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Sentencing – Inaccurate Information

State v. Jason C. Walker, 2010AP83-CR, District 3, 12/14/10

court of appeals decision; (3-judge, not recommended for publication); for Walker: William E. Schmaal, SPD, Madison Appellate; BiCResp.Reply; prior opinion withdrawn 12/2/10, prior summary, here

On sentencing after revocation, the trial judge relied on sexual assault allegations appearing in the revocation summary; Walker didn’t admit the allegations, but instead admitted another, non-assaultive violation and waived revocation hearing. His appellate argument, that the sentence erroneously relied on unproven allegations, is rejected:

¶7        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, 227Wis. 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 argues the sentencing court could not rely on the sexual assault allegations in the revocation summary because the State did not prove them.  Had the State presented bare allegations, without any underlying facts, we would agree with Walker that the court’s reliance on the sexual assault allegations was improper.  However, the trial court did receive evidence that the sexual assaults occurred.  Specifically, the revocation summary contained a detailed description of the alleged assaults.

Walker’s argument is essentially procedural: by disputing the truth of the allegations, he was entitled to an evidentiary hearing so that the sentencing court could resolve the dispute, failing which the sentence couldn’t rely on the allegations. The court essentially says that the defendant has a burden of production before such a hearing is required, and that a “bare denial” doesn’t satisfy this burden, ¶¶11-17.

The court, while implying that “mere allegations” aren’t sufficiently reliable sentencing data points, also says in so many words that providing skeletal details to the allegations (names, dates, locations) makes the allegations minimally reliable for sentencing purposes, ¶¶9-12. Key point, perhaps: the rules of evidence don’t apply at sentencing, ¶10; it follows that formal standards of proof don’t apply. And, because “formal burden of proof requirement for factual findings at sentencing,” a sentencing data point needn’t be proved by preponderance of the evidence, ¶12 n.1, citing State v. Hubert, 181 Wis. 2d 333, 345, 510 N.W.2d 799 (Ct. App. 1993).

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