Issue: Whether, on a claim that the sentence violated due process because based on inaccurate information, the defendant must show not only sentencing court reliance on the inaccurate information, but also prejudicial reliance.
¶2 We hold that in a motion for resentencing based on a circuit court’s alleged reliance on inaccurate information, a defendant must establish that there was information before the sentencing court that was inaccurate, and that the circuit court actually relied on the inaccurate information. Here, the court of appeals applied the wrong test——prejudicial reliance ——when it affirmed the circuit court. We must, therefore, reverse that affirmance, and withdraw any language in State v. Montroy, 2005 WI App. 230, 287 Wis. 2d 430, 706 N.W.2d 145, State v. Groth, 2002 WI App 299, 258 Wis. 2d. 889, 655 N.W.2d 163, State v. Suchocki, 208 Wis. 2d. 509, 516, 561 N.W.2d 332 (Ct. App. 1997), State v. Coolidge, 173 Wis. 2d 783, 496 N.W.2d 701 (Ct. App. 1993), and State v. Littrup, 164 Wis. 2d 120, 473 N.W.2d 164 (Ct. App. 1991), to the contrary.
¶26 We hold that the correct standard was set forth by this court in Lechner, in which the court held: “A defendant who requests resentencing due to the circuit court’s use of inaccurate information at the sentencing hearing ‘must show both that the information was inaccurate and that the court actually relied on the inaccurate information in the sentencing.'” Lechner, 217 Wis. 2d at 419 (quoting Johnson, 158 Wis. 2d at 468). Once actual reliance on inaccurate information is shown, the burden then shifts to the state to prove the error was harmless. As the Seventh Circuit Court of Appeals concluded in Lane:
A convicted offender does not have a constitutional right to a particular sentence available within a range of alternatives, but the offender does have a right to a fair sentencing process——one in which the court goes through a rational procedure of selecting a sentence based on relevant considerations and accurate information.
Lane, 738 F.2d at 864-65 (emphasis in original).
 Whether the test is actual reliance or prejudicial reliance is significant. Obviously, establishing prejudicial reliance presents a far more difficult barrier for a defendant to overcome than establishing that the circuit court actually relied on inaccurate information at sentencing.
Potentially a very significant development. This is a pre-TIS case (sentencing after revocation), but this holding ought to impact TIS cases because TIS puts a premium on accuracy. E.g., State v. Gallion, 2004 WI 42, ¶34, relative to “enhanced need for more complete information upfront, at the time of sentencing.” Although Tiepelman doesn’t say anything about footing that bill, one implication is that sentencing courts will simply have to be more cautious about their assumptions. (Note the all-important reference in the quote from Lane to the sentencing process; results are often dictated by procedure.) In that sense, unquantifiable thought it might be, benefit should accrue to trial as well as appellate practitioners. But as to the latter: any time you’re considering a new-factor based motion to modify you ought to seriously consider whether to also (or instead) file an inaccurate-information motion—that’s because the new factor test will almost always satisfy the inaccurate information test but the latter is, especially now, much more forgiving.
Why this fuss? The court of appeals, in a series of cases, had distorted the test so that the defendant not only had to prove inaccurate information but also prejudicial reliance on the inaccuracy. Sometimes it didn’t matter (Groth: court found prejudicial reliance given highly inflammatory nature of the misinformation; Montroy: no reliance found, where trial court took remedial action and then explicitly disclaimed reliance), but in this instance things came to a head. Tiepelman’s trial court expressly relied on 20 prior convictions when he had only (!) 9, so that Tiepelman’s sentence was based at least in part on the erroneous belief he had 11 more convictions than actually existed. That was close enough for the court of appeals, which said in effect that there was no prejudicial reliance on any inaccuracy because it was Tiepelman’s behavior that counted not the gross number of convictions. Hard to square either result or analysis with such cases as United States ex rel. Welch v. Lane, 738 F.2d 863 (7th Cir. 1984) (judge’s mischaracterization of Welch’s prior conviction for armed robbery when it was in fact simple robbery required resentencing), a case cited with approval by Tiepelman, ¶¶13-14, 26. Now, with prejudice removed from the defendant’s burden of proof, the Wisconsin test is not only made much more manageable but is also brought back in line with constitutional requirements.
Potholes remain, to be sure. Availability of harmless error to save the sentence may or may not prove a big loophole for the State. The court doesn’t reach the issue on the particular facts, ¶31, largely because the State ended up conceding that Tiepelman should be resentenced; this decision, then, has no precedential value with respect to applying harmless error. Much more problematically, the court of appeals dropped two gratuitous footnotes which essentially game-planned for the State. This language wasn’t overruled, precisely because it is gratuitous, and there’s not much you can do but be aware of it and try to anticipate as much as you can in any given situation. Footnote 1 virtually invites the AG to make a waiver argument. This potential obstacle is easily enough rectified: just enter a timely objection. And postconviction counsel must be prepared to lodge an ineffective-assistance argument for trial counsel’s failure to do so. Footnote 2 has potentially broader impact, suggesting “that when the same judge presides at the postconviction hearing and at sentencing and determines that a sentence would be the same even with corrected information, the defendant has received a sufficient resentencing remedy.” That will have to be played by ear. It might be said that where it is clear the sentence would have been the same absent the inaccuracy the error is harmless, a point made by the dissent, ¶50; whether that can be said merely on the sentencing court’s say-so is something else, and is seemingly refuted by Groth (sentencing judge’s disclaimer of reliance on highly provocative (mis)information rejected by court of appeals), at least as an unvarying proposition.
One final point, with respect to the burden of proof. It is presently settled that the defendant’s 2-part showing must be made by clear and convincing evidence, Groth, ¶22. However, the court now expressly leaves that issue open, ¶25 n. 9: “There is nothing inState v. Johnson, 158 Wis. 2d 458, 463 N.W.2d 352 (Ct. App. 1990), State v. Lechner, 217 Wis. 2d 392, 576 N.W.2d 912 (1998), nor Welch v. Lane, 738 F.2d 863 (7th Cir. 1984), which indicates whether the defendant’s burden of proof is clear and convincing evidence. Therefore, we do not decide that issue.” There is indeed something quite anomalous in the idea that a sentencing input need not be proved by anything more than preponderance yet the defendant’s refutation requires clear and convincing proof. The problem goes back to Littrup, which held that considerations of finality required that burden, 164 Wis. 2d at 131-32. But, finality isn’t generally a policy concern on directappeal (as opposed to collateral attack or new-factor based sentence modification). In any event, the court didn’t explain how the interests of sentencing accuracy are served by the imbalance in burdens noted above; further, to the extent Littrup’s burden of proof discussion is bound up in its discussion of prejudice it, too, would now be overruled by Tiepelman.