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Sentencing – Review – Inaccurate Factors; Harsh and Excessive; Factors (“Progressive Discipline”)

State v. Guadalupe Jose Rivas, 2010AP2777-CR, District 1, 9/13/11

court of appeals decision (not recommended for publication); for Rivas: George Tauscheck; case activity

¶5        Rivas argues that four instances of inaccurate information mentioned by the trial court at his sentencing require resentencing:  (1) the trial court believed that Rivas had five prior felonies when he had only four; (2) the trial court mischaracterized Rivas as a drug dealer; (3) the trial court erroneously believed Rivas was addicted to cocaine and marijuana; and (4) the trial court erroneously described the victim as a “defenseless” drug addict in need of protection.  Although we acknowledge the inaccuracies, we disagree that they impacted the trial court’s sentencing decision.

Test for sentence-review based on inaccurate information recited, ¶7 (“A defendant claiming a trial court relied on inaccurate information must show not only that the information was inaccurate, but also that the trial court actually relied on the inaccurate information,” citing State v. Tiepelman, 2006 WI 66, ¶31, 291 Wis. 2d 179, 717 N.W.2d 1.) Critically: the first two inaccuracies were corrected before the trial court pronounced sentence, ¶9, therefore couldn’t have been “actually relied on” – though the court of appeals’ analysis, it must be said, is less than explicit on this point. Contrast, United States ex rel. Welch v. Lane, 738 F.2d 863, 865 (7th Cir.1984) (resentencing where judge misconstrued prior conviction for simple robbery as armed robbery), cited with approval by Tiepelman. As for the latter two inaccuracies: the trial court’s disavowal on postconviction motion that correcting them would have changed the result is enough to save the sentence, ¶12, citing State v. Lechner, 217 Wis. 2d 392, 422, 576 N.W.2d 912 (1998). The idea is, “A trial court’s comments at the postconviction hearing may establish that the trial court was aware of, and did not consider, the improper factors,” ¶7. This might seem an invitation to cynicism – “Thanks for showing an inaccuracy that I actually relied on and allowing me to clarify that I didn’t actually rely on it.” But consider that Tiepelman offers an escape hatch so that even if the defendant shows reliance on an inaccurate fact, the sentence nonetheless may be sustained on the basis of harmless error, 2006 WI 66, ¶26. In other words, the result here might be seen as defensible a matter of harmless error rather than non-reliance.

Two other points worth noting. The court stresses, “reliance on erroneous information may be waived when it is not timely brought to the trial court’s attention at sentencing,” ¶12. The court doesn’t impose a waiver bar here, but that doesn’t mean it won’t in the future. Second, the court cautions trial judges to make sure they have “accurately read and understood the sentencing information …. Otherwise the defendant may, understandably, believe that the sentence was based on inaccurate information, causing unnecessary postconviction motions and appeals,” ¶9 n. 2.

Sentence of 4 years (2 confinement, 2 supervision) for theft from person wasn’t unduly harsh, in light of Rivas’s extensive criminal history and trial court’s appropriate consideration of permissible factors, ¶¶14-19. (Test recited, ¶15.)

Sentencing court’s reliance on idea of “progressive discipline” – leading to 2 years’ confinement where prior confinement sentence was 1.5 years – didn’t amount to a preconceived, non-individualized sentence based on a mechanistic approach.

¶22      As we have explained above, the transcripts do not demonstrate a formulaic rigidity in the trial court’s sentencing decision.  First, we do not understand a statement of general belief in progressive discipline to be the equivalent of imposing a formula.  Second, the trial court’s statement was made in the context of its observation that it might be foolish to repeat what has not worked before―specifically, probation or a short period of incarceration when the defendant has not succeeded on such sentences previously.

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