COURT OF APPEALS

DECISION

DATED AND FILED

January 7, 2020

Sheila T. Reiff

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. 2018AP2094-CR Cir. Ct. No. 2015CF1080

STATE OF WISCONSIN IN COURT OF APPEALS

DISTRICT I

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

KEVIN A. TAYLOR,

DEFENDANT-APPELLANT.

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

Milwaukee County: DAVID L. BOROWSKI and PEDRO COLON, Judges. 

Affirmed. 

Before Brash, P.J., Kessler and Dugan, 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. 2018AP2094-CR

2

¶1 PER CURIAM. Kevin A. Taylor appeals a judgment entered after 

he pled guilty to second-degree recklessly endangering safety as a repeat offender 

and causing soft tissue injury to a police officer while resisting the officer. He 

also appeals an order denying postconviction relief.1 He alleges that the circuit 

court sentenced him based on an improper factor, namely, his challenge to 

restitution. He seeks resentencing. We reject his contentions and affirm. 

Background

¶2 According to the criminal complaint, M.N., a City of Greenfield 

police officer, was on patrol in a marked squad car early on the morning of

March 7, 2015. At approximately 2:15 a.m., he approached a vehicle idling in the 

parking lot of a closed Greenfield business and made contact with the driver. 

M.N. smelled marijuana and directed the driver, subsequently identified as Taylor, 

to remain in his vehicle. Taylor, however, began opening and closing the driver’sside door. M.N. called for backup from additional officers. As events unfolded, 

Taylor started driving, which “forced [M.N.] to jump into [Taylor’s] vehicle to 

avoid being run over,” and Taylor then drove his vehicle into M.N.’s squad car.

¶3 M.N. struggled with Taylor inside his vehicle and eventually 

arrested him. M.N. sustained a cut to his face and abrasions to his leg and was 

conveyed to a hospital for treatment. A search of Taylor’s vehicle incident to the 

arrest uncovered several grams of cocaine. The State charged Taylor with 

 

1

 The Honorable David L. Borowski presided over the original sentencing and entered 

the judgment of conviction. The Honorable Pedro Colon presided over the postconviction 

proceedings and entered the order denying postconviction relief. 
No. 2018AP2094-CR

3

possession of cocaine, causing soft tissue injury to an officer while resisting the 

officer, and second-degree recklessly endangering safety as a repeat offender.

¶4 To support the claim that Taylor was a repeat offender, the State 

alleged that Taylor had a prior conviction for second-degree recklessly 

endangering safety, and the State attached to the complaint in the instant matter a 

copy of a 2013 criminal complaint filed in Fond du Lac County. According to the 

2013 complaint, Taylor fled from a traffic officer and led police on a high speed 

chase. When he finally stopped his vehicle, an officer approached Taylor’s 

vehicle on foot. The officer’s arms were “in the driver’s door” when Taylor 

accelerated, dragging the officer some distance before the officer eventually fell 

onto the roadway within inches of the vehicle’s tires. Taylor subsequently 

abandoned his vehicle in a snowbank. When police searched the vehicle, they 

found twenty grams of marijuana.

¶5 In March 2016, Taylor decided to resolve the charges in the instant 

case with a plea agreement. Pursuant to its terms, he pled guilty to second-degree 

recklessly endangering safety as a repeat offender and to causing soft tissue 

damage to an officer while resisting the officer. The State agreed to recommend a 

global disposition of one and one-half years of initial confinement and four and 

one-half years of extended supervision. The State also moved to dismiss and read 

in the charge of possessing cocaine. The matters proceeded to sentencing.

¶6 At the outset of the sentencing hearing, the parties advised the circuit 

court that Taylor disputed the $1542.10 claimed as restitution for damages to the 

Greenfield squad car, and the State presented testimony from the Greenfield 

assistant police chief to establish the reasonableness of the claim. Taylor’s cross-
No. 2018AP2094-CR

4

examination was brief, focusing on why certain components of the squad car 

needed to be replaced rather than repaired.2 

¶7 Following the assistant police chief’s testimony, the State made the 

promised sentencing recommendation. In support, the State emphasized that 

Taylor’s actions were dangerous and placed an officer at risk. Turning to 

restitution, the State requested an amount necessary to satisfy M.N.’s medical 

costs and the $1542.10 for squad car repairs.3

¶8 Taylor declined to address the circuit court personally, but his 

defense counsel spoke on his behalf, noting Taylor’s youth, employment history, 

and efforts toward completing a high school education. Defense counsel also 

acknowledged that Taylor was on supervision for his conviction in Fond du Lac 

County when he committed the crimes in this case and conceded that a prison 

sentence was warranted. Defense counsel recommended a global sentence of 

thirteen or fourteen months of initial confinement and twenty-four months of 

extended supervision. As to restitution, defense counsel advised that Taylor 

disputed the reasonableness of replacing rather than repairing the squad car’s push 

bar. Defense counsel therefore proposed that the restitution award exclude that

$476.90 replacement cost. 

 

2 The State asserts in its statement of the case that Taylor’s trial counsel “had no 

questions” for the assistant police chief. That assertion is inaccurate. We remind counsel of the 

importance of correctly describing the facts of record. 

3

 In postconviction proceedings, the circuit court reduced the amount of restitution 

awarded as compensation for medical costs. Restitution for medical costs is not at issue in this 

appeal.
No. 2018AP2094-CR

5

¶9 The circuit court began its remarks by finding that the facts in the 

instant case were “very similar” to those underlying Taylor’s conviction for 

recklessly endangering safety in Fond du Lac County, and the circuit court noted 

that Taylor was serving a term of community supervision for that “borderline 

identical” case at the time he committed the instant crimes. The circuit court 

concluded that Taylor had “no respect for authority, no respect ... for police.”

¶10 The circuit court next took into account that Taylor failed to comply 

with the terms of his bond while the instant case was pending, finding that he 

“once again prov[ed] he has no respect for authority, for officers, for judges, for 

the courts, or for anyone.” The circuit court characterized Taylor as a “menace” 

and a “threat,” and then observed:

[Taylor] sits here shaking his head and rolling his eyes at 

me as if, “who cares what the judge says,’ and ‘[h]ow can 

you say that, Judge?’ He sits here and forces his attorney 

to bring in an officer from the Department of Greenfield to 

squabble over $400 in restitution. That is a sure sign of 

lack of respect for authority and lack of accountability, lack 

of apology. There’s been no apology in this case, no 

accountability, no showing of remorse whatsoever.

¶11 The circuit court next found that Taylor had caused “significant 

damage” to property and that M.N. incurred substantial medical costs for hospital 

treatment and x-rays. The circuit court concluded that Taylor had created “a very,

very dangerous situation.” 

¶12 Turning to mitigating factors, the circuit court gave Taylor credit for 

pleading guilty and acknowledged his “sporadic” work history, which the circuit 

court viewed as “somewhat positive.” The circuit court reiterated, however, that 

Taylor had committed multiple crimes in this case “while he’s on supervision for 

almost an exactly similar case, another case involving an officer, another case 
No. 2018AP2094-CR

6

involving recklessly endangering safety, another case involving some version, 

technical or otherwise, of fleeing and having no respect for authority.” 

¶13 The circuit court next determined that Taylor “needs to be punished. 

He needs to be incarcerated,” and the circuit court expressed the hope that Taylor 

would “mature and stop breaking the law.” The circuit court went on:

Hopefully, the D[epartment] o[f] C[orrections] and his time 

in custody can have some effect on Mr. Taylor, who, again, 

shows no remorse; if anything, shows disdain as he sits 

here for the entire process, squabbles over $400 in 

restitution[,] some of which will be [covered] by the bail .... 

But restitution he’ll certainly have to pay.

For someone that now is on his second serious 

felony at the age of [twenty-three], multiple criminal 

contacts, multiple criminal convictions, injures a police 

officer, shows no remorse whatsoever, which is a negative, 

squabbles over restitution. When you’re go[ing to] have a 

total restitution in the thousands of dollars he’s worried 

about $400 and whether or not the push bar for the squad 

needed to be replaced or ... whether we can just touch it up 

with paint, preposterous. And it speaks to Mr. Taylor’s 

utter lack of character, utter lack of empathy. Utter lack of 

maturity.

¶14 The circuit court then pronounced sentence, imposing an evenly 

bifurcated six-year term of imprisonment for second-degree reckless 

endangerment as a repeat offender and a consecutive, evenly bifurcated two-year 

term for causing injury to an officer while resisting the officer. The circuit court 

recognized that it had imposed a longer sentence than the State recommended but 

the circuit court found that Taylor “needs more punishment. He needs more time 

behind bars.” The circuit court explained:

I’m not go[ing to] let him injure an officer and think it’s a 

joke, which is where this matter currently stands.... He’s an 

utter danger to the community. He’s running rampant in 

Greenfield and Fond du Lac and Milwaukee County,

terrorizing neighborhoods, potentially, but certainly 
No. 2018AP2094-CR

7

terrorizing police officers who he has no problem literally 

running over or running into with squad cars. If anything,

I’ve considered more time than this.

¶15 Taylor moved for postconviction relief. As relevant here, he sought 

resentencing on the ground that he was sentenced “based on an improper factor, 

namely, his challenge to the State’s restitution claim.” The postconviction court 

denied the motion without a hearing, finding that the sentencing court considered 

Taylor’s challenge to restitution only “as [that challenge] related to his character 

and lack of remorse for his actions.” The postconviction court therefore 

concluded that Taylor was not sentenced on the basis of an improper factor. 

Taylor appeals.

Discussion

¶16 Sentencing rests in the circuit court’s sound discretion. See State v. 

Gallion, 2004 WI 42, ¶17, 270 Wis. 2d 535, 678 N.W.2d 197. A circuit court’s 

exercise of sentencing discretion must include consideration of three primary 

factors, specifically, “the gravity of the offense, the character of the defendant, and 

the need to protect the public.” State v. Ziegler, 2006 WI App 49, ¶23, 289 

Wis. 2d 594, 712 N.W.2d 76. A circuit court may also consider a wide range of 

additional factors, including the defendant’s “remorse, repentance, and 

cooperativeness.” See Gallion, 270 Wis. 2d 535, ¶43 & n.11. We afford 

sentencing decisions “a strong presumption of reasonableness because the circuit 

court is best suited to consider the relevant factors and assess the defendant’s 

demeanor. A defendant can rebut the presumption of reasonableness only by 

showing an unreasonable or unjustifiable basis for the sentence in the record.” See 

State v. Samsa, 2015 WI App 6, ¶8, 359 Wis. 2d 580, 859 N.W.2d 149 (internal 

citation omitted).
No. 2018AP2094-CR

8

¶17 A defendant who seeks resentencing on the ground that the circuit 

court considered an improper factor must shoulder the heavy burden of proving by 

clear and convincing evidence that: (1) the factor was in fact improper; and 

(2) the circuit court actually relied upon the improper factor. See State v. Harris, 

2010 WI 79, ¶¶31-32, 34, 326 Wis. 2d 685, 786 N.W.2d 409. To prove that a 

sentencing factor was improper, a defendant must show that it was “totally 

irrelevant or immaterial to the type of decision to be made.” See Samsa, 359 

Wis. 2d 580, ¶8 (citation omitted). To prove actual reliance, the defendant must 

show that “the circuit court paid ‘explicit attention’ to an improper factor, and ... 

the improper factor formed the ‘basis for the sentence.’” State v. Williams, 2018 

WI 59, ¶52, 381 Wis. 2d 661, 912 N.W.2d 373 (citation omitted). On appeal, we 

independently review the sentencing transcript as a whole and assess the allegedly 

improper comments in context. See id. We then determine whether the evidence 

is clear and convincing that the circuit court actually relied upon an improper 

factor in fashioning the sentence. See Harris, 326 Wis. 2d 685, ¶¶35, 45.

Evidence is clear and convincing when the thing to be proved is shown to be 

“‘highly probable or reasonably certain.’” See id., ¶35 (citation omitted). With 

the foregoing in mind, we turn to Taylor’s claim.

¶18 According to Taylor, “the circuit court’s consideration of [his] 

restitution challenge constituted an improper factor for sentencing.” His claim is 

bottomed on the principles that a defendant has a right to challenge a restitution 

request, and a circuit court may not punish a defendant solely for exercising that 

right. See Williams, 381 Wis. 2d 661, ¶¶49, 51 & n.15. The supreme court has 

made clear, however, that “when the restitution factor is inextricably intertwined 

with a defendant’s character and lack of remorse, its consideration is proper.” Id., 

¶51. We conclude that the record reflects such proper consideration here. 
No. 2018AP2094-CR

9

¶19 The circuit court initially mentioned the challenge to restitution 

when considering Taylor’s courtroom demeanor. The circuit court noted that 

Taylor was “shaking his head and rolling his eyes” and construed those actions as 

showing disdain for the circuit court. The circuit court next remarked that Taylor 

had required his trial counsel to “squabble over $400 in restitution,” and found that 

such an action also reflected a lack of respect for authority. The circuit court then 

added: “[t]here’s been no apology in this case, no accountability, no showing of 

remorse whatsoever.” Thus, as Williams permits, the circuit court directly linked 

Taylor’s attitude toward the damages he caused with his hostility to authority and 

his failure to demonstrate any repentance or regret for his actions.

¶20 Further, the record shows that the circuit court’s later references to 

restitution also reflect the circuit court’s view that Taylor’s challenge to restitution 

illuminated Taylor’s character. The circuit court was appalled that although 

Taylor had “injure[d] a police officer” and had caused substantial property 

damage, he “worried about $400 and whether or not the push bar for the squad 

needed to be replaced ... or whether we can just touch it up with paint, 

preposterous.” The circuit court then found that Taylor “again, shows no remorse; 

if anything, shows disdain ... for the entire process, squabbles over $400 in 

restitution.” In the circuit court’s view, Taylor’s priorities, demeanor, and attitude 

towards the crimes he committed demonstrated an “utter lack of character, utter 

lack of empathy. Utter lack of maturity.” Cf. State v. Baldwin, 101 Wis. 2d 441, 

459, 304 N.W.2d 742 (1981) (internal citation omitted) (explaining that a 

sentencing court has an “obligation to consider factors such as the defendant’s 

demeanor, his need for rehabilitation, and the extent to which the public might be 

endangered by his being at large. A defendant’s attitude toward the crime may 

well be relevant in considering these things.”).
No. 2018AP2094-CR

10

¶21 We are satisfied that the circuit court’s remarks about Taylor’s 

challenge to restitution reflect that the circuit court drew a reasonable connection 

between that challenge and Taylor’s character. In context, the remarks show that 

the circuit court assessed “the restitution factor [a]s inextricably intertwined with 

[Taylor’s] character and lack of remorse.” See Williams, 381 Wis. 2d 661, ¶51. 

That assessment rested in the circuit court’s discretion. See id., ¶50. Taylor 

therefore fails to show that restitution was an improper sentencing factor here.

¶22 Moreover, were we to conclude that Taylor’s challenge to restitution 

was an improper factor in this case—and we do not—we would nonetheless hold

that Taylor is not entitled to resentencing. Our independent review of the record 

does not reveal clear and convincing evidence that the circuit court placed actual 

reliance on the restitution challenge. Cf. State v. Alexander, 2015 WI 6, ¶26, 360 

Wis. 2d 292, 858 N.W.2d 662 (reflecting that a court may give explicit attention to 

an improper factor without actually relying on it). In other words, it is neither 

“highly probable” nor “reasonably certain” that the restitution challenge was the 

basis for Taylor’s sentences. See Harris, 326 Wis. 2d 685, ¶35.

¶23 As in Williams, the circuit court’s remarks reflect that the sentences 

chosen were based on the gravity of the offenses, the defendant’s character, and 

the need to protect the public. See id., 381 Wis. 2d 661, ¶53. Of those factors, the 

circuit court particularly emphasized Taylor’s character, which the circuit court 

found was poor “at best” for reasons that it thoroughly explained. 

¶24 The circuit court was profoundly concerned that Taylor had 

committed crimes in this case that were nearly identical to those he committed in 

2013, and that he committed his most recent crimes while serving a term of 

community supervision for the earlier ones. See State v. Lechner, 217 Wis. 2d 
No. 2018AP2094-CR

11

392, 422, 576 N.W.2d 912 (1998) (past record and history of undesirable behavior 

patterns are relevant in assessing the defendant’s character). The circuit court also 

considered Taylor’s insolent behavior in the courtroom, which the circuit court 

viewed as signaling contempt for the judicial process. See Samsa, 359 Wis. 2d 

580, ¶8 (reflecting the critical importance of the sentencing court’s opportunity to 

observe the defendant’s courtroom demeanor). Further, the circuit court stressed 

that Taylor had not offered any apology or otherwise demonstrated remorse for his 

crimes. While the circuit court interspersed remarks about Taylor’s restitution 

challenge within the larger discussion, the record shows that the circuit court 

connected those remarks to its explanations of why it believed Taylor had “no 

respect for authority, for officers, for judges, for the courts, or anyone.” 

¶25 As to the gravity of the offenses and the need to protect the public, 

the circuit court found that Taylor had triggered a “very very dangerous situation” 

in this case and that his “bad decision making” created an ongoing risk to those 

around him and a likelihood that he would reoffend in the future. The crux of the 

sentencing decision was ultimately the circuit court’s finding that Taylor was “an 

utter danger to the community” because he was “running rampant ... terrorizing

police officers who he has no problem literally running over.” The circuit court 

explained that it would not “let [Taylor] injure an officer and think it’s a joke .... 

He needs time to mature, and ... at some point become a productive member of 

society.” Accordingly, the circuit court rejected the parties’ sentencing 

recommendations as insufficient and instead imposed an aggregate evenly 

bifurcated eight-year term of imprisonment.

¶26 The totality of the sentencing remarks do not show that the circuit 

court vindictively increased Taylor’s punishment because Taylor challenged the 

restitution request. Although the circuit court discussed his challenge, the 
No. 2018AP2094-CR

12

discussion “bore a reasonable nexus to the relevant factor[s] of [his] lack of 

remorse,” see Williams, 381 Wis. 2d 661, ¶53, and his character, specifically, the

attitude towards authority that he exhibited in his crimes and in the courtroom. 

The basis for the aggregate term of imprisonment was thus the circuit court’s 

assessment of the primary sentencing factors, coupled with Taylor’s courtroom 

demeanor and lack of remorse. We are therefore satisfied that the sentences in this 

case were based on appropriate sentencing factors. Because Taylor fails to show 

that the circuit court increased his sentences solely because he challenged 

restitution, he fails to establish actual reliance on an improper factor. See id.

¶27 The parties end their briefs by discussing whether the circuit court’s 

reliance on an improper factor at sentencing constituted harmless error. In light of 

our conclusion that the circuit court did not err, we need not address this issue.4 

For all the foregoing reasons, we affirm. 

By the Court.—Judgment and order affirmed.

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

809.23(1)(b)5. (2017-18).

 

4

 We are mindful of the circuit court’s many duties at sentencing, and we have concluded 

that the circuit court properly fulfilled its duties here. We take this opportunity, however, to 

remind the circuit court to choose its words with care when imposing sentence to ensure that the 

defendant fully understands the reasoning underlying the sentencing decision.