At Counihan’s sentencing, the circuit court announced it had researched the outcomes in other cases with similar charges and then used that information in sentencing Counihan to jail time. Counihan moved for resentencing, arguing the circuit court violated due process because she didn’t have notice it had collected information about other cases or the opportunity to address the information at sentencing. The court of appeals holds the claim is forfeited because trial counsel didn’t object at the sentencing hearing. It also holds trial counsel’s failure to object wasn’t prejudicial.
Counihan pled guilty to five counts of misdemeanor theft in a business setting. The parties jointly recommended probation. But at sentencing the court, during its sentencing remarks, announced it had done a detailed review of the files of 6 or 7 other business theft cases in the county. Based in part on the outcomes in those cases and the similarities and differences between those cases and Counihan’s, the court rejected the joint recommendation and imposed a straight jail sentence of 9 months. (¶¶2-5).
Because Counihan’s trial lawyer didn’t object to the sentencing court’s consideration of the information it collected from the other cases, the court of appeals holds her due process claim is forfeited:
¶10 We decline to address the merits of Counihan’s due process argument because she forfeited it. Counihan failed to preserve the issue for appellate review when she did not object at sentencing to the circuit court’s use of the Door County cases. See State v. Ndina, 2009 WI 21, ¶¶29-30, 315 Wis. 2d 653, 761 N.W.2d 612. While she did anticipate possible forfeiture by addressing the issue in her brief-in-chief, her argument that we should ignore the forfeiture is unavailing.
¶11 Counihan analogizes her case to State v. Tiepelman, 2006 WI 66, 291 Wis. 2d 179, 717 N.W.2d 1, to support her contention that, in spite of her forfeiture, we should address the merits of her due process argument. She asserts, “Like our supreme court did in Tiepelman, this court should review [her] due process claim directly ….” In Tiepelman, our supreme court remanded the matter for resentencing because the circuit court relied on inaccurate information about the defendant’s criminal record at sentencing. Id., ¶¶29, 31. However, Tiepelman does not address the issue of argument forfeiture, and, therefore, is inapposite.
Coincidentally, District 1 issued a per curiam decision on the same day as the decision in this case that also holds a defendant forfeited his claim for resentencing based on a violation of his due process right to be sentenced on correct information. State v. Donavinn Coffee, No. 2017AP2292-CR, unpublished slip opinion (WI App Nov. 6, 2018). Neither opinion is binding, though Counihan may be cited for persuasive value; Coffee, being per curiam, can’t be cited even for persuasive value. Rule 809.23(3)(b). Nonetheless, the decisions are a portent that forfeiture is going to be used to parry due process challenges to sentencing decisions. So practitioners need to be aware of the issue and how to deal with it.
Counihan anticipated a forfeiture argument that never came, as the state’s response brief went right to the merits of her claim. Her anticipatory rebuttal relied on Tiepelman, which addressed the defendant’s due process claim despite a lack of contemporaneous objection—no doubt because the state didn’t argue forfeiture in Tiepelman, either. Coffee, No. 2017Ap2292-CR, ¶11. Thus, when the court of appeals decided to address forfeiture in Counihan, Tiepelman is the only case it mentions.
The state did argue forfeiture in Coffee. It claims the law is well-established that a court does not err by relying on information at sentencing that a defendant does not object to, and it cites State v. Leitner, 2001 WI App 172, ¶ 41, 247 Wis. 2d 195, 633 N.W.2d 207, aff’d, 2002 WI 77, 253 Wis. 2d 449, 646 N.W.2d 341; State v. Benson, 2012 WI App 101, ¶ 17, 344 Wis. 2d 126, 822 N.W.2d 484; State v. Mosley, 201 Wis. 2d 36, 45–46, 547 N.W.2d 806 (Ct. App. 1996); Handel v. State, 74 Wis. 2d 699, 704, 247 N.W.2d 711 (1976). The court of appeals agrees with the state’s reading of the law.
What the state and the court of appeals don’t acknowledge is that these cases involve information known to defendant before sentencing because it was in the PSI or some other report submitted to the court (indeed, in Benson it was a report submitted by the defense itself in advance of sentencing). In Coffee the inaccurate information was not apparently in the PSI (if there even was one); instead, it was referred to by the state in its sentencing argument. So it’s not clear Coffee knew before sentencing the state would cite the information or that he had the opportunity to review and formulate a challenge to the information. Absent that advance knowledge, it is unfair to expect the defendant to be prepared to object to and challenge the information.
It is even more unfair to expect an objection in Counihan. There the information was collected by the judge, who engaged in his own investigation, without notice to the parties, the results of which were not disclosed until the judge was making his sentencing remarks. Unless defense counsel is clairvoyant, objecting will require interrupting the court during its sentencing remarks. Many an appellate lawyer has read a sentencing transcript where the judge shuts down any interruption to his or her sentencing remarks with a curt “it’s my turn to talk now.” More to the point, no published decision squarely holds that preserving a due process challenge to what a judge says or does in the course of explaining the sentence—as opposed to information provided in, e.g., a PSI—requires contemporaneous objection. After all, a postconviction motion, rather than a contemporaneous objection, is the accepted method for challenging the court’s exercise of sentencing discretion, so why isn’t that good enough for the issue Counihan raised?
On the other hand… what happened to Counihan was an obvious, even egregious violation of two fundamentals of due process: Notice and opportunity to be heard. Shouldn’t the trial counsel have reflexively stood up and said, “Wait a minute, judge; what information are you talking about? Where’d you get that? Why didn’t you tell us about that in advance? We want to see those files and have a chance to respond. You have to set this hearing over so we can do that. We have the right to be heard.” Easy, right?
Easy or not, the lesson of Counihan and Coffee for trial counsel is that when you hear a prosecutor or judge cite information you haven’t heard before or you think it is inaccurate, you should (respectfully, of course) interrupt, object, address or correct the information if you can, or ask for more time to do so if you need it. If your interruption irritates the judge, politely say that contemporaneous objections are necessary to preserve your client’s claims for postconviction review, and if need be refer to the cases cited by the state and Counihan as persuasive authority.
The lesson for postconviction counsel is that if you discover there’s a problem with information the court relied on at the sentencing hearing but there was no objection to the information by trial counsel, in addition to any attempt to directly challenge the court’s reliance on the information you should include an alternative ineffective assistance of counsel claim.
Speaking of ineffective claims:
As a backstop Counihan claimed her trial lawyer was ineffective for failing to object to the circuit court’s use of the information it dug up. How’d that fare? Not so good:
¶14 Counihan cannot show that but for her attorney’s alleged error, there is a reasonable probability that her sentence would have been different. See State v. Sholar, 2018 WI 53, ¶45, 381 Wis. 2d 560, 912 N.W.2d 89. The other Door County cases were just one of many sources of information the circuit court considered in determining Counihan’s sentence. The court considered proper sentencing factors, including Counihan’s rehabilitative needs, the nature and gravity of her crime, and the public’s protection. See State v. Gallion, 2004 WI 42, ¶¶17, 40, 270 Wis. 2d 535, 678 N.W.2d 197. It addressed each sentencing objective separately and thoroughly explained how the court weighed certain pieces of information in relation to each objective. The court also explained why it was rejecting the joint sentence recommendation for probation and why it believed a jail sentence, instead of probation, better accomplished its sentencing objectives. The record supports the circuit court’s finding at the postconviction hearing that if the Door County cases played any role in her sentence, the role was minimal.
¶15 Our conclusion is further confirmed by the circuit court’s explicit statements at both Counihan’s sentencing hearing and the Machner hearing. We may review a court’s entire sentencing remarks, including those made at a postconviction hearing, to ascertain the court’s basis for the sentence it imposed. See State v. Alexander, 2015 WI 6, ¶¶30, 34-35, 360 Wis. 2d 292, 858 N.W.2d 662. At sentencing, the court made clear that “every single case is different,” the Door County cases only “provided [it] guidance,” and it was “not relying solely” on them. At the Machner hearing, the court reiterated that it “came to a conclusion independently” of the Door County cases.
So, the sentencing court can surprise the defendant with information it took the trouble to dig up sua sponte because it really wanted to know; say during sentencing the information was “very interesting” (¶4); and, when challenged postconviction for not providing the defendant with notice and opportunity to be heard, sanitize the impropriety by saying it was just some information the court considered, not the only information, and the sentence would have been the same without it, so no big deal.
This demonstrates why forfeiture is so deleterious to the defendant: It forces the defendant to filter a due process issue through an ineffective assistance claim and thus requires the defendant to prove prejudice—a difficult, if not virtually impossible burden, especially when the court of appeals tends to take at face value the sentencing court’s postconviction assurances it would have given the same sentence regardless. (Similarly, in the context of a Tiepelman claim about inaccurate information, forfeiture of the issue by the defense will relieve the state of its burden to prove any reliance on inaccurate information is harmless, and instead burden the defendant with proving harm.)
No doubt prejudice would be easier to prove if any of the information the court found in its own research was incorrect, which Counihan did not show. (¶17). But the issue isn’t only whether the information was wrong; it’s also whether the dispositions in the other cases might support rather than undermine the probation recommendation or were perhaps entirely irrelevant. The lack of advance notice and the opportunity to prepare an argument about the significance of the information (or lack thereof) is just as important as testing the accuracy of the information. Ambushing a defendant with the information during the court’s sentencing remarks makes both impossible.
A final point: A judge’s conduct in investigating and collecting facts from outside the record of the case and then using them, virtually ex parte, to reach a sentencing decision might, based on what the judge says on the record, bespeak a made-up mind or provide other evidence of objective bias. That is also a due process violation. See, e.g., State v. Goodson, 2009 WI App 107, 320 Wis. 2d 166, 771 N.W.2d 385; State v. Lamb, No. 2017AP1430-CR, unpublished slip opinion (WI App Sept. 25, 2018). If you think that happened in your case, you may want to consider asking the judge to recuse himself or herself and get a new judge assigned. And at least for now a judicial bias claim is a structural error that can’t be forfeited, State v. Carprue, 2004 WI 111, ¶¶57, 59, 274 Wis. 2d 656, 683 N.W.2d 31, so lack of a contemporaneous objection won’t preclude raising the issue directly in postconviction proceedings.