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SCOW to decide if failing to object to consideration of information at sentencing forfeits right to review

State v. Carrie E. Counihan, 2017AP2265-CR, petition for review granted 5/14/19, and State v. Donavinn Coffee, 2017AP2292-CR, petition for review granted 5/14/19; case activity (Counihan; Coffee)


Does a defendant forfeit his right to challenge a judge’s consideration of information at sentencing by failing to object to the information at the time of sentencing?

If trial counsel does not object to the court’s consideration of the information and the defendant alleges postconviction that trial counsel was ineffective for failing to object, what is the standard for determining whether trial counsel’s failure was prejudicial?

These cases will be argued on the same day next term because of the overlap of their threshold issue, which is whether certain sentencing errors can be forfeited. For more detailed information about the cases, we refer you to our post on the court of appeals decision in Counihan, which has a lengthy discussion the facts and holdings in that case as well as some discussion of Coffee, a per curiam decision that was issued the same day.

Our previous post also outlines some of the implications of the holdings for how trial lawyers should be handling sentencing hearings as well as for how postconviction and appellate lawyers should be raising claims of sentencing error. In particular, if the court of appeals’ holdings stand, trial lawyers will have to be even more attentive to what the judge is doing at sentencing and be far more willing and able to object at all stages of the sentencing process, including when the judge is giving his reasons for the sentence. And whereas failure to object at sentencing to incorrect information hasn’t typically required an ineffective claim, if Counihan and Coffee are affirmed postconviction lawyers may find they have to make more ineffective claims to get at sentencing errors. And the difficulty of establishing prejudice under the hidebound standard Counihan applied makes the success of such a challenge remote (as if it isn’t already).

Apart from the forfeiture question, if the court reaches the merits of each defendant’s claims, the decisions will give some guidance on when a circuit court violates a defendant’s due process rights at sentencing. In Counihan’s case, the judge researched the sentences imposed in other cases without informing the parties it had done so and then used that information in formulating her sentence. In Coffee’s case, the court, in imposing sentences for armed robbery, relied on an inaccurate assertion by the state that he’d been involved in a prior armed robbery.

All in all, then, the effect of these decisions on sentencing hearings and postconviction sentencing review could be significant.


{ 2 comments… add one }
  • Christian Thomas May 16, 2019, 7:43 am

    Perhaps in the middle of the Justices’ questions, appellate counsel should just shout, “I object!”

    Then ask the court to note their natural responses: increased blood pressure, heart rate, etc. Because that is EXACTLY what happens when we object during sentencing. We all sit there, HOPING a judge might do right by our client at sentencing. And you know what doesnt help? Interrupting to point out a factual error the judge has made. Ever interrupted Judge Wagner, Sanders or Conen? They make it very clear how unwise that is. Ever tell them their not allowed to use the information they are relying upon? Same result.

    So then our decisions at trial level are ALL strategic: I strategically decided not to piss off the judge in the heat of sentencing. So now I wasn’t ineffective, right?

    Too bad for the client.

  • William Donarski May 17, 2019, 11:16 am

    Christian Thomas is exactly right.
    Several decades ago, in my first year out of law school, I interrupted a judge during their sentencing statement, because, I thought they were inaccurately remembering the facts of the case. I didn’t know I was being prescient of the rulings in these cases, but I still remember the judge’s response. Needless to say, ever since, I have just sat quietly and I let the judge say what they want. That’s what appeals are for, isn’t it?

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