State v. Gerald L. Lynch, Jr., 2006 WI App 231, PFR filed 11/6/06
For Lynch: David R. Karpe
Issue: Whether the sentencing court’s reliance on a television interview of the defendant, which led the court to criticize the defendant as “self-serving” rather than remorseful, violated the due process right to be sentenced on accurate information.
¶24 We address first Lynch’s argument that the court had an obligation to give him advance notice that it was going to consider the television interview at sentencing.  The case he relies on, Gardner v. Florida, 430 U.S. 349 (1977), does not support his position. There the Supreme Court concluded that the sentencing court violated the defendant’s right to due process when it decided to impose the death penalty based in part on a confidential portion of the presentence report that had not been disclosed to the defendant. Id. at 355-62. A defendant has the right to an opportunity to rebut information presented at sentencing. State v. Damaske, 212 Wis. 2d 169, 196, 567 N.W.2d 905 (Ct. App. 1997). Obviously, if sentencing information is kept from the defendant, he or she cannot exercise this right. See Gardner, 430 U.S. at 360-61.
¶25 The facts of Gardner are not analogous to those here. The defendant in Gardner had no way of knowing what was in the confidential portion and, thus, no way to challenge its accuracy. Id. at 353. In this case, the contents of the interview were not kept secret from Lynch. Since Lynch gave the interview, he knew its contents and when it occurred. …
Other challenges going to editing and timing of interview rejected on basis that Lynch’s postconviction motion didn’t sufficiently preserve issue of evidentiary hearing to bring out underlying facts, ¶¶26-27.