State v. David G. Straszkowski, 2008 WI 65, affirming summary order
For Straszkowski Philip J. Brehm
Issue: Whether, for a guilty plea to be “knowing and intelligent,” the defendant must be aware that a read-in is deemed an admission for sentencing purposes.
¶3 We conclude that the record clearly demonstrates that neither the State, nor trial defense counsel, nor the circuit court referred to the read-in charges as admitted or deemed admitted for sentencing purposes or for any other purpose. Nowhere in the plea questionnaire, in the transcript of the plea hearing, or in the transcript of the sentencing hearing did the State, trial defense counsel, or the circuit court refer to the read-in charges as admitted or deemed admitted. Rather, the circuit court explicitly advised the defendant at sentencing (and repeated this explanation at the postconviction motion hearing) that it understood that the defendant was not admitting the read-in charge and that the circuit court would consider the read-in charge for purposes of sentencing the defendant on the charge to which the defendant pled guilty. Because the circuit court did not consider the read-in charge to be admitted for sentencing purposes, we conclude that the defendant has failed to show that his guilty plea was not entered knowingly, intelligently, and voluntarily when he asserts that he was unaware that his agreement to have a sexual assault charge read in was an admission of the read-in charge for purposes of sentencing.
Though S. “limits his argument to the claim that he did not understand that the read-in charge was to be deemed admitted for sentencing purposes,” ¶27, the implications are potentially broad, as hinted at in this discussion:
¶33 The circuit court never deemed the read-in sexual assault charge to be admitted. …
¶34 The circuit court acknowledged that “[t]here is [sic] some denials with regard to the read-in” and that “there seems to be considerable dispute” over the charges pending in another county. The circuit court explicitly advised the defendant at sentencing (and repeated this explanation at the postconviction hearing) that it understood that the defendant was not admitting the read-in charge.
¶35 The circuit court treated the read-in charge properly, not as an admitted crime but as an offense that may properly be considered for sentencing purposes.
¶36 The circuit court treated the read-in charge in the same way as it treated the sexual assault charges pending against the defendant in another county and did not give the read-in charge more weight than it gave the pending charges in the other county. It is well established that “[a] sentencing court may consider uncharged and unproven offenses” whether or not the defendant consents to having the charge read in.
¶37 The circuit court’s consideration of the read-in charge when sentencing the defendant did not flow only from the parties’ agreement to read in the sexual assault charge for sentencing purposes. The circuit court treated the read-in in the same manner as it treated other pending charges or unproven offenses.
In other words, a judge may assign sentencing weight to a read-in without an underlying admission. In some given case, to be sure, the factual support for the read-in might be so thin that, without an express admission of guilt, the “offense” can’t reliably be taken into sentencing account. But that is a matter of sentencing due process, and is almost certain to occur rarely if ever. In this particular instance, the read-ins related to dismissed charges — and, as the court plainly held, the sentencing judge could simply weigh them against the defendant precisely because they had been formally charged. What would be the outcome be, though, if they had been deemed admitted? The court doesn’t say, nor could it, given that that would require a different factual record. But it isn’t difficult to imagine the following line of thought: a sentencing “data point” need not be proven to any great extent, but need only be, for due process purposes, “minimally reliable”; there is, under this lax standard, sufficient indication of the defendant’s guilt on the read-in, independent of the (illusory) “admission”; therefore, the sentencing judge’s reliance on the admission was at worst harmless error. See ¶52 n. 31 (stressing “sentencing judge’s role, which is to assess the defendant’s character using all available information, unconstrained by the rules of evidence that govern the guilt-phase of a criminal proceeding”). In brief, there seem to be few if any procedural obstacles to consideration of read-ins, at least under some or another guise. That’s not necessarily a bad thing, in that the defendant does, after all, derive a distinct benefit (absolute bar on prosecution of the offense). It does, however, highlight counsel’s duty to make sure the defendant knows the sentencing implications — a point stressed by the concurrence, ¶113 n. 72.