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Sentencing – Inaccurate Information

State v. David Derrell Morgan, 2009AP3081-CR, District 1, 11/23/10 

court of appeals decision (3-judge, not recommended for publication); for Morgan: Mary D. Scholle, SPD, Milwaukee Appellate; Morgan BiC; State Resp.; Reply

Claims that the sentencing court relied on inaccurate information with respect to Morgan’s employment history and family relationships rejected, on ground of failure to show reliance:

¶12      Morgan has not shown that the circuit court actually relied on the allegedly inaccurate information.  First, as we have seen, the circuit court’s observations about the inconsistencies between what Morgan represented and what the presentence-investigation writer reported is not by itself unfair reliance and, significantly, Morgan points to nothing that the circuit court said during sentencing that shows that reliance.  Moreover, the circuit court tells us in the postconviction order that it did not rely on the allegedly inaccurate information:  “The discrepancies noted by the court went minimally to the defendant’s character, but did not play a significant role in the amount of time imposed for this offense,” and that the “information attached” to Morgan’s postconviction motion “would not have caused the court to fashion a different sentence.”  We may, of course, consider a sentencing court’s postconviction order in determining whether it relied on alleged inaccurate information during sentencing.  See State v. Fuerst, 181 Wis. 2d 903, 915, 512 N.W.2d 243, 247 (Ct. App. 1994); State v. Schael, 131 Wis. 2d 405, 414, 388 N.W.2d 641, 645 (Ct. App. 1986).

As further support for its conclusion, the court stresses: “The circuit court properly exercised its sentencing discretion.  Moreover, we agree with the circuit court that the matters encompassed by Morgan’s motion for postconviction relief were, in the context of the crime and circuit court’s sentencing analysis, de minimis,” ¶15.

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