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Challenges to use of CHIPS information at sentencing rejected

State v. Dominique M. Anwar, 2018AP2222-CR, 6/25/19, District 1 (1-judge opinion, ineligible for publication); case activity (including briefs)

The court of appeals rejects Anwar’s arguments that she’s entitled to resentencing because the State offered certain information at her sentencing hearing without first disclosing the information and giving her notice it would use the information.

Anwar pleaded guilty to child neglect. At sentencing, the State recited information collected during the CHIPS proceeding commenced in response to the same incident. The information suggested Anwar had engaged in similar conduct before. Anwar’s only response to the information (both through her lawyer’s sentencing argument and in her own allocution) was to acknowledge there was a pending CHIPS proceeding and say Anwar was working to comply with its orders. (¶¶2-5).

Anwar argues she’s entitled to resentencing because the CHIPS proceeding was akin to a PSI, and therefore, as with a PSI, she should have the chance before sentencing to review the information generated by the proceeding. The court of appeals isn’t persuaded, for multiple reasons:

  • Anwar asserted that the statements hadn’t been previously turned over to the defense,” but the state argued she had the information because she was a party to the CHIPS proceeding, and it would have been given to her under § 48.21(3)(b). Anwar didn’t respond to that claim in her reply brief, so she’s deemed to have conceded that she had the information before sentencing. (¶16).
  • The PSI case Anwar relies on, State v. Skaff, 152 Wis. 2d 48, 447 N.W.2d 84 (1989), holds only that a defendant has the right to review the PSI, not that a defendant has a general right to review all information the state intends to use at sentencing. (¶17).
  • There’s no other authority requiring the state to turn over to the defendant all information it intends to present at sentencing. (¶18).
  • While a defendant has a due process right to be sentenced on accurate information as well as the right to an opportunity to rebut information used by a sentencing court, State v. Spears, 227 Wis. 2d 495, 508-09, 596 N.W.2d 375 (1999), Anwar was given the opportunity to rebut, refute, explain, or supplement the information, but didn’t do so. (¶¶8, 19).
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