Where to begin?
Well, this is a blog by appellate lawyers, so forgive us if we dwell first on the fact that our law-developing court has once again elected not to develop the law. The question here–the ostensible reason the court took the case–was whether a defendant forfeits the right not to be sentenced based on inaccurate information if his counsel doesn’t object at the time of sentencing. There are many good reasons forfeiture–a doctrine justified only where it will “promote the fair and orderly administration of justice” shouldn’t apply. They’re ably explained in the lead opinion. (¶¶26-36). In fact the argument against forfeiture is so good that only one justice–Kelly–on this reliably anti-defendant court disagrees with it. And four justices embrace it! Four is more than half of seven, so…
So nothing. It’s difficult to imagine what might have happened here. There’s a “lead” opinion, authored by Justice Ziegler. It says first, that there’s no forfeiture, and second, that the inaccurate information here was harmless. Three other justices (Kelly, Hagedorn, and Roggensack) join, but they join only the part about harmlessness. So, on the main issue–the sort of question we can only rely on this court to decide–the lead opinion offers the view of exactly one justice.
Then comes Justice Kelly’s concurrence. He offers the sort of paean to defense lawyers you usually hear when a judge is about to make their jobs harder. So quick and perspicacious are we that there’s nothing wrong with expecting us to interrupt a judge mid-sentencing, if we think it’s in the defendant’s interest. Reader, you are clever. How often do you think it’s in your client’s interest to, in Justice Kelly’s words, “rise to announce” your “objection” to the sentencing judge’s words? (Also, have you ever “risen” to announce an objection?) Suppose you think that’s almost never a good idea. What, then, becomes of the established constitutional right to be sentenced on the actual facts, and not on falsehoods? It’s almost always forfeited. Might as well not exist.
But the good news here is that, like Justice Ziegler, Justice Kelly speaks only for himself. His opinion is joined by Justice R.G. Bradley, but not on the question of forfeiture. She joins him instead in noting that it is abundantly clear that Coffee did not commit the prior crime (a robbery) on which the sentencing judge relied. He was misidentified and then quickly cleared. Why, Justice Kelly asks, should having been falsely accused of a crime be a proper sentencing consideration? What can it possibly say about a person’s character? (¶¶58-63).
More on the majority’s answer later. For now, the point is that the score on forfeiture is 1-1.
We move to the three-justice dissent, authored by Justice Ann Walsh Bradley and joined by Justices Dallet and R.G. Bradley. These three think the inaccurate information wasn’t harmless. They also agree with the lead opinion that there was no forfeiture. So, the vote is now 4-1 against forfeiture, but under State v. Griep, 2015 WI 40, ¶37 n.16, 361 Wis. 2d 657, 863 N.W.2d 567, these three dissenting Justices don’t count toward making a rule. (Or that’s one view of Griep; the case was actually describing the rule for interpreting SCOTUS opinions; it doesn’t say that’s the rule for SCOW). So the effective vote of our highest court on the legal question presented is 1-1.
A draw. One in favor, one against, three also against but uncounted. The numerically inclined may note that that’s only five justices. The civic-minded will recall that our state’s Constitution calls for a court of seven. What of the other two; what do they think on the forfeiture question?
We don’t know. Chief Justice Roggensack and Justice Hagedorn join the lead opinion only insofar as it finds any error harmless. Neither filed a concurrence explaining why they don’t agree (or disagree) on the forfeiture question. They just … say nothing. It’s possible the decision in State v. Counihan, a companion case heard on the same day, will reveal something about where these justices are on the question of forfeiture. But it’s remarkable that the court makes no effort to explain why it didn’t decide what it had decided to decide.
Turning to harmlessness, here’s what happened: Coffee got arrested for a robbery at some time in the past, but the witnesses who identified him (from behind while he was walking down the street) quickly un-identified him when they got a real look at him. It’s pretty clear he didn’t do the robbery; the state didn’t contend otherwise in briefing. But the sentencing judge referred repeatedly to this prior crime as if Coffee had committed it. Inaccurate, and obviously the sort of thing that might influence a sentence, right?
Well, according to the majority that signed on to this part of the lead opinion, no. The majority says the inaccuracy didn’t matter to the sentencing decision. But the inaccuracy to which it refers is not the fact that Coffee just didn’t rob anyone, even though the prosecutor told the sentencing judge he did. It’s that the non-robbery didn’t involve a weapon: it wasn’t (non) armed robbery, it was (non) strong-arm robbery. And that’s true! The robbery Coffee wasn’t involved in was not an armed robbery. You can see how a mistake about the particular kind of street robbery in a defendant’s past arguably might not influence a sentencing decision down the road. But that he just didn’t do it at all? Seems like a bigger deal.
Per the majority, we don’t need to grapple with this problem because what really is truth, anyway?:
Some conclude that Coffee did not commit strong-arm robbery; that he was wrongfully arrested because two witnesses told law enforcement that the offender was not Coffee. The presumption of innocence certainly applies, but experience demonstrates that, without knowing more, we can reach no conclusion. Using a police report alone to analyze and conclude the guilt or innocence of a person is not what our court should do. Who committed the strongarm robbery is not an issue before us today. Indeed, Coffee has not been charged with strong-arm robbery.
What? Nobody said Coffee had been charged with strong-arm robbery. Also nobody says he committed one. How can the inaccuracy of this uncontested falsehood not be important to the question of Coffee’s inaccurate-information sentencing claim? The “some” who conclude that facts are kind of important here include four justices of the court, but once again, their votes are distributed in such a way that the majority view does not become the law.
A concluding bright spot, though more for postconviction lawyers than sentencing counsel. The part of the lead opinion that is law, being the view of four justices, has some good language on an appellate court’s duty to review, on its own, whether a sentencing judge has relied on inaccurate information, and whether that reliance was harmless. (¶¶38, 41). Basically the majority says a reviewing court shouldn’t defer to a trial judge’s own post hoc declarations that the mistakes didn’t matter if the record shows they did.
UPDATE: A few weeks later, the court decided State v. Counihan, which did announce a general rule that claims regarding a judge’s consideration of information not previously known to the defendant may be raised for the first time in a postconviction motion–no objection at sentencing is required.