State v. Sunny Sisavangone

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.
September 30, 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. 2024AP1-CR Cir. Ct. No. 2020CF1348

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT I

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

SUNNY SISAVANGONE,

DEFENDANT-APPELLANT.

APPEAL from a judgment and an order of the circuit court for
Milwaukee County: DAVID L. BOROWSKI and DAVID C. SWANSON,
Judges. 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. 2024AP1-CR

¶1 PER CURIAM. Sunny Sisavangone appeals from a judgment of
conviction and an order denying his postconviction motion.1 On appeal,
Sisavangone seeks a new sentencing hearing before a different judge on the
grounds that the trial court was objectively biased and erroneously exercised its
discretion at sentencing. We reject Sisavangone’s arguments and affirm.

BACKGROUND

¶2 According to the criminal complaint, on March 31, 2020,
Sisavangone and another man, Andrew,2 got into an argument about a missing
key.3 When Andrew attempted to leave in his truck, Sisavangone poured gasoline
on Andrew and the truck, and lit the truck on fire. When Andrew jumped out of
the truck, his body caught on fire and he suffered severe burns. The incident was
caught on video.

¶3 Sisavangone was charged with: (1) arson of a property other than a
building; and (2) attempted first-degree intentional homicide. Subsequently,
Andrew died from his injuries at the hospital, and the State filed an amended
information changing the attempted homicide count to first-degree intentional
homicide.

1
The Honorable David L. Borowski presided over the plea and sentencing hearings in
this case. The Honorable David C. Swanson decided the postconviction motion. We refer to
Judge Borowski as the trial court and Judge Swanson as the postconviction court.
2
Although Andrew is a homicide victim, we use a pseudonym to protect his family’s
privacy interests. See WIS. STAT. RULE 809.86(3) & (4) (2023-24). All references to the
Wisconsin Statutes are to the 2023-24 version.
3
Sisavangone later discovered that someone other than Andrew took the key.

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No. 2024AP1-CR

¶4 Sisavangone entered a guilty plea to one count of first-degree
reckless homicide. In exchange, the State agreed to dismiss and read-in the arson
count, and to recommend thirty to forty years of initial confinement.

¶5 Prior to sentencing, the Department of Corrections filed a
presentence investigation report (PSI) recommending that the court sentence
Sisavangone to seven to nine years of initial confinement and three to four years of
extended supervision. The defense submitted a sentencing memorandum and a
mental health evaluation from Dr. Deborah L. Collins.

¶6 At sentencing, the State played the video of the offense, and
pursuant to the plea agreement, requested that the trial court impose thirty to forty
years of incarceration. The defense argued that the court should follow the PSI’s
recommendation of seven to nine years of initial incarceration and impose a term
of extended supervision “a little bit longer than three years.” The defense
emphasized that Sisavangone was a first-time offender without a history of anti-
social behavior, accepted responsibility, was remorseful, and was “hardworking,
willing to help.” The defense also noted that Sisavangone had “mental health
issues coupled with substance abuse problems,” which played a role in the offense.

¶7 The trial court sentenced Sisavangone to twenty-five years of initial
confinement followed by ten years of extended supervision. The court explained
that in this case, punishment is a “significant portion” of the sentence because
“[y]ou don’t get to set people on fire and kill them[.]” The court discussed the
video of the offense, Sisavangone’s mental health issues, his use of illegal
substances, his acceptance of responsibility, his lack of a criminal record, and his
work history. The court found that the PSI’s recommendation was inappropriate.

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No. 2024AP1-CR

The court observed that Sisavangone was probably a “moderate to low” risk to
reoffend, but “the gravity of this offense is off the charts.”

¶8 Subsequently, Sisavangone filed a postconviction motion requesting
a new sentencing hearing before a different judge.4 Sisavangone argued that the
trial court erroneously exercised its discretion because the court approached the
decision with a “made-up mind”; the court “diminished” Sisavangone’s mental
health and drug abuse issues; and the court made remarks “suggesting that [it] was
personally offended by the recommendation of [the] presentence investigator.”

¶9 The postconviction court denied Sisavangone’s motion. The court
found that “[a] review of the sentencing transcript demonstrates that [the trial
court] did not erroneously exercise its discretion[.]” The court explained that:

The full context of [the trial court’s] remarks, spanning
almost twenty pages of transcript, demonstrate that he
thoroughly and thoughtfully considered the relevant
sentencing factors, including the defendant’s mental health
issues, and that he did not approach sentencing with a mind
made up. T[w]o, the court finds nothing improper about
[the trial court’s] comments regarding the PSI writer’s
recommendation of seven to nine years of initial
confinement, which was grossly disproportionate to the
gravity of the offense. Those comments were directed to
the PSI writer and not the defendant or his attorney.

¶10 Sisavangone now appeals. Additional relevant facts are discussed
below.

4
We note that the title on Sisavangone’s postconviction motion states the motion is to
“Modify Sentence.” The body of the motion, however, requests a new sentencing hearing before
a different judge. On appeal, Sisavangone confirms that he seeks a new sentencing hearing, so
we do not examine whether he is entitled to sentence modification.

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No. 2024AP1-CR

DISCUSSION

I. Objective Bias

¶11 On appeal, Sisavangone argues that the trial court approached
sentencing with a “made-up mind” and thus was objectively biased. In support,
Sisavangone first points to the trial court’s sentencing remarks that:

Had this case gone to trial, had the defendant not accepted
responsibility, had he been convicted of first-degree
intentional, I guarantee the State asks for and I give life
with no parole. This is not the same as every reckless
homicide in Milwaukee, and the defendant does deserve
credit for pleading guilty, and I will certainly factor that
into my sentence, and I am factoring that into my sentence,
but he got an amendment in this case to first-degree
reckless. Life in prison was taken off the table, and I will
address this further.

Sisavangone argues that this passage reflects the trial court “pre-determined that
life in prison without eligibility for supervised release was an appropriate
sentence” and the trial court was critical of the State’s decision to amend the
charge.

¶12 A defendant has a due process right to be sentenced by an impartial
judge. State v. Goodson, 2009 WI App 107, ¶8, 320 Wis. 2d 166, 771 N.W.2d
385. Objective bias exists in two situations: (1) “where there is the appearance of
bias”; and (2) where objective facts demonstrate that a judge treated a party
unfairly. Id., ¶9 (citations omitted).

¶13 Whether a judge is objectively biased is a question of law that we
review independently. State v. Herrmann, 2015 WI 84, ¶23, 364 Wis. 2d 336,
867 N.W.2d 772. When evaluating a claim of judicial bias, we presume that a

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No. 2024AP1-CR

judge has acted “fairly, impartially, and without prejudice.” Id., ¶24. A defendant
may rebut this presumption by showing bias by a preponderance of evidence. Id.

¶14 Here, we disagree with Sisavangone that the trial court’s remarks
show objective bias. When reviewing the trial court’s comments in their entirety,
we are not persuaded that the court made up its mind prior to sentencing. The
court’s comment regarding life in prison was made after the court heard the
parties’ arguments and Sisavangone’s allocution, watched the video of the offense,
and stated that the video reflected that this was a “heinous, brutal, vicious
attack[.]” Cf. Goodson, 320 Wis. 2d 166, ¶1 (finding bias based on a warning
about the receipt of a maximum sentence that was given by the trial court prior to
a reconfinement hearing); State v. Gudgeon, 2006 WI App 143, ¶¶1, 26, 295
Wis. 2d 189, 720 N.W.2d 114 (finding bias based on a statement in writing made
by the trial court “long before” a hearing took place); State v. Marcotte, 2020 WI
App 28, ¶19, 392 Wis. 2d 183, 943 N.W.2d 911 (finding bias when the trial court
warned the defendant that if he was not successful in drug court he would be
sentenced to prison if the defendant returned for sentencing after revocation of his
probation).

¶15 In addition, contrary to Sisavangone’s argument, the trial court did
not say anything detrimental about the State’s decision to amend the charge.
Rather, the court observed that Sisavangone had received a reduction in his
sentencing exposure in exchange for entering a plea.

¶16 Second, Sisavangone complains about the trial court’s comments
regarding the PSI. During sentencing, the trial court stated:

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No. 2024AP1-CR

The recommendation from the PSI and the defense, with all
due respect, is completely inappropriate. How the
Department of Corrections can with a straight face on
behalf of the DOC,… on behalf of the citizens of the state,
recommend seven to nine years for burning someone to
death. I don’t understand it. It frankly makes me want to
wretch. They should have to account for that sentence.
They should have to account for that recommendation.
They should have to explain it, and the three to four years
of extended supervision which is recommended, and even
the defense conceded that’s not appropriate, is even more
ridiculous. I mean it’s just wildly inappropriate. I can
understand the State’s dismay and disbelief. I can
understand the victim’s family dismay and disbelief.

¶17 As Sisavangone acknowledges, a trial court may reject a
recommendation in a PSI. State v. Montroy, 2005 WI App 230, ¶12, 287 Wis. 2d
430, 706 N.W.2d 145 (stating that “a sentencing court is not bound by the PSI’s
sentencing recommendation”), overruled on other grounds by State v. Tiepelman,
2006 WI 66, ¶2, 291 Wis. 2d 179, 717 N.W.2d 1. However, Sisavangone does not
sufficiently explain, nor do we observe, how the trial court’s disagreement with
the PSI’s recommendation suggests that the court was not approaching the
sentencing decision fairly. Although the court’s remarks were critical of the PSI’s
recommendation, we are not convinced the remarks demonstrate objective bias.

II. Erroneous Exercise of Discretion

¶18 Sisavangone also argues that the trial court erroneously exercised its
discretion at sentencing. In particular, Sisavangone contends that the court
“diminish[ed] the importance of [his] mental health issues” and statistics “have no
bearing upon the role that [his] mental health issues played in his offense.”

¶19 Prior to the sentencing hearing, Sisavangone presented a mental
health evaluation completed by Dr. Collins. The evaluation diagnosed
Sisavangone with major depressive disorder, persistent depressive disorder, and a

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No. 2024AP1-CR

substance-related disorder involving the use of alcohol, marijuana, ecstasy,
opioids, and stimulants, and observed that since Sisavangone’s arrest and
incarceration, he “has been initiated on an antidepressant agent.” The report
opined that Sisavangone would benefit from continued compliance with
psychiatric treatment, periodic re-evaluations of his medication, referral to a dual-
diagnoses program targeting education and relapse prevention, assistance
clarifying his educational, vocation, and employment goals, monitoring to ensure
that he does not have access to weapons, and the ability to foster his relationships
with his family members.

¶20 At sentencing, in regards to Sisavangone’s mental health issues, the
trial court stated:

The defendant … has mental health needs which he’s
addressed over the years by using illegally every illegal
substance and drug he can get his hands on, never once
addressing it appropriately. Maybe there were a couple of
attempts, but never addressing it appropriately, instead
medicating with drugs and alcohol and meth and cocaine
and every illegal drug possible.

And as the victim’s family says “mental health
needs are not fixed by the criminal justice system.” That’s
right. They’re not. As an individual you have to take
responsibility. Again, correct. Not all people with mental
health problems commit crimes. Again, correct. In fact,
statistics show those 80 to 90 percent of people with mental
health issues don’t commit crimes.

The court later remarked that, “Maybe, Mr. Sisavangone, had you been a law-
abiding citizen, maybe had you done something with your life other than snort
cocaine and use meth and drink and literally be a non-productive citizen, there
would be better reports here.”

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No. 2024AP1-CR

¶21 “It is a well-settled principle of law that a [trial] court exercises
discretion at sentencing.” State v. Gallion, 2004 WI 42, ¶17, 270 Wis. 2d 535,
678 N.W.2d 197. A court may consider a variety of 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., ¶43 n.11 (citation omitted). On appeal, we will affirm a discretionary decision
if the trial court “examined the relevant facts, applied a proper standard of law,
and, using a demonstrated rational process, reached a conclusion that a reasonable
judge could reach.” Loy v. Bunderson, 107 Wis. 2d 400, 414-15, 320 N.W.2d 175
(1982).

¶22 Here, the trial court properly took into consideration Sisavangone’s
mental health and found that this did not mitigate the severity of his crime. A trial
court has discretion to determine how much weight to assign the factor considered.
State v. Fisher, 2005 WI App 175, ¶20, 285 Wis. 2d 433, 702 N.W.2d 56.

¶23 Moreover, to the extent that Sisavangone suggests that the trial court
should have placed him in “[c]ommunity based treatment and case management
services” based on Dr. Collins’s report, the court was not required to adopt any
such recommendation. State v. Slagoski, 2001 WI App 112, ¶9, 244 Wis. 2d 49,
629 N.W.2d 50, abrogated in part on other grounds by State v. Harbor, 2011 WI
28, 333 Wis. 2d 53, 797 N.W.2d 828.

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No. 2024AP1-CR

¶24 Lastly, in regards to the trial court’s reference to mental health
statistics, this was simply a response to the victim’s family’s impact statement that
mental health needs are not fixed by the criminal justice system. The fact that the
majority of people with mental health issues do not commit crimes is a matter of
simple common knowledge. Sisavangone does not assert that this statistic was
inaccurate. See Tiepelman, 291 Wis. 2d 179, ¶9.

¶25 Therefore, for the reasons stated above, we reject Sisavangone’s
arguments and we affirm.

By the Court.—Judgment and order affirmed.

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

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