O.M., an infant, died while c0-sleeping with Morris and her mom. Morris admitted that he may have rolled over onto her and pled guilty to 2nd degree recklessly endangering safety, party to a crime, At sentencing, the State said that O.M.’s cause of death could have been the synthetic marijuana that Morris had been smoking, even though the medical examiner attested that it wasn’t.
Morris and O.M.’s mom admitted that they had been smoking synthetic marijuana. And detectable levels of the drug were found in O.M.’s bottle and stomach contents. But the examiner determined that the drug had not circulated in her body and thus did not play a role in her death. In fact, her cause of death could not be determined.
At sentencing the State told the judge “so we know that this child had three different types of synthetic marijuana in her system, but we don’t know exactly how far the synthetic marijuana made it inside her system in order to say that that was the ultimate cause of her collapse and death.” Opinion, ¶11.
The trial court referred to the State’s misstatement repeatedly at sentencing. For example, it said: “we’ve got all of this synthetic marijuana in [O.M.’s] system . . I hope the two of you weren’t putting anything in her bottle to make her sleep more soundly so she wouldn’t bother you.” Opinion, ¶12.
A defendant has a due process right to be sentenced based on accurate information. If the defendant proves that the court (1) received inaccurate information at sentencing and (2) relied on it in selecting a sentencing, then he is entitled to a new sentencing. State v. Tiepelman, 2006 WI 66, 291 Wis. 2d 179, 717 N.W.2d 1. At the postconviction stage and on appeal, the State conceded that it had conveyed inaccurate information to the court. It said the error was harmless. The court of appeals disagreed, reversed and remanded the case for a new sentencing.
¶26 . . . The court acknowledged that the State had conceded that it presented inaccurate information, but also referenced the State’s argument that “the only reason [the synthetic marijuana] would not have circulated in [O.M.]’s system is if something else had caused her death first, and that ‘something else’ … is the ‘very real likelihood’ that [Morris] suffocated her while co-sleeping.” The court then stated that “[e]ven if [O.M.]’s death could be attributed to some other factor, it doesn’t change the incredibly poor parenting and reckless behavior [Morris] showed towards his child,” and therefore the error was “truly harmless.”
¶27 On the contrary, that statement by the trial court indicates that the error was not harmless. In phrasing its conclusion “[e]ven if [O.M.]’s death could be attributed to some other factor,” the court is clearly communicating its belief that Morris caused O.M.’s death. (Emphasis added.) The record demonstrates that the court never considered any other possible cause of death, such as sudden infant death syndrome. Moreover, the court’s statements conflict with the autopsy findings, which stated that a cause of death could not be determined.
¶28 Therefore, we conclude that there is a reasonable probability that the inaccurate information presented by the State regarding O.M.’s cause of death contributed to the sentence imposed on Morris by the trial court. As a result, the error was not harmless. See id., ¶46. Accordingly, we reverse and remand this matter for resentencing.