COURT OF APPEALS

DECISION

DATED AND FILED

December 29, 2022

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. 2021AP945-CR Cir. Ct. No. 2019CF206

STATE OF WISCONSIN IN COURT OF APPEALS

DISTRICT III

STATE OF WISCONSIN,

 PLAINTIFF-RESPONDENT,

 V.

MICHAEL J. LEIGHTON,

 DEFENDANT-APPELLANT.

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

Outagamie County: MARK J. McGINNIS, Judge. Affirmed. 

Before Stark, P.J., Hruz and Gill, 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). 

¶1 PER CURIAM. Michael Leighton appeals from a judgment 

convicting him of two felonies and one misdemeanor, and from an order denying 
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his motion for resentencing or sentence modification. He contends that the circuit 

court relied upon an improper sentencing factor and that his sentences were unduly 

harsh. We reject both contentions and affirm.

BACKGROUND

¶2 The State charged Leighton with two counts of identity theft, one 

count of fraudulent use of a credit card, two counts of theft, and one count of entry 

into a locked vehicle, all as a repeat offender. The complaint alleged that Leighton 

took the victim’s car key fob out of the victim’s gym locker, used the fob to enter 

the victim’s car, took the victim’s credit and debit cards from a wallet left in the 

car, and then used both cards. Leighton eventually entered no-contest pleas to the 

charges of identity theft and fraudulent use of a credit card. In exchange for the 

pleas, other counts were dismissed and read in. 

¶3 The Department of Corrections submitted a presentence 

investigation report (PSI), and the defense submitted an alternative PSI. At the 

sentencing hearing, the circuit court quoted a passage from the alternative PSI 

stating that Leighton “understands he needs to address his substance abuse issues 

in an honest manner.” The court then asked Leighton a series of questions “to 

assess [his] ability to be honest” about himself. 

¶4 The circuit court first asked Leighton what his substance abuse 

issues were. Leighton answered “mostly pill abuse,” saying he took pills 

“occasionally to just feel better, have a little fun.” Upon further prompting, 

Leighton acknowledged that he also abused marijuana and alcohol, and that he 

was a drug addict. Based upon Leighton’s responses, the court expressed concern 

that Leighton still was not capable of being honest about his substance abuse. 

Addressing the court’s concern later in the hearing, Leighton stated:
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This whole thing, honest with myself, is new to me. So 

that’s why I didn’t come across very well talking about 

drug abuse addiction. It’s—I don’t want to see myself as 

an addict, so it’s hard to say I am an addict. It’s hard to 

accept those things when you’re 51 years old. 

¶5 The circuit court next asked Leighton how many times he had been 

convicted of a crime as an adult. Leighton answered “five to ten,” when the actual 

number was twenty-five. After the court pointed out how far off he was in his 

answer, Leighton said he did not understand that the court was asking about 

individual charges because many of his convictions were consolidated in the same 

cases. 

¶6 The circuit court then asked Leighton to explain why he had 

committed so many crimes and spent so much of his adult life in prison. Leighton 

responded:

Originally, your Honor, it was—it didn’t seem real. I had 

some credit cards that weren’t mine. I used them. It was 

easy money. It became a felony. After that, I couldn’t get 

a job. So I would use that and use that, use that. And that’s 

the hole I’m talking about. I did it to myself after I was 21 

or so. And, unfortunately, sometimes I go back to my old 

ways and that’s why we’re sitting here today.

The court said Leighton’s explanation that he “used something that I thought was 

mine” was “bogus” and that it “really isn’t your old ways. It’s what your way has 

always been.” Leighton told the court that it had misheard him—i.e., that he had 

said he used credit cards that were not his. 

¶7 The circuit court next asked Leighton about a claim that he been 

using the money he stole to support two families. Leighton said that he provided 

money to one woman with whom he had a previous relationship to help her with 

rent, but he later came to believe that she was using the money for drugs. The 
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court interrupted Leighton, stating its disbelief that Leighton did not know he was 

supporting the woman’s drug habit. 

¶8 Finally, the circuit court asked Leighton for the victim’s name, in 

order to assess “how sorry you really are.” Leighton was not able to name the 

victim. 

¶9 The circuit court proceeded to discuss the multiple opportunities 

Leighton had forgone to mature out of his criminal lifestyle. The court noted that 

it had engaged in the colloquy with Leighton to “obtain an understanding about 

the comments [he] made in the [PSIs] and address whether or not [he had] made 

changes” or was simply saying what he thought the court wanted to hear. The 

court concluded:

And as I sit here today and I listened to you for the last 20 

minutes, it’s clear that your character is very low. You are 

someone who is manipulative, is self-serving and truly 

lacks any understanding of the bad things that you have 

continued to impose on communities throughout the State 

of Wisconsin.

You tell the alternative writer you finally are going to be 

honest with your drug abuse and substance abuse issues. I 

doubt it. You tell us today it was just an occasional thing, 

an occasional treat. You tell us today that you have been 

convicted of five or ten offenses and—but you were 

confused on the way I asked it. We know that your 

convictions, you’ve been convicted of 25 different crimes. 

You’ve only been in the community 15 years, according to 

you. And we also know that a whole multitude of other 

criminal offenses have been dismissed and read in over the 

years. 

Each time you get released from prison, Mr. Leighton, you 

go back to and resort to the same criminal behavior.

Whether it’s been classified as theft, burglary, 

misappropriating ID, forgery, fraud, those are all the names 

of your convictions over the years. But it’s you stealing 

from innocent people and benefiting yourself to support 
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your addictions, to support your lifestyle without any 

degree of remorse or interest in changing. 

I truly hope, Mr. Leighton, that you are sincere that you 

want the change. I really do for your benefit and for 

everybody’s benefit. We’re only going to be better if you 

quit committing criminal offenses. But at the end of the 

day, I don’t think it’s going to happen just based upon your 

character. I think you’re a high risk to reoffend. I think 

you have so many positive traits and possibilities. And 

over the last 30 years, like we’ve talked about, you just 

have refused to take the positive route of hard work and 

working your way up and earning the things that you’re 

going to get as opposed to ripping people off.

So for those reasons, I believe that a prison sentence is 

appropriate. I understand that your extended supervision 

was revoked and you’re serving a sentence on that. I also 

understand that you received a prison sentence from the 

Walworth County case. Those are bad things for you. But 

that’s because you were convicted of serious crimes and 

you’re out on supervision. You were given an opportunity 

to live in the community and you continued to engage in 

very serious criminal conduct. 

The question on whether or not to make this sentence 

concurrent or consecutive to those sentences is really easy.

It’s going to be consecutive. And the reason for it, Mr. 

Leighton, is because these are separate crimes. And like 

[the prosecutor] said in one of her first sentences, you are 

and have been for the last 30-plus years a career criminal. 

And with career criminals, I don’t see any benefit to give 

them a discount because they commit more offenses in 

more counties. It doesn’t serve any of the purposes of what 

we’re trying to accomplish when we sentence somebody.

¶10 The circuit court then sentenced Leighton to two years’ initial 

confinement followed by three years’ extended supervision on each of the identity 

theft counts and nine months on the credit card count, to be served concurrently to 

one another but served consecutively to previously imposed sentences. The court 

also imposed restitution in the amount stipulated by the parties, and it ordered that 

Leighton would not be eligible for the Challenge Incarceration Program or 

Substance Abuse Program. 
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¶11 Leighton filed a motion for resentencing, alleging that the circuit 

court had sentenced him based upon several misunderstandings related to his 

truthfulness. A hearing on the motion was held. In defending its assessment that 

Leighton was manipulative and a liar, the court noted that it had observed 

Leighton’s body language, demeanor, timing, tone and attitude at the sentencing 

hearing. The court pointed out that the PSI author, who also observed Leighton’s 

demeanor, similarly concluded that “while [Leighton] voiced that he was sorry for 

his actions and the impact they had on the victims involved, his claims seemed 

rehearsed and superficial” and that “he has clearly learned nothing from his past 

mistakes.” Additionally, the court observed that it would have imposed the same 

sentences based upon Leighton’s history as a career criminal, even if it had not 

deemed him to be a liar. The court then denied the postconviction motion, and 

Leighton now appeals. 

DISCUSSION

¶12 Leighton first contends that the circuit court relied on the improper 

factor that he was “lying” when he addressed the court at sentencing. An 

improper sentencing factor is one that is “totally irrelevant or immaterial to the 

type of decision to be made.” Elias v. State, 93 Wis. 2d 278, 282, 286 N.W.2d 

559 (1980). For instance, race and gender may play no part in sentencing. State v. 

Harris, 2010 WI 79, ¶3, 326 Wis. 2d 685, 786 N.W.2d 409. A defendant’s 

character, however, is one of the most basic factors that a circuit court is supposed 

to consider when fashioning a sentence. See generally State v. Gallion, 2004 WI 

42, ¶¶39-46, 270 Wis. 2d 535, 678 N.W.2d 197. Leighton cites no authority that 

would suggest a court cannot consider a defendant’s truthfulness as a proper 

sentencing factor related to character. Rather, Leighton argues it was not true that 
No. 2021AP945-CR

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he was a liar—not that it would be irrelevant if he were a liar. Leighton thus 

appears to be seeking resentencing based upon “inaccurate information.” 

¶13 “A defendant has a constitutionally protected due process right to be 

sentenced upon accurate information.” State v. Tiepelman, 2006 WI 66, ¶9, 291 

Wis. 2d 179, 717 N.W.2d 1. If a defendant can establish by clear and convincing 

evidence both that inaccurate information was presented at sentencing and that the 

court relied upon the misinformation in reaching its determination, the burden 

shifts to the State to show that the error was harmless. Id., ¶26. This court will 

independently review a due process claim that a defendant has been sentenced 

based upon inaccurate information. Id., ¶9. However, we will generally defer to 

any credibility determination or factual findings underlying the circuit court’s 

decision on a constitutional issue. Johnson v. Merta, 95 Wis. 2d 141, 151-52, 289 

N.W.2d 813 (1980). Moreover, we do not deem information to be inaccurate 

merely because it was contested. Rather, the defendant must demonstrate the 

information was “extensively and materially false.” State v. Travis, 2013 WI 38, 

¶18, 347 Wis. 2d 142, 832 N.W.2d 491. 

¶14 Here, Leighton points to what he characterizes as three 

“misunderstandings” by the circuit court. However, he has not established that the 

alleged misunderstandings constituted extensively and materially false information 

or that the court relied upon them. First, Leighton asserts that the court 

erroneously determined that he was lying about the number of his prior 

convictions. Nonetheless, Leighton clarified that he had misunderstood the court’s 

question, and the court expressly acknowledged that clarification later in its 

discussion. Second, Leighton asserts that the court erroneously believed Leighton 

said he used credit cards he thought were his, when Leighton actually said he used 

cards that were not his. Again, however, Leighton clarified his statement before 
No. 2021AP945-CR

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the court pronounced sentence, and the court did not repeat the mistake when 

discussing why it was imposing the sentences it did. Third, Leighton asserts the 

court erroneously determined that he was lying about knowing that a former 

girlfriend was spending the stolen money he gave her on drugs. He has not, 

however, presented any affidavit from the girlfriend or other evidence that would 

objectively support his claim of ignorance. Ultimately, the court’s decision 

whether to believe Leighton was merely a credibility determination, which we will 

not set aside.

¶15 Moreover, Leighton ignores the context in which the circuit court 

made its comments. The alleged misunderstandings were part of a twenty-minute 

colloquy during which the court had ample time to observe Leighton’s demeanor 

and consider the forthrightness of his answers. The court’s impression that 

Leighton was lying and manipulative was based not upon a single statement 

Leighton made, but upon the contrast between his extensive criminal history and 

his hollow claims to have changed, while still minimizing his behavior. 

¶16 Leighton next contends that his sentences were unduly harsh because 

the circuit court imposed punishment “consecutively to a sentence already given 

for the same actions” in violation of his double jeopardy rights, which also 

resulted in the loss of previously granted eligibility for earned release programs. 

Leighton’s argument combines two claims under the umbrella of a single issue.

¶17 A sentence may be considered unduly harsh or unconscionable only 

when it is “so excessive and unusual and so disproportionate to the offense 

committed as to shock public sentiment and violate the judgment of reasonable 

people concerning what is right and proper under the circumstances.” State v. 

Grindemann, 2002 WI App 106, ¶31, 255 Wis. 2d 632, 648 N.W.2d 507 (citation 
No. 2021AP945-CR

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omitted). There is a presumption that a sentence “well within the limits of the 

maximum sentence” is not unduly harsh. Id., ¶¶31-32. The two years of initial 

confinement and three years of extended supervision imposed here were well 

within the twenty-two years of total imprisonment that the circuit court could have 

imposed. Even taking into account that the sentences were imposed consecutively

to a prior revocation sentence and resulted in Leighton’s loss of eligibility for an 

earned release program, the sentences were not excessive given Leighton’s 

extensive criminal history.

¶18 Furthermore, the Double Jeopardy Clause protects against multiple 

punishments for the same offense. See U.S. CONST. amend. V; State v. Kurzawa, 

180 Wis. 2d 502, 515, 509 N.W.2d 712 (1994). Leighton’s prior revocation 

sentence punished him for that conviction, not for the offenses at issue in this case. 

See State ex rel. Flowers v. DHSS, 81 Wis. 2d 376, 386, 260 N.W.2d 727 (1978). 

There was no double jeopardy violation here.

By the Court.—Judgment and order affirmed.

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

RULE 809.23(1)(b)5.