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Sentencing – Burden to Show Inaccurate Information

State v. Jason C. Walker, 2010AP83-CR, District 3, 11/2/10

court of appeals decision (recommended for publication); for Walker: William E. Schmaal, SPD, Madison Appellate; BiC; Resp.; Reply

¶1       Jason Walker was sentenced after revocation of his probation.  The sentencing court considered probation violations that Walker denied committing.  Because of his denial, Walker argues the court could not consider the violations unless the State proved he committed them.  We disagree.  Walker had the obligation to rebut the alleged violations.  He could not stand on his mere denial.

¶6        A criminal defendant has a due process right to be sentenced upon accurate information.  State v. Tiepelman, 2006 WI 66, ¶9, 291 Wis. 2d 179, 717 N.W.2d 1.  As part of this guarantee, a defendant has the right to rebut disputed factual information considered by the sentencing court.  State v. Spears, 227 Wis. 2d 495, 508, 596 N.W.2d 375 (1999).  A defendant who alleges the circuit court used inaccurate information at sentencing has the burden to show both that the information was inaccurate and that the court actually relied on the information in making its sentencing decision.  Tiepelman, 291 Wis. 2d 179, ¶26.  Whether a defendant has been denied due process at sentencing is an issue of constitutional law that we review independently.  Id., ¶9….

¶8        … Walker has the burden to show that the court relied on factually inaccurate information.  See id., ¶26.  Walker has not met this burden.  His mere denial of the sexual assault allegations during the sentencing hearing did not constitute evidence rebutting them, nor did counsel’s statement that Walker intended to defend against the pending charges.  It was Walker’s burden to prove the allegations were factually inaccurate, and he has not done so.

Walker allegedly violated probation in certain discrete respects, which he denied, and instead waived revocation hearing on the basis of an admission to a different allegation. As a result, the trial court premised sentence on nothing more than bare allegations that never saw the light of a hearing, administrative or judicial. As seen by the blockquote above, the court of appeals places the burden squarely on the defendant to prove that the allegations were inaccurate. To prove, in a word, a negative; more accurately, perhaps, the holding rests on an argument from ignorance (a logical fallacy that “asserts that a proposition is necessarily true because it has not been proven false (or vice versa)”). Certain allegations were raised against Walker, and though they were never pursued, they must be true simply because he didn’t disprove them. That approach might well make sense if the allegations were endowed with some minimal reliability. Cast the problem somewhat differently, then: presumptively reliable allegations of misconduct are necessarily true, unless proven to be false. It is certainly settled, for good or bad, that sentence may take into account arrests or formal charges resolved short of conviction, and even charges that have gone to trial and found wanting in proof. State v. David G. Straszkowski, 2008 WI 65, ¶36 and id., n. 20. But that is because it is fair to assume that those allegations are at least minimally reliable (because they’ve passed through various screens that indicate probable cause to believe they’ve occurred). Can the same be said of a mere administrative allegation of misconduct? Maybe, maybe not, but some recognition, and fuller discussion, by the court of the differences was probably warranted.

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