A defendant is denied due process at sentencing where the author of his PSI is married to the DA who prosecuted him. State v. Suchocki. Ditto where a counselor who assessed the defendant for his PSI also treated his victim. State v. Stafford. In these situations, bias on the part of the PSI writer or counselor is implied as a matter of law. But here the court of appeals found no “implied bias” where the author of Hartleben’s PSI worked with probation agents who were Hartleben’s victims in an earlier case.
Hartleben’s concern that the author of his PSI was biased is certainly understandable. He pled no contest to 2 counts of attempting to flee or elude a traffic officer and 1 count of obstructing an officer, both with repeater enhancers. Defense counsel recommended concurrent sentences on all 3 counts totaling 5 years imprisonment. The State recommended sentences totaling 9.5 years imprisonment. And the PSI author recommended sentences totaling 12-13 years imprisonment. Consistent with the PSI, the sentencing court imposed a 13-year sentence.
Hartleben claimed that the sentencing court’s reliance on the PSI violated his right to due process because the PSI author had a close working relationship with two probation agents whom he had previously threatened. Regarding one he said “I’m gonna get that fucking cunt even if it sends me back to prison.” Regarding the other, he slammed his fists on the table during a meeting, swore at him, and came at him with raised arms. The agent said he had “never been threatened like this in his career.” Hartleben was convicted of disorderly conduct based on those threats.
The court of appeals held that the PSI author’s working relationship with the Hartleben’s previous victims was “simply not tantamount to a marital relationship or a mental health treatment relationship, in terms of the risk they pose of improper influence on the PSI author.” ¶28. Moreover, the probation agents were not victims of the crimes for which Hartleben was being sentenced. Hartleben made the threats 3 years before his PSI for this case was prepared. The disorderly conduct conviction carried only minor penalties. Plus the PSI author had been specifically trained in writing PSIs, and a supervisor had reviewed and approved the PSI recommending 12-13 years imprisonment. ¶¶29-33. Given these facts, the court of appeals held that Hartelben failed to show “implied bias.” ¶34.
The state argued that the legal standards governing claims of judicial bias should also apply to claims that a PSI author is biased. That is, there should be a rebuttable presumption that the PSI author acts fairly, impartially, and without bias. See State v. Goodson, 2009 WI App 107, ¶8. The court of appeals rejects this invitation. ¶22 n.1. But it never says what the test is for deciding whether a PSI author is impliedly biased. It simply compares the facts of Hartelben’s case to the facts of Suchocki and Stafford. The case thus gives SCOW an opportunity to develop the law on this issue.