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SCOW: Sentencing court didn’t rely on defendant’s compelled statements, so resentencing isn’t needed

State v. Danny Robert Alexander, 2015 WI 6, 1/27/15), reversing an unpublished court of appeals decision; majority opinion by Justice Roggensack; case activity

Alexander claimed he is entitled to resentencing because his sentence was based in part on compelled statements he made to his supervision agent. The supreme court rejects his claim after concluding that the circuit court did not rely on the compelled statements in imposing sentence.

Alexander was convicted of a forgery he committed while on probation. A PSI was prepared for sentencing on the forgery, and attached to it were statements Alexander made to his probation agent about both the forgery he was being sentenced on as well as other forgeries. The sentencing court had clearly reviewed the PSI. (¶¶4-10).

After sentencing Alexander filed a postconviction motion asking for resentencing, arguing the statements to his probation agent were compelled and shouldn’t have been used at sentencing, based on State v. Peebles, 2010 WI App 156, ¶¶10-19, 330 Wis. 2d 243, 792 N.W.2d 212 (compelled statements to agent are subject to use immunity, including at sentencing). The trial court denied the motion, but the court of appeals ordered resentencing on ineffective assistance grounds, concluding trial counsel was deficient for not objecting to the statements and that the deficient performance was prejudicial because the sentencing court improperly relied on the statements. (¶¶11-13).

Trouble is, Alexander hadn’t argued that trial counsel was ineffective in his postconviction motion or in the court of appeals; the court of appeals raised the IAC claim on its own, despite Alexander’s forfeiture of the claim (and lack of a Machner hearing). The state petitioned for review, complaining about the court of appeals’ sua sponte raising of the IAC claim, as well as about its prejudice conclusion.

The supreme court reverses. The majority opinion doesn’t address what the court of appeals did. Instead, it cuts the procedural Gordian knot resulting from the forfeited IAC claim by applying the two-step test for determining whether a sentence is based on an improper factor or erroneous information, State v. (Landray) Harris, 2010 WI 79, ¶¶24, 33, 66, 326 Wis. 2d 685, 786 N.W.2d 409, State v. Tiepelman, 2006 WI 66, ¶26, 291 Wis. 2d 179, 717 N.W.2d 1. It concludes that Alexander can’t met the second step because he hasn’t shown the sentencing court relied on the statements:

¶31  In his compelled statements, Alexander admitted his role in the … forgeries [in this case] and in other forgeries not involved herein. At sentencing, the circuit court referred to information that could be found in Alexander’s compelled statement. However, viewed in context, the circuit court actually based its reference to this information on the PSI victim statement and the Crime Victim Impact Statement of U.S. Bank’s senior fraud investigator. … By referring to the fraud investigator’s statement, the circuit court identified that the source for its reference to other offenses was the U.S. Bank investigator. Additionally, when the court related that it did not know whether Alexander was one of the individuals involved in the other forgeries, the court confirmed that the source of its information was not Alexander’s compelled statements where his involvement was admitted.


¶33  The sentencing transcript clearly reflects that the basis of Alexander’s sentence overall was Alexander’s history of criminal offenses and his failure to correct his behavior. Alexander’s history was the focus of the court’s discussion, including the court’s response to Alexander’s comments. The sentencing transcript reveals that the circuit court did not give explicit attention to Alexander’s compelled statements, and information from those statements did not form part of the basis for the sentence imposed. See Tiepelman, 291 Wis. 2d 179, ¶14; [State v.Travis, [2013 WI 38,] 347 Wis. 2d 142, ¶¶28, 31[, 832 N.W.2d 491]. Therefore, the circuit court did not actually rely on an improper factor in sentencing Alexander, and did not erroneously exercise its discretion. See Tiepelman, 291 Wis. 2d 179, ¶26.

¶34  Our conclusion, based on our review of the entire sentencing transcript, is supported by the circuit court’s order denying Alexander’s motion for resentencing. The circuit court explained that “the court and the parties were aware of the bigger picture of what had been going on, and the defendant’s statement to his agent did not reveal anything not already known to the court.” The court noted alternative sources for the information included in Alexander’s compelled statements. … The circuit court explained that given the additional sources in the PSI indicating Alexander’s potential involvement in other forgeries, the attachment of Alexander’s compelled statements that also spoke of additional forgeries, did not affect the sentence it imposed. The court termed the attachment, “harmless at best.” …

Since Alexander can’t show the sentencing court relied on his compelled statements, he can’t prove prejudice, either. Thus, even if he should have raised an IAC claim, he can’t prevail on that claim. (¶¶36-40).

No new law here, just application of the basic rule of Tiepelman and Harris to the facts at hand. Our post on the grant of review surmised that the court would address the rule on which Peebles is based—that persons on supervision get self-executing use immunity when making statements to their supervising agent—because that rule that has been criticized by Justice Roggensack. Obviously, that surmise was wrong. Instead, the court “assume[s] without deciding” (¶1) that Alexander’s statements were compelled and therefore couldn’t be used against him at sentencing, though its discussion of this point (¶¶22-24) makes no reference whatsoever to Peebles.

The only reference to Peebles comes in a concurrence by Chief Justice Abrahamson (joined by Justice Bradley), which agrees that Alexander hasn’t shown prejudice but criticizes the majority for not explicitly holding that his statements to his agent constitute compelled self-incrimination, as the case law establishes. (¶58 n.35). “The majority’s unwillingness to acknowledge this clear instance of compelled self-incrimination is mystifying and may have the unintended consequence of raising questions about existing law.” (¶59).

Maybe it’s not so “mystifying” that the majority opinion avoids ruling on the question, given that its author disagrees with Peebles and related cases. As for raising questions about the cases, that’s been done (as described in our post on the grant of review). As things stand, advocates should argue that this decision doesn’t overrule or undermine the rule of Peebles or its related cases; the state didn’t contest Alexander’s claim that his statements to his agent were compelled (¶1), so the court had no reason to address the rule.

Chief Justice Abrahamson also criticizes the majority for not being clearer that the sentencing judge’s “after-the-fact assertions” about whether he considered something at sentencing “are not dispositive” (¶¶53-57) and for being “too cryptic” to make clear the problems with the court of appeals’ sua sponte deciding the IAC claim without a Machner hearing and briefing (¶¶45-52). A concurrence by Justice Gableman also says the court should have addressed—and rejected—the state’s complaints about the court of appeals’ IAC analysis:

¶84  Contrary to the argument advanced by the State, the court of appeals does, and should, have the power to raise the issue of ineffective assistance of counsel on its own. … While the court of appeals does not have the broad powers that this court has to review any issue, in order to fulfill its purpose as an error correcting court the court of appeals must be able to reach issues such as ineffective assistance of counsel even when they are not raised by the parties. …

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