State v. Stanley A. Samuel, 2001 WI App 25, 240 Wis. 2d 756, 623 N.W.2d 565, affirmed, other grounds, 2002 WI 34
For Samuel: Robert R. Henak
Issue: Whether the defendant waived objection to the sentencing court’s reliance on information sealed from the defendant’s inspection.
¶42 We accept the State’s waiver argument. First, just because the trial court was in its “imposing sentence” phase, that did not prevent Samuel from objecting. He had as much right to object then as at any other time during the proceeding. Second, while we acknowledge that there are times when we will reject the State’s waiver argument if it was not made at the postconviction stage, there is no iron-clad rule. A waiver analysis depends, in part, not on whether an issue was raised at the postconviction stage, but on whether the trial court could have taken some type of preventive action had the issue been timely raised. We agree with the State that had the issue been timely raised before the sentencing court, a solution could likely have been arrived at.
Court stresses, though, that the material at issue “is of little consequence,” and wasn’t “important to the integrity of the result”; court implies that otherwise waiver bar might not have been imposed. ¶43.