State v. Clifford Jr. Ray, III

COURT OF APPEALS
DECISION NOTICE
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.
November 11, 2025
A party may file with the Supreme Court a
Samuel A. Christensen 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.

Appeal No. 2024AP430-CR Cir. Ct. No. 2020CF2732

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT I

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

CLIFFORD JR. RAY, III,

DEFENDANT-APPELLANT.

APPEAL from a judgment and an order of the circuit court for
Milwaukee County: FREDERICK C. ROSA, Judge. Affirmed.

Before Colón, P.J., Donald, and Geenen, 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. 2024AP430-CR

¶1 PER CURIAM. Clifford Jr. Ray, III, appeals the judgment
convicting him of aggravated battery with intent to cause great bodily harm. He
also appeals the order denying his motion for resentencing. We affirm.

BACKGROUND

¶2 The State charged Ray with aggravated battery with intent to cause
great bodily harm as a repeater and with a domestic abuse surcharge. Following a
bench trial, the court found Ray guilty as charged.

¶3 The circuit court found that on the day of the crime, Ray drank
heavily with the victim and the victim’s aunt. There was an altercation, Ray left,
and when he returned to get his keys, he attacked the victim. The court
determined that the victim “sustained very, very serious injuries,” constituting
“serious bodily injury.” The court credited the victim’s testimony that Ray hit her
in the face with a speaker and a bottle.

¶4 The aggravated battery charge carried a maximum sentence of ten
years of initial confinement and five years of extended supervision. With the
repeater enhancer, Ray was subject to a maximum sentence of 16 years of initial
confinement and 5 years of extended supervision.

¶5 During the sentencing hearing, the victim recounted the personal
injuries and financial struggles she sustained from Ray’s assault. The State
emphasized the toll of the injuries, which required “days and hours going to
appointments, surgery, hospitals, cosmetic clinics, facial reconstruction.” The
State emphasized that the victim may still lose her eye and that she would never
heal from the injuries.

2
No. 2024AP430-CR

¶6 The State recommended that the court impose a sentence of 16 or 17
years, bifurcated into 11 or 12 years of initial confinement and 5 years of extended
supervision. The State detailed Ray’s criminal history and argued that there was a
need to protect the public based on Ray’s “history of violence to women.”

¶7 Ray’s trial counsel asked the circuit court to consider the brief nature
of the encounter, that Ray and the victim were heavily intoxicated, Ray’s
employment and training history, his course completions, and that his extended
supervision was revoked because of this case. Counsel recommended three to four
years of initial confinement and three to four years of extended supervision, to run
concurrently with Ray’s sentence in his revocation case.

¶8 The circuit court sentenced Ray to 13 years of imprisonment,
bifurcated into 8 years of initial confinement and 5 years of extended supervision.
In arriving at its sentence, the circuit court started by noting that the charge “is
very serious, aggravated battery. There’s a penalty enhancer that applies here
which is particularly relevant.” The court then turned to the facts of the assault,
and it stated that although the victim’s statements were inconsistent, the evidence
showed that a “speaker had blood on it” and a bottle was recovered. The court
recounted the victim’s injuries in detail, including: “loose teeth, broken nose, face
fractures, blown orbital fracture, split eyelid, permanent ocular nerve damage
causing blindness in [the] left eye, nerve damage on the left side of [the] face
causing numbness for life.” The court also observed that the victim says “she’s
faced with the choice of whether she has her eye removed and has a prosthetic
inserted or whether she leaves things as they are, which is basically an eye which
apparently is not functional.” The court thus concluded that Ray caused the victim
“serious permanent disfigurement.”

3
No. 2024AP430-CR

¶9 In assessing Ray’s character, the circuit court found that Ray has “a
history of violence” and “a pattern of behavior towards women which is very
concerning and extremely violent.” The court also stated that although Ray had
“been through the court system a few times,” whatever was done for rehabilitation
“didn’t stick because [he] found [him]self in this situation again.” The court noted
Ray’s job history and also that Ray had not taken responsibility for what he did to
the victim.

¶10 The circuit court stated that “there is definitely a need to protect the
public” from Ray given the offense and his “prior record of assaultive behavior.”
The court rejected trial counsel’s recommendation for a concurrent sentence
because it “would unduly depreciate the seriousness of the offense.” The court
noted that Ray knew he had revocation “time hanging over [his] head” and still
committed this very serious offense. The court additionally observed that the
State’s recommendation “is not a max sentence because of the habitual enhancer.”
In its concluding remark, the court stated: “[T]he only reason I didn’t impose the
11 or 12 years [of initial confinement] that [the State] requested is because of the
alcohol component here and because of the immediate incarceration upon
commission of this offense.”1

¶11 Ray filed a postconviction motion requesting the circuit court to
vacate both the penalty enhancer and the domestic abuse surcharge and resentence
him. Ray highlighted the court’s articulated reasoning for the imposed sentence;
specifically, the court’s reliance on the wrong maximum penalty, and its

1
Ray served a revocation sentence while this case was underway.

4
No. 2024AP430-CR

consideration of the unproven penalty enhancer as “particularly relevant” to its
determination.

¶12 The circuit court partially granted the postconviction motion by
vacating the penalty enhancer and the surcharge while denying resentencing. It
agreed to vacate the penalty enhancer because the State did not prove the prior
conviction beyond a reasonable doubt and because Ray never personally admitted
it. The court went on to adopt the State’s concession that the parties were not in a
qualifying domestic relationship so as to justify the domestic abuse surcharge and
vacated it.

¶13 The circuit court, however, denied resentencing. The court stated in
its decision that its sentencing goals were not frustrated by the fact that the
repeater conviction was not properly proven and that the statutory domestic
relationship did not exist. The court explained that it did not add penalty enhancer
time to Ray’s sentence and that, at sentencing, it was “focused on the horrific
injuries to the victim, the controlling dynamic in her relationship with the
defendant, and his pattern of behavior towards women, which was ‘very
concerning and extremely violent.’” The court concluded there was a need to
protect the public, and after considering all of the sentencing factors, “eight years
was the minimum amount of confinement time necessary to adequately address its
concerns.” This appeal follows.

DISCUSSION

¶14 “Sentencing decisions are afforded a presumption of reasonability
consistent with [this court’s] strong public policy against interference with the
circuit court’s discretion.” State v. Harris, 2010 WI 79, ¶30, 326 Wis. 2d 685,
786 N.W.2d 409. Review by this court is deferential, limited to whether “the

5
No. 2024AP430-CR

circuit court erroneously exercised its discretion.” Id. Due to the presumption of
reasonableness, the defendant bears a “heavy burden” of proving an erroneous
exercise of discretion. Id. An erroneous exercise of discretion occurs when a
sentencing court considers an inapplicable penalty enhancer. State v. Denia
Harris, 119 Wis. 2d 612, 624-25, 350 N.W.2d 633 (1984).

¶15 Precedent indicates that resentencing is not warranted when the
sentence imposed is below the maximum amount of time applicable to the
underlying offense—unless the sentencing court relies on the enhancer. For
instance, in State v. Farr, 119 Wis. 2d 651, 350 N.W.2d 640 (1984), our supreme
court explained:

The trial judge erred in finding the defendant guilty as a
repeater on this record; however, he did not use the repeater
provision in enhancing the defendant’s sentence, since he
did not increase the sentence beyond the ten years [i.e., the
maximum sentence allowed for the charged offense] which
were available.

Id. at 661. Meanwhile, in Denia Harris, although the imposed sentence was less
than the maximum, our supreme court concluded that the circuit court relied on the
repeater provision when it expressly stated that it took the enhancer “into
consideration” and imposed six months in consideration of the defendant’s
repeater status. Id., 119 Wis. 2d at 625. The Denia Harris court deemed this an
erroneous exercise of sentencing discretion. Id.

¶16 Here, Ray argues that resentencing is necessary because the vacated
penalty enhancer was a part of the circuit court’s sentencing rationale. He
highlights that the court began its articulated rationale by stating that the “penalty
enhancer … is particularly relevant.” According to Ray, this shows that the court
gave this factor explicit attention and used it to fashion Ray’s sentence.

6
No. 2024AP430-CR

¶17 Additionally, Ray points to the following remark by the circuit court:
“[T]he only reason [the court] didn’t impose the 11 or 12 years [of initial
confinement] that [the State] requested is because of the alcohol component here
and because of the immediate incarceration upon commission of this offense.”
According to Ray, “[t]he only reasonable conclusion” to be drawn from this
statement is that the court deducted the weight apportioned to mitigating factors
from the enhanced recommendation requested by the State. He submits: “[H]ad
the court understood that the State’s recommendation exceeded the maximum, it
may have reasonably imposed a sentence 3-4 years shorter than the applicable
maximum, rather than 3-4 years less than the enhanced penalty.” We are not
convinced that this conclusion, which hinges on conjecture, is the only reasonable
one.

¶18 Instead, a straightforward interpretation of this remark is that the
circuit court declined to apply the enhancer altogether because of the mitigating
factors. This interpretation is consistent with the rest of the court’s sentencing
remarks. The circuit court’s focus on the Gallion factors, coupled with the
absence of any language agreeing the enhancer should increase the sentence,
suggest that the court decided not to apply the enhancer.2

¶19 While not dispositive on the issue, our conclusion is bolstered by the
court’s remarks in its decision denying Ray’s postconviction motion. See State v.
Vinson, 183 Wis. 2d 297, 315, 515 N.W.2d 314 (Ct. App. 1994) (concluding the
circuit court “clarified [its] intention” that it was not imposing a repeater
enhancement such that reversal under Denia Harris was unwarranted); see also

2
See State v. Gallion, 2004 WI 42, ¶40, 270 Wis. 2d 535, 678 N.W.2d 197.

7
No. 2024AP430-CR

State v. Fuerst, 181 Wis. 2d 903, 915, 512 N.W.2d 243 (Ct. App. 1994)
(explaining that a postconviction motion challenging a sentence affords the circuit
court an opportunity to “clarify its statements” regarding its rationale). Ray has
not shown clear evidence that the court’s explanation in its postconviction
decision was an after-the-fact rationalization of an erroneous sentence. See State
v. Robinson, 2014 WI 35, ¶48, 354 Wis. 2d 351, 847 N.W.2d 352 (“[T]aking
judges at their word is a fundamental assumption built into our legal system. In
the absence of clear evidence to the contrary, we decline to assign improper
motive on the part of the circuit court.”).

By the Court.—Judgment and order affirmed.

This opinion will not be published. See WIS. STAT.
RULE 809.23(1)(b)5.

8