COURT OF APPEALS

DECISION

DATED AND FILED

August 25, 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. 2018AP1476-CR Cir. Ct. No. 2016CF1316

STATE OF WISCONSIN IN COURT OF APPEALS

DISTRICT I

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

OCTAVIA W. DODSON,

DEFENDANT-APPELLANT.

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

Milwaukee County: M. JOSEPH DONALD and CAROLINA STARK, Judges. 

Affirmed.

Before Brash, P.J., Blanchard 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. 2018AP1476-CR

2

¶1 PER CURIAM. Octavia W. Dodson appeals from a judgment of 

conviction, entered upon his guilty plea, for one count of second-degree 

intentional homicide. See WIS. STAT. § 940.05(1) (2015-16).1 Dodson also 

appeals from an order denying his postconviction motion. Dodson seeks 

resentencing on grounds that the trial court relied on an improper factor at 

sentencing: Dodson’s legal gun ownership. Upon review, we affirm.

BACKGROUND

¶2 Dodson was charged with one count of second-degree intentional 

homicide, by use of a dangerous weapon, in connection with the death of 

Deshun T. Freeman. See WIS. STAT. § 940.05(1) (2015-16). The complaint 

indicated that the mitigating factor that resulted in a charge of second-degree 

intentional homicide, rather than first-degree intentional homicide, was 

“[u]nnecessary defensive force.” See WIS. STAT. § 940.01(2)(b) (2015-16).

2

 

1

 All references to the Wisconsin Statutes are to the 2017-18 version unless otherwise 

noted.

2

 WISCONSIN STAT. § 940.01(2) (2015-16), which has not been amended in the 2017-18 

version of the statutes, provided in relevant part:

MITIGATING CIRCUMSTANCES. The following are affirmative 

defenses to prosecution under this section which mitigate the 

offense to 2nd-degree intentional homicide under s. 940.05:

....

(b) Unnecessary defensive force. Death was caused 

because the actor believed he or she or another was in imminent 

danger of death or great bodily harm and that the force used was 

necessary to defend the endangered person, if either belief was 

unreasonable.
No. 2018AP1476-CR

3

¶3 According to the criminal complaint, Dodson told the police that his 

vehicle was rear-ended by a man driving a Buick. Dodson said that he got out of 

his vehicle to check for damage and observed the other vehicle drive backwards. 

Dodson, who had a valid concealed carry permit, removed his semi-automatic 

pistol from his holster and held it in his hand. The other vehicle then drove 

forward, around Dodson’s vehicle, and left the scene. 

¶4 Dodson told the police that he got back into his vehicle and drove in 

the direction of the Buick “to try to get a plate number.” While Dodson was 

driving, he removed a ten-round magazine from his pistol and “replaced it with the 

extended 17-round magazine.” 

¶5 Dodson said that as he was driving, a Buick that Dodson believed 

was the same Buick which he had been following “came up from behind at a high 

rate of speed.”3 Both vehicles stopped and parked on the side of the street. The 

complaint continues:

Dodson states that a male subject exited the car in 

front of him and ran toward Dodson. Dodson stated that he 

could not see this subject’s hands because they were either 

in his jacket pockets or underneath his shirt. Dodson states 

that he thought that this subject was pulling something out. 

Dodson states that this male subject yelled: “Fuck nigga!” 

or words to that effect.

Dodson initially stated that he discharged his 

firearm at the male subject from his automobile, and that he 

never at any point got out of his car. Dodson later 

confessed that he exited [his vehicle] and shot the victim 

from a standing position outside of his car.

 

3

 While Dodson believes that the vehicle Freeman drove was the same vehicle that was 

involved in the accident, the record indicates that the police were not able to confirm that. The 

State suggested at sentencing that Freeman may not have been involved in the first accident. 
No. 2018AP1476-CR

4

Dodson stated that he believes he shot his gun three 

times. Dodson stated: “I felt that threat wasn’t fair. There 

was no need.”

Dodson states that after he shot, he observed the 

victim fall to the ground. Dodson states that he then got 

back into his car and drove to his girlfriend’s house. 

Dodson states that he spoke with his girlfriend, and from 

there drove to his father’s house. On the way to his father’s 

house, Dodson states that he called 911 to report the 

shooting. 

(Dodson’s name substituted for “the defendant.”) According to the criminal 

complaint, about four minutes elapsed between the time of the car accident and the 

shooting.4 

¶6 Dodson entered into a plea agreement with the State. In exchange 

for Dodson’s guilty plea, the State agreed to dismiss the dangerous weapon 

penalty enhancer, which lowered Dodson’s potential exposure by five years, to 

forty years of initial confinement and twenty years of extended supervision. The 

State further agreed to recommend “substantial prison time,” with the terms of 

initial confinement and extended supervision left to the trial court’s discretion. 

The trial court conducted a plea colloquy with Dodson, during which Dodson

personally agreed that the facts in the criminal complaint were “true and correct.” 

The trial court thereafter dismissed the penalty enhancer, accepted Dodson’s guilty 

plea, and found him guilty.5 

 

4

 Specifically, the criminal complaint states that a security camera at a gas station 

indicated that the car accident occurred at 10:44 p.m. At 10:48 p.m., law enforcement’s 

ShotSpotter gunshot detection system detected six gunshots near the intersection where Dodson

shot Freeman. The criminal complaint further indicates that when the police recovered the 

extended magazine from Dodson, there were eleven unspent cartridges, which is consistent with 

six shots being fired. 

5

 The Honorable M. Joseph Donald accepted Dodson’s guilty plea and sentenced him.
No. 2018AP1476-CR

5

¶7 At the sentencing hearing, the trial court heard arguments from both 

parties and from representatives for Dodson and the victim. Dodson personally 

addressed the trial court, expressing remorse for the victim’s death. The trial court 

sentenced Dodson to fourteen years of initial confinement and six years of 

extended supervision. 

¶8 Represented by postconviction counsel, Dodson filed a 

postconviction motion seeking to withdraw his guilty plea based on ineffective 

assistance of trial counsel with respect to the guilty plea. In the alternative, he 

sought resentencing on grounds that the trial court considered an improper factor 

at sentencing—Dodson’s legal gun ownership. After conducting a Machner6

hearing, the trial court denied the postconviction motion.7 This appeal follows.

DISCUSSION

¶9 On appeal, Dodson has chosen to pursue only his request for 

resentencing. He argues resentencing is warranted because the trial court “relied 

on an improper factor, in this case, [Dodson’s] decisions to obtain a concealed 

carry permit and to purchase a firearm.” 

¶10 The parties agree that our analysis is guided by State v. Alexander, 

2015 WI 6, 360 Wis. 2d 292, 858 N.W.2d 662. Alexander recognized that 

appellate courts will not disturb a criminal sentence “so long as the [trial] court 

does not erroneously exercise its discretion.” See id., ¶16. Alexander continued: 

 

6

 See State v. Machner, 92 Wis. 2d 797, 285 N.W.2d 905 (Ct. App. 1979).

7

 The Honorable Carolina Stark presided over the Machner hearing and denied 

Dodson’s postconviction motion.
No. 2018AP1476-CR

6

“A [trial] court erroneously exercises its sentencing discretion when it ‘actually 

relies on clearly irrelevant or improper factors.’” Id., ¶17 (citation omitted). The 

burden is on the defendant to prove, “by clear and convincing evidence, that the 

sentencing court actually relied on irrelevant or improper factors.” Id. 

¶11 Alexander discussed the “two-step framework” used in cases 

involving a trial court’s reliance on inaccurate information. See id., ¶18. Under 

that two-part analysis, “a defendant must prove that: (1) information was 

inaccurate, and (2) the court actually relied on the inaccurate information in the 

sentencing.” Id. (citing State v. Tiepelman, 2006 WI 66, ¶26, 291 Wis. 2d 179, 

717 N.W.2d 1). “If the defendant proves inaccuracy and actual reliance, the 

burden shifts to the State to prove the error was harmless.” See Alexander, 360 

Wis. 2d 292, ¶18 (citing Tiepelman, 291 Wis. 2d 179, ¶¶26-27). 

¶12 Alexander held that Tiepelman’s two-step test for analyzing alleged 

inaccurate information can also be applied to cases alleging reliance on improper 

factors. See Alexander, 360 Wis. 2d 292, ¶18. Alexander further recognized 

precedent holding that “[w]hen the question relates to other improper factors like 

race and gender, only the second part of the test, actual reliance, is relevant.” Id., 

¶21 (quoting State v. Harris, 2010 WI 79, ¶33 n.10, 326 Wis. 2d 685, 786 N.W.2d 

409). Actual reliance on an improper factor occurs only when the trial court “gave 

explicit attention to an improper factor” and “the improper factor formed part of 

the basis for the sentence.” See Alexander, 360 Wis. 2d 292, ¶25 (citations and 

internal quotation marks omitted). On appeal, “[o]ur obligation is to review the 

sentencing transcript as a whole, and to review potentially inappropriate comments 

in context.” See Harris, 326 Wis. 2d 685, ¶45.
No. 2018AP1476-CR

7

¶13 With those legal standards in mind, we turn to Dodson’s argument 

that the trial court actually relied on an improper factor. For purposes of this 

decision, we will accept, without deciding, Dodson’s assertion that it would be 

improper to punish a defendant for legally exercising his or her right to bear arms 

under the United States and Wisconsin Constitutions. The issue is whether the 

trial court did so here. 

¶14 In its sentencing remarks, the trial court stated:

In reviewing this case, I have to say I am 

completely baffled as to why this happened. 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. 

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.

It is clear to me, Mr. Dodson, that for whatever 

reason, and it appears that it is a distorted, misguided belief 

of the world that somehow Mr. Freeman was a threat that 

required you, in essence, to terminate his life. Makes no 

sense. 

Later, after recognizing that Dodson had previously been “a model citizen” with a 

job and no criminal history, the trial court said, “[I]t is clear to me that you were 

operating under some misguided belief, some distorted view of the world that 

somehow Desh[u]n Freeman was a threat to you when in reality it was nothing 

further from the truth.” 
No. 2018AP1476-CR

8

¶15 Dodson argues that the trial court’s statements indicate that it 

believed that Dodson “was a threat to society and had a ‘distorted view of the 

world’ because he was a lawful gun owner.” Dodson explains: “The [trial] court 

blamed Mr. Dodson 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 further asserts that the trial court made 

assumptions about gun owners and “attribute[d] the negative views it has about 

gun owners to” Dodson. 

¶16 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. See State v. Ogden, 199 Wis. 2d 566, 573, 544 N.W.2d 574 (1996) 

(holding that trial court is not “prohibited from entertaining general 

predispositions, based upon his or her criminal sentencing experience, regarding 

when a certain type of sentence is appropriate” as long as those predispositions are 

not “so specific or rigid so as to ignore the particular circumstances of the 

individual offender upon whom he or she is passing judgment”). 

¶17 Further, when the trial court commented on Dodson’s “distorted, 

misguided belief of the world” that the victim presented a threat that required a 

lethal response, the trial court was addressing a relevant issue: Dodson’s use of 

“[u]nnecessary defensive force.” See WIS. STAT. § 940.01(2)(b). We agree with 

the State’s analysis:
No. 2018AP1476-CR

9

The court’s comments about Dodson’s “distorted, 

misguided belief” and “distorted view” focused on 

Dodson’s perception that Freeman posed a threat to him. 

Neither statement had anything to do with the court’s 

previous observations as a judge about gun ownership or 

Dodson’s status as a conceal-carry licensee. Indeed, the 

court’s comments went to the very nature of the seconddegree intentional homicide charge: Dodson acted with 

unnecessary defensive force when he intentionally killed 

Freeman. That is, Dodson believed Freeman posed an 

imminent danger of death or great bodily harm to him and 

that deadly force was necessary to defend himself, but his 

beliefs were not objectively reasonable. [Section] 

940.01(2)(b); see also State v. Head, 2002 WI 99, ¶69, 255 

Wis. 2d 194, 648 N.W.2d 413 (discussing imperfect selfdefense).

(Bolding added.) 

¶18 We conclude that Dodson has not shown, by clear and convincing 

evidence, that the trial court actually relied on an improper factor. When viewed 

in context, see Harris, 326 Wis. 2d 685, ¶45, the trial court’s comments about 

Dodson’s unlawful use of his firearm were not improper. 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. Therefore, Dodson is not entitled to resentencing. We 

affirm the judgment and order.

By the Court.—Judgment and order affirmed.

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

809.23(1)(b)5.