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Resentencing required because PSI included defendant’s compelled statements to probation agent

State v. Danny Robert Alexander, 2013AP843-CR, District 1, 1/28/14; court of appeals decision (not recommended for publication), petition for review granted 6/12/14, reversed, 2015 WI 6; case activity

Alexander was on probation when he was charged with forgery. He pled to the forgery and a PSI was prepared. (¶2). Attached to the PSI were statements the defendant made to his probation agent about two other forgeries. The statements were on DOC Form 1305/1305A, which includes a warning that the defendant must account for his activities “in a truthful and accurate manner”; that failure to do so might result in revocation; and that the information given on the Form can’t be used against the probationer in a criminal proceeding. (¶3). The circuit court relied on the PSI at sentencing. (¶¶4-6).

Trial counsel was ineffective for failing to object to the inclusion of Alexander’s statements to his probation agent. The statements are compelled and subject to use immunity because refusal to make them may result in revocation, see State v. Peebles, 2010 WI App 156, ¶¶10-19, 330 Wis. 2d 243, 792 N.W.2d 212, and there is no strategic reason for counsel to have allowed the statements to be used against Alexander at sentencing. (¶¶9-10, 14). Counsel’s failure to object was also prejudicial:

¶15      … Alexander’s statements to his probation agent referred not only to the checks involved in the charges before the sentencing court, but also to additional potentially criminal activity carrying the possibility of future criminal charges. The sentencing court made multiple references to the PSI, even stating that it was “going to follow the recommendation of the pre-sentence to some extent” instead of relying on the sentencing recommendations of the parties. The sentencing transcript indicates that the sentencing court relied heavily on the PSI when the court referenced Alexander’s prior revocations, his previous opportunities for treatment, as well as his skills and education. In its decision denying Alexander’s postconviction motion, the sentencing court wrote that the inclusion of Alexander’s compelled statements was “harmless at best” because “[Alexander’s] statement to his agent did not reveal anything not already known to the court.” The record does not support this conclusion. Alexander’s compelled statement included references to potential criminal activity with which Alexander had not been charged at the time of his sentencing. That activity (cashing large checks from an apparent corporate entity) is very similar to the conduct charged here. The fact that protected statements were included in the PSI, coupled with the substantial reliance that a sentencing court must, out of necessity, place on a PSI to which no objection has been raised, undermines our confidence that the sentence was based only on facts properly before the sentencing court. …

Judge Fine dissents, agreeing with the circuit court that the compelled statement didn’t reveal anything not already known to the court. (¶17).

The majority notes that because busy sentencing judges must rely on the information presented by others when a sentence is imposed, “[b]oth the State and counsel for the defendant share the obligation to ensure that the court considers only accurate, constitutionally admissible information” and that “[t]he DOC and its probation agents, as a part of the state government, share that responsibility.” (¶15).

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