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Appellate Procedure – Mootness Doctrine; Sentencing Review – Consideration of Pending Charge

State v. Thomas J. Hoffman, 2010AP1327-CR, District 2, 3/30/11

court of appeals decision (1-judge, not for publication); for Hoffman: Kathleen A. Lindgren; case activity

Hoffman’s challenge to the length of his sentence became moot once he had fully served it.

¶6     At the outset, the State contends that Hoffman’s appeal is moot; he has served his entire seven-month sentence and this court’s review on his motion for sentence modification will have no practical effect.  The State cites to State v. Walker, 2008 WI 34, 308 Wis. 2d 666, 747 N.W.2d 673, in support.  There, the supreme court held that a challenge to a reconfinement order was moot because the defendant had completed the reconfinement term and the court’s decision would not affect the underlying controversy.  Id., ¶¶1, 14.  Reviewing courts generally decline to decide moot issues but may do so under certain circumstances, including when the issue (1) is of great public importance; (2) occurs so frequently that a definitive decision is necessary to guide circuit courts; (3) is likely to arise again and a decision of the court would alleviate uncertainty; or (4) will likely be repeated, but evades appellate review because the appellate review process cannot be completed or even undertaken in time to have a practical effect on the parties.  State v. Morford, 2004 WI 5, ¶7, 268 Wis. 2d 300, 674 N.W.2d 349.  While the Walker court chose to address the issue because of the frequency with which courts address reconfinement issues, Walker, 308 Wis. 2d 666, ¶14, no such exception applies to this fact-specific motion for sentence modification.  Nor does Hoffman’s contention that he may someday feel the effects of the court’s sentence when applying for employment or living accommodations persuade us otherwise.  See State v. Zisch, 243 Wis. 175, 178, 9 N.W.2d 625 (1943) (the defendant must show an existing legal right is affected).

After explicitly determining that the appeal is moot and that no exceptions to mootness apply, the court nonetheless goes on to reject Hoffman’s argument on the merits. Is the court’s ensuing discussion rendered mere dicta, because it had already denied relief on a separate ground? Take a look at Zarder v. Acuity, 2010 WI 35, ¶52 n. 19, and draw your own conclusion.

The sentencing court’s consideration of a pending charge was appropriate, notwithstanding its subsequent dismissal. The trial court, on postconviction motion, held an evidentiary hearing that “provided Hoffman the opportunity to prove his ‘actual innocence’ in the” dismissed case and ruled “that Hoffman had failed to meet his burden of proving that the court relied on inaccurate information at sentencing.” The court of appeals affirms:

¶9    After considering the testimony of the witnesses, including Hoffman himself, the circuit court expressly found the testimony in support of the State’s position to be more credible and determined that Hoffman had failed to carry his burden of establishing the inaccuracy of the facts relied on at sentencing.  While Hoffman contends that the court erred in requiring him to prove “actual innocence” for a charge that had been dismissed and, thus, of which he had been acquitted, we note that the sentencing court would have been entitled to consider the disorderly conduct charge even if it had been dismissed and not pending at the time of sentencing.  See Leitner, 253 Wis. 2d 449, ¶45 (“A sentencing court may consider … facts related to offenses for which the defendant has been acquitted.”)  Based on our review of the postconviction evidentiary hearing, we see no error in the circuit court’s conduct of the hearing or its determination that Hoffman failed to demonstrate the inaccuracy of the information relied on at sentencing.


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