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Sentencing – Review — Inaccurate Information — Necessity of Trial Court Reliance

State v. James L. Montroy, 2005  WI App 230
For Montroy: Jay E. Heit; Stephanie L. Finn

Issue/Holding1Though information before the sentencing court was indisputably inaccurate, the court took remedial action by ordering that this information be stricken, and thus Montroy can’t satisfy his burden of showing actual reliance on inaccurate information. ¶¶9-11. (State v. Anderson, 222 Wis. 2d 403, 409-10, 588 N.W.2d 75 (Ct. App. 1998), distinguished: there, the court’s subsequent disclaimer of reliance was inconsistent with its comments at the sentencing hearing itself.)

Issue/Holding2Although the PSI’s sentencing recommendation “was based on inaccurate information,” and although “the sentence essentially adopted the PSI’s sentencing recommendation,” the sentence was not thereby tainted by reliance on inaccurate information, given the sentencing court’s explicit disclaimer of reliance:

¶12 … However, as the court here acknowledged on the record, a sentencing court is not bound by the PSI’s sentencing recommendation. That the court ultimately reached a sentence in the same range as that recommended by the PSI, without more, does not demonstrate that the court relied on the PSI’s inaccuracies. Montroy has not provided evidence that, despite the court’s statement that it would not rely on the inaccurate information, it nonetheless did so when it sentenced him. Accordingly, Montroy’s reliance on Anderson is misplaced.

The holding is not as broad as this quote suggests. Whoever prepared the PSI was inept or dogmatic or both – he or she persistently recited the same inaccuracies despite court orders, ¶¶2-4; an habitual offender by any definition – but the sentencing court importantly took appropriate remedial action each time. The court twice ordered new PSIs, and when the 3rd PSI remained inaccurate the court threw up its hands and said it would simply ignore the defects, ¶4. In other words, the sentencing court was sensitive to, and took steps to ameliorate, the problem from the very outset – making it impossible for the defendant to show that the court’s disclaimer of reliance was somehow doubtful. But that background also indicates that the passage quoted above is misleadingly broad, at least to the extent that it suggests that judicial reliance on a PSI which is itself premised on inaccurate information isn’t enough to taint the sentence. The fact is that in this instance the sentencing court plainly did not rely on the PSI, not at least with respect to inaccurate information.

Hard cases, bad law. Montroy has a lengthy criminal history; it’s not recited in the opinion, except to mention that he had 6 juvenile adjudications, but you can find his entries on CCAP if you’re interested. Not difficult to imagine his being a chronic if low-level irritant to local authorities. On the current sentences he got 8 in, 8 out – perhaps that seems draconian by Pepin County standards, though elsewhere it might merely seem condign. But if it’s hard to take issue with the sentence per se, the beef with the PSI author is real enough. And yet … the court did take action on Montroy’s justified complaints. Note that Montroy did what a diligent litigant should have done, lodge contemporaneous objections resulting, ultimately, in the offending material being struck from the record – the sort of remedy approved by, for example, State v. David W. Suchocki, 208 Wis. 2d 509, 520, 561 N.W.2d 332 (Ct. App. 1997). In terms of curing the factual inaccuracies, Montroy seems to have done all that could have been done. So, too, the court: what else could it have done, short of recusing itself (which wasn’t requested)? Moreover, Montroy’s situation seems uncomfortably close to State v. Larry A. Tiepelman, 2005 WI App 179, PFR granted 12/14/05, in that both involved lengthy prior records, such that another one or two priors was just carrying coal to Newcastle (in the nature of surplusage, that is). Montroy’s beef, it bears repeating, was really with the PSI and not the judge, and it might be, then, that his argument thus suffers from misdirection. But how could he have framed the argument? He might, instead of focusing on the curedfactual inaccuracies, have argued that the PSI was biased; how else, after all, to explain the author’s recidivism? He could then have argued that the court’s apparently undisputed reliance on the PSI’s sentencing recommendation as opposed to underlying inaccuracieswas enough to taint the process. The principle is sound enough (e.g., Suchocki: “The process is not fair if the sentencing court relied upon a PSI from a biased writer”) in the abstract, though getting the court of appeals to accept the notion of PSI bias might have proved a tough sell. But it probably would have been a more straightforward sell than the pitch actually made.

 

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