State v. Ferris Jerry Booker, Jr.

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.
June 20, 2023
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. 2022AP449-CR Cir. Ct. No. 2017CF966

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT I

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

FERRIS JERRY BOOKER, JR.,

DEFENDANT-APPELLANT.

APPEAL from a judgment and an order of the circuit court for
Milwaukee County: T. CHRISTOPHER DEE, Judge. Affirmed.

Before Brash, C.J., Donald, P.J., and White, J.

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. 2022AP449-CR

¶1 PER CURIAM. Ferris Jerry Booker, Jr., appeals a judgment
convicting him of armed robbery with use of a dangerous weapon as a party to a
crime, and an order denying his postconviction motion. Booker contends that his
codefendant’s criminal record is a new factor entitling him to sentence
modification. We disagree, and affirm.

BACKGROUND

¶2 In November 2016, Johnny L. Pickens went to H.W. and L.H.’s
residence and asked to buy one of their Pit Bull puppies. H.W. and L.H. told
Pickens that the puppies were not for sale and Pickens left. Several hours later,
Pickens returned with Booker and an unnamed codefendant, who had a gun. The
three men forced their way into H.W. and L.H.’s house and took five puppies.

¶3 In December 2016, Booker stole K.S.’s vehicle without his consent.
In January 2017, Booker called K.S. and said that if K.S. wanted the vehicle back,
he needed to meet Booker with $600. K.S. and his seventy-year-old mother, D.S.,
went to meet Booker to get the car back. Upon arrival, Booker approached D.S.,
pointed a pistol at her, and said, “Give me the fucking money.” Booker then hit
D.S. on her left hand with the gun and took $600 from her. That same month,
Booker fired multiple shots towards his ex-girlfriend, K.J.-T., with whom he
previously lived. Several days later, at an after-bar party, Booker took a pistol
from K.M. without her consent.

¶4 Based on this conduct, Booker was charged with nine counts: armed
robbery with use of a dangerous weapon as a party to a crime and a repeater;
operating a motor vehicle without the owner’s consent as a repeater; first-degree
recklessly endangering safety with use of a dangerous weapon as a repeater and
with the domestic abuse assessment; three counts of possession of a firearm by a

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No. 2022AP449-CR

felon; theft of moveable property as a repeater; robbery with use of a dangerous
weapon as a repeater; and aggravated battery to a person sixty-two years of age or
older as a repeater.

¶5 Booker entered a guilty plea to one count of armed robbery with use
of a dangerous weapon as a party to a crime. The rest of the counts were
dismissed or dismissed and read-in. The State also dismissed and read-in two
charges from a separate criminal case. As part of the plea agreement, the State
agreed to leave the sentence up to the court.

¶6 At Booker’s sentencing, defense counsel informed the circuit court
that Pickens, Booker’s co-actor, had entered a guilty plea to robbery with threat of
force as a party to a crime, and the court had sentenced Pickens to twenty-seven
months of initial confinement and forty-eight months of extended supervision for
his role in stealing the Pit Bull puppies. According to defense counsel, Pickens
had initiated the robbery in response to a drug debt that the victims owed to him,
and police reports indicated that Pickens was the individual who had forced the
door open during the robbery. Defense counsel requested that the court sentence
Booker to twenty-four months of initial confinement and forty-eight months of
extended supervision consecutive to a revocation sentence.

¶7 In response, the State argued that the circuit court should not
consider Pickens’ sentence in sentencing Booker because it was irrelevant, but
even if the court did, Pickens was convicted of robbery with threat of force, not
armed robbery like Booker. The State also noted that the court did not know
Pickens’ criminal history.

¶8 Defense counsel responded that parity in sentencing was relevant,
and the circuit court knew Pickens’ sentence because the same court had sentenced

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No. 2022AP449-CR

him. The court confirmed its understanding that Pickens’ sentence was relevant,
and that the court did sentence Pickens.

¶9 Ultimately, the circuit court sentenced Booker to 132 months of
initial confinement and 72 months of extended supervision consecutive to a
revocation sentence. In its sentencing remarks, the court characterized the armed
robbery as “very dangerous conduct” because someone could have been hurt or
killed. The court observed that Booker previously received prison time and
extended supervision and that did not deter him. In addition, the court
distinguished Booker from Pickens because Pickens did not have a juvenile or
adult record.

¶10 Booker filed a motion for postconviction relief requesting sentence
modification because the circuit court mistakenly believed at his sentencing that
Pickens had no prior criminal record. The motion alleged that Pickens was
previously convicted in Wisconsin of two counts of entry into a locked vehicle and
received a four month jail sentence. He also had a conviction for operating a
motor vehicle without owner’s consent. On that conviction, the court imposed and
stayed twelve months of jail and imposed three years of probation, from which
Pickens was revoked. Additionally, Pickens had a conviction for domestic
assault-bodily harm and possession of marijuana in Tennessee. Lastly, the motion
noted that, as part of Pickens’ plea agreement for his robbery conviction, the State
agreed not to charge him with intimidation of a witness after he sent somebody to
the victims’ residence to ask them not to cooperate with the prosecution of the
robbery offense.

¶11 The circuit court denied the motion. The court found that it had
unknowingly overlooked Pickens’ criminal record at Booker’s sentencing hearing.

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No. 2022AP449-CR

However, the court stated that Pickens’ record still “pale[d] in comparison” to
Booker’s record. Thus, the court stated that Booker’s sentence “remains valid and
necessary to accomplish the goals of punishment, deterrence, and community
protection.”

¶12 This appeal follows. Additional relevant facts are referenced below.

DISCUSSION

¶13 On appeal, Booker renews his argument in his postconviction
motion seeking sentence modification.

¶14 A new factor is “a fact or set of facts” that is “highly relevant to the
imposition of sentence, but not known to the trial judge at the time of original
sentencing, either because it was not then in existence or because … it was
unknowingly overlooked by all of the parties.” State v. Harbor, 2011 WI 28, ¶40,
333 Wis. 2d 53, 797 N.W.2d 828 (citation omitted). If the defendant demonstrates
a new factor, the circuit court then exercises its discretion to determine “whether
that new factor justifies modification of the sentence.” Id., ¶37.

¶15 Here, even if we assume that Pickens’ criminal record was a new
factor, the circuit court properly exercised its discretion in concluding that a
sentence modification was not warranted. See State v. Hegwood, 113 Wis. 2d
544, 546, 335 N.W.2d 399 (1983). A discretionary decision must be “the product
of a rational mental process” and “‘demonstrably … made and based upon the
facts appearing in the record and in reliance on the appropriate and applicable
law[.]’” State v. Verstoppen, 185 Wis. 2d 728, 741, 519 N.W.2d 653 (Ct. App.
1994) (citation omitted; ellipses in original).

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No. 2022AP449-CR

¶16 In the postconviction decision, the circuit court explained that
Pickens’ record did “not materially alter the disparity” between Pickens and
Booker. The court explained that Booker’s behavior “demonstrated a pattern of
criminality and a willingness to use violence, which put him in an entirely
different league in terms of his character and rehabilitative needs[.]” The court
stated that Booker did “a lot more than take a few puppies” and his conduct
“demonstrated an extremely dangerous pattern of criminality.” The court noted
that in addition to the armed robbery charge, Booker had other dismissed or
dismissed and read-in offenses and these offenses were committed while he was
on extended supervision, which was revoked as a result. The court then stated that
“the current sentencing disparity remains valid and necessary to accomplish the
goals of punishment, deterrence, and community protection.”

¶17 Thus, based on these comments, we conclude that the circuit court did
not make an error of law and properly “explained its reason for concluding that the
facts [Booker] presented did not justify modification of [his] sentence.” Harbor,
333 Wis. 2d 53, ¶63. Accordingly, we reject Booker’s challenge and affirm.

By the Court.—Judgment and order affirmed.

This opinion will not be published. See WIS. STAT.
RULE 809.23(1)(b)5. (2021-22).

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