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State v. Danny Alexander, 2013AP843-CR, petition for review granted 6/12/14

On review of an unpublished court of appeals decision; case activity

Issue (composed by On Point)

Did the inclusion in the PSI of statements Alexander made to his probation agent, and the trial court’s consideration of the statements at sentencing, violate Alexander’s right against self-incrimination?

As explained in our post on the court of appeals decision, Alexander was on probation when he committed forgery. After being convicted of forgery a PSI was prepared, attached to which were statements Alexander made to his probation agent about two other forgeries. The statements were on DOC Form 1305/1305A, which warns the probationer he must account for his activities “in a truthful and accurate manner”; that failure to do so might result in revocation; and that information given on the Form can’t be used against him in a criminal proceeding. The court of appeals concluded trial counsel was ineffective for failing to object to the inclusion of Alexander’s statements to his probation agent under State v. Peebles, 2010 WI App 156, ¶¶10-19, 330 Wis. 2d 243, 792 N.W.2d 212, which held that such statements are compelled and subject to use immunity, including at sentencing, and regardless of whether the person expressly invoked their Fifth Amendment privilege, because refusal to make them may result in revocation.

While the case was litigated as an ineffective assistance of counsel claim based on trial counsel’s failure to object under Peebles, it is safe to say the court didn’t grant review to address the application of the well-established ineffective assistance of counsel standards in this setting. Rather, the issue is Peebles itself. No petition for review was filed in Peebles, but at least one justice has already told us the case is in her sights for overruling or limiting:

¶ 117     Peebles is wrongly decided because it grants blanket, self-executing use-immunity to probationers simply because they could be revoked if they did not answer an agent’s questions, thereby omitting the obligation to raise the Fifth Amendment privilege as Murphy has required. See [Minnesota v.Murphy, 465 U.S. [420,] 431 [(1984)] (explaining that a probationer’s obligation to appear and to answer truthfully does not remove a probationer’s obligation to raise his Fifth Amendment privilege). Peebles cites [State v.] Evans, 77 Wis.2d [255,] 235-36, [252 N.W.2d 664 (1977)], for its holding. Peebles, 330 Wis.2d 243, ¶13. However, in so doing, Peebles incorrectly states the legal conclusions of Evans, and it is inconsistent with the Supreme Court’s holdings in Murphy….

State v. Sahs, 2013 WI 51, ¶117, 347 Wis. 2d 641, 832 N.W.2d 80 (Roggensack, J., concurring). See also State v. Spaeth, 2012 WI 95, ¶¶108-43, 343 Wis. 2d 220, 819 N.W.2d 769 (Roggensack, J., dissenting). In addition to being an opportunity for Justice Roggensack to push her agenda of undoing the rule that probationers, parolees, or persons on extended supervision don’t need to invoke the Fifth Amendment privilege because the rules of supervision require they answer questions, it will also be a vehicle for trying to limit what statements are considered incriminating, Spaeth, 343 Wis. 2d 220, ¶¶137-38 (Roggensack, J., dissenting), if only to open up a path for using statements made to probation agents at sentencing as opposed to trial.

In short, a case to keep your eye on. If you want to read more about this issue in the meantime, check out our posts on Peebles, Spaeth, and Sahs.

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