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Judge’s inaccurate, ex parte internet research results in new sentencing hearing

State v. Patricia A. Enriquez, 2015AP1850-CR, District 2, 7/27/16 (not recommended for publication); case activity (including briefs)

After Enriquez made a statement at her sentencing for delivering nonnarcotic controlled substances, the sentencing judge presented the parties with information he had uncovered based on his own internet searches. He claimed the information showed that Enriquez’s misrepresented facts about her nursing license status in Texas and Illinois. Finding that Enriquez’s character for honesty was “miserable” based in part on this ex parte research, the judge sentenced her to consecutive terms of sixty-six months’ imprisonment, far beyond what the state had recommended. But the information the judge dredged up was inaccurate, and because the court relied on that misinformation in sentencing her, Enriquez is entitled to be resentenced.

Enriquez tried to dispute the judge’s “findings” at sentencing, but the court cut her short and called her “probably the biggest liar” that he’d had in his court. (¶¶6-8). She filed a postconviction motion asking for resentencing, arguing that the court relied on inaccurate information, that she was denied her right to rebut information, that the court was objectively biased, and that the court erroneously exercised its discretion in sentencing Enriquez. (¶¶12-13). Though he admitted he was wrong about Enriquez not having an Illinois nursing license, the judge denied the motion. (¶¶15-18).

The court of appeals reverses based solely on the inaccurate information claim, concluding that the judge violated Enriquez’s right to be sentenced based on accurate information, State v. Tiepelman, 2006 WI 66, 291 Wis. 2d 179, 717 N.W.2d 1. (¶¶20-21). Tiepelman requires the defendant to show, first, that information at the original sentencing was inaccurate, and, second, that the court actually relied on that information. Enriquez makes both showings:

¶24     Here, the circuit court clearly had inaccurate information as to whether Enriquez was licensed in Illinois. The circuit court, in undertaking an independent investigation of the status of her license in Illinois, apparently limited its search to Cook County…. Enriquez, in her subsequent motion for resentencing, produced documentation showing that she was licensed in the State of Illinois from May 1986 through May 2014. The circuit court, in fact, appears to have acknowledged during the postconviction hearing that it had erroneous information, but discounted it, stating that “whether she had an Illinois license or didn’t have an Illinois license, that wasn’t a big deal to me. And we talked about it. But there’s a lot of things I talked about that aren’t major factors of me deciding.”

¶25     The State argues that Enriquez’s documentation shows that her license was not renewed in 2012 and that it expired in 2014. The State posits that whether Enriquez never had a license in the State of Illinois and whether her license was not renewed and expired “is not significant.” In other words, the court’s statement that Enriquez never had a license in Illinois “was not a materially inaccurate statement.” We disagree. As Enriquez argues, she wanted to show to the court that she was licensed as a nurse after the surrender of her license in Texas….

Having shown there was inaccurate information, the next question is reliance, which is satisfied here because of the judge’s “explicit and repetitive” references to Enrique’s Illinois license status. (¶26 (quoting State v. Travis, 2013 WI 38, ¶32, 347 Wis. 2d 142, 832 N.W.2d 491)).

¶27     Specifically, the court told Enriquez that from its independent investigation “the State of Illinois shows that you have no license there” and, again, that she had “no license in the State of Illinois … never have.” When Enriquez challenged the court on the status of her Illinois license, the court told her, “your lies are getting you in trouble.” Enriquez said she “could prove” but the court cut her off, suggesting that she “close [her] mouth.”… The court continued, again stating, “[y]our license in the State of Illinois does not exist,” and then stated that it did want any further comment from Enriquez.

¶28     Where a court gives “explicit attention to the misinformation,” the court “demonstrates [its] reliance on that misinformation in passing sentence.” [Travis, 347 Wis. 2d 142], ¶¶44, 46 (where circuit court mentioned eight times—four at the plea and four at the sentence—that there was a mandatory minimum of five years, but, in fact, there was none, that inaccurate information formed part of the basis for the sentence); Tiepelman, 291 Wis. 2d 179, ¶¶6, 29-30 (one mention of inaccurate fact—that defendant had twenty convictions when it was only five—satisfied actual reliance element).

The judge (supported by the state) attempted to sell the notion that this error was harmless, but the court of appeals ain’t buying:

¶30     The State also notes that during the hearing on Enriquez’s postconviction motion the court said that “whether she had an Illinois license or didn’t have an Illinois license, that wasn’t a big deal to me.” However, “[a] circuit court’s after-the-fact assertion of non-reliance on … inaccurate information is not dispositive of the issue of actual reliance.” Travis, 347 Wis. 2d 142, ¶48. The circuit court judge’s repeated reference to Enriquez having no Illinois license, as well as the court’s conclusion that she was not being honest about it, shows that it was no de minimus matter. The court responded to her attempt to rebut by concluding that she was being dishonest and failing to acknowledge the truth—all of which, in fact, formed part of the sentence.

¶31     Finally, the State (as did the circuit court), applies an erroneous analysis in arguing that the court did not rely on the inaccurate information because other considerations justified the sentence. “[T]he fact that other information might have justified the sentence, independent of the inaccurate information, is irrelevant when the court has relied on inaccurate information as part of the basis of the sentence.” Id., ¶47 (quoting [United States ex rel. Welch v.] Lane, 738 F.2d [863,] 867 [(7th Cir. 1984)], cited with approval in Tiepelman, 291 Wis. 2d 179, ¶14) (the defendant is not required to prove prejudicial reliance in order to establish actual reliance)….

If you read only one court of appeals decision this year, make it this one. While it focuses on the inaccurate-information claim, the decision carefully and effectively shows how very far out-of-bounds the judge went (and how wrongheaded the state’s defense of the judge is) by liberally quoting the judge’s remarks and noting the facts contradicting his claims as well as the legal constraints that he overstepped, in particular SCR 60.04(1)(g) (e.g., ¶¶24 n.6, 27 n.8, 31 n.10).

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