Dodson for exercising his Second Amendment rights. Here, the trial court’s comments indicate that it, like the parties, was trying to make sense of what appeared to be a senseless homicide committed by someone without a criminal history. The trial court noted that in its experience as a judge, people can change as a result of owning guns. Such an observation was not improper.”

Gretchen Schuldt writes a blog for Wisconsin Justice Initiative, whose mission is “To improve the quality of justice in Wisconsin by educating the public about legal issues and encouraging civic engagement in and debate about the judicial system and its operation.”

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