State v. Randy D. Stafford, 2003 WI App 138
For Stafford: Robert G. LeBell
Issue/Holding: A mental health professional whose assessment of the sexual assault defendant was incorporated into the presentence report and cited at length by the sentencing judge and who had, unbeknownst to the defense, treated the victim for the six months prior to the assessment, had a conflict of interest that amounted to a new factor requiring resentencing.
The result is favorable, but that shouldn’t obscure the idea that the new-factor test is all but unworkable: it takes facts as extreme as these to compel relief. (Doesn’t hurt to throw good lawyering into the mix, either, as this result attests.) The parties and the PSI all recommended probation; the judge meted out 10 years. But as the summary above suggests, the PSI incorporated an assessment from a “mental health professional” (sneer quotes, because she was unlicensed) who labored under a very clear conflict of interest; who was very likely inept (her conclusion that Stafford is a pedophile was later conceded to be erroneous, ¶16); and whose assessment was heavily relied on by the sentencing judge, ¶17, despite his subsequent, less-than-credible contrary assertion. So, you’ve got a sentencing wildly out of line with unanimous recommendations, and based on a hopelessly tainted evaluation. Why isn’t that alone enough to warrant resentencing? Indeed, the court of appeals cites as “persuasive” a holding that a presentence report author’s conflict of interest renders the sentencing unfair (at least if the sentencing court relied on the tainted PSI; but here reliance isn’t a problem). ¶9, citing State v. Suchocki, 208 Wis. 2d 509, 520, 561 N.W.2d 332 (Ct. App. 1997), a case has also been cited for the following proposition: “A defendant is entitled to resentencing when a sentence is affected by a trial court’s reliance on an improper factor.” State v. Leitner, 2001 WI App 172, ¶39, 212, 247 Wis.2d 195, 633 N.W.2d 207, affirmed, 2002 WI 77, 253 Wis.2d 449, 646 N.W.2d 19. It ought, in other words, to suffice here that an important component of the PSI was both tainted and relied on by the sentencing judge; the sentence was based on tainted information and resentencing should ineluctably follow. You can say that the sentence was an erroneous exercise of discretion (because based on an improper factor, namely the discredited assessment). And you might similarly say that the sentence was a violation of due process (because the integrity of the PSI – which is really an arm of the judge – was tainted). It’s simply not necessary to descend into the swamp that the new factor test has become. But the court of appeals’ embrace of the new factor test is too strong to permit such disentangling, and the result is an overly complex analysis. Stafford clears new-factor hurdles because he wasn’t aware of the conflict of interest until after sentencing, ¶15; and the trial court’s reliance on the tainted assessment was demonstrable (the court repeatedly referred to and quoted from the assessment), ¶16. Note, though, that the court of appeals fudges a bit at the finishing line: a new factor is supposed to thwart “the very purpose” of the sentence, but the court doesn’t even cite that requirement, ¶¶18-19. Instead, the court
recognizes that sentences may be based on what is unknowingly incomplete or inaccurate information, and, if they are, that there should be some mechanism to correct a resulting injustice. Here, Nooe’s treatment of the victim prior to her assessment of Stafford undermines our confidence in the objectivity and accuracy of her report and, as a result, the fairness of the sentencing process to Stafford. We, therefore, conclude that the trial court erroneously exercised its discretion in determining that a modification of Stafford’s sentence was not justified. Accordingly, we reverse and remand for resentencing.
Well, yeah, that’s just about right, but the connection to the new factor test isn’t apparent. And if you take out paragraphs 12 through 18 then you’ve got an opinion that makes sense.