### COURT OF APPEALS DECISION DATED AND FILED June 1, 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 W IS . S TAT . § 808.10 and R ULE 809.62.

Appeal No. 2021AP751
- CR Cir. Ct. No. 2019CF56 STATE OF WISCONSIN IN COURT OF APPEALS DISTRICT III

S TATE OF W ISCONSIN , P LAINTIFF - R ESPONDENT ,
V . J USTIN M. C HURCH , D EFENDANT - A PPELLANT .

APPEAL from a judgment and an order of the circuit court for Forest County: LEON D. STENZ , Judge. Affirmed

.

Before Stark, P.J., Hruz and Gill, JJ.
¶ 1 STARK, P.J. Justin M. Church appeals from a judgment convicting him of one count of possession of methamphetamine , as a repeater, and from an order denying his postconvi ction motion for resentencing. Church argues that he is entitled to resentencing because the circuit court prejudged the outcom e o f hisNo. 2021AP751

- CR

2 sentencing hearing . He base s his argument on a comment the court made about prison at a pretrial hearing. The State argu es that the court’s comment was made in jest

— as a joke or sarcastic remark

— and did not demonstrate objective bias. W e conclude that the court’s comment alone, and in the context that it was made, does not demonstrate objective bias, and we therefore affirm.

BACKGROUND
¶ 2 Church was a passenger in a vehicle that was stopped by law enforcement for speedin g. Initially, Church provided officers with a false name, and a search of his person revealed a syringe in his pocket containing a clear liquid , which later tested positive for methamphetamine. The State charged Church with one count of obstructing an of ficer and one count of possession of methamphetamine, both as a repeater. 1
¶ 3 During a July 24, 2019 final pretrial conference , at which Church was not pr esent , the State presented its pl ea offer to the circuit court: the State

a greed to dismiss and read in at sentencing the charge of obstructing an officer in exchange for Church’s plea to possession of methamphetamine. The State would then recommend a six

- year sentence, bifurcated as four years’ initial incarceration and two years’ extended supervision, and Church was free to argue at sentencing

.

1 The State also originally charged Church with pos session of drug paraphernalia. Church filed a motion to dismiss that count of the criminal complaint, arguing that possession of a hypodermic syringe is excluded from the definition of drug paraphernalia under W IS

. S TAT

. § 961.571(1)(b)1. (2019

- 20). The State subsequently filed an Info rmation with only the counts for obstructing an officer and possession of methamphetamine.
All references to the Wisconsin Statutes are to the 2019

- 20 version unless otherwise noted.No. 2021AP751

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3 During the parties ’ discussi on regarding scheduling the plea hearing, the following exchange occurred:

[Defense Counsel] : And I note, again, this case is regarding a syringe that tested po sitive for methamphetamine. THE COURT: What? [Defense Counsel] : The offense possession of meth was a syringe that tested positive for methamphetamine. [The State] : Sounds like possession to me. THE COURT: Sound like prison, agree, [State] ? (General lau ghter.) [The State] : Abs olutely someone is going to go.
¶ 4 Five months later, at the plea and sentencing hearing, the circuit court accepted Church’s guilty plea to possession of methamphetamine and convicted him. The court moved immedia tely to sentencing, with the State abiding by i ts agreement to recommend a six

- year bifurcated sentence and defense counsel arguing for probation rather than prison

. ¶ 5 During argument, defense counsel again referenced the facts of the case, noting that “one syringe that was loaded with methamphetamine [was found].... That’s what the possession of meth is arising out of. Not multiple bindles. Not multiple syringes packaged for sale. It was one syringe. And given those facts, I don’t b elieve probation unduly depreciates the s eriousness of these offenses.” Church also exercised his right of allocution, admitting his serious substance abuse problems

. After considering the parties’ arguments and the proper sentencing factors, the circuit court adopted the State’s recommendation of a six

- year bifurcated sentence , consecutive to any other sentence

.No. 2021AP751

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4 ¶ 6 Church filed a postconviction motion seeking resenten cing before a different judge. His motion alleged that the circuit cou rt ’s statement at the July 24, 2019 hearing

— “sound [ s ] like prison”

— “and the follow through on that statement at [s]entencing overcomes the presumption of impartiality

. ”
¶ 7 At a hearing on Church’s motion , t he circuit court found tha t the record did not support Church’s claim that it had prejudged Church’s sentence. According to the court, the comment was a “sarcastic statement” or a “joke , ” and those in the courtroom “recognized that it was a joke” and laughed “because
everyone understood that it was not a promise or unequivocal designation that Mr. Church was going to prison.” T he court denied Church’s motion. C hurch appeals.

DISCUSSION
¶ 8 On appeal, Church renews his claim that the circuit court prejudged his sentence and was therefore biased at sentencing

. As an initial matter, we note that the Stat e argues that Church forfeited his judicial bias claim by not objecting to the court’ s statement either at the pretrial hearing when it occurred or during sentencing. Rel ying on State v. Klapps , 2021 WI App 5, ¶ ¶ 17, 25, 395 Wis. 2d 743, 954 N.W.2d 38 (2020) , 2 the State argues that “Church tested the mind of the circuit court and waited until after he received his sentence to decide that an isolated comment in a pretrial hearing months pr ior demonstrated judicial bias.

2 Church argues in his reply brief that the State’s reliance on State v. Klapps , 2021 WI App 5, 395 Wis. 2d 743, 954 N.W.2d 38 (2020) , is misplaced, as Klapps was decided after Church was s entenced on December 11, 2019. Although Church is correct that Klapps was decided after Church was sentenced , w e disagree that the State’s reliance was improper , as the propositions the State relied on in Klapps are long standing and we ll known under the forfeiture doctrine

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5 This is the type of testing of the circui t court that the forfeiture rule seeks to prevent.” See also State v. Marhal , 172 Wis. 2d 491, 505, 493 N.W.2d 758 (Ct. App. 1992) (“A challenge to a judge’ s right to adjudicate a matter must be made as soon as the alleged infirmity is known and prior to the judge’s decision on a contested matter.”). Church disagrees, arguing that “[f] orfeiture should not be applied to a defendant’s fundamental constitutional right to an impartial tribunal” and that “predetermined sent encing is a structural error.”
¶ 9 We agree that the record is void of an objection to the circuit court’s comment either at the pretrial hearing or at sentencing. H owever, we need not decide whether a timely objection is required to preserve a claim for appeal. Regardless o f whether a party must contemporaneously object to preserve a claim of a due process violation based on judicial bias, we have the authority to disregard forfeiture arguments and a ddress the claim on the merits. We choose to exercise that authority here. See State v. Erickson , 227 Wis. 2d 758, 766, 596 N.W.2d 749 (1999) (“[T]he [forfeiture] rule is one of judicial administration and ... appellate courts have authority to ignore the [forfeiture].”).
¶ 10 “ A fair trial in a fair tribunal is a basic requirement of due process.” In re Murchison , 349 U.S. 133, 136 (1955); see also State v. Herrmann , 2015 WI 84, ¶25, 364 Wis. 2d 336, 867 N.W.2d 772 (plurality opinion) . Thus, a criminal defendant has a due proc ess right to an impartial judge. State v. Goodson , 2009 WI App 107, ¶8, 320 Wis. 2d 166, 771 N .W.2d 385. “We presume a judge has acted fairly, impartially, and without bias; however, this presumption is rebuttable.” Id. The burden falls on the party al leging judicial bias to demonstrate bias by a preponderance of the evidence. Herrmann , 364 Wis. 2d 336, ¶24. There are two tests to evaluate whether a defendant has rebutted the presumption: subjective and objective. Goodson , 320 Wis. 2d 166, ¶8.No. 2021AP751

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6 ¶ 11 In this case, Church claims that the circuit court was objectively bias ed , and we will therefore limit our discussion to that issue

. “ The United States Supreme Court has established that a serious risk of actual bias can objectively rise to the le vel of a due process violation.” Miller v. Carroll , 2020 WI 56, ¶22, 392 Wis

. 2d 49, 944 N.W.2d 542. A reviewing court must “assess whether ‘under a realistic appraisal of psychological tendencies and human weakness,’ the [court’s] interest ‘poses such a risk of actual bias or prejudgment that the practice must be forbidden if the guarantee of due process is to be adequately implemented.’” Id. , ¶22 (quoting Caperton v. A.T. Massey Coal Co. , 556 U.S. 868, 883

- 84 (2009)). Thus, o ur s upreme court recently clarified that an objective bias claim focuses on whether there is “a serious risk of actual bias

— based on objective and reasonable perceptions.” Id. , ¶24 (quoting Caperton , 556 U.S. at 884 ). 3 “‘Due process requires an objective inq uiry’ into whether the circumstances ‘would offer a possible temptation to the average

... judge
to

... lead him [or her] not to hold the b alance nice, clear and true.’” Id. (quoting Caperton , 556 U.S. at 885). “ [I] t is the exceptional case with ‘extreme facts’ which rises to the level of a ‘serious risk of actual bias.’” Id. (quoting Caperton ,

3 Our supreme court’s recent decision in Miller v. Carroll , 2020 WI 56, ¶25 n.18, 392 Wis. 2d 49, 944 N.W.2d 542, highlights a disagreement within the development of judicial bias jurisprude nce over the last two decades. One position “relies on the exact language used by the United States Supreme Court in” Caperton v. A.T. Massey Coal Co. , 556 U.S. 868 (2009). Mille r , 392 Wis. 2d 49, ¶¶22, 24

- 25 & n.18 (“We ask whether there is ‘a serious risk of actual bias

— based on objective a nd reasonable perceptions.’” (citation omitted) ). Conversely, the other side advocates for an “appearance of bias” framework that asks wheth er the “appearance of bias reveals a serious [or great] risk of actual bias.” Id. , ¶¶41

- 42, 51 (A.W. Bradley, J., concurring); see also State v. Herrmann , 2015 WI 84, 364 Wis. 2d 336, 867 N.W.2d 772 (plurality opinion); State v. Goodson , 2009 WI App 107, ¶14, 320 Wis. 2d 166, 771 N.W.2d 385; State v. Gudgeon , 2006 WI App 143, ¶23, 29 5 Wis. 2d 189, 720 N.W.2d 114. Under either test, the standard that a party asserting judicial bias must demonstrate to overcome the presumption of impartiality is “a serious risk of actual bias.” For that reason, going forward, we will use the language relied on by Caperton and Miller

.No. 2021AP751

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7 556 U.S. at 886

- 87). Whether the circuit court was objectively biased presents a question of law t hat this court reviews d e novo. Herrmann , 364 Wis. 2d 336, ¶23.
¶ 12 Church argues that “[t] he circuit court’s comment shows a great risk that it had determined what sentence it would impose in this case five months before the sentencing hearing. ” According to C hurch, the court’s statement of “[s]ound [ s ] like prison” at the July 24, 2019 h earing and its resulting follow

through in imposing a prison sentence “ overcomes t he presumption of impartiality.” He claims that “[a] reasonable person would conclude that the circuit court made a decision about Mr. Church’s sentence months before the actual sentencing hearing and [would] question the court’s impartiality. ” Church relies primarily on two cas es in support of his position: State v. Gudgeon , 2006 WI App 143, 295 Wis. 2d 189, 720 N.W.2d 114 , and Goodson

. ¶ 13 The State counters that the circuit court’s isolated comment in this case does not rise to the level that would lead a reasonable person to believe that the court prejudged Church’s sentence under Gudgeon , Goodson , or their
progeny
. The State argues that Church’s reliance on Goodson and Gudgeon in support of his claim is unavailing as “Church fails to explain how the circuit court’s isolated comment here rises to the level of the expressly d esired outcome in Gudgeo n or the unequivocal promise of a particular sentence in Goodson .” For the reasons that follow, we agree that “based on objective and reasonable perceptions,” including the nature of the court’s statement and the context in which t he statement was made, a reasonable person would not likely conclude that the court had prejudged Church’s sentence

. See Miller , 392 Wis. 2d 49, ¶24 (citation omitted)

. Church therefore fails to show a serious risk of actual bias.No. 2021AP751

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8 ¶ 14 In G udgeon , the defendant was convicted of operating a vehicle without the owner’s consent and owed a substantial amount in restitution as a result. Gudgeon , 295 Wis. 2d 189 , ¶¶2

- 3. Gudgeon was ordered to pay the restitution as a condition of probation. Wh en his probation was about to expire, Gudgeon’s agent sent a letter to the circuit court requesting that the court convert the restitution obligation to a civil judgment rather than extend Gudgeon’s supervision. Id. , ¶ 3. The court replied in a hand writte n note at the bottom of the letter, “No

— I want his probation extended , ” and sent copies to the parties. Id. There, we agreed that the court’s note did not establish actual bias. Id. , ¶25. In assessing “[t] he appearance of partiality , ” however, we c oncl uded that because the note “signifie[d] a personal desire on the court’s part” to extend probat ion, a reasonable person would “ discern a great risk that the [circuit] court

... had already made up its mind to extend probation long before the extension hearing took place.” Id. , ¶26.
¶ 15 Relying on our decision in Gudgeon , in Goodson we also determined that there was an impermissible appearance of bias. In Goodson , when the defendant was originally sentenced to prison, he was warned by the circuit court that if his extended supervision or probation was ever revoked, “ you are going to come back here, and you are going to get the maximum.” Goodson , 320 Wis. 2d 166, ¶¶1

- 2. Goodson’s extended supervision was later revoked, and,

a s promised, the court sentenced him to the maximum sentence

. Id. , ¶ ¶1, 5

. At the reconfinement hearing, the court stated its decision was “pretty easy,” explaining that its decision was based on “ the agreement you and I had back at the time that you were sentenced.” Id. , ¶ 5.
¶ 16 We concluded that these facts constituted objective bias . We explained that “[a] reasonable person would conclude that a judge would intend toNo. 2021AP751

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9 keep such a promise

— that the judge had made up his mind abou t Goodson’s sentence before the reconfinement hearing.” Id. , ¶13. Thus, t he circuit court impermissibly prejudged the defendant’s reconfinement sentence by

“ unequivocally promis[ing] to sentence Goodson to the maximum period of time if he v iolated his su pervision rules.” Id.
¶ 17 Similarly, in State v. Lamb , No. 2017AP1430

- CR, unpublished slip
op. ¶11 (WI App Sept. 25, 2018), 4 we also concluded that the defendant had demonstrated objective bias by showing a serious risk that the circuit court had prejudged his sentence. There, Lamb entered a no

- contest plea to battery by a prisoner, and the circuit court was aware that the par ties planned to recommend probation

. Id. , ¶¶1, 14. A t Lamb’s sentencing hearing , prior to any argument by counsel or allocution by Lamb, the court inquired as to whether Lamb was making a knowing and intelligent decision to forgo a possible plea withdraw al request

. Id. , ¶ ¶ 5 , 14

. L amb stated that he wa s comfortable doing so in part because there was a “possibility of leaving today.” Id. , ¶ ¶5, 14. The court immediately stated, “Not really,” and it told the defendant not to harbor any “false hopes.” Id. The court then repeated ly told the defendant that his release to probation was “probably not going to happen.” Id. We concluded those statements demonstrated a serious risk that the judge “ had already made up his mind about what kind of sentence Lamb would receive.” Id. , ¶16.
¶ 18 Finally, in Marcotte , like in Goodson , the circuit court “ warned Marcotte that if he was not successful in drug court, there would be ‘no mercy’

4 Pursuant to W IS

. S TAT

. R ULE 809.23(3)(b), authored, unpublished opinions issued on or after July 1, 2009, may be cited for their persuasive value.No. 2021AP751

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10 when Marcotte returned to court for sentencing after revocation of his probatio n.” Marcotte , 392 Wis. 2d 183, ¶5. Specifically, the court stated, “[D]ischarge from the [drug court] program means you get sentenced and you go to Dodge,” meaning prison at Dodge Correctional Institution. Id. , ¶ 4. Relyi ng on Gudgeon , Goodson , and Lamb , we c oncluded that the circuit court’s remarks “ gave rise to the appearance of bias evidenc ing a great risk of actual bias.” Marcotte , 392 Wis. 2d 183, ¶ ¶20

- 24. While the State in that case attempted to distinguish Goodso n , arguing that there was no promise of a specific term o f incarceration, we disagreed. We explained, “[O] ur conclusion in Goodson that the court was objectively biased did not turn on the specificity of its promise. Instead, our decision was based on the fact that the court told the defendant what would happen if his extended supervision was revoke d, rather than merely explaining what could happen.” Marcotte , 392 Wis. 2d 183, ¶24.
¶ 19 Applying the legal pr inciples discusse d above to this case , we conclude that the nature of the circuit court’s statements and the context in which they were made do not revea l a serious risk of actual bias

. T he common element in each of the case s discussed above was the court’s express and un equivocal statement of either its desired outcome, as in Gudgeon , or an affirmation of what would happen, as in Goodson , Lamb , and Marcotte , that led to our conclusions that the court had prejudged the sentence. That common element is missing here

. ¶ 20 We agree with the State that t he circuit court’s statement that “possession” of methamphetamine “[s]ound [ s ] like prison” was at most the court expressing an opinion that possession could lead to prison, not that the court had clearly mad e up its mind. See Marcotte , 392 Wis. 2d 183, ¶24. This comment was not a clear expression that the court wanted or had decided on a particularNo. 2021AP751

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11 outcome. Without more, t he court’s isolated comment would not lead a reasonable person to believe that the court had prejudged the sentence.
¶ 21 T he context in which the circuit court’s comment was made also informs our decision

. T he record reflects that the discussion followed the defense attorney’s statement that “this case is regarding a syr inge that tested positive for methamphetamine, ” perhaps foreshadowing counsel’s later argument at sentencing that from the defense perspective, the circumstances of the case were not particularly aggravating

. The State then responded , “ Sounds like possess ion to me.” The court’ s comment followed: “Sound[s] like prison, agree, [State]?” The exchange resulted in laughter and no objection by defense counsel

. As the court

s tated at the postconviction motion hearing, the comment could appropriately be labele d as a “sa rcastic statement” or a “joke,” made at the expense of the State. Or, as argued by the State, the comment could be viewed as made at the expense of defense counsel

. As the court noted, t he resulting laughter suggested that others recognized the statement as a sarcastic comment or a joke

. ¶ 22 Church responds that there is no exception to the objective bias test for humor or sarcasm

. We agree that ou r case law does not provide an exception for humor w here bias is concerned , but w e recogniz e that our review is based on

“ objective and reasonable perceptions .” See Miller , 392 Wis. 2d 49, ¶24 (citation omitted)

. As the State aptly noted , “[a] reasonable person would not view a statement that spurred laughter in the courtroom to be one that the circuit court meant as a genuine prejudgment of the outcome. ” Stated differently, under the circumstances here , there was no like li hood that anyone present, or this court on review, would understand that the court had decided to sentence Ch urch to prison based only on this comment

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12 ¶ 23 Finally, Church argu es that even if the circuit court “ intended the
statement as humor or a sarcastic question,” that fact “ does not alter the
appearan ce of bias that the statement created when the sentence five months later matches the statement. ” W e are unpersuaded. As the State contends , “[a] judicial bias claim goes to the circuit court’s ability to adjudicate a given case, not its discretio n to impose a certain sentence.” See Marhal , 172 Wis. 2d at 505. Thus, the statement itself should be the determining factor, not the ultimate outcome. Otherwise, any prison sentence ordered here , no matter how appropriate under the proper factors, woul d be considered evidence of bias.
¶ 24 In any event, the record of the senten cing hearing support s our conclusion that the circuit court’s comment did not evidence a serious risk of actual bias

. See Gudgeon , 295 Wis. 2d 189, ¶ 26 ( explaining that “nothing in the transcript of the extension hearing would dispel” concerns regarding objective bias ). Prior to sentencing Church, t he cour t heard the parties’ arguments . The State , arguing for prison, noted Church’s significant criminal history and highlighted Church’s failure both on prob ation and extended supervision. In arguing for probation, d efense counsel positively cited Church’s “steady work history,” his status as a vet eran, and that he is a father. Counse l also admitted that Church “suffers from a horrible, horrible substance use addiction,” but he discussed Church’s participation in “programming while in prison” and stated that he believes Church is “taking [hi s addiction] serious[ly] now.” Church was al lowed his right of allocution, during which he adm itted his substance abuse issues and explained that he has “done a substantial amount of time, and the pri son time doesn’t seem to help.”
¶ 25 The circuit court then considered proper sentenc ing factors, see State v. Gallion , 2004 WI 42, ¶¶39

- 46, 270 Wis. 2d 535, 678 N.W.2d 197, andNo. 2021AP751

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13 emphasized Church’s “very significant and serious criminal history” that “indicates he’s a danger to the community and that he has little regard for the
consequenc es of his actions.” T he court end ed its remarks by explaining , “I disagree that this is a probation case. Probation would certainly unduly depreciate the seriousness of the crime. It would not be consistent with the consideration of Church’s character and criminal his tory. This is a prison case.” At no time did the court reference the discussion of prison at the previous pretrial hearing, as the court did in Goodson , 320 Wis. 2d 166, ¶5. Nor did the court address its thoughts on whether th is was a probation case versus a prison case at sentencing prior to reviewing the parties’ submissions and hearing arguments , as did the court in Lamb , No. 2017AP1430

- CR, ¶5. O ur review of the recor d demonstrates that the court properly considered the par ties’ arguments and the proper sentencing factors in making its decision, rather than having prejudged the outcome.
¶ 26 W e conclude , on this record and under the relevant case law , that Church has failed to overcome th e presumption of impa rtiality. We note that the circuit court’s comment was ill

- advised and troubling to this court, and we caution against the use of humor under circumstances such as these in the future

. However, Church has not demonstrated by a preponderance of the evidence that the court prejudged his sentence as in Goodson , Gudgeon , and their progeny, nor has he otherwise shown this to be an “exceptional case” with “extreme facts” that “rises to the level of a ‘serious risk of actual bias. ’” See Miller , 392 Wis. 2d 49, ¶24 (citation omitted ). We therefore reject Church’s claim of judicial bias.

By the Court.

— Judgment and order affirmed.
Not recommended for publication in the official reports.