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Sentencing Review — Waiver of Objection to Reliance on Information

State v. Anthony J. Leitner, 2001 WI App 172, affirmed on other grds.2002 WI 77, 253 Wis. 2d 449, 646 N.W.2d 341
For Leitner: Jim Scott

Issue: Whether the defendant waived his right to object to trial court reliance on certain information by failing to lodge a contemporaneous objection.

Holding:

¶41 … When the prosecutor subsequently argued that the trial court should not consider the convictions, but was free to consider the underlying behavior, Leitner’s counsel did not object. More importantly, there was no objection when the trial court made reference to the underlying behavior in passing sentence. So far as the trial court knew, Leitner agreed with the prosecutor’s analysis and did not object to the court’s consideration of the underlying conduct. Accordingly, Leitner waived the claim. See Mosley, 201 Wis. 2d at 46; State v. Rogers, 196 Wis. 2d 817, 826-29, 539 N.W.2d 897 (Ct. App. 1995); State v. Holt, 128 Wis. 2d 110, 122-24, 382 N.W.2d 679 (Ct. App. 1985).

(Court, however, chooses to ignore waiver, because “questions raised here merit a decision.” ¶42. And, on review, the supreme court expressly declined to “decide the present case on grounds of waiver, although the defendant failed to object at sentencing to the introduction of the facts underlying the expunged records of convictions,” ¶11.)

 

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