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2006 WI APP 9
COURT OF APPEALS OF WISCONSIN
PUBLISHED OPINION
2004AP2869-CR
Case No.:
2004AP2870-CR
†Petition for review filed
Complete Title of Case:
STATE OF WISCONSIN,
PLAINTIFF-RESPONDENT,
V.
JEREMY D. RUSS,
DEFENDANT-APPELLANT.†
Opinion Filed:                                                            December 21, 2005
Submitted on Briefs:     September 29, 2005
JUDGES:                                                                   Brown, Nettesheim and Anderson, JJ.
Concurred:
Dissented:
Appellant
ATTORNEYS:                                                                On behalf of the defendant-appellant, the cause was submitted on the
briefs of Martha K. Askins, assistant state public defender of Madison.
Respondent
ATTORNEYS:                                                                On behalf of the plaintiff-respondent, the cause was submitted on the
                                                                          brief of Peggy A. Lautenschlager, attorney general, and Christopher G.
Wren, assistant attorney general.




2006 WI App 9
COURT OF APPEALS
NOTICE
DECISION
DATED AND FILED                                                                       This opinion is subject to further editing.   If
published, the official version will appear in
the bound volume of the Official Reports.
December 21, 2005
A party may file with the Supreme Court a
Cornelia G. Clark                                                                     petition to review an adverse decision by the
Clerk of Court of Appeals                                                             Court of Appeals.   See WIS. STAT. § 808.10
and RULE 809.62.
Cir. Ct. Nos.   1996CF345
Appeal Nos.                                                                           2004AP2869-CR
2001CM3350
2004AP2870-CR
STATE OF WISCONSIN                                                                    IN COURT OF APPEALS
STATE OF WISCONSIN,
PLAINTIFF-RESPONDENT,
V.
JEREMY D. RUSS,
DEFENDANT-APPELLANT.
APPEAL  from  judgments  and  an  order  of  the  circuit  court  for
Waukesha County:   MICHAEL O. BOHREN, Judge.   Affirmed.
Before Brown, Nettesheim and Anderson, JJ.
¶1                                                                                    BROWN, J.     This case concerns a deaf person, Jeremy D. Russ,
who was shackled during his plea and sentencing hearing and claims that his
restraints substantially impeded his ability to communicate by sign language.   But




Nos.   2004AP2869-CR
2004AP2870-CR
such a bare allegation is not borne out by the record.   Despite an invitation by the
court to let it know if any communication problems ensued, he never expressed
any  difficulty.    Moreover,  at  the  postconviction  hearing,  he  never  called  his
interpreters to the stand, never called his trial attorney, and did not take the stand
himself.    Rather,  he  merely called  an  expert in sign language  to testify that,
generally speaking, shackles can inhibit sign language communication.   That will
not do.   Russ had the burden to show that he in fact was unable to communicate,
not that he theoretically might have had such difficulty.   The burden is on him, not
the State, to prove a communication lapse.   He has failed to meet his burden.   We
affirm on this issue as well as on a sentencing discretion issue.
¶2                                                                                         This case has a long procedural history that need not be rehashed in
this opinion.   Suffice it to say, Russ had earlier been found to be incompetent due
to  being  developmentally  disabled.     However,  following  a  later  contested
competency hearing, he was found to be competent.   Pursuant to a plea bargain,
Russ agreed to plead guilty to one count of second-degree sexual assault and one
count of lewd and lascivious exposure resulting from two separate complaints.
Other counts were dismissed and read in.
¶3                                                                                         At the plea hearing, Russ’ counsel requested the court to order Russ’
handcuffs removed so that he could sign and communicate if he had questions.
The court denied the request, stating that based on its observations from prior
hearings, Russ communicates adequately with his hands even while shackled.   The
court did say it would reconsider the issue, however, if it became apparent during
the course of the hearing that Russ could not communicate effectively.   Russ had
two interpreters at the hearing, and through the interpreters the court engaged Russ
in a plea colloquy.   The court accepted the pleas, observing that Russ’ responses
through the interpreters were  “proper and intelligent responses to each of my
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Nos.   2004AP2869-CR
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questions” and again opined that based on the court’s observations at this hearing
and others, Russ could sign appropriately.
¶4                                                                                         Following  a  break,  the  court  proceeded  directly  to  sentencing.
Defense counsel renewed her request to have Russ’ handcuffs removed, and the
court  again  denied  that  request.    The  court  sentenced  Russ  to  fifteen  years’
imprisonment on the sexual assault charge and further ordered that it be served
consecutive to a Milwaukee county conviction that he was then serving.   The court
imposed  an  additional  nine-month  consecutive  sentence  for  the  lewd  and
lascivious conviction, along with a restitution order of $160 to the victim of that
charge.   Russ subsequently filed for postconviction relief, asserting that the use of
handcuffs impeded his ability to communicate to such a degree that it prevented
him from being effectively present at the proceedings, denied him the right to
assistance of counsel, and denied him due process.    He also claimed that the
sentence was too harsh.
¶5                                                                                         The court ultimately denied the motion in all respects.   The court
opined  that  it  had  taken  proper  account  of  Russ’  background,  including  his
deafness  and  mental  status.    It  discounted  the  expert’s  testimony  as  purely
theoretical  in  that  her  testimony  had  not  demonstrated  any  link  between  her
theoretical assertions and the actual facts of Russ’ case.   Russ appeals both issues.
We will address the communication claim first and the sentencing discretion issue
second.
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USE OF SHACKLES ON A DEAF DEFENDANT
¶6                                                                                     Russ asserts violations of three different rights:                             (1) his right to due
process; (2) his right to be meaningfully present at the proceeding; and (3) his
right to the assistance of counsel.   A common theme he raises on all three grounds
is the fact that he was handcuffed at the plea hearing and sentencing.   He claims
that because the court refused to remove his restraints, he was effectively rendered
unable to communicate with his attorney and the interpreters in the courtroom.
We are essentially left with the factual issue of whether his shackles did in fact
hinder his ability to communicate at the plea and sentencing hearing.   We note that
Russ seems to argue that the State bears the burden of proof on this issue.   He
states,                                                                                “Jeremy  Russ  should  have  no  more  obligation  to  prove  he  could  not
actually adequately communicate than a hearing and speaking person should have
to prove that by wiring his jaws shut or gagging him, he could not adequately
communicate.”
¶7                                                                                     Which party bears the burden of proof presents a question of law for
our de novo review.   Long v. Ardestani, 2001 WI App 46, ¶36, 241 Wis. 2d 498,
624 N.W.2d 405.   Whether a party has met its burden also presents a question of
law that we review independently.   State v. Brown, 2005 WI 29, ¶37, 279 Wis. 2d
102,  693 N.W.2d  715.    We consider several factors in allocating this burden,
including,  (1) the natural tendency to place the burden of proof on the party
seeking to change the status quo; (2) special policy considerations, such as those
disfavoring particular defenses; (3) convenience; (4) fairness; and (5) the judicial
estimate of probabilities.   See State v. Armstrong, 223 Wis. 2d 331, 349 n.21, 588
N.W.2d 606 (1999), modified, 225 Wis. 2d 121, 591 N.W.2d 604 (Nos. 97-0925-
CR and 97-0926-CR).   Three of these factors predominate here, and they weigh
heavily toward imposing the burden on Russ.    First, it is Russ who seeks to
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Nos.   2004AP2869-CR
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challenge the status quo by asking for resentencing.   Second, convenience and
fairness warrant assigning the burden to Russ.                                               “A doctrine often repeated by the
courts  is  that  where  the  facts  with  regard  to  an  issue  lie  peculiarly  in  the
knowledge of a party, that party has the burden of proving the issue.”   See State v.
McFarren, 62 Wis. 2d 492, 500, 215 N.W.2d 459 (1974) (citation omitted).   This
doctrine holds particularly true where the opposing party would have to prove a
negative and where the fact to be proven relates personally to the accused.   Id. at
500-01.   Whether Russ attempted unsuccessfully to communicate with his counsel,
his interpreters, or the court, relates personally to Russ and lies within his peculiar
knowledge.   Moreover, the State would have to prove a negative if we required it
to show that Russ was never hindered in communicating with anyone.   Cf. Cooper
v. State, 565 N.W.2d 27, 29-31, 34 (Minn. Ct. App. 1997) (affirming conviction of
a deaf defendant who claimed ineffective assistance of trial counsel for failure to
use an interpreter at two-thirds of their pretrial meetings; noting that the defendant
did not claim that he failed to impart any piece of information to his attorney).
¶8                                                                                           State v. Yang, 201 Wis. 2d 725, 549 N.W.2d 769 (Ct. App. 1996),
supports our conclusion.    In Yang, the appellant contended that the trial court
erred when it failed to make a determination that he had a language difficulty that
hindered  his  ability  to  communicate  with  his  attorney,  to  understand  the
proceedings, and to testify in English, such that he needed an interpreter.   Id. at
728.   In affirming the conviction, we placed particular emphasis on the testimony
at the postconviction hearing:                                                               “Neither Yang’s postconviction testimony nor that
of trial counsel persuades us that the trial court’s implicit finding that Yang could
reasonably make himself understood in English is clearly erroneous.”   Id. at 739.
We also noted that, “[t]he details he provided of his inability to communicate in
English are few.”   Id. at 737-38.
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Nos.   2004AP2869-CR
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¶9                                                                                      We hold that Russ has failed to meet his burden.   He called a single
witness to testify at the October 19 postconviction hearing, and she was the sole
witness to testify for either party.    This witness was a deaf woman who used
American Sign Language as her native language and taught college courses on
ASL.    She  explained  that  four  factors,  namely,  palm  orientation,  handshake,
location, and movement, were critical to effectively communicating through sign
language.    She  placed  particular  emphasis  on  location  of  the  hands.           “For
example,” she explained, “the signs for boy and girl respectively must each occur
on the head.   You cannot, for example, use the sign for boy and place it at chest
level.   It would not be understood.”   Signing space for ASL users, according to
this witness, includes the space “roughly between the pelvis and the top of the
head,  and  then  a  few  feet  out  from  the  signer’s  body.”    She  opined  that
communication would be limited and difficult if a deaf person who used sign
language were handcuffed and that in her experience, conversations with people in
handcuffs were very stilted and frustrated:                                             “I saw people going through great
lengths to try to deliver a message that was always never completely free and good
and accurate communication—but always had some  level of  difficulty.”    She
further opined that trying to communicate with someone whose first language is
not ASL would be “almost impossible.”   When asked whether she could give an
opinion as to whether Russ had been able to sign adequately while shackled during
the  plea  and  sentencing  hearing,  however,  she  responded  that  she  could  not
because she had not been there.
¶10    As  the  trial  court  observed,  the  expert’s  testimony—the  only
evidence  presented  at  the  postconviction  hearing—was  purely  theoretical.    It
established  that  Russ  could  have  had  a  very  difficult  time  communicating
information to others in the courtroom.   Russ, however, must prove that he was
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Nos.   2004AP2869-CR
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actually prevented from effectively communicating.   Russ presented no evidence
that the shackles hindered him from imparting any particular piece of information
or from directing questions to anybody in the courtroom.   Neither his trial counsel
nor the interpreters took the stand to attest to their inability at any point during
sentencing  to  understand  Russ; nor  did Russ give  any testimony of  his own.
Moreover, despite the court’s invitation to let it know if the restraints prevented
Russ from communicating adequately, Russ never notified the court of any such
difficulty either personally or through counsel.
¶11    Russ  contends  that  although  the  State  “defends  the  trial  court’s
conclusion that Russ’ arguments are nothing but ‘theory’ … the Supreme Court
was not troubled by ‘theory’ in its just released decision about the shackling of a
defendant during the sentencing phase of a capital murder trial.   Deck v. Missouri,
[125 S. Ct. 2007 (2005)].”   Russ’ reliance on Deck is misplaced.   Although the
court did comment that shackles could interfere with the right to communicate
with counsel, see id. at 2013, this observation was dicta and not the reason the
court vacated the sentence.   Rather, the court was primarily concerned with the
prejudicial effect of shackles.   See id. at 2014.   Deck involved the use of shackles
in the presence of a jury in the sentencing phase of a capital murder case.   See id.
at 2009-10.   Here there was no jury that the use of shackles could have prejudiced.
¶12    We wish to emphasize that we base our holding solely on Russ’
failure to meet his burden of proof, not on the trial court’s assessment of Russ’
ability  to  communicate  based  on  its  personal  observations  in  the  courtroom.
Although we considered such evidence relevant to our decision in Yang, see Yang,
201 Wis. 2d at 739, in that case the trial court heard Yang speak in English, a
language the court understood.   Nothing in the record indicates that the court here
understood  Russ’  sign  language.     All  communication  was  filtered  through
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Nos.   2004AP2869-CR
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interpreters.   Thus, however appropriate and intelligent his responses may have
seemed, the court had no way of knowing whether they were, in fact, responses to
what the court actually said.   Anything could have been lost in the translation, and
the court was in no position to discern where any disconnect may have occurred.
ALLEGATION OF MISUSE OF SENTENCING DISCRETION
¶13    Russ also asserts that the court erroneously exercised its discretion in
imposing sentence.   He complains that it imposed a harsh sentence and did not
adequately explain its reasons for the sentence, as required by State v. Gallion,
2004 WI 42, 270 Wis. 2d 535, 678 N.W.2d 197.   We disagree.
¶14    This court observes a strong policy of deferring to the sentencing
discretion of a trial court, presuming the sentence to be reasonable unless the
defendant can demonstrate from the record that the court acted unreasonably.
State v. Mosley,  201 Wis.  2d  36,  43,  547 N.W.2d  806  (Ct. App.  1996).    The
sentencing court must address three primary sentencing factors, namely, the nature
of the offense, the offender’s character, and the need to protect the public, and
may also consider any other relevant factors.   See State v. Harris, 119 Wis. 2d
612, 623-24, 350 N.W.2d 633 (1984).   The sentencing court has the discretion to
balance the various factors as it sees fit.   State v. Jones, 151 Wis. 2d 488, 495, 444
N.W.2d 760 (Ct. App. 1989).   The court must, however, explain the reasons for
the particular sentence it imposes, providing a  “rational and explainable basis”
therefor.   Gallion, 270 Wis. 2d 535, ¶¶39, 76 (citations omitted).   The “rational
and explainable basis” requirement allows this court to ensure that discretion was
in fact exercised.    See id., ¶76.
¶15    In explaining its rationale for these sentences, the court noted that
the offenses were dangerous, violent offenses.   Russ had grabbed two different
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Nos.   2004AP2869-CR
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women  in  a  park  and  fondled them while  they struggled to get  free.    These
incidents occurred within days of each other.   Moreover, it considered that Russ’
illegal behavior in the cases before the court spanned from a period of  1996
through at least September of 2001.   The court found several factors particularly
important.   First, it mentioned the nature of the offenses and described the first of
the assaults.   It analyzed that incident as follows:                                       “That’s not a haphazard or an
incidental contact.   It’s using force.   It’s using violence to maintain control of a
woman.   Similar type conduct is described in Count Two which occurred also at
Frame Park.”   It then went on to recount the second incident and concluded, “That,
too, is a violent, assaultive contact with a stranger in a park.   It’s not an incidental
contact.   It clearly wasn’t meant to be a mistaken approach in an attempt to be
friendly.   It’s assaultive.   It’s dangerous.   It reflects poorly upon your character,
two incidents within several days.”   Commenting further on Russ’ character and
the community’s need for protection, the court observed Russ’ impulsiveness.
From everything that the Court knows about you, you’re
impulsive.    You’re  not  able  to  control  your  emotions,
unable to control your desires.
You  deal  with  yourself,  what  your  own  needs  are
without  regard  to  what  is  in  the  community,  what
community norms are….
Clearly, the community needs to be protected from you.
It needs to be protected from the assaultive nature, from
your inability to take care of yourself and to beha[ve].   Just
to operate as a civil person in a park, to operate civilly, and
within the norms of society of any place that you happen to
be.
¶16    The court also expressed concern for Russ’ rehabilitation but noted
that any such rehabilitation was primarily Russ’ responsibility and would have to
occur in a controlled setting.                                                              “Society can do its part to rehabilitate you and give
you the opportunities to make changes,” the court explained,  “But while that’s
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happening, society has to know that you’re not on the streets.   You’re not in a
position to be assaultive and to conduct yourself violently toward others….   It’s
clear that you are unable to function in society without having severe controls
which are only available within an incarcerated setting.”    In discussing Russ’
impulsive nature, the court noted that it was taking into account Russ’ background,
which it had read in the various psychological reports it had received and which
included                                                                                     “deprivations   [Russ]  may  have  suffered  earlier  in  life.”    The  court
explained that it made the sentences consecutive for several reasons, including
protection of the community, the nature of the offenses, and the fact that each
offense was separate:
I’ve  made  each  of  these  sentences  consecutive,  first,
because  they  are  separate  offenses.    They  are  separate
incidents,  separate  dangerous  incidents,  for  which  there
must be separate punishment.   A concurrent sentence on
any of these matters diminish the seriousness  of what’s
occurred and diminishes the protection the public will have
from your future conduct.
¶17    Contrary to Russ’ claim that nowhere in the record did the court
explain why a sentence of fifteen years would promote its goal of rehabilitation
while protecting the public, the court did explain its rationale.   It clearly stated that
concurrent sentences would unduly diminish the seriousness of the offenses as
well as public protection.   We also reject Russ’ implicit argument that a sentencing
court must explain with mathematical precision why it chose the specific number
of years.   The court did not have to explain why twelve years would not do and
why fifteen would.   As we recently indicated in State v. Fisher, 2005 WI App
175, ¶¶21-22, ___ Wis. 2d ___, 702 N.W.2d 56, defendants are not entitled to this
degree of specificity.   Indeed, we noted that even in Gallion the supreme court had
upheld a sentence in which the sentencing judge had not specifically explained
how the factors before the court translated into a specific number of years.   See
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Nos.   2004AP2869-CR
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Fisher, 702 N.W.2d 56, 21-22; Gallion, 270 Wis. 2d 535, ¶¶53-55.   We affirm on
this issue.
By the Court.—Judgments and order affirmed.
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Nos.                                                                                     2004AP2869-CR(C)
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¶18    ANDERSON, J.                                                                      (concurring).      I fully agree with the majority
opinion.   I write separately to register some added concerns about the practice of
routinely  shackling  or  otherwise  physically  restraining  defendants  when  they
appear before a judge or jury.
¶19    Before   fleshing   out   these   concerns,   I   wish   to   stress   my
understanding  of  the  reasons  behind  Waukesha  county’s  policy  of  routinely
shackling defendants.   The violent courtroom incidents that have taken place in
Waukesha county, elsewhere in the State, and across the country have served as
reminders that trial judges often will need to take some sort of action to protect the
jury,  the  courtroom  personnel,  the  spectators,  the  defendants  and  the  judges
themselves.    See Lisa Sink, Fight costs Amaro bid for parole, MILWAUKEE J.
SENTINEL,                                                                                August                                                         15,                                                           2000,   available   at
                                                                                                                                                        http://www.jsonline.com/news/wauk/aug00/parole16081500a.asp                       (discussing
“[o]ne of Waukesha County’s most notorious criminals,” Filemon Amaro Jr., who
shot  and  killed  two  sheriff’s  deputies  while  appearing  before  Judge  Neal
Nettesheim  in                                                                           1978);  Gina  Barton,  Ex-Deputy  shot  by  defendant  sues,
MILWAUKEE      J.     SENTINEL,                                                          April                                                          18,                                                           2005,   available   at
http://www.jsonline.com/news/metro/apr05/319429.asp  (exploring  2002  incident
where the defendant, after being convicted of homicide and armed robbery, leapt
into the jury box and gained control of a security officer’s gun before being fatally




Nos. 2004AP2869-CR(C)
2004AP2870-CR(C)
shot by a police detective); Tom Kertscher, Judge calls for talks on whether guns
should be banned in court, MILWAUKEE J. SENTINEL, May 29, 2002, available at
http://www.jsonline.com/news/metro/may02/47183.asp (citing several instances of
courtroom violence in Milwaukee area history); Atlanta courthouse killer hunted,
March                                                                                     11,                                                 2005,   available               at
                                                                                          http://www.jsonline.com/news/nat/mar05/308964.asp           (discussing  a  March   2005
incident at an Atlanta courthouse where a rape suspect overpowered a sheriff’s
deputy and used her gun to kill a judge, a court reporter and a second sheriff’s
deputy).   Bearing in mind the tragedy that can result if judges do not have the
ability to protect themselves and their courtrooms, see Deck v. Missouri, 125 S.
Ct.  2007,  2014  (2005), I turn to the problems that accompany the decision to
physically restrain defendants on a routine basis.
¶20    Courts have recognized the danger to a criminal defendant in being
required  to  appear  before  a  jury  in  physical  restraints.    See  id.  at          2012-13
(discussing “judicial hostility to shackling”).   In particular, courts have found that
the appearance of the defendant in restraints would prejudice the jury, causing
jurors to believe that the person was dangerous thereby impairing the presumption
of innocence.   See Illinois v. Allen, 397 U.S. 337, 344 (1970); United States v.
Zuber, 118 F.3d 101, 103 (2d Cir. 1997); Duckett v. Godinez, 67 F.3d 734, 747
(9th Cir. 1995).
¶21    Thus, in order to comport with due process, courts have held that the
presiding judge must engage in a two-step process before approving the use of
physical restraints on a defendant in a jury trial.   See Zuber,  118 F.3d at 103;
Duckett, 67 F.3d at 748.   First, a presiding judge must perform an independent
evaluation of the need to restrain the party for purposes of maintaining security
and order in the courtroom.   See Zuber, 118 F.3d at 103; Duckett, 67 F.3d at 748.
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Nos. 2004AP2869-CR(C)
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This independent evaluation may require an evidentiary hearing.   See Zuber, 118
F.3d at 103.   Second, where restraints are deemed necessary, the presiding judge
must take steps to limit their prejudicial effect, including a consideration of less
restrictive alternatives.   See id.; Duckett, 67 F.3d at 748; Spain v. Rushen, 883
F.2d 712, 721 (9th Cir. 1989).   Some courts have held that these requirements
apply with equal force in the context of jury sentencing—that is, where juries
perform the task of imposing or recommending a particular sentence.   See Zuber,
118 F.3d at 103; Duckett, 67 F.3d at 746-47.   See also Deck, 125 S. Ct. at 2014-15
(holding “courts cannot routinely place defendants in shackles or other physical
restraints visible to the jury during the penalty phase of a capital proceeding”).
Courts,  however,  have  declined  to  extend  the  rule  requiring  an  independent,
judicial evaluation of the need to restrain a party in court to the context of nonjury
sentencing proceedings.   See Zuber, 118 F.3d at 104.   This is in part because juror
bias  constitutes  the  paramount  concern  justifying  these  requirements  and  we
traditionally  assume  that  trial  judges,  unlike  juries,  are  not  prejudiced  by
impermissible factors.   See id.
¶22    However,  the  possibility  that  jurors  will  be  prejudiced  by  the
presence of physical restraints is not the sole rationale for placing strict limitations
on their use in court.    Courts have offered numerous reasons for holding that
defendants should be in physical restraints only in extraordinary cases.    They
include:
(1)   Physical restraints may cause jury prejudice, reversing
the presumption of innocence;
(2)   Shackles may impair the defendant’s mental faculties;
(3)    Physical  restraints  may  impede  the  communication
between the defendant and his [or her] lawyer;
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Nos. 2004AP2869-CR(C)
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(4)   Shackles may detract from the dignity and decorum of
the judicial proceedings; and
(5)   Physical restraints may be painful to the defendant.
Spain, 883 F.2d at 721 (citation omitted).   These concerns, with the exception of
the first, are all potentially present when a defendant appears in court before a trial
judge.   This is especially true in a case such as the one before us here where a
defendant is physically or mentally handicapped.
¶23    In  light  of  these  additional  concerns,  I  suggest  that  physically
restraining a defendant regardless of whether he or she is appearing before a judge
or a jury should be the exception, saved only for extraordinary cases, rather than
the rule.   See Allen,  397 U.S. at  344  (shackles should only be used as a  “last
resort”).   I encourage trial judges to exercise discretion in ordering a defendant to
be physically restrained not only during a trial, but also during plea taking and
sentencing.   In the exercise of their discretion, judges should assess the extent of
the  limitations  that  would  be  present  if  restraints  were  applied,  taking  into
consideration  all  of  the  potential  problems  listed  above,  and  then  weigh  the
benefits  and  burdens  of  restraining  against  other  possible  less  restrictive
alternatives.   See Spain, 883 F.2d at 721.   An approach such as this, where the
particularities of  each individual case  are  assessed,  strikes the  proper  balance
between  maintaining  the  safety  and  security  of  those  in  the  courtroom  and
upholding the defendant’s constitutional rights.
4

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