State v. Anthony John Valdez

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.
March 24, 2026
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. 2023AP2055-CR Cir. Ct. No. 2021CF135

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT I

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

ANTHONY JOHN VALDEZ,

DEFENDANT-APPELLANT.

APPEAL from an order of the circuit court for Milwaukee County:
DAVID C. SWANSON, Judge. Affirmed.

Before White, C.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. 2023AP2055-CR

¶1 PER CURIAM. Anthony John Valdez appeals from an order
denying his motion for postconviction relief. Valdez argues that he is entitled to
resentencing or sentence modification because the circuit court relied on inaccurate
information at sentencing and because the court was objectively biased. Valdez also
seeks relief based on structural error and plain error, and ineffective assistance of
counsel. We affirm because Valdez has not met his burden to prove sentencing on
inaccurate information and has not overcome the circuit court’s presumed
impartiality.

BACKGROUND

¶2 On July 10, 2020, Valdez drove his vehicle at speeds of up to 110
miles per hour and collided with a red Dodge Journey occupied by I.V. and M.V.
The Dodge Journey was “damaged almost beyond recognition” and came to rest on
its side “wrapped around the post of an overhead traffic signal.” I.V. and M.V. died
of blunt force trauma. Valdez’s blood tested positive for delta-9-
tetrahydrocannabinol (THC). Valdez admitted driving but claimed that he was
fleeing a driver who had pointed a gun at him. His passenger made a similar
statement.

¶3 The State charged Valdez with two counts of homicide by intoxicated
use of a vehicle and two counts of second-degree reckless homicide. The parties
later reached a plea agreement under which Valdez would plead guilty to two
amended counts of homicide by negligent operation of a vehicle and the State would
recommend ten years of initial confinement. The circuit court expressed concern
about the reduction in charges and the proposed recommendation, but reiterated that
Valdez remained presumed innocent and stated multiple times that “each case is
different.” The circuit court asked for additional corroborating information to

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support the negotiated resolution. Trial counsel filed a memorandum in support of
the plea negotiations. At the next hearing, the circuit court accepted the plea
agreement.

¶4 Valdez pleaded guilty to two counts of homicide by negligent
operation of a vehicle. Valdez submitted a private presentence investigation report
(PSI), which recommended an overall sentence of six to eight years of initial
confinement and eight years of extended supervision.

¶5 At sentencing, the State recommended ten years of initial
confinement. Valdez’s counsel recommended five to six years of initial
confinement and argued that Valdez’s youth, character, and family support
warranted a lesser sentence. The circuit court described the crash scene as chilling,
addressed the circumstances of the offense, and discussed Valdez’s background,
including his limited criminal record, compliance on bail, and young age. The court
credited Valdez for accepting responsibility and concluded that the gravity of the
offense was a “10” because two people were killed. The court sentenced Valdez on
each count to four years of initial confinement and four years of extended
supervision, consecutive, for a total of eight years of initial confinement.

¶6 Valdez filed a postconviction motion alleging that the circuit court
had predetermined a long prison sentence and relied on inaccurate information about
sentence lengths in other vehicular homicide cases. Valdez also asserted that the
court committed plain error and structural error and that counsel was ineffective for
failing to seek disqualification. The postconviction court denied the motion,
concluding that Valdez did not overcome the presumption of impartiality and did
not prove reliance on inaccurate information.

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No. 2023AP2055-CR

ANALYSIS

¶7 A defendant has a due process right to be sentenced on accurate
information. State v. Tiepelman, 2006 WI 66, ¶9, 291 Wis. 2d 179, 717 N.W.2d 1.
To obtain resentencing, the defendant must prove by clear and convincing evidence
both that information at sentencing was inaccurate and that the circuit court actually
relied on the inaccurate information. State v. Coffee, 2020 WI 1, ¶¶37-38, 389
Wis. 2d 627, 937 N.W.2d 579. In determining whether a circuit court actually relied
on inaccurate information, we examine the whole sentencing transcript. State v.
Alexander, 2015 WI 6, ¶29, 360 Wis. 2d 292, 858 N.W.2d 662.

¶8 Valdez argues that the circuit court relied on inaccurate information
in two ways: by referencing other cases and crime statistics unrelated to vehicular
homicide and by suggesting that similar conduct often results in lengthy prison
sentences. The State responds that Valdez forfeited any claim about inaccurate
crime statistics by failing to raise it in his postconviction motion. We agree.
Forfeiture occurs when a party fails to raise an objection in the circuit court. State
v. Mercado, 2021 WI 2, ¶35, 395 Wis. 2d 296, 953 N.W.2d 337. Arguments raised
for the first time on appeal are forfeited. Townsend v. Massey, 2011 WI App 160,
¶¶19-27, 338 Wis. 2d 114, 808 N.W.2d 155. Valdez’s postconviction motion
challenged the circuit court’s alleged prejudgment and its alleged inaccurate
understanding of sentencing lengths in other vehicular homicide cases. It did not
challenge the circuit court’s broader comments about crime data or raise a notice-
based due process claim related to those comments. Accordingly, we decline to
address that claim.

¶9 Even if we were to address Valdez’s crime-data argument, the record
does not show actual reliance. The circuit court imposed an individualized sentence

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No. 2023AP2055-CR

based on the proper sentencing factors. See Alexander, 360 Wis. 2d 292, ¶22. The
circuit court accepted mitigating evidence related to the circumstances of the crash,
credited Valdez’s limited criminal record and compliance on bail, noted his youth,
and credited his acceptance of responsibility. The court then assessed the gravity of
the offense and imposed consecutive sentences within the statutory limits and below
the State’s recommendation. On this record, Valdez has not shown by clear and
convincing evidence that the circuit court relied on any broader crime statistics in
fashioning the sentence. See Coffee, 389 Wis. 2d 627, ¶38.

¶10 Valdez also argues that the circuit court relied on inaccurate
information when it referenced sentencing outcomes in other vehicular homicide
cases. The postconviction court rejected this argument, concluding that Valdez’s
submissions did not demonstrate reliance on inaccurate information and that the
circuit court was speaking anecdotally from its experience. We agree with the State
that Valdez has not established actual reliance on inaccurate information. Our
supreme court has expressly endorsed sentencing courts considering information
about the distribution of sentences in similar cases. State v. Gallion, 2004 WI 42,
¶47, 270 Wis. 2d 535, 678 N.W.2d 197. Valdez’s postconviction submissions—
including selected cases and aggregated data—do not demonstrate that the circuit
court’s comments were materially inaccurate or that they formed the basis for the
sentence imposed in this case. The sentencing transcript reflects that the circuit
court grounded its sentence in the unique facts of Valdez’s offense and Valdez’s
character, including the mitigating circumstances the court credited.

¶11 Valdez also argues that the circuit court was objectively biased
because it allegedly prejudged that Valdez would receive a prison sentence. A
defendant has a due process right to an impartial judge, and we presume that a judge
acts fairly and without bias. State v. Goodson, 2009 WI App 107, ¶8, 320 Wis. 2d

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No. 2023AP2055-CR

166, 771 N.W.2d 385. To overcome that presumption, the party asserting bias must
prove it by a preponderance of the evidence. State v. McBride, 187 Wis. 2d 409,
415, 523 N.W.2d 106 (Ct. App. 1994). Objective bias requires an appearance of
bias that reveals a great risk of actual bias, or objective facts showing unfair
treatment. Goodson, 320 Wis. 2d 166, ¶9.

¶12 Here, the record does not show that the circuit court prejudged
Valdez’s sentence in a manner that overcomes the presumption of impartiality. The
circuit court’s initial skepticism about the plea agreement does not establish bias
because a circuit court may reject a plea agreement it deems not in the public
interest. State v. Conger, 2010 WI 56, ¶27, 325 Wis. 2d 664, 797 N.W.2d 341. The
circuit court requested additional information supporting the plea agreement,
reiterated that Valdez remained presumed innocent, and stated that each case is
different. The circuit court ultimately accepted the negotiated plea agreement. At
sentencing, the circuit court considered the PSI, heard the parties’ arguments, and
imposed a sentence below the State’s recommendation and consistent with the PSI
recommendation. These circumstances do not demonstrate objective bias or an
unalterable commitment to a predetermined sentence.

¶13 Finally, because Valdez did not meet his burden to establish
sentencing on inaccurate information or objective bias, he has not demonstrated
entitlement to relief on his remaining theories. The postconviction court correctly
denied Valdez’s claims of structural error and plain error and ineffective assistance
of counsel.

By the Court.—Order affirmed.

This opinion will not be published. See WIS. STAT.
RULE 809.23(1)(b)5. (2023-24).

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