COURT OF APPEALS

DECISION

DATED AND FILED

October 25, 2023

Samuel A. Christensen

Clerk of Court of Appeals

NOTICE

This opinion is subject to further editing. If 

published, the official version will appear in 

the bound volume of the Official Reports. 

A party may file with the Supreme Court a 

petition to review an adverse decision by the 

Court of Appeals. See WIS. STAT. § 808.10 

and RULE 809.62. 

Appeal No. 2022AP616-CR Cir. Ct. No. 2020CF416

STATE OF WISCONSIN IN COURT OF APPEALS

DISTRICT II

STATE OF WISCONSIN,

 PLAINTIFF-RESPONDENT,

 V.

RICHARD L. BORK,

 DEFENDANT-APPELLANT.

APPEAL from a judgment and an order of the circuit court for 

Fond du Lac County: DALE L. ENGLISH, Judge. Affirmed. 

Before Gundrum, P.J., Neubauer and Lazar, JJ.

Per curiam opinions may not be cited in any court of this state as precedent 

or authority, except for the limited purposes specified in WIS. STAT. RULE 809.23(3).
No. 2022AP616-CR

2

¶1 PER CURIAM. Richard L. Bork appeals from a judgment of 

conviction and from an order denying his postconviction motion. Bork asserts that 

he is entitled to resentencing because the circuit court’s sentencing remarks 

demonstrated judicial bias. We affirm.

¶2 The State charged Bork with one count of operating while under the 

influence (OWI), seventh, eighth, or ninth offense, in violation of WIS. STAT.

§ 346.63(1)(a) (2021-22)1and one count of operating with prohibited alcohol 

concentration, seventh, eighth, or ninth offense, in violation of § 346.63(1)(b). 

Bork pled no contest to the OWI charge, and the circuit court dismissed the 

operating with a prohibited alcohol concentration charge. The State agreed to 

recommend a sentence of six years of initial confinement and four years of 

extended supervision. 

¶3 After accepting Bork’s plea, the circuit court ordered a presentence 

investigation report (PSI), which recommended five to six years of initial 

confinement and two to three years of extended supervision consecutive to a 

sentence he was then serving. In recounting Bork’s criminal history, the PSI noted 

that he had been sentenced to five years of initial confinement and three years of 

extended supervision for his seventh OWI conviction in 2011. 

¶4 At sentencing, the State recommended six years of initial 

confinement and four years of extended supervision, to be served consecutively to 

any other sentence; Bork asked for four years of initial confinement and four years 

of extended supervision. After Bork’s counsel made her recommendation, the 

 

1

 All references to the Wisconsin Statutes are to the 2021-22 version unless otherwise 

noted.
No. 2022AP616-CR

3

court asked her why it would “make any sense to give him a lesser sentence this 

time than he received for [his] seventh offense ... when he completed ERP, got 

out, was on extended supervision, drove drunk again, and now he’s back here.” In 

response, Bork’s counsel replied that it was her understanding that part of Bork’s 

sentence for his seventh OWI conviction “was aimed at” a recklessly endangering 

safety count that was charged with the seventh OWI. The court noted that, 

according to the PSI, Bork “felt he was treated unfairly when he got the five 

years” on his seventh OWI conviction and “felt he was treated unfairly ... with 

that sentence and now you’re asking that I go lesser” and remarked that “[i]t’s 

probably not going to happen, but continue on.” 

¶5 After Bork’s counsel finished her remarks, the court questioned 

Bork during his allocution, asking what needed to happen for him to “make the 

right choice” and why the court should “put the public at risk” given Bork’s 

history of impaired driving. When Bork finished speaking, the court began its 

analysis under the Gallion factors—the gravity of the offense, the rehabilitative 

needs of the defendant, and the need to protect the public. See State v. Gallion, 

2004 WI 42, ¶23, 270 Wis. 2d 535, 678 N.W.2d 197. First, it described Bork’s 

eighth OWI as “a high-severity offense” with several “aggravating factors”: 

(1) Bork’s blood alcohol concentration was eleven times above the legal limit; 

(2) he drove partway into an oncoming lane of traffic; (3) he lied to the arresting 

officer about having been drinking; and (4) he “yelled insults at the officer.” 

Turning to Bork’s character and rehabilitative needs, the court noted several 

positive aspects of his character, including his “good childhood,” “good work 

history,” and acquisition of a high school equivalency degree while incarcerated. 

It also highlighted several negative factors, including that he continues to drive 

drunk “[d]espite probation, jail, prison and intensive treatment,” has a lengthy 
No. 2022AP616-CR

4

criminal history, “minimizes the severity of his conduct,” believes his sentence for 

his seventh OWI conviction was unfair, and is apparently not interested in 

maintaining sobriety. 

¶6 These considerations led the court to conclude that Bork “is an 

accident or a fatality waiting to happen” and that “the need to protect the public is 

extremely high.” They also led the court to reject Bork’s proposed sentence:

He’s not getting concurrent time. There’s no way that’s 

going to happen here. That would unduly depreciate the 

severity of the offense. It makes no sense to me to give 

him a lesser sentence this time than he received for the 

seventh offense. Although, I understand that there were 

factual differences there that made that offense factually 

more severe.

 ... And as I indicated, he was out on—after 

successfully completing ERP, he was out on extended 

supervision and then he commits this offense. So it makes 

factually no sense to me to give him a lesser sentence now 

after he’s done the same thing again for his eighth offense.

The court sentenced Bork to seven years of initial confinement followed by four 

years of extended supervision consecutive to any other sentence, noting that this 

sentence was “a step up from the prior sentence.” 

¶7 Bork moved for resentencing, arguing that the circuit court exhibited 

objective bias because it decided Bork’s sentence before he and his counsel 

finished speaking and because it applied a preconceived sentencing policy of 

imposing a longer sentence than he received for his seventh OWI. The court 

disagreed, concluding that the sentencing hearing transcript reflected “the [c]ourt’s 

specific analysis” underlying Bork’s sentence. The court acknowledged that it 

interjected and “ask[ed] questions of defense counsel when they came to [mind 

because] ... that’s a practice that I have.” The court acknowledged that its 
No. 2022AP616-CR

5

questions to Bork’s counsel “did indicate skepticism” about her recommendation 

but “strongly disagree[d]” that they were “disparaging.” The court also denied 

having a “hard and fast policy” of imposing longer sentences for repeat offenders 

but acknowledged a general belief “that if somebody keeps doing something there 

should be a greater punishment to try to keep that from happening again.” Finally, 

the court recapitulated its sentencing analysis, emphasizing how it had applied the 

Gallion factors to the facts in Bork’s case. Based on that fact-specific analysis, 

the court concluded that it neither prejudged Bork’s sentence nor applied a 

preconceived sentencing policy. Bork appeals. 

¶8 We begin by noting that sentencing is left to the discretion of the 

circuit court, and thus our review is limited to whether the court erroneously 

exercised that discretion. Gallion, 270 Wis. 2d 535, ¶17. We presume that a 

judge acts fairly, impartially, and without bias when sentencing a defendant. State 

v. Herrmann, 2015 WI 84, ¶24, 364 Wis. 2d 336, 867 N.W.2d 772. To overcome 

that presumption, the party asserting judicial bias must show bias by a 

preponderance of the evidence. Id.

¶9 “In evaluating whether a party has rebutted the presumption, 

Wisconsin courts have taken both a subjective and objective approach.” Miller v. 

Carroll, 2020 WI 56, ¶21, 392 Wis. 2d 49, 944 N.W.2d 542. Here, Bork raises an 

objective bias claim, which focuses on whether there is “a serious risk of actual 

bias—based on objective and reasonable perceptions.” Id., ¶24 (quoting Caperton 

v. A.T. Massey Coal Co., 556 U.S. 868, 884 (2009)). “[P]roof of a ‘serious risk of 

actual bias can objectively rise to the level of a due process violation.’” Miller v. 

Zoning Bd. of Appeals, 2023 WI 46, ¶13, 407 Wis. 2d 678, 991 N.W.2d 380 

(quoting Carroll, 392 Wis. 2d 49, ¶¶21-22). To determine whether the circuit 

court exhibited a serious risk of actual bias, we must examine “whether the 
No. 2022AP616-CR

6

circumstances ‘would offer a possible temptation to the average ... judge to ... 

lead him not to hold the balance nice, clear and true.’” Carroll, 392 Wis. 2d 49, 

¶24 (quoting Caperton, 556 U.S. at 885; omissions in original). “[I]t is the 

exceptional case with ‘extreme facts’ which rises to the level of a ‘serious risk of 

actual bias.’” Carroll, 392 Wis. 2d 49, ¶24 (quoting Caperton, 556 U.S. at 

886-87). Whether the court was objectively biased is a question of law that this 

court reviews de novo. Herrmann, 364 Wis. 2d 336, ¶23. 

¶10 On appeal, Bork first argues the circuit court exhibited an 

appearance of bias when it said that Bork’s recommended sentence was “probably 

not going to happen” before hearing the parties’ full arguments or Bork’s 

allocution. Bork rests his bias argument principally on this court’s unpublished 

opinion in State v. Lamb, No. 2017AP1430-CR, unpublished slip op. (WI App 

Sept. 25, 2018), but that case is materially distinguishable. In Lamb, the circuit 

court had a dialogue with the defendant at the start of the sentencing hearing in 

which the defendant mentioned probation and “the possibility of leaving today,” to 

which the court responded by saying, “Not really. Okay. Just thought I’d tell you 

that so you don’t have any false hopes. I mean, there’s a possibility, but it’s 

probably not going to happen.” Id., ¶5. On review, this court determined that the 

circuit court’s comments “reasonably conveyed to Lamb that, before the court had 

heard any sentencing arguments, it had effectively decided against ordering 

probation.” Id., ¶17. 

¶11 Here, in contrast, the remark on which Bork relies came after the 

State’s argument and after Bork’s counsel made her sentence recommendation. 

The comment was made as part of a colloquy with Bork’s counsel in which the 

circuit court pressed her to explain why it should impose a shorter sentence than 

Bork had received for his previous OWI conviction. In addition, unlike in Lamb, 
No. 2022AP616-CR

7

the court reviewed the PSI before the sentencing hearing, which contained 

“essential sentencing information about the offense and [Bork]’s character, as well 

as an additional sentencing recommendation.” See id., ¶15. The PSI served as an 

additional source of information that would otherwise have only been available to 

the court through the parties’ sentencing remarks. Finally, before it pronounced 

sentence, the court set forth reasons underlying the sentence that were tethered to 

the Gallion factors as required under Wisconsin law. These considerations lead us 

to conclude that a reasonable observer would not interpret the court’s “probably 

not going to happen” remark as evidence of prejudgment. 

¶12 Bork relies on three other cases, but each involved remarks 

indicative of bias in both their timing and substance. In State v. Gudgeon, the 

circuit court wrote a note to the defendant’s probation agent and former counsel 

before an extension hearing stating “I want his probation extended,” which the 

court later did at the hearing. 2006 WI App 143, ¶¶3-4, 295 Wis. 2d 189, 720 

N.W.2d 114. Similarly, in State v. Goodson, the circuit court told the defendant at 

a sentencing hearing that he would “get the maximum” if his extended supervision 

was revoked and then later referenced that remark during a revocation hearing at 

which it sentenced the defendant to the maximum amount of confinement 

available. 2009 WI App 107, ¶¶2, 5, 320 Wis. 2d 166, 771 N.W.2d 385. Finally, 

in State v. Marcotte, the circuit court told the defendant during a drug court 

hearing that he would be sentenced to prison if he did not succeed in drug court 

and then later “followed through on that promise at Marcotte’s sentencing after 

revocation hearing, imposing a sentence longer than those requested by both the 

State and the DOC.” 2020 WI App 28, ¶19, 392 Wis. 2d 183, 943 N.W.2d 911. 

In each of these cases, the courts made statements before sentencing hearings in 

which they communicated unequivocally what the defendant’s sentence would be 
No. 2022AP616-CR

8

if certain events happened. Here, in contrast, the circuit court’s statement that a 

lesser sentence was “probably not going to happen” was made after the State and 

Bork’s counsel had made their sentencing recommendations and was part of the 

court’s attempt to understand the rationale underlying Bork’s counsel’s 

recommendation. 

¶13 Bork’s second argument is that the circuit court applied a 

preconceived sentencing policy that an OWI sentence should not be shorter than 

that imposed for a prior OWI conviction, rather than imposing a sentence on the 

specific facts of this case. A sentencing court may reasonably “impose escalating 

... penalties by way of increased sentences” where an offender commits 

successive or repeat offenses. State v. Ziegler, 2006 WI App 49, ¶35, 289 Wis. 2d 

594, 712 N.W.2d 76. Such was the case here: Bork completed intensive treatment 

while incarcerated in connection with his seventh OWI yet committed the same 

offense after being released. As in Ziegler, the logic behind the court’s decision to 

impose a longer sentence than Bork received for the prior conviction “is 

unassailable under the facts of this case.” See id. 

¶14 Bork also relies on State v. Ogden, 199 Wis. 2d 566, 544 N.W.2d 

574 (1996), but that case is also materially distinguishable. In Ogden, the 

sentencing court denied the defendant “Huber privileges for child care” pursuant 

to a “mechanistic sentencing approach” under which it never granted such 

privileges for that purpose because of past experiences in which defendants 

“use[d] it only as a means of getting out of jail.” Id. at 572. Here, although the 

circuit court was skeptical that a shorter sentence was appropriate, it grounded the 

sentence it imposed on the specific facts of Bork’s eighth OWI offense, his 

character and rehabilitative needs, and the court’s perception of what sentence was 

necessary to protect the public. The supreme court made clear in Ogden that a 
No. 2022AP616-CR

9

sentencing court can entertain “general predispositions” so long as it grounds a 

sentence in the particular facts of the case. Id. at 573. The circuit court did so 

here.

¶15 Because Bork has not rebutted the presumption that the circuit court 

acted fairly, impartially, and without bias in sentencing him, we affirm Bork’s 

conviction and the court’s denial of his postconviction motion.

By the Court.—Judgment and order affirmed.

This opinion will not be published. See WIS. STAT.

RULE 809.23(1)(b)5.