State v. Carrie E. Counihan

2020 WI 12, 938 N.W.2d 530, 390 Wis. 2d 172

• Court: Wisconsin Supreme Court
• Decided: February 13, 2020
• Docket: 2017AP002265-CR
• Status: Published

Opinion

2020 WI 12

SUPREME COURT OF WISCONSIN CASE NO.: 2017AP2265-CR

COMPLETE TITLE: State of Wisconsin, Plaintiff-Respondent, v. Carrie E. Counihan, Defendant-Appellant-Petitioner.

REVIEW OF DECISION OF THE COURT OF APPEALS 385 Wis. 2d 211,923 N.W.2d 180 - Unpublished

OPINION FILED: February 13, 2020 SUBMITTED ON BRIEFS: ORAL ARGUMENT: October 21, 2019

SOURCE OF APPEAL: COURT: Circuit COUNTY: Door JUDGE: David L. Weber

JUSTICES: ANN WALSH BRADLEY, J. delivered the majority opinion of the Court, in which ROGGENSACK, C.J., ZIEGLER, DALLET, and HAGEDORN, JJ., joined, and REBECCA GRASSL BRADLEY and KELLY, JJ., joined with respect to ¶¶39-51. REBECCA GRASSL BRADLEY, J., filed a concurring opinion, in which KELLY, J., joined. NOT PARTICIPATING:

ATTORNEYS:

For the plaintiff-respondent, there was a brief filed by Courtney K. Lanz, assistant attorney general, with whom on the brief was Joshua L. Kaul attorney general there was an oral argument by Courtney K. Lanz.

For the defendant-appellant-petitioner, there were briefs filed by Ana L. Babcock and Babcock Law, LLC, Green Bay. There was an oral argument by Ana L. Babcock. 2020 WI 12 NOTICE This opinion is subject to further editing and modification. The final version will appear in the bound volume of the official reports. No. 2017AP2265-CR (L.C. No. 2015CF41)

STATE OF WISCONSIN : IN SUPREME COURT

State of Wisconsin,

Plaintiff-Respondent, FILED v. FEB 13, 2020 Carrie E. Counihan, Sheila T. Reiff Defendant-Appellant-Petitioner. Clerk of Supreme Court

ANN WALSH BRADLEY, J. delivered the majority opinion of the Court, in which ROGGENSACK, C.J., ZIEGLER, DALLET, and HAGEGORN, JJ.., joined, and REBECCA GRASSL BRADLEY and KELLY, JJ.., joined with respect to ¶¶39-51. REBECCA GRASSL BRADLEY, J., filed a concurring opinion, in which KELLY, J., joined.

REVIEW of a decision of the Court of Appeals. Modified, and

as modified, affirmed.

¶1 ANN WALSH BRADLEY, J. The petitioner, Carrie E.

Counihan, seeks review of an unpublished, authored decision of the

court of appeals affirming her judgment of conviction and the No. 2017AP2265-CR

denial of her motion for postconviction relief.1 She asserts that

the circuit court violated her right to due process at sentencing

and, alternatively, that her trial counsel provided ineffective

assistance at sentencing.

¶2 Specifically, she argues that the circuit court denied

her due process at sentencing by failing to provide her with notice

that it would consider previously unknown information first raised

by the circuit court at sentencing. Further, Counihan contends

that her trial counsel was ineffective for failing to object to

the consideration of such information and for failing to seek an

adjournment to allow time to investigate and review the information

on which the circuit court relied.

¶3 In response, the State asserts that Counihan forfeited

her direct challenge to the previously unknown information

considered at sentencing because she failed to object at the

sentencing hearing. It further contends that Counihan's trial

counsel was not ineffective for failing to object or seek an

adjournment. ¶4 We conclude that where previously unknown information is

raised by the circuit court at the sentencing hearing, a defendant

does not forfeit a direct challenge to the use of the information

1State v. Counihan, No. 2017AP2265-CR, unpublished slip op. (Wis. Ct. App. Nov. 6, 2018) (affirming the judgment and order of the circuit court for Door County, David L. Weber, Judge). The appeal was decided by one judge, Judge Mark Seidl, pursuant to Wis. Stat. § 752.31(2)(f) (2015-16).

All subsequent references to the Wisconsin statutes are to the 2015-16 version unless otherwise indicated.

2 No. 2017AP2265-CR

by failing to object at the sentencing hearing. Under the facts

of this case, Counihan appropriately raised the alleged error in

a postconviction motion.

¶5 Further, we conclude that Counihan's due process rights

were not violated by the circuit court's use of the previously

unknown information regarding similarly situated defendants.

Because there was no due process violation, we need not address

Counihan's alternative argument that her counsel provided

ineffective assistance at sentencing.

¶6 Accordingly, we modify the decision of the court of

appeals, and as modified, affirm.

I

¶7 As part of a plea agreement, Counihan pleaded no contest

to five misdemeanor counts of theft in a business setting.2 The

charges stemmed from allegations that, while Counihan was the

executive director of the Door County Humane Society, she used an

organizational credit card to pay personal expenses totaling over

$22,000. ¶8 Pursuant to the plea agreement, the parties jointly

recommended that the circuit court withhold sentence and place

Counihan on probation for up to three years, which could end any

time after two years if all other conditions of probation were

fulfilled. The joint recommendation also included conditions that

Counihan pay restitution along with fines and costs, pen a written

apology to the Humane Society, and serve 60 days of conditional

2 See Wis. Stat. § 943.20(1)(b).

3 No. 2017AP2265-CR

jail which would be stayed as long as Counihan complied with all

other probation conditions.

¶9 After hearing from both parties and several witnesses at

the sentencing hearing, the circuit court began its sentencing

remarks by explaining its methodology in determining the

appropriate sentence. The circuit court explained that it had

read the file in detail, including the criminal complaint,

information and police report. It further indicated that it had

read all victim impact statements, as well as several other letters

that the court had received and some credit card entries submitted

by defense counsel.

¶10 Most relevant to the issue we are examining in this

appeal, the circuit court also indicated that as part of its

sentencing methodology it had reviewed the sentences imposed in

other similar cases within the county. Specifically, the circuit

court stated, "Perhaps most significantly, I pulled all files that

we could find in Door County where somebody has pled to theft in

a business-type setting. There were about six or seven of them that we could find, and I have reviewed those files in detail."

¶11 The circuit court provided for the record the seven case

numbers of the cases it reviewed and stated that "[s]ome of the

themes and dynamics of these cases were very interesting to me."

It subsequently described the facts of these cases and the

sentences imposed as follows:

The amount stolen in these cases ranged over just several thousand dollars to as much as $300,000. Every one of the defendants in these cases, except one, spent time in jail. Every single one of them. The one person that

4 No. 2017AP2265-CR

did not spend time in jail paid all of the money back before sentencing. It did not involve a public entity, it was a private association. The jail time for the others ranged from 15 days in jail to up to a year in jail. Several people spent a year in jail. Several spent six months.

Every single one of those defendant[s] was placed on probation; in other words, the sentence was actually withheld and the jail was placed on them as a condition of probation. After discussing the jail and probation ordered in the other cases,

the circuit court also observed that in the other cases "[a]ll

were ordered to pay fines and restitution. Every single one of

them."

¶12 Continuing in its remarks, the circuit court found one

of the other cases particularly analogous to Counihan's case. It

emphasized, however, that every case is different.

Now, this case here is most like a case where a woman stole approximately $30,000 from a local business, was not a charity, and stole the money over many months. And that particular woman spent 11 months in jail and was ordered to pay full restitution.

Now, this Court realizes——this Court, this person, this attorney practiced law for many years, 30 years, and I certainly understand that every single case is different. Every case has a nuance. So these prior cases, these other cases in Door County, have provided this Court guidance, but I am not relying solely on these other cases. ¶13 With respect to the facts of this case, the circuit court

observed that Counihan was in a position of trust, and that she

committed the thefts over the course of many years. It further

noted the effect Counihan's crimes had on the Humane Society and

on nonprofit organizations in general: "to the extent that donors will be less likely to donate money for fear that their money will

5 No. 2017AP2265-CR

be stolen, or that they would have a question about it, is very,

very concerning to this Court."

¶14 Prior to formally pronouncing the sentence, the circuit

court asked Counihan if she knew "any reason why sentence should

not be pronounced . . . ." Counihan responded, "No, Your Honor."

¶15 Subsequently, the circuit court rejected the parties'

joint recommendation and sentenced Counihan to nine months in jail

on each count, to be served concurrently. It found such a sentence

to be consistent with the sentences ordered in the similar cases

in the county it had considered: "All other cases, except one,

received jail time, and I don't see any reason why you shouldn't

serve jail time."

¶16 Probation was not ordered because in the circuit court's

view, "probation would unduly depreciate the seriousness of the

offenses here." The circuit court further ordered Counihan to pay

restitution, fines and court costs. After the sentence had been

handed down and before concluding proceedings, the circuit court

asked if either Counihan or the State had "anything further" to discuss, and each responded in the negative.

¶17 Counihan moved for postconviction relief.3 As relevant

here, she argued that her counsel was ineffective at sentencing

3 Counihan filed two motions for postconviction relief. In her first motion, filed pro se, Counihan directly challenged the circuit court's reliance on the similar Door County cases. Although Counihan did not style her challenge as a due process claim, we liberally construe pro se pleadings. See State ex rel. L'Minggio v. Gamble, 2003 WI 82, ¶16, 263 Wis. 2d 55, 667 N.W.2d 1. Counihan's second motion for postconviction relief, filed by counsel, focused on ineffective assistance.

6 No. 2017AP2265-CR

for failing to object and failing to seek an adjournment to review

the similar Door County cases the circuit court cited in fashioning

its sentence.4

¶18 Following a Machner5 hearing, the circuit court denied

Counihan's postconviction motion. As relevant here, it determined

that Counihan's counsel at sentencing was not ineffective,

reasoning that "his tactical decision not to object or ask for a

recess or to try to make distinguishing arguments from those cases"

did not fall "below an objective standard of care . . . ."

Further, the circuit court found that even if the attorney's

representation was deficient, "I don't find that it would have

changed anything."

¶19 In denying Counihan's motion, the circuit court

reiterated that it did not rely solely on the other Door County

cases: "I came to a conclusion independently of any of these

cases, but I wanted to use the cases to make sure they supported

what I was going to do." The circuit court further commented on

the propriety of seeking out similar cases from the county, stating:

[W]hen I sentenced Miss Counihan I had been on the bench for about three or four months at that

Counihan also asserted that her counsel was ineffective at 4

sentencing for additional reasons not argued here. She further asserted that neither her counsel nor the circuit court properly informed her of her right to appeal. See Wis. Stat. § 973.18(2). This issue was not raised before this court and we do not address it further.

See State v. Machner, 92 Wis. 2d 797, 285 N.W.2d 905 (Ct. 5

App. 1979).

7 No. 2017AP2265-CR

time. . . . [W]hat my goal was in conducting this inquiry into other cases was to determine what the institutional memory of this Court was, because I didn't have it myself. I felt like if I had been a judge for twenty years, of course I would have fallen back on my memory of what I had done in other cases. I probably wouldn't need to look at other cases literally. I would look at them in my mind.

And I think judges do that all the time. They can't erase their memories. But I didn't have that memory, so it felt, in my opinion, to me that I had the responsibility——I had the responsibility not only to Miss Counihan, but to the community, to determine what had been done in other cases.

And I didn't do so in order to get a litmus test or a necessarily a recipe that I could come up with a sentence for Miss Counihan. I felt like I want to know if what I was going to do with Miss Counihan, what I was going to sentence her to, was consistent with what had been done in the past. ¶20 Counihan appealed, asserting that the circuit court's

reliance on past case files without providing notice violated her

due process rights. In the alternative, she maintained her claim

that her counsel at sentencing was ineffective for failing to

object or request an adjournment for the purpose of investigating

the circuit court's cited cases.

¶21 The court of appeals rejected Counihan's arguments and

affirmed the circuit court. It determined first that Counihan

forfeited her due process argument because she did not object to

the use of the similar Door County cases at the sentencing hearing.

State v. Counihan, No. 2017AP2265-CR, unpublished slip op., ¶10

(Wis. Ct. App. Nov. 6, 2018). Accordingly, the court of appeals

did not address the merits of Counihan's claim that the use of

8 No. 2017AP2265-CR

such information by a circuit court constitutes a due process

violation. Id.

¶22 Second, the court of appeals concluded that Counihan

failed to demonstrate ineffective assistance of counsel because

she did not establish that she was prejudiced by any allegedly

deficient performance. Id., ¶13. Specifically, the court of

appeals determined that "Counihan cannot show that but for her

attorney's alleged error, there is a reasonable probability that

her sentence would have been different." Id., ¶14. It reached

this conclusion because in its view "[t]he record supports the

circuit court's finding at the postconviction hearing that if the

Door County cases played any role in her sentence, the role was

minimal." Id.

II

¶23 We are called upon to determine whether Counihan

forfeited her direct challenge to the use of previously unknown

information raised by the circuit court at sentencing. If Counihan

did not forfeit this direct challenge, then we must address the merits of her argument that the circuit court violated her right

to due process. These issues present questions of law that we

review independently of the determinations rendered by the circuit

court and court of appeals. See State v. Corey J.G., 215

Wis. 2d 395, 405, 572 N.W.2d 845 (1998); State v. Loomis, 2016 WI

68, ¶29, 371 Wis. 2d 235, 881 N.W.2d 749.

III

¶24 We begin by addressing whether Counihan forfeited her direct due process challenge to the circuit court's use of 9 No. 2017AP2265-CR

previously unknown information raised by the circuit court at

sentencing without providing her with notice. Subsequently, we

address the merits of Counihan's due process challenge to the use

of such information at sentencing.

¶25 Forfeiture is the failure to make the timely assertion

of a right.6 State v. Ndina, 2009 WI 21, ¶29, 315 Wis. 2d 653,

761 N.W.2d 612 (quoting United States v. Olano, 507 U.S. 725, 733

(1993)). Some rights are forfeited when they are not claimed at

trial, and a mere failure to object constitutes forfeiture of the

right on appellate review. Id., ¶30.

¶26 The purpose of the forfeiture rule is to enable the

circuit court to avoid or correct any error as it comes up, with

minimal disruption of the judicial process and maximum efficiency.

Id.; see Townsend v. Massey (In re Guardianship of Willa L.), 2011

WI App 160, ¶26, 338 Wis. 2d 114, 808 N.W.2d 155. Such a practice

encourages timely objections and obviates the need for appeal.

State v. Erickson, 227 Wis. 2d 758, 766, 596 N.W.2d 749 (1999);

State v. Huebner, 2000 WI 59, ¶12, 235 Wis. 2d 486, 611 N.W.2d 727. ¶27 Further, the forfeiture rule gives the parties and the

circuit court notice of an issue and a fair opportunity to address

the objection. Ndina, 315 Wis. 2d 653, ¶30. It additionally

6 "Although cases sometimes use the words 'forfeiture' and 'waiver' interchangeably, the two words embody very different legal concepts." State v. Ndina, 2009 WI 21, ¶29, 315 Wis. 2d 653, 761 N.W.2d 612. "Whereas forfeiture is the failure to make the timely assertion of a right, waiver is the intentional relinquishment or abandonment of a known right." Id. (quoting United States v. Olano, 507 U.S. 725, 733 (1993)).

10 No. 2017AP2265-CR

"encourages attorneys to diligently prepare for and conduct

trials" and "prevents attorneys from 'sandbagging' opposing

counsel by failing to object to an error for strategic reasons and

later claiming that the error is grounds for reversal." Id. The

forfeiture rule is a rule of judicial administration, and thus a

reviewing court may disregard a forfeiture and address the merits

of an unpreserved issue in an appropriate case. State ex rel.

Universal Processing Servs. of Wis., LLC v. Cir. Ct. of Milwaukee

Cty., 2017 WI 26, ¶53, 374 Wis. 2d 26, 892 N.W.2d 267.

¶28 Generally, if a claim is forfeited, we address that claim

in the context of ineffective assistance of counsel. See Erickson,

227 Wis. 2d at 766. That is, the defendant must demonstrate that

counsel's failure to object constituted deficient performance and

that such deficient performance prejudiced the defendant. State

v. Maloney, 2005 WI 74, ¶14, 281 Wis. 2d 595, 698 N.W.2d 583

(citing Strickland v. Washington, 466 U.S. 668, 687 (1984)).

¶29 The court of appeals here determined that Counihan

forfeited her challenge to the circuit court's use of the analogous Door County cases when she failed to object at the sentencing

hearing. Counihan, No. 2017AP2265-CR, unpublished slip op., ¶10.

It further refused to ignore the forfeiture, thereby declining to

address the underlying merits of the issue. Id.

¶30 Counihan contends that the court of appeals erred by

applying the forfeiture rule to her claim. In Counihan's view,

the forfeiture rule should not apply to information first disclosed

during the sentencing hearing because such an application undermines the values the forfeiture rule intends to protect. 11 No. 2017AP2265-CR

¶31 With respect to the underlying facts of this case, we

agree with Counihan. When previously unknown information is first

raised by the circuit court at the sentencing hearing, the

defendant has not had a chance to investigate or rebut the

information. At the time the information is raised, a defense

attorney is put in a difficult position if the forfeiture rule is

to be applied——either object to the use of the information and

risk that the details will be detrimental to the client or stay

silent and forfeit the argument should the information be

beneficial to the client.

¶32 Applying forfeiture under such circumstances would not

promote judicial efficiency, but instead would actually hinder it.

Rather than forfeit an issue, defendants would likely seek

adjournments for purposes of investigation, thus delaying

sentencing hearings. Such a practice would run counter to the

stated purposes of the forfeiture rule of maximizing the efficiency

of the judicial process. See Ndina, 315 Wis. 2d 653, ¶30.

¶33 Contrary to the State's argument, Counihan's negative response when the circuit court asked her if she knew "any reason

why sentence should not be pronounced" prior to setting forth the

sentence does not indicate that forfeiture should be applied.

Likewise, the circuit court perfunctorily asking if either

Counihan or the State had "anything further" to discuss before the

close of the hearing has no effect on the outcome. Although

Counihan could have spoken up at either of these points, and it is

certainly the best practice to do so, it does not behoove the

12 No. 2017AP2265-CR

interests protected by the forfeiture rule to require such an

objection lest the claim be forfeited.

¶34 The State points us to several cases to support the broad

proposition that defendants can incur forfeiture by failing to

object at sentencing. Yet, none of these cases deals with the

specific circumstances we review here——where information was first

raised by the court in its sentencing remarks. The present

situation is different from a breach of a plea agreement,7 a claim

of inaccurate information in a report introduced by defense

counsel8 or in a presentence investigation report,9 or the

consideration of behavior underlying expunged convictions.10

¶35 Unlike the claim at issue here, the aforementioned

claims involve information to which a defendant would have access

and the ability to investigate prior to the sentencing hearing.

However, when the circuit court first raises information during

its sentencing remarks, a defendant has been deprived of the

opportunity to investigate and defense counsel must act on the

basis of incomplete information. This weighs against the

7State v. Robinson, 2001 WI App 127, ¶13, 246 Wis. 2d 180, 629 N.W.2d 810. 8State v. Benson, 2012 WI App 101, ¶17, 344 Wis. 2d 126, 822 N.W.2d 484. 9State v. Mosley, 201 Wis. 2d 36, 46, 547 N.W.2d 806 (Ct. App. 1996).

State v. Leitner, 2001 WI App 172, ¶41, 247 Wis. 2d 195, 10

633 N.W.2d 207, aff'd 2002 WI 77, 253 Wis. 2d 449, 646 N.W.2d 341.

13 No. 2017AP2265-CR

application of forfeiture and in favor of allowing a defendant to

first raise the issue in a postconviction motion.

¶36 Our refusal to apply forfeiture in the circumstances

presented is consistent with this court's precedent.

Specifically, in State v. Grady, we stated that the defendant "did

not waive the issues presented because he filed a postconviction

motion pursuant to Wis. Stat. § 809.30(2)(h). Filing a

postconviction motion is a timely means of raising an alleged error

by the circuit court during sentencing." 2007 WI 81, ¶14 n.4, 302

Wis. 2d 80, 734 N.W.2d 364 (citing State v. Gallion, 2004 WI 42,

¶14, 270 Wis. 2d 535, 678 N.W.2d 197).11 Further, State v.

Tiepelman is demonstrative of the general practice that challenges

to information at sentencing are brought via postconviction

motion. 2006 WI 66, ¶7, 291 Wis. 2d 179, 717 N.W.2d 1. The

alleged error in sentencing here is an issue that can likewise be

first raised in a postconviction motion.

¶37 Accordingly, we conclude that where previously unknown

information is raised by the circuit court at the sentencing hearing, a defendant does not forfeit a direct challenge to the

use of the information by failing to object at the sentencing

hearing. Under the facts of this case, Counihan appropriately

raised the alleged error in a postconviction motion. Because the

Cases sometimes use the words "waiver" and "forfeiture" 11

interchangeably. Ndina, 315 Wis. 2d 653, ¶29. Indeed, the Grady court did just this. When it spoke of "waiver," it was actually referring to "forfeiture." See State v. Grady, 2007 WI 81, ¶14 n.4, 302 Wis. 2d 80, 734 N.W.2d 364.

14 No. 2017AP2265-CR

court of appeals determined that Counihan forfeited such a

challenge, we modify the decision of the court of appeals.

IV

¶38 Because Counihan did not forfeit her direct due process

challenge to the use of previously unknown information at

sentencing, we next address the merits of that claim.

¶39 As part of the constitutional due process guarantee that

a defendant be sentenced on reliable information, the defendant

has the right to rebut evidence that is admitted by a sentencing

court. State v. Spears, 227 Wis. 2d 495, 508, 596 N.W.2d 375

(1999). "Obviously, if sentencing information is kept from the

defendant, [the defendant] cannot exercise this right." State v.

Lynch, 2006 WI App 231, ¶24, 297 Wis. 2d 51, 724 N.W.2d 656.

¶40 Circuit courts are required to set forth on the record

the reasons for sentences they impose. Gallion, 270 Wis. 2d 535,

¶¶38-39. This includes explanation of the objectives of the

sentence, which may be, without limitation, the protection of the

community, punishment of the defendant, rehabilitation of the defendant, and deterrence to others. Id., ¶¶40-41. The facts

relevant to these objectives and an explanation of why the

particular component parts of the sentence imposed advance the

specified objectives must also be set forth on the record. Id.,

¶42.

¶41 "Courts must also identify the factors that were

considered in arriving at the sentence and indicate how those

15 No. 2017AP2265-CR

factors fit the objectives and influence the decision."12 Id.,

¶43. We have further encouraged circuit courts to "refer to

information provided by others[,]" such as recommendations of

counsel and any presentence investigation report, in fashioning a

sentence. Id., ¶47.

¶42 Counihan contends that the circuit court's consideration

of the sentences given in similar cases without providing her with

notice that it would do so violates her due process right to rebut

information presented at sentencing. She asserts that she is

entitled to resentencing because she was not given the opportunity

12 Such factors include:

(1) Past record of criminal offenses; (2) history of undesirable behavior pattern; (3) the defendant's personality, character and social traits; (4) result of presentence investigation; (5) vicious or aggravated nature of the crime; (6) degree of the defendant's culpability; (7) defendant's demeanor at trial; (8) defendant's age, educational background and employment record; (9) defendant's remorse, repentance and cooperativeness; (10) defendant's need for close rehabilitative control; (11) the rights of the public; and (12) the length of pretrial detention.

State v. Gallion, 2004 WI 42, ¶43 n.11, 270 Wis. 2d 535, 678 N.W.2d 197 (quoting Harris v. State, 75 Wis. 2d 513, 519-20, 250 N.W.2d 7 (1977)).

We have also recognized additional factors as appropriate considerations, such as dismissed and read-in charges and the effect of the crime on the victim. Id. (citing Austin v. State, 49 Wis. 2d 727, 183 N.W.2d 56 (1971); State v. Jones, 151 Wis. 2d 488, 444 N.W.2d 760 (Ct. App. 1989)).

16 No. 2017AP2265-CR

to review the information in the other case files referenced and

on which the circuit court relied.13

¶43 We disagree with Counihan's argument. "[I]n sentencing,

a trial judge may appropriately conduct an inquiry broad in scope

and largely unlimited either as to the kind of information

considered or the source from which it comes." Handel v. State,

74 Wis. 2d 699, 703, 247 N.W.2d 711 (1976). Consistent with this

mandate in Handel, we expressly stated in Gallion that circuit

courts "may . . . consider information about the distribution of

sentences in cases similar to the case before it." Gallion, 270

Wis. 2d 535, ¶47.

¶44 Such a practice is congruent with the general policy

that "consistency in criminal sentencing is desirable . . . ." In

re Felony Sentencing Guidelines, 120 Wis. 2d 198, 203, 353

N.W.2d 793 (1984) (per curiam). Indeed, the court's statement in

Gallion does not limit the circuit court to considering only "the

distribution of sentences in cases similar to the case before it"

that are within its unassisted recollection. See Gallion, 270 Wis. 2d 535, ¶47.

¶45 The circuit court's actions in this case are

fundamentally different from those in In re Judicial Disciplinary

Proceedings Against Piontek, 2019 WI 51, 386 Wis. 2d 703, 927

N.W.2d 552, to which Counihan attempts to draw a parallel. As

relevant here, in Piontek, the circuit court conducted its own

Notably, Counihan does not argue that the information 13

contained within the other case files was inaccurate.

17 No. 2017AP2265-CR

independent internet research regarding a criminal defendant's

nursing licenses and related matters. Id., ¶16. From such

research, the circuit court discovered what it believed to be

incriminating information from the states of Texas and Illinois

and incorrectly deduced that the defendant had never been licensed

as a nurse in Illinois. Id.

¶46 Without providing notice to the parties or their

attorneys, the circuit court brought up its independent

investigation at the sentencing hearing. Id., ¶¶17-18. In

fashioning the sentence, the circuit court relied on the incorrect

information it had obtained from its internet research. Id., ¶18.

Imposing judicial discipline, this court stated that "it is clearly

improper for a judge to both conduct an independent investigation

and to fail to give a party a chance to respond to the judge's

misinformed allegations based on that investigation." Id., ¶37.

¶47 The circuit court's "investigation" in this case was of

a completely different nature. Unlike in Piontek, the circuit

court here did not investigate facts or gather evidence related to Counihan's case. Instead, it merely conducted a file review to

"determine what the institutional memory of [the] Court was" due

to its relative inexperience.

¶48 We are loath to adopt a rule that would prevent a circuit

court from accessing its institutional memory, thereby requiring

it to view each exercise of its discretion in a vacuum. Such a

rule would run counter to the consistency in criminal sentencing

that we have previously stated is "desirable." Felony Sentencing,

18 No. 2017AP2265-CR

120 Wis. 2d at 203.14 The circuit court's actions in this case are

no different from long-tenured judges reaching back into their

memories without the aid of hard-copy files.

¶49 Further, the failure to provide notice of the cases

considered likewise does not violate due process. When a circuit

court accesses its institutional memory without the aid of written

material, it is not required to inform the parties of all past

cases that came to mind. The use of hard copy files does not

occasion a different rule.

¶50 Nothing in this record indicates that Counihan did not

receive the individualized sentence to which she is entitled. See

Gallion, 270 Wis. 2d 535, ¶48 ("Individualized sentencing, after

all, has long been a cornerstone to Wisconsin's criminal justice

jurisprudence."); Loomis, 371 Wis. 2d 235, ¶¶67-68, 74

(recognizing the due process implications of sentences based on

group data rather than individualized determinations). On the

14See also Bertrall L. Ross II, Reconciling the Booker Conflict: A Substantive Sixth Amendment in a Real Offense Sentencing System, 4 Cardozo Pub. L. Pol'y & Ethics J. 725, 774 (2006) ("Judges have experience in sentencing such that they have created an institutional memory that allows them to rank crime and the culpability of criminals relevant to each other."); id. at 774 n.227 ("The institutional memory does not necessarily apply to new judges, but through training and collaboration with other judges, even new judges will have a greater understanding of proportionate ranking of crimes and other relevant characteristics."). A file review such as that conducted by the judge in this case allows a new judge to access the same information the judge would learn through "collaboration with other judges," and can be a useful option for judges in counties with a low number of judges (or even a single judge) in striving for consistency in their exercises of discretion.

19 No. 2017AP2265-CR

contrary, the circuit court referenced numerous facts specific to

Counihan's background on which it based its sentence, including

her educational background, the position of trust she held at the

Humane Society, and the fact that the thefts took place over a

period of many years. It also appropriately focused on the nature

and gravity of the offense, and the effect of the offense on the

community's willingness to support nonprofit organizations. The

circuit court's remarks in this case taken as a whole reflect the

individualized sentence that Gallion and due process require.

¶51 Accordingly, we conclude that Counihan's due process

rights were not violated by the circuit court's use of the

previously unknown information regarding similarly situated

defendants.15

V

¶52 In sum, we conclude that where previously unknown

information is raised by the circuit court at the sentencing

hearing, a defendant does not forfeit a direct challenge to the

use of the information by failing to object at the sentencing hearing. Under the facts of this case, Counihan appropriately

raised the alleged error in a postconviction motion.

15Because the claim was not forfeited and we address the merits of Counihan's argument directly, we need not address her alternative argument regarding ineffective assistance of counsel. Even if we did, we would conclude that because there was no due process violation, any objection to the consideration of the analogous Door County cases would have been meritless. The failure to raise a meritless objection does not constitute deficient performance. See State v. Dalton, 2018 WI 85, ¶53, 383 Wis. 2d 147, 914 N.W.2d 120.

20 No. 2017AP2265-CR

¶53 Further, we conclude that Counihan's due process rights

were not violated by the circuit court's use of the previously

Because there was no due process violation, we need not address

Counihan's alternative argument that her counsel provided

¶54 Accordingly, we modify the decision of the court of

By the Court.—The decision of the court of appeals is

modified, and as modified, affirmed.

21 No. 2017AP2265-CR.rgb

¶55 REBECCA GRASSL BRADLEY, J. (concurring). I agree with

the majority that Counihan's due process claim fails. A circuit

court's consideration of sentences imposed in similar cases does

not offend a defendant's due process rights. I join ¶¶39-51 of

the majority opinion. However, I write separately because I

disagree with the majority's decision to address forfeiture and

the merits of Counihan's due process claim rather than disposing

of the case under an ineffective assistance of counsel analysis.

¶56 Because Counihan's counsel did not object during the

sentencing hearing, this case should have been resolved under the

rubric of ineffective assistance of counsel. See State v.

Erickson, 227 Wis. 2d 758, 766-68, 596 N.W.2d 749 (1999)

(explaining that when defense counsel fails to object in criminal

cases, appellate courts typically "analyze the waiver within the

ineffective assistance of counsel framework."). During the

Machner hearing,1 Counihan's counsel expressed a reasonable,

strategic basis for not objecting to the sentencing court's consideration of sentences in former cases in fashioning

Counihan's sentence. The assistance counsel provided to Counihan

was not ineffective. That should suffice to end the analysis and

defeat Counihan's claims. Instead, the majority disregards the

ineffective assistance of counsel rubric in order to address the

issues of forfeiture and due process. Because the majority's due

process analysis is correct, I join it. In choosing to reach the

1 State v. Machner, 92 Wis. 2d 797, 285 N.W.2d 905 (Ct. App. 1979).

1 No. 2017AP2265-CR.rgb

merits of forfeiture, however, the majority crafts an overly-broad

new rule of law that will allow defendants to avoid raising

ineffective assistance of counsel claims in hopes of successfully

persuading appellate courts to apply a discretionary forfeiture

exception. Because I would not reach the merits of Counihan's

claims, but nevertheless reach the same result as the majority

under an ineffective assistance of counsel analysis, I

respectfully concur.

I. INEFFECTIVE ASSISTANCE OF COUNSEL

¶57 When a defendant bases her appeal on trial counsel's

failure to object, we review the case under the ineffective

assistance of counsel rubric. "The absence of any objection

warrants that we follow 'the normal procedure in criminal cases,'"

which is to address the alleged forfeiture "within the rubric of

the ineffective assistance of counsel." State v. Carprue, 2004 WI

111, ¶¶36-47, 274 Wis. 2d 656, 683 N.W.2d 31 (quoted and cited

sources omitted); see also Kimmelman v. Morrison, 477 U.S. 365,

374-75 (1986) (in absence of objection, error should be analyzed under ineffective assistance of counsel standards, even when error

is of constitutional dimension). Reviewing the Machner2 hearing

2 The Machner court held: "[I]t is a prerequisite to a claim of ineffective representation on appeal to preserve the testimony of trial counsel. We cannot otherwise determine whether trial counsel's actions were the result of incompetence or deliberate trial strategies. In such situations, then, it is the better rule, and in the client's best interests, to require trial counsel to explain the reasons underlying his handling of a case." 92 Wis. 2d at 804. The Machner hearing affords trial counsel the opportunity to explain the reasons for his choices and assists the circuit court in deciding whether trial counsel provided ineffective assistance.

2 No. 2017AP2265-CR.rgb

transcript in this case shows that Counihan's lawyer gave her

effective assistance.

¶58 During the Machner hearing, Counihan's defense lawyer

repeatedly explained why he did not object to the sentencing

court's reference to similar cases in arriving at Counihan's

sentence: "I can't say it was so out-of-the-box as to be

concerning to -- concerning to me overall. Judges do that all the

time about what -- what they think the going rate is for something

or what the guidelines are for a particular offense in the county."

In fact, defense counsel perceived the circuit court's

consideration of this information as favorable for his client: "I

thought it was . . . kind of thoughtful that [the judge] was being

so measured." Defense counsel believed examination of prior cases

would likely prevent the circuit court from imposing too high a

sentence in response to strong community anger over the defendant's

crime: "[T]hat sort of research to figure out if there has been

a case like that in the past, I can see where the judge would be

interested to know -- to know to make sure that he's not punishing -- overpunishing, despite the fact there's so many angry people

here." When asked if he thought it would have been helpful for

him to review the prior cases the sentencing court referenced,

Counihan's trial lawyer said: "If there was a benefit it would

have been tremendously minimal" because Counihan's actions were

more aggravated than the conduct of similarly-charged defendants

in other cases. When asked whether his strategy was to avoid

repeatedly objecting during sentencing because he thought repeated objections would "cause more harm" to his client's case, Counihan's

3 No. 2017AP2265-CR.rgb

defense lawyer answered in the affirmative, "Yeah[]" and "I didn't

want to buy my client an extra month." He also testified that he

did not object or seek an adjournment because the outgoing district

attorney had offered a favorable plea deal for Counihan, which

defense counsel feared the newly elected district attorney might

revoke. In summary, Counihan's defense counsel declined to object

to what he recognized as a typical practice of circuit courts,

making this decision in consideration of his client's best

interests.

¶59 Because there was nothing objectionable about the

circuit court's consideration of sentences imposed in prior cases,

Counihan's counsel did not provide ineffective assistance. Even

if an argument could be made that defense counsel should have

objected, his testimony at the Machner hearing disclosed ample

strategic reasons why he chose not to. Instead of deciding the

case on these well-established grounds, the majority allowed

Counihan to present a substantive issue, thereby opening the door

for defendants to dodge the previously prevailing ineffective assistance of counsel rubric on appeal, a tougher hurdle to

overcome than a review on the merits.3 The majority's new procedure

allows defendants to do an end run around ineffective assistance

3"A criminal defendant has the constitutional right to effective assistance of counsel." State v. Sholar, 2018 WI 53, ¶32, 381 Wis. 2d 560, 912 N.W.2d 89; see also Strickland v. Washington, 466 U.S. 668, 686 (1984). "To establish the assistance a defendant received was ineffective, he must prove two elements: (1) his counsel's performance was deficient, and (2) the deficient performance prejudiced [him]. Sholar, 381 Wis. 2d 560, ¶32.

4 No. 2017AP2265-CR.rgb

claims, encouraging appellate counsel to instead argue the merits

of an issue in postconviction motions and obviating the need for

a Machner hearing at all. The whole purpose of a Machner hearing

in this context is to explore the reason why an attorney did not

object at sentencing and if the attorney presents a reasonable

basis for not objecting, the defendant's claim fails, and the case

is over. That is how the court should have decided this case.

Instead, this court's disposition will allow appellate counsel to

pursue a different strategy than trial counsel even if trial

counsel provided effective assistance, resulting in many more

appeals on the merits in cases that should end at the

postconviction motion stage.

II. FORFEITURE

¶60 Because the majority chose to focus on forfeiture in

deciding this case, an overview of the application of this doctrine

in Wisconsin merits discussion. Forfeiture results from a

defendant's failure to timely assert her rights. State v. Ndina,

2009 WI 21, ¶29, 315 Wis. 2d 653, 761 N.W.2d 612 (citation omitted); majority op., ¶25. Forfeiture has long been engrained

in procedural law. See Yakus v. United States, 321 U.S. 414, 444

(1944) ("No procedural principle is more familiar . . . than that

a constitutional right may be forfeited in criminal as well as

civil cases by the failure to make timely assertion of the right

before a tribunal having jurisdiction to determine it." (citations

omitted)); see also Clements v. Macheboeuf, 92 U.S. 418, 425 (1875)

("Matters not assigned for error will not be examined[.]"). "The rule preventing an appellate court from considering an issue not

5 No. 2017AP2265-CR.rgb

raised in the trial [court] is as old as the common law system of

appellate review." Robert J. Martineau, Considering New Issues on

Appeal: The General Rule and the Gorilla Rule, 40 Vand. L. Rev.

1023, 1061 (1987).

¶61 "The purpose of the 'forfeiture' rule is to enable the

circuit court to avoid or correct any error with minimal disruption

of the judicial process, eliminating the need for appeal." Ndina,

315 Wis. 2d 653, ¶30 (emphasis added; footnote omitted). Other

"underlying justifications for the raise or lose rule are the

adversarial process, judicial efficiency and finality, and respect

for the differing roles of the trial and appellate courts." Tory

A. Weigand, Raise or Lose: Appellate Discretion and Principled

Decision-Making, 17 Suffolk J. Trial & App. Advoc. 179, 183

(footnote omitted) (referring to forfeiture as the "raise or lose"

rule). In State v. Huebner, this court expressed the "several

important objectives" of the rule:

Raising issues at the trial court level allows the trial court to correct or avoid the alleged error in the first place, eliminating the need for appeal. It also gives both parties and the trial judge notice of the issue and a fair opportunity to address the objection. Furthermore, the . . . rule encourages attorneys to diligently prepare for and conduct trials. Finally, the rule prevents attorneys from "sandbagging" errors, or failing to object to an error for strategic reasons and later claiming that the error is grounds for reversal. For all of these reasons, the . . . rule is essential to the efficient and fair conduct of our adversary system of justice. 2000 WI 59, ¶12, 235 Wis. 2d 486, 611 N.W.2d 727 (internal

citations omitted); see also Ndina, 315 Wis. 2d 653, ¶30. Huebner referenced these objectives while using the term "waiver," but the

6 No. 2017AP2265-CR.rgb

court meant "forfeiture," as our later cases make clear. See

Huebner, 235 Wis. 2d 486, ¶11 n.2.4 "The need for the traditional

forfeiture rule . . . is obvious. Without that incentive to raise

legal objections as soon as they are available, the time of lower

court judges and of juries would frequently be expended uselessly,

and appellate consideration of difficult questions would be less

informed and less complete." Freytag v. Comm'r of Internal

Revenue, 501 U.S. 868, 900 (1991) (Scalia, J., concurring in part

and concurring in the judgment) (emphasis added). For all of these

reasons, forfeiture is "essential to the orderly administration of

justice." 9 C. Wright & A. Miller, Federal Practice and Procedure

§ 2472 (1971).

¶62 While the rationale underlying the forfeiture rule is

clearly established, the application of the rule by our courts has

been anything but discernable. In some cases, we apply the

forfeiture rule when a party fails to timely object. See, e.g.,

State v. Pinno, 2014 WI 74, ¶¶2, 57, 66, 68, 356 Wis. 2d 106, 850

N.W.2d 207 (holding that two defendants who knew of a courtroom closure and failed to object forfeited the right to a public

trial); Village of Trempealeau v. Mikrut, 2004 WI 79, ¶¶3, 6, 15,

4 In State v. Huebner, this court recognized that its use of the term "waiver" was imprecise and really means "forfeiture." 2000 WI 59, ¶11 n.2, 235 Wis. 2d 486, 611 N.W.2d 727. Regardless, the court used the term to remain consistent with its past practice. Id. This court later clarified that "waiver" and "forfeiture" are two distinct concepts. State v. Ndina, 2009 WI 21, ¶29, 315 Wis. 2d 653, 761 N.W.2d 612. "[W]aiver is the intentional relinquishment or abandonment of a known right"; "forfeiture is the failure to make the timely assertion of a right[.]" Id. (quoting United States v. Olano, 507 U.S. 725, 733 (1993)).

7 No. 2017AP2265-CR.rgb

27, 31, 273 Wis. 2d 76, 681 N.W.2d 190 (holding that the defendant

forfeited an objection to the circuit court's competency by failing

to object in the circuit court); Huebner, 235 Wis. 2d 486, ¶¶8,

10, 36 (concluding the defendant forfeited his right to a 12-

person jury because he failed to object to the use of a 6-person

jury at trial). In other cases, we forego applying forfeiture

when a party fails to object, and instead reach the substantive

merits. See, e.g., State v. Wilson, 2017 WI 63, ¶51 n.7, 376

Wis. 2d 92, 896 N.W.2d 682 (not applying forfeiture even though

the defendant failed to object to a circuit court ruling, because

the "important" issue on appeal was already briefed and argued);

State v. McKellips, 2016 WI 51, ¶47, 369 Wis. 2d 437, 881

N.W.2d 258 (reaching the merits of whether a jury instruction was

misleading even though the defendant forfeited the claim by failing

to object); Ndina, 315 Wis. 2d 653, ¶38 (reaching the merits even

though the defendant did not assert his public trial right and

failed to object when the circuit court excluded family members

from the courtroom because the State also forfeited an issue and the parties already briefed the underlying legal issues).

¶63 The court of appeals is similarly inconsistent in

applying forfeiture. In some cases, the court of appeals held a

failure to object in the circuit court results in forfeiture. See,

e.g., State v. Benson, 2012 WI App 101, ¶¶5, 7, 16-17, 344

Wis. 2d 126, 822 N.W.2d 484 (holding that a defendant who

submitted a report with inaccurate information at sentencing

forfeited a due process claim by failing to object to the report, limiting the court of appeals' review to ineffective assistance of

8 No. 2017AP2265-CR.rgb

counsel); State v. Saunders, 2011 WI App 156, ¶¶1, 28-32, 338

Wis. 2d 160, 807 N.W.2d 679 (applying forfeiture because the

defendant failed to bring a sleeping juror to the circuit court's

attention until after the trial). Like this court, the court of

appeals has also reached the merits instead of applying forfeiture,

even when the defendant failed to object in the circuit court.

See, e.g., Dalka v. Am. Family Mut. Ins. Co., 2011 WI App 90, ¶¶5-

6, 334 Wis. 2d 686, 799 N.W.2d 923 (holding Dalka forfeited his

right to appellate review by not preserving the appealed issue in

the circuit court, but deciding the appeal anyway because it was

already briefed and involved a question of law); State v. Leitner,

2001 WI App 172, ¶¶41-42, 247 Wis. 2d 195, 633 N.W.2d 207 (holding

that the defendant "waived" his claim by not objecting to the

court's consideration of certain behavior at sentencing, but

ignoring the "waiver") aff'd, 2002 WI 77, 253 Wis. 2d 449, 646

N.W.2d 341.5

5 See also State v. Greenup, No. 2018AP709-CR, unpublished slip op., ¶¶9-11, 15-17 (Wis. Ct. App. Apr. 4, 2019) (applying forfeiture to the defendant's due process claim because objection based on the audibility of video evidence was insufficient; court addressed under ineffective assistance of counsel analysis); State v. Murphy, No. 2017AP1559-CR, unpublished slip op., ¶¶2, 11, 14, 58-66 (Wis. Ct. App. Aug. 16, 2018) (applying forfeiture when the defendant failed to object to the testimony of a witness); State v. DeAngeles, No. 2015AP348-CR, unpublished order (Wis. Ct. App. Apr. 26, 2016) (applying forfeiture when the defendant failed to raise new grounds for plea withdrawal in the circuit court); State v. Jackson, No. 2015AP934-CR, unpublished order (Wis. Ct. App. Dec. 8, 2015) (applying forfeiture when the defendant failed to raise objections to information included in the presentence investigation report at the sentencing); State v. Wojczak, No. 2010AP3138-CR, unpublished slip op., ¶19 (Wis. Ct. App. Feb. 2, 2012) (not applying forfeiture when the defendant did not alert the sentencing court to circumstances surrounding a material pregnancy, because nothing indicated the defendant or his attorney 9 No. 2017AP2265-CR.rgb

¶64 The bench and bar would benefit from a clear rule,

consistently applied, regarding what factors trigger forfeiture

versus what warrants application of an exception to the general

rule. "[J]udicial discretion . . . [leads to] a loss of

predictability and the ability of citizens and litigants to know

what the law proscribes. It can be antithetical to the rule of

law and accountability particularly in the absence of a higher

review of the discretion." Weigand, supra ¶61, at 245. The

majority seemingly recognizes that the application of forfeiture

is subject to the will rather than the judgment of each appellate

court. The majority says, "[t]he forfeiture rule is a rule of

judicial administration, and thus a reviewing court may disregard

a forfeiture and address the merits of an unpreserved issue in an

appropriate case." Majority op., ¶27 (citation omitted). Our

cases never identify what an "appropriate case" looks like, except

on an ad hoc basis. Inconsistent exercise of this discretion

produces adverse consequences, as recognized in other

jurisdictions and by legal scholars:

[An exception to the general rule of forfeiture] has never developed into a principled test, but has remained essentially a vehicle for reversal when the predilections of a majority of an appellate court are offended. . . . The other major weakness of [the exception] is its ad hoc nature. The [exception] has been formulated in terms of what a particular majority of an appellate court considers basic or fundamental. Such a test is unworkable when neither the [exception]

was aware of the pregnancy's significance at the time of sentencing). I cite these cases not in support of their legal propositions, but instead as further illustrations of the inconsistency in applying our forfeiture jurisprudence.

10 No. 2017AP2265-CR.rgb

itself nor the case law applying it develop a predictable, neutrally-applied standard. Dilliplaine v. Lehigh Valley Trust Co., 322 A.2d 114, 116-17 (1974)

(emphasis added; internal footnotes omitted).

¶65 While "no general principle [of law] can achieve a

perfect fit[,]" establishing general rules is preferable to the

sort of discretionary, ad hoc approaches reflected in our

forfeiture jurisprudence, which yield inequality of treatment and

unpredictability in the law. See Antonin Scalia, The Rule of Law

as a Law of Rules, 56 Univ. Chi. L. Rev. 1175, 1177-80, 1183 (1989)

(emphasis omitted); see also Martineau, supra ¶60, at 1057-58

("Inconsistency is the hallmark of the various exceptions. For

every case that can be found in which an exception to the general

rule [of forfeiture] is allowed, another exists in which the court

refused to permit the exception and enforced the general

rule. . . . This is ad hoc decision making at its worst.");

Weigand, supra ¶61, at 181 (discussing discretion in applying

forfeiture leading to "uncertainty and unevenness in

application"). This court's forfeiture jurisprudence promotes

decision-making devoid of discernable principles, at the expense

of the rule of law:

Making adherence to the general rule [of raising issues in the trial court] a matter of discretion in the appellate court has resulted in the effective abolition of the general rule. The general rule has been replaced by a system in which the question . . . is decided solely on the basis of whether a majority of the court considers the new issue necessary to decide the case in accordance with their view of the relative equities of the parties. The only consistent feature of the current system is inconsistency. If courts are free to disregard the general rule whenever they wish to do so, in effect there is no general rule. The current situation is 11 No. 2017AP2265-CR.rgb

destructive of the adversary system, causes substantial harm to the interests that the general rule is designed to protect, and is an open invitation to the appellate judges to "do justice" on ad hoc rather than principled bases. Martineau, supra ¶60, at 1061.

¶66 In arguing whether forfeiture should apply, neither

party in this case advocated for a fine tuning of our forfeiture

jurisprudence, much less suggested an alternative to our current

ad hoc approach to the doctrine. It is a rule of judicial

administration that would benefit from greater clarity and

predictability in its application. Because this court would

benefit from full adversarial briefing regarding the doctrine,

which is unnecessary to decide this case, the issue is better left

to be explored in a case that squarely presents it.

III. NEW FORFEITURE EXCEPTION IN SENTENCING

¶67 As the majority points out, this court previously

decided that sentencing courts may consider the "distribution of

sentences in cases similar to the case before it." Majority op.,

¶¶43-44 (quoting State v. Gallion, 2004 WI 42, ¶47, 270

Wis. 2d 535, 678 N.W.2d 197). That is precisely what the

sentencing court did in this case. Nevertheless, the majority

perceives a need to create a new rule: "where previously unknown

hearing, a defendant does not forfeit a direct challenge to the

use of the information by failing to object at the sentencing

hearing." Majority Op., ¶¶4, 37, 52.

¶68 Adopting the majority's new rule is unnecessary because, as the majority recognizes, accessing the circuit court's

12 No. 2017AP2265-CR.rgb

institutional memory is entirely permissible during sentencing.

Furthermore, such information is not "unknown"; as defense counsel

testified during the Machner hearing, sentencing courts "do that

all the time." If, as explained in Gallion, the sentencing court

"may . . . consider information about the distribution of

sentences in cases similar to the case before it[,]"6 then the

sentencing court's consideration of such information in this case

could not be objectionable. If there was no basis for Counihan to

object to this information, then why is the majority deciding

whether Counihan forfeited her challenge to the sentencing court's

consideration of information we have long recognized to be a

permissible factor in sentencing? The legal issues in this case

are not novel at all, yet the majority nevertheless devises a new

rule. Why?

¶69 If the majority's approach to this case constituted an

unnecessary, but harmless vetting of the substantive issues

presented, I might have joined without writing separately. To the

contrary, the majority's new rule will only encourage meritless postconviction motions based on allegedly (but not really)

"previously unknown information raised by the circuit court at

sentencing." A defendant's due process rights at sentencing

protect against the sentencing court's reliance on inaccurate

information. State v. Tiepelman, 2006 WI 66, ¶9, 291 Wis. 2d 179,

717 N.W.2d 1. This case does not involve an allegation of

inaccurate information; rather, it involves information being used

6State v. Gallion, 2004 WI 42, ¶47, 270 Wis. 2d 535, 678 N.W.2d 197.

13 No. 2017AP2265-CR.rgb

at sentencing that was not only available to the defense before

sentencing, but also constitutes the type of information Gallion

instructed long ago is fairly considered by sentencing courts.

IV. CONCLUSION

¶70 Our forfeiture jurisprudence suffers from inconsistency

leading to unpredictability in applying the general rule, which

has largely been swallowed by exceptions.7 In some cases, our

appellate courts apply the general rule of forfeiture if a party

fails to object in a proceeding below. In other cases, we ignore

forfeiture, with scant explanation. Wisconsin's "discretionary

conferring approach" to forfeiture renders it "very difficult to

predict with any certainty when an issue will be deemed [forfeited]

or not[.]" Weigand, supra ¶61, at 245. The bench and bar would

benefit from clear guidance regarding when forfeiture will apply

as well as identifiable bases for instead invoking one of its

exceptions.

¶71 The majority fashions a broad, categorical rule against

forfeiture, which is unnecessary to properly dispose of this case. The majority should have denied Counihan's claims under the rubric

of ineffective assistance of counsel. Counihan's counsel had an

objectively reasonable basis for declining to object to the

sentencing court's consideration of sentences imposed in similar

cases preceding Counihan's. Additionally, we have long recognized

7 This could be attributable in part to a variety of factors, including the specific arguments parties present in individual cases as well as differences between civil and criminal cases. Criminal cases, of course, provide review of ineffective assistance claims, whereas civil cases do not.

14 No. 2017AP2265-CR.rgb

the permissibility, if not desirability, of a sentencing court

accessing its institutional memory in order to ensure consistency

in sentencing across cases. Because the majority unnecessarily

resolved this case on the merits and in the process established a

new rule fraught with adverse impact in its application, I

¶72 I am authorized to state that Justice DANIEL KELLY joins

this concurrence.

15 No. 2017AP2265-CR.rgb