COURT OF APPEALS

DECISION

DATED AND FILED

January 22, 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. 2019AP836-CR Cir. Ct. No. 2017CM1162

STATE OF WISCONSIN IN COURT OF APPEALS

DISTRICT II

STATE OF WISCONSIN,

 PLAINTIFF-RESPONDENT,

 V.

EDWARD L. BODY, SR.,

 DEFENDANT-APPELLANT.

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

Kenosha County: BRUCE E. SCHROEDER, Judge. Affirmed. 

¶1 DAVIS, J.1 Edward L. Body, Sr., appeals from a judgment and 

order revoking his probation for the offense of disorderly conduct and sentencing 

him to one year in jail. He claims that the trial court relied on improper sentencing 

 

 

1 This appeal is decided by one judge pursuant to WIS. STAT. § 752.31(2)(f) (2017-18). All 

references to the Wisconsin Statutes are to the 2017-18 version unless otherwise noted.
No. 2019AP836-CR

2

factors, specifically his gender and certain information contained in a presentence 

report. He further claims that the sentence was unduly harsh. We disagree, and 

affirm, for the reasons stated herein.

Facts

¶2 This matter has its genesis in an incident that, according to the 

criminal complaint and not disputed here, occurred just after midnight on August 

1, 2017. Two Kenosha police officers responded to a report of “people being loud 

in the street.” Upon arrival, the officers observed Body yelling and pacing in the 

roadway. As the officers approached, they heard residents, who had congregated 

in the area, tell Body to stop yelling. One resident said, “Hey man. The police are 

here. Stop.” Body responded, “I don’t care. Fuck the police.” A woman near 

Body identified herself as E.M. and told the officers she and Body had been 

arguing about issues concerning their children.

¶3 The officers spoke to some of the residents, including a neighbor 

who had told Body to “take his drama elsewhere” because it was creating a 

disturbance and disrupting him and his neighbors. The officers took Body into 

custody under a charge of disorderly conduct. A search incident to arrest revealed 

marijuana. The officers asked if Body had anything on him that would be 

harmful, and Body responded, “I just have some marijuana in my front pocket that 

I just bought.” Several bags of a leafy substance, which tested positive for 

tetrahydrocannabinols (THC), were discovered on Body’s person.

¶4 The criminal complaint alleged one count of disorderly conduct and 

one count of possession of THC, both as repeaters. Body pled guilty to the 

disorderly conduct charge in exchange for dismissal of the THC possession charge 

and no specific sentencing recommendation. The trial court placed Body on one-
No. 2019AP836-CR

3

year probation and withheld sentencing. The terms of probation included 

requirements that Body not commit further crimes or consume alcohol and that he 

report to his probation agent when required.

¶5 On August 7, 2018, the Department of Corrections issued a 

Revocation Order and Warrant, and Body was arrested for violating the terms of 

his probation. Body waived his revocation hearing, and the case was set for 

sentencing on the prior disorderly conduct charge.

¶6 At sentencing, it was noted that the revocation summary was part of 

the record and contained a reference to consumption of alcohol stemming from an 

incident involving domestic violence, which is described further below. No 

separate charges were filed in connection with this incident, but the offenses as 

described in the report were serious. Specifically, it was reported by the probation 

agent that on June 25, 2018, the agent had received an anonymous voicemail 

stating that over the weekend, Body had struck E.M. several times (this was the 

same woman who was part of the original incident for which Body was arrested). 

The next day, the agent received a call from E.M. herself detailing these incidents. 

E.M. reported that Body had come over on June 23, 2018, to visit their six-yearold son. Body left and then returned with a disposable cup from which E.M. took 

a drink, at Body’s suggestion, and realized was vodka. She continued drinking 

with Body and, at some point, Body and E.M. got into an argument. Body spit in 

her face and began hitting her with a closed fist. E.M. further stated that their son 

heard the argument and tried calling 911, but Body grabbed the phone and threw it 

across the room. Body had a similar reaction when E.M. attempted to call 911, 

although she was able to make the call. E.M. was taken to the hospital with a 

possible broken jaw.
No. 2019AP836-CR

4

¶7 At the sentencing hearing, which was before the same judge who 

had previously withheld sentencing, Body did not take issue with the contents of 

the revocation summary, nor did he present evidence concerning the incident 

described in the report or anything else. In addition to the incident that led to the 

revocation, the trial court noted that Body had a lengthy background of incidents 

involving domestic violence. In light of this history, the trial court put sentencing 

over to another day in order to further review the record.

¶8 The adjourned sentencing hearing occurred on August 30, 2018. At 

the hearing, the trial court indicated that it had reviewed the revocation summary,

as well as Body’s record, and that the record demonstrated a propensity for threats 

and violence towards women. Specifically the trial court indicated that his

sentence would be affected by “[Body’s] long involvement with the law and 

persistent involvement with aggressive behavior with women, and to a lesser 

extent, his history of aggressive behavior with the police.” The trial court 

sentenced Body to one year in jail. Body timely filed a postconviction motion for 

resentencing or, in the alternative, sentence modification. The trial court denied 

the motion on April 30, 2019. Body now appeals.
No. 2019AP836-CR

5

The Trial Court Did Not Rely on Improper Sentencing Factors 

in Imposing Body’s Sentence

¶9 “We review a motion for sentence modification by determining 

whether the trial court erroneously exercised its discretion ....” State v. Noll, 2002 

WI App 273, ¶4, 258 Wis. 2d 573, 653 N.W.2d 895. A sentencing court 

erroneously exercised its discretion where it “actually relie[d] on clearly irrelevant 

or improper factors.” State v. Harris, 2010 WI 79, ¶66, 326 Wis. 2d 685, 786 

N.W.2d 409. The defendant bears the burden of proving, by clear and convincing 

evidence, the trial court’s actual reliance on such factors. Id.; see also State v. 

Alexander, 2015 WI 6, ¶17, 360 Wis. 2d 292, 858 N.W.2d 662. Where, as here, 

the challenge is to a sentence after revocation, “we review both the original 

sentencing and the sentencing after revocation ‘on a global basis, treating the latter 

sentencing as a continuum [] of the first.’” State v. Reynolds, 2002 WI App 15, 

¶8, 249 Wis. 2d 798, 643 N.W.2d 165 (2001) (citation omitted). Where, again as 

here, “the same judge presides at both proceedings, the judge ‘should reference the 

prior sentence’ at the sentencing after revocation, but need not ‘restate the reasons 

supporting the original sentencing’ because ‘we will consider the original 

sentencing reasons to be implicitly adopted.’” Id. (citations omitted).

¶10 Body claims that the trial court relied on multiple improper 

sentencing factors, all of which stem from the contents of the revocation packet. 

Initially, Body claims that the revocation packet “was improperly used for a 

gender bias.” In support, Body cites to snippets of the transcript, in which the trial 

court was critical of Body’s interactions with women. According to Body, this 

shows that the trial court relied on an improper sentencing factor—specifically, 

Body’s gender. The portion of the transcript referenced reads, “[Body] seems to 

have interpersonal relationship problems with women and with police officers.” 
No. 2019AP836-CR

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Addressing Body directly, the trial court and Body also engaged in the following 

colloquy:

THE COURT: So now he is back again, and his most 

recent episode for which he was revoked is punching a 

woman repeatedly. 

Do you think that is a manly thing to do? 

MR. BODY: No. 

THE COURT: What do you think other men think of 

someone who slaps a woman around? 

MR. BODY: I don’t think they think highly of them. 

THE COURT: Do you think that is the limit of what they 

think? 

MR. BODY: I can’t presume to know what somebody else 

knows. I can only assume they don’t think highly of them. 

THE COURT: What do you think I think right now? 

MR. BODY: I don’t know. I won’t know until you tell 

me, sir. 

¶11 Although the trial court was clearly troubled by Body’s history of 

violence towards women and apparently wanted to send a strong message to that 

effect, this does not evidence any particular bias towards men. Body cites no 

authority to suggest otherwise. Although gender bias would unquestionably 

constitute an improper sentencing factor, it was not shown on this record in any 

respect, let alone by clear and convincing evidence.

¶12 Next, Body contends that the trial court erred by relying on 

“uncharged allegations” contained in the revocation packet. Body cites no case 

law for this proposition, and in fact the law is directly opposite. 
No. 2019AP836-CR

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¶13 Sentencing courts are required to assess “three primary factors”: the 

gravity of the offense, character of the defendant, and the need to protect the 

public. Alexander, 360 Wis. 2d 292, ¶22. In addition, trial courts are authorized 

to consider additional factors, including 

 (1) Past record of criminal offenses; (2) history of 

undesirable behavior pattern; (3) the defendant’s 

personality, character and social traits; (4) result of 

presentence investigation; (5) vicious or aggravated nature 

of the crime; (6) degree of the defendant’s culpability; 

(7) defendant’s demeanor at trial; (8) defendant’s age, 

educational background and employment record; 

(9) defendant’s remorse, repentance and cooperativeness; 

(10) defendant’s need for close rehabilitative control; 

(11) the rights of the public; and (12) the length of pretrial 

detention.

Id. The court is required to conduct an individualized inquiry with the defendant 

based on the facts of the case. The inquiry “may include ‘identifying the most 

relevant factors and explaining how the sentence imposed furthers the sentencing 

objectives.’” Id. (citation omitted).

¶14 Body claims that the trial court erred by relying on the revocation 

summary as bearing on these factors because it consisted of uncharged and 

unproven offenses. But the fact that the offenses are unproven does not in and of 

itself make their consideration improper. Indeed, our supreme court has 

repeatedly made clear that “[t]he scope of the information that a court may 

consider includes ‘not only uncharged and unproven offenses but also facts related 

to offenses for which the defendant has been acquitted.’” State v. Salas Gayton, 

2016 WI 58, ¶23, 370 Wis. 2d 264, 882 N.W.2d 459 (quoting State v. Frey, 2012 

WI 99, ¶47, 343 Wis. 2d 358, 817 N.W.2d 436).

¶15 Body’s final argument concerning the revocation report is that it 

constitutes hearsay. This argument also fails. No objection was lodged at 
No. 2019AP836-CR

8

sentencing on this basis, meaning the argument was forfeited. In any event, we do 

not see how the trial court could have sustained any such objection. The rules of 

evidence do not apply at sentencing hearings, WIS. STAT. § 911.01(4)(c), and it is 

well established that hearsay may be admitted at such a proceeding, State v. 

Scherreiks, 153 Wis. 2d 510, 521-22, 451 N.W.2d 759 (Ct. App. 1989); State v. 

Mosley, 201 Wis. 2d 36, 45, 547 N.W.2d 806 (Ct. App. 1996).2 

¶16 To the extent this rule opens the door to evidence that might not bear 

directly on the crime for which sentence is being imposed, and evidence that 

would not otherwise be admissible under the rules of evidence, the easy answer is 

that sentencing inherently and routinely involves consideration of such 

information, and defendants seeking a more favorable sentence should obviously 

be prepared to address it. In this case, that would include rebuttal of the 

information in the revocation report, if it was capable of being rebutted.3

The Sentence Was Not Unduly Harsh

¶17 In contesting the harshness of his sentence, Body correctly 

acknowledges both that the standard of review is erroneous exercise of discretion 

 

2 The State argues that the revocation report is also admissible under the public records 

exception contained in WIS. STAT. § 908.03(8), citing State v. Winant, No. 2014AP1944, 

unpublished slip op. (WI App July 21, 2015). In light of our conclusion under WIS. STAT. 

§ 911.01(4)(c), we need not address this issue directly. We do note that unlike in Winant, no 

authenticating witness testified in this case, and further, that Winant involved a civil proceeding 

in which the “hearsay within hearsay” concern is expressly resolved by the express language of 

the public records exception, which allows “in civil cases and against the state in criminal cases,

factual findings resulting from an investigation made pursuant to authority granted by law, unless 

the sources of information or other circumstances indicate lack of trustworthiness.” 

Sec. 908.03(8)(c) (emphasis added). 

3

 To the extent Body did not wish to testify (as was his right) he could have nonetheless 

called witnesses, including E.M., if he believed the uncharged offenses were without merit or that 

her account as described in the revocation report was false.
No. 2019AP836-CR

9

and the strong policy against interference with that discretion. A sentence will be 

deemed unduly harsh only if it is “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. Daniels, 

117 Wis. 2d 9, 22, 343 N.W.2d 411 (Ct. App. 1983); see also State v. 

Grindemann, 2002 WI App 106, ¶31, 255 Wis. 2d 632, 648 N.W.2d 507. 

¶18 Body cannot overcome this high bar. “A sentence well within the 

limits of the maximum sentence is unlikely to be unduly harsh or unconscionable.” 

State v. Scaccio, 2000 WI App 265, ¶18, 240 Wis. 2d 95, 622 N.W.2d 449. 

Therefore, the already high standard for reversal becomes even more difficult to 

overcome in this case. Here the sentence was well below the maximum range, 

which was two years’ imprisonment. Although the trial court exceeded the 

recommendation of the author of the revocation packet, that recommendation is 

not a baseline for what is a legally-permissible sentence. The trial court 

adequately set forth its reasoning for the sentence it chose—a pattern of unlawful 

behavior with a propensity for domestic violence. The trial court further 

elaborated on this reasoning in denying Body’s postconviction motion, noting that 

there was “[n]o precedential authority” for Body’s assertion that a sentence four 

times in excess of the recommended sentence was per se unreasonable and 

unjustified. We agree. There is no basis for reversal.

By the Court.—Judgment and order affirmed.

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

809.23(1)(b)4.