State v. Donavinn D. Coffee

2020 WI 1

• Court: Wisconsin Supreme Court
• Decided: January 9, 2020
• Docket: 2017AP002292-CR
• Status: Published

Opinion

2020 WI 1

SUPREME COURT OF WISCONSIN CASE NO.: 2017AP2292-CR

COMPLETE TITLE: State of Wisconsin, Plaintiff-Respondent, v. Donavinn D. Coffee, Defendant-Appellant-Petitioner.

REVIEW OF DECISION OF THE COURT OF APPEALS Reported at 385 Wis. 2d 211,923 N.W.2d 181 (2018 – unpublished)

OPINION FILED: January 9, 2020 SUBMITTED ON BRIEFS: ORAL ARGUMENT: October 21, 2019

SOURCE OF APPEAL: COURT: Circuit COUNTY: Milwaukee JUDGE: Fredrick C. Rosa

JUSTICES: ZIEGLER, J., announced the judgment of the Court and delivered the majority opinion of the Court with respect to Parts I through III and Part IV.C. and D., in which ROGGENSACK, C.J., HAGEDORN, and KELLY, JJ., joined. KELLY, J., filed a concurring opinion, in which REBECCA GRASSL BRADLEY, J., joined ¶¶59-63. ANN WALSH BRADLEY, J., filed a dissenting opinion, in which REBECCA GRASSL BRADLEY and DALLET, JJ., joined. NOT PARTICIPATING:

ATTORNEYS:

For the defendant-appellant-petitioner, there were briefs filed by Nicole M. Masnica, assistant state public defender. There was an oral argument by Nicole M. Masnica.

For the plaintiff-respondent, there was a brief filed by Aaron R. O’Neil, assistant attorney general, with whom on the brief was Joshua L. Kaul, attorney general. There was an oral argument by Aaron R. O’Neil. 2020 WI 1 NOTICE This opinion is subject to further editing and modification. The final version will appear in the bound volume of the official reports. No. 2017AP2292-CR (L.C. No. 2015CF4965)

STATE OF WISCONSIN : IN SUPREME COURT

State of Wisconsin,

Plaintiff-Respondent, FILED v. JAN 9, 2020 Donavinn D. Coffee, Sheila T. Reiff Clerk of Supreme Court Defendant-Appellant-Petitioner.

ZIEGLER, J., announced the judgment of the Court and delivered the majority opinion of the Court with respect to Parts I through III and Part IV.C. and D., in which ROGGENSACK, C.J., HAGEDORN, and KELLY, JJ., joined. KELLY, J., filed a concurring opinion, in which REBECCA GRASSL BRADLEY, J., joined ¶¶59-63. ANN WALSH BRADLEY, J., filed a dissenting opinion, in which REBECCA GRASSL BRADLEY and DALLET, JJ., joined.

REVIEW of a decision of the Court of Appeals. Affirmed.

¶1 ANNETTE KINGSLAND ZIEGLER, J. This is a review of a

per curiam decision of the court of appeals, State v. Coffee, No.

2017AP2292-CR, unpublished slip. op. (Wis. Ct. App. Nov. 6, 2018),

affirming the Milwaukee County circuit court's1 judgment of

1 The Honorable Frederick C. Rosa presided. No. 2017AP2292-CR

conviction and order denying Donavinn D. Coffee's ("Coffee")

postconviction motion for resentencing.2 Coffee argues that the

circuit court violated his due process rights because the circuit

court relied on inaccurate information at sentencing, and that

error was not harmless. Neither Coffee nor his counsel objected

to the inaccurate information at the sentencing hearing. Rather,

Coffee's first objection to the inaccurate information was in his

postconviction motion. The postconviction court concluded that:

(1) the State introduced inaccurate information at the sentencing

hearing; and (2) the circuit court actually relied on the

inaccurate information; but (3) the error was harmless. Thus, the

postconviction court denied Coffee's motion for resentencing. The

court of appeals affirmed, but not on the merits of Coffee's

inaccurate information at sentencing claim. Instead, the court of

appeals concluded that Coffee forfeited his claim because he failed

to object at the sentencing hearing. We now affirm, but we resolve

this case on the merits.

¶2 A defendant has a constitutional due process right to be sentenced upon accurate information. State v. Tiepelman, 2006 WI

66, ¶9, 291 Wis. 2d 179, 717 N.W.2d 1. Coffee's constitutional

due process right was violated. Indeed, both Coffee and the State

agree that the circuit court actually relied on inaccurate

information when it sentenced Coffee. Accordingly, the issues

before this court are: (1) whether Coffee forfeited his ability to

2 The postconviction court also denied Coffee's motion for a sentence modification. Coffee did not appeal that denial and the issue is not before this court.

2 No. 2017AP2292-CR

later challenge the inaccurate information because he failed to

object at the sentencing hearing; and, (2) if Coffee did not

forfeit his claim, whether the circuit court's reliance on the

inaccurate information at sentencing was harmless error.

¶3 We conclude that the forfeiture rule does not apply to

previously unknown, inaccurate information first raised by the

State at sentencing. Rather, a postconviction motion is also a

timely manner in which to bring that claim. Accordingly, we

conclude that Coffee did not forfeit his ability to challenge the

inaccurate information at his sentencing. We nonetheless conclude

that the circuit court's reliance on inaccurate information at

Coffee's sentencing was harmless error. Thus, we affirm the court

of appeals.

I. FACTUAL BACKGROUND

¶4 On November 10, 2015, in Milwaukee, G.B. was robbed at

gunpoint. He stated that he was talking on the phone in an alley

when a white Mercury Mountaineer sped toward him. It stopped near him and a black male with dreadlocks exited the rear passenger-

side door of the SUV, gun in hand. The driver and the gunman

demanded that G.B. give them all his "stuff." G.B. gave the gunman

$50.00, and the gunman took G.B.'s cell phone and wallet. Both

suspects then fled in the white SUV.

¶5 About five minutes later, just a few blocks away, D.J.

was shot from behind while attempting to flee from a white SUV.

He stated that the white SUV pulled up alongside him, and a black male with dreadlocks opened the rear passenger-side door. He

3 No. 2017AP2292-CR

exited the SUV, holding a gun, and told D.J., "[Y]ou better not

run." But, fearing for his safety, D.J. did run. Moments later,

he was shot in the back. D.J. suffered shotgun pellet wounds to

the upper back and left ear.

¶6 City of Milwaukee police officers investigated shots

fired in the area. Officer Joseph Goggins spotted a white Mercury

Mountaineer, turned on his emergency lights and siren, and pursued

the suspect SUV. The SUV sped up, forcing a pursuit for 22 blocks.

It finally stopped, but the two suspects then fled on foot.

Donavinn Coffee and Antonio Hazelwood were eventually detained.

Coffee later admitted he was the gunman.

II. PROCEDURAL POSTURE

¶7 On November 15, 2015, the State filed a criminal

complaint against Coffee and Hazelwood, charging them each with

three counts——armed robbery, attempted armed robbery, and first-

degree recklessly endangering safety, all as a party to a crime.

The State also charged Hazelwood with a fourth count of fleeing or eluding an officer.

¶8 On June 6, 2016, Coffee pled guilty to all three counts

against him. Pursuant to the plea agreement, the State would

recommend "a substantial prison sentence." On June 23, 2016, the

circuit court held a sentencing hearing. What unfolded at the

sentencing hearing is crucial to Coffee's appeal. At the hearing,

the prosecutor recommended "substantial" prison time. During his

statement to the circuit court, the prosecutor discussed Coffee's record. He stated:

4 No. 2017AP2292-CR

[Coffee] does have two prior convictions. There was a 2014 misdemeanor case. It came in as a criminal damage to property, disorderly conduct and contact after domestic abuse arrest.

The conviction was for the contact after the domestic abuse arrest. He pled guilty on that July 1, 2014. Judge Flanagan sentenced him to probation. He also has a conviction in January of 2013 for carrying a concealed weapon. In that case, he received probation as well.

There were two cases that were no process by my office, October 2014, there was a misdemeanor battery. What's alarming from the State's [perspective] because of the nature of this offense that's in front of the Court is that December 2011 there was an armed robbery case that was sent to my office. That was a no process.

So what the defendant has shown here with his past criminal conduct, not only is there a weapon's related offense, but there was something that triggered a law enforcement investigation and reviewed by my office for offenses by a title similar in nature to this. (Emphasis added.)

¶9 The State told the circuit court that Coffee had a prior

arrest for armed robbery. That was inaccurate. He was not

arrested for armed robbery, but rather for suspicion of strong-

arm robbery and then released. The State concedes that Coffee was

never arrested for armed robbery in December 2011. The State never

filed any charges against Coffee for strong-arm robbery in December

5 No. 2017AP2292-CR

2011.3 Thus, the State introduced inaccurate information at the

sentencing hearing.

¶10 Next, Coffee's counsel and Coffee each made a statement.

Consistent with the plea agreement, each acknowledged that prison

time was merited in this case. Then the circuit court spoke.

Importantly, the circuit court explicitly referenced a prior

arrest for armed robbery. The circuit court said to Coffee:

So [the prosecutor] there says you had a couple of police contacts. No charges but one of them was an armed robbery. Then you had these domestic violence situations. So then you were kind of becoming acquainted with the criminal justice system.

Any reason why those contacts were not enough to get you to kind of think about your associations and your choices that you were making out there? (Emphasis added.) And later the circuit court stated:

So you have got some misdemeanor cases; one successful probation, one unsuccessful probation. You have got a couple of police contacts; one significant concern because it sounds like it was an armed robbery which is what these offenses are.

So you basically are engaging in behavior that is kind of getting more serious. Domestic violence by itself is natured as assaultive behavior, meaning violence against another human being.

3 Some conclude that Coffee did not commit strong-arm robbery; that he was wrongfully arrested because two witnesses told law enforcement that the offender was not Coffee. The presumption of innocence certainly applies, but experience demonstrates that, without knowing more, we can reach no conclusion. Using a police report alone to analyze and conclude the guilt or innocence of a person is not what our court should do. Who committed the strong- arm robbery is not an issue before us today. Indeed, Coffee has not been charged with strong-arm robbery.

6 No. 2017AP2292-CR

But these other things are violence and property crimes, and I don't know what else to call it. So that pattern of your behavior or undesirable behavior is escalating. (Emphasis added.)

¶11 Thus, the circuit court relied on the inaccurate

information——a prior arrest for armed robbery——at the sentencing

hearing. But the circuit court also discussed other relevant

information at the hearing. Indeed, the circuit court began its

sentencing remarks by stating, "My responsibility in imposing a

sentence is to look at the gravity of the offense. I look at your

character, offenses, plural, look at the need to protect the

public." The circuit court then went on to discuss the significant

harm to the victims in this case, the increasing gun violence

problem in Milwaukee, Coffee's criminal intent, the harm to

Coffee's family (including his young son), Coffee's education and

work history, and the need to protect the public. We describe the

circuit court's discussion of each of these factors in more detail

below.

¶12 The circuit court then took a brief recess to deliberate

over the proper sentence for Coffee. After the recess, the circuit

court noted that both parties agreed that prison time was

appropriate in this case. "Nobody has requested probation in this

case because it isn't a probation case. These are really serious

offenses. There's been substantial harm to the victims." The

circuit court added that it imposed consecutive sentences for each

count to "underscore" that each count was a serious offense. The circuit court then pronounced a sentence of four years of initial

7 No. 2017AP2292-CR

confinement and three years of extended supervision each for the

armed robbery and attempted armed robbery counts. For the first-

degree reckless endangerment count, the circuit court imposed five

years of initial confinement and three years of extended

supervision. Thus, Coffee was sentenced to 13 years of initial

confinement and nine years of extended supervision.

¶13 On August 7, 2017, Coffee filed a motion for

postconviction relief. Coffee argued that he must be resentenced

because the State introduced inaccurate information at sentencing,

the circuit court actually relied on it, and the error was not

harmless. Specifically, Coffee argued that his Criminal

Information Bureau ("CIB") report did not show any arrests in

December 2011. The State filed a response brief, to which it

appended a Milwaukee Police Department Incident Report from

December 27, 2011. According to that report, Coffee and another

person were arrested for suspicion of strong-arm robbery. The

State provided no explanation as to why the December 2011 arrest

was not included in Coffee's CIB report. ¶14 On October 31, 2017, the postconviction court issued a

decision and order denying Coffee's motion for postconviction

relief. The postconviction court took issue with the State's use

of the incident report because it described an arrest for strong-

arm robbery, not armed robbery, "and more significantly, [Coffee]

apparently was not involved in the offense." Ultimately, the

postconviction court concluded that it had considered the December

2011 arrest at the sentencing hearing, but the error was harmless.

8 No. 2017AP2292-CR

Although the court considered the December 2011 incident during its sentencing decision, the court focused primarily on the defendant's conduct in this case, his contribution to the prevalence of gun violence that is threatening the fabric of our community, the impact of his crimes upon the victims and the greater community, his background and rehabilitative needs, and the need to protect the public. Even without information about the December 2011 police contact, the fact that the defendant used a weapon in the commission of the offenses in this case and that he shot one of his victims would have led the court to the same conclusion that he was "engaging in behavior that is getting more serious" and that his "pattern . . . of undesirable behavior is escalating." . . . Consequently, to the extent that the court relied upon the December 2011 incident at the sentencing hearing, the error was harmless because it did not materially affect the court's sentencing decision in this case. ¶15 Coffee appealed. He again argued that his due process

right to be sentenced based on accurate information was violated,

and the error was not harmless. In response, the State argued for

the first time that Coffee had forfeited his inaccurate information

at sentencing claim because he failed to object at the sentencing

hearing. The court of appeals agreed. On November 6, 2018, the

court of appeals concluded that Coffee had forfeited his claim because he "had numerous chances to object to the 2011 arrest

information during the sentencing hearing and failed to do so."

Coffee, No. 2017AP2292-CR, unpublished slip op., ¶12.

¶16 On December 4, 2018, Coffee petitioned this court for

review. We granted the petition.

III. STANDARD OF REVIEW

¶17 We are asked to decide whether Coffee forfeited his inaccurate information at sentencing claim and, if not, whether

9 No. 2017AP2292-CR

the error was harmless. Whether a claim is forfeited or adequately

preserved for appeal is a question of law this court reviews de

novo. State v. Corey J.G., 215 Wis. 2d 395, 405, 572 N.W.2d 845

(1998). Whether a defendant has been sentenced in violation of

his due process rights, and whether that error is harmless are

questions of law this court reviews de novo. Tiepelman, 291

Wis. 2d 179, ¶9; State v. Travis, 2013 WI 38, ¶20, 347 Wis. 2d 142,

832 N.W.2d 491.

IV. ANALYSIS

A. Forfeiture Generally

¶18 The State argues that Coffee forfeited his inaccurate

information at sentencing claim because he failed to object at the

sentencing hearing. Coffee argues that the forfeiture rule does

not, and should not, apply to inaccurate information at sentencing

claims because applying the forfeiture rule would not promote the

fair and orderly administration of justice. Before we analyze the

issue, a summary of the forfeiture rule, its purpose, and its effect is helpful.

¶19 Forfeiture is the failure to timely assert a right.

State v. Ndina, 2009 WI 21, ¶29, 315 Wis. 2d 653, 761 N.W.2d 612.

Under the forfeiture rule, a defendant may forfeit a right if the

defendant fails to object at the time the right is violated. Id.,

¶30. The forfeiture rule fosters the fair, efficient, and orderly

administration of justice.

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

10 No. 2017AP2292-CR

for appeal. The forfeiture rule also gives both parties and the circuit court notice of the issue and a fair opportunity to address the objection; 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. (footnotes omitted); see also State v. Pinno, 2014 WI 74, ¶56,

356 Wis. 2d 106, 850 N.W.2d 207; State v. Huebner, 2000 WI 59,

¶11, 235 Wis. 2d 486, 611 N.W.2d 727.

¶20 Some rights are so fundamental that they are not subject

to the forfeiture rule. Ndina, 315 Wis. 2d 653, ¶31. For example,

the right to counsel, the right to refrain from self-incrimination,

and the right to a jury trial are not subject to forfeiture.

Huebner, 235 Wis. 2d 486, ¶14. Rather, those fundamental

constitutional rights generally must be waived.4 Id. But see

State v. Suriano, 2017 WI 42, ¶1, 374 Wis. 2d 683, 893 N.W.2d 543

(holding that the defendant forfeited the right to counsel by his

conduct).

¶21 And in some cases, a court may choose to ignore the

forfeiture rule and reach the merits of a claim. After all, the

forfeiture rule is a rule of judicial administration, not a

mandate. See, e.g., Ndina, 315 Wis. 2d 653, ¶38 (reaching the

merits of a claim where "both parties failed to make objections in

a timely manner"). The forfeiture rule should not be applied where

4 "'Whereas forfeiture is the failure to make the timely assertion of a right, waiver is the intentional relinquishment or abandonment of a known right.'" 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)).

11 No. 2017AP2292-CR

its application would not further its purpose——the fair,

efficient, and orderly administration of justice.

¶22 If a court applies the forfeiture rule to a claim, then

"the normal procedure in criminal cases is to address [that claim]

within the rubric of the ineffective assistance of counsel." State

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

rather than arguing the merits of an underlying claim, the

defendant would have to argue that defense counsel performed

deficiently when counsel failed to object (forfeiting the

defendant's claim) and that failure to object prejudiced the

defendant. See Strickland v. Washington, 466 U.S. 668 (1984).

¶23 Bearing in mind the purpose and effect of the forfeiture

rule, we now turn to the issue of whether Coffee forfeited his

ability to later challenge by postconviction motion the inaccurate

information presented at his sentencing.

B. Coffee Did Not Forfeit His Inaccurate Information At Sentencing Claim. ¶24 In this case, the State first introduced inaccurate

information regarding a December 2011 prior arrest, stating that it was for armed robbery rather than strong-arm robbery, at

Coffee's sentencing hearing. Coffee's counsel did not object at

sentencing. Rather, Coffee filed a postconviction motion, arguing

that his due process right to be sentenced based on accurate

information was violated.

¶25 The State argues that Coffee forfeited his request to be

resentenced because he failed to object to the inaccurate information at the sentencing hearing. Furthermore, the State

12 No. 2017AP2292-CR

argues that the failure to contemporaneously object is harmful to

the judicial process and the State's interest in finality. Coffee

argues that the forfeiture rule should not apply in cases like

this——where the previously unknown, inaccurate information is

first introduced by the State at the sentencing hearing and counsel

has not had an opportunity to confer with the defendant regarding

the nature and extent of the inaccuracy. According to Coffee,

application of the forfeiture rule to claims of inaccurate

information first introduced and known at sentencing would not

promote the fair and orderly administration of justice. We agree

with Coffee.

¶26 We conclude that the forfeiture rule does not preclude

the ability to later challenge the State's spontaneous

presentation at sentencing of previously unknown, inaccurate

information. Rather, while counsel may object to this information

at the sentencing hearing, and while that may be the best practice

to ensure the sentence is based on accurate information, a

postconviction motion like that presented here is also available. Applying the forfeiture rule to these claims would not promote the

fair, efficient, and orderly administration of justice because it

could put defense counsel in an impossible predicament.

¶27 The State's position here is that the forfeiture rule

requires defense counsel to object contemporaneously at sentencing

to previously unknown and largely unavailable information and to

spontaneously understand the importance of that information to

sentencing. We recognize that a best practice in these cases may be to contemporaneously bring this new information to the circuit 13 No. 2017AP2292-CR

court's attention and object to the circuit court relying on the

new information or to request adjournment. This practice might

obviate the need to later file a postconviction motion.

¶28 Requesting an adjournment, however, has its

shortcomings. Discovering the details of the new information may

actually be to the detriment of the defendant, and counsel may

have consequently acted contrary to the defendant's interest by

requesting adjournment. While it is just and fair to ensure that

the circuit court has the most accurate information at sentencing,

and a defense lawyer's duty is to act as an officer of the court,

a defense lawyer's duty is also to properly advocate for the

client.5

¶29 When suspected inaccurate information is first

introduced by the State at sentencing, defense counsel does not

know what defense counsel does not know. Defense counsel cannot

possibly make an informed decision of how exactly to object, if at

all. Nor can defense counsel possibly know whether the objection

would help or hurt the defendant. Nor can defense counsel know, at the time the suspected inaccurate information is introduced,

whether the circuit court will actually rely on it. At oral

Applying the forfeiture rule here could put defense counsel 5

in an impossible predicament——between a rock and a hard place. If counsel fails to object, then the claim may be forfeited. If counsel objects, and the information is in fact accurate, then the objection may have actually made the defendant's position at sentencing worse. If the information is inaccurate, but the truth is even more damaging to the defendant, then the defendant could face a harsher sentence than if defense counsel had not objected. This could also result in an ineffective assistance of counsel claim if counsel's objection prejudiced the defendant.

14 No. 2017AP2292-CR

argument, this court asked the State what an appropriate

contemporaneous objection at sentencing would look like. The

State's only response was that it would depend on the facts of

each case. But if counsel does not know what counsel does not

know, then defense counsel cannot possibly be required to make an

appropriate objection based on the unknown facts.

¶30 In contrast, if the forfeiture rule does not apply to

challenges to this type of spontaneously raised information, then

defense counsel has time to evaluate the information, discuss it

with the defendant, determine if it is indeed inaccurate, and

ascertain whether it was actually relied on at sentencing. A

postconviction motion may or may not be necessary.

¶31 The forfeiture rule is supposed to promote the fair,

efficient, and orderly administration of justice. See Huebner,

235 Wis. 2d 486, ¶11. Its application here could actually promote

the opposite. Thus, we conclude that the forfeiture rule does not

apply to previously unknown, inaccurate information first raised

by the State at sentencing. Rather, while an objection may be the best practice, a postconviction motion is also a timely manner in

which to assert that claim.

¶32 The State's argument that the forfeiture rule should

apply at sentencing relies in part on Handel v. State, 74

Wis. 2d 699, 247 N.W.2d 711 (1976), State v. Mosley, 201

Wis. 2d 36, 547 N.W.2d 806 (Ct. App. 1996), and State v. Johnson,

158 Wis. 2d 458, 463 N.W.2d 352 (Ct. App. 1990). In each case,

the court concluded that a claim regarding inaccurate or improper information at sentencing was forfeited for failure to object at 15 No. 2017AP2292-CR

sentencing. But each of those cases involved information in a

presentence investigation report ("PSI"). Importantly, defense

counsel receives a copy and has the opportunity to review the PSI

with the defendant before the sentencing hearing. And defense

counsel can make a fully-informed and carefully-prepared objection

to the contents of a PSI at sentencing. The same cannot be said

here.

¶33 The State also relies on the court of appeals' decisions

in State v. Samuel, 2001 WI App 25, 240 Wis. 2d 756, 623 N.W.2d 565

(claim that circuit court relied on sealed record defendant did

not have access to before sentencing was forfeited), and State v.

Leitner, 2001 WI App 172, 247 Wis. 2d 195, 633 N.W.2d 207 (claim

that circuit court relied on behavior underlying expunged

convictions at sentencing was forfeited). But neither of those

cases involved inaccurate information at sentencing claims.

¶34 Finally, the State cites State v. Benson, where the court

of appeals held that a defendant forfeited an inaccurate

information at sentencing claim by failing to object at sentencing. 2012 WI App 101, ¶17, 344 Wis. 2d 126, 822 N.W.2d 484. But this

case is also easily distinguished. In Benson, it was defense

counsel who introduced the allegedly inaccurate information at

sentencing. Id. Before the sentencing hearing, defense counsel

submitted a report detailing the presence of Ambien in Benson's

system at the time of his car crash. Id., ¶5. Defense counsel

had the information before sentencing and had time to determine

whether the information was accurate. Furthermore, it was defense

16 No. 2017AP2292-CR

counsel who submitted the inaccurate information, not the State.

Thus the court of appeals concluded:

Because Benson's counsel himself submitted [the] report to the court and failed to correct or object to the Ambien-related information prior to Benson's sentencing, Benson cannot now claim his due process rights were violated by the court's consideration of that same information. He has forfeited the issue. Id., ¶17. Application of the forfeiture rule was appropriate in

Benson. Benson is readily distinguishable from the case at issue. ¶35 We are also unpersuaded by the State's argument that the

forfeiture rule should apply because it has a reliance interest in

finality. Finality is important, but so is the opportunity to

evaluate previously unknown, inaccurate information first raised

by the State at sentencing.

¶36 Having concluded that Coffee did not forfeit his

inaccurate information at sentencing claim, we now proceed to

further analyze whether a resentencing is warranted.

C. Inaccurate Information At Sentencing Claims Generally

¶37 "No person may be held to answer for a criminal offense

without due process of law . . . ." Wis. Const. art. I, § 8, cl.

1. Defendants have a due process right to be sentenced based upon

accurate information. Tiepelman, 291 Wis. 2d 179, ¶9. This right

was first set forth by the United States Supreme Court in Townsend

v. Burke, 334 U.S. 736 (1948), and further developed in United

States v. Tucker, 404 U.S. 443 (1972).6 This court's analysis has

6Under the United States Constitution, "No person shall be . . . deprived of life, liberty, or property, without due process of law . . . ." U.S. Const. amend. V.

17 No. 2017AP2292-CR

also been informed by the Seventh Circuit Court of Appeals'

decision in United States ex rel. Welch v. Lane, 738 F.2d 863 (7th

Cir. 1984). Defendants "have a right to a fair sentencing process—

—one in which the court goes through a rational procedure of

selecting a sentence based on relevant considerations and accurate

information." Id. at 865. As this court has stated:

When a circuit court relies on inaccurate information, we are dealing "not with a sentence imposed in the informed discretion of a trial judge, but with a sentence founded at least in part upon misinformation of constitutional magnitude." A criminal sentence based upon materially untrue information, whether caused by carelessness or design, is inconsistent with due process of law and cannot stand. Travis, 347 Wis. 2d 142, ¶17 (footnotes omitted) (quoting Tucker,

404 U.S. at 447).

¶38 A defendant who was sentenced based on inaccurate

information may request resentencing. Tiepelman, 291 Wis. 2d 179,

¶26. The defendant must show by clear and convincing evidence

that: (1) some information at the original sentencing was

inaccurate, and (2) the circuit court actually relied on the

inaccurate information at sentencing. Id.; Travis, 347

Wis. 2d 142, ¶22. A circuit court actually relies on incorrect

information when it gives "'explicit attention' or 'specific

consideration' to it, so that the misinformation 'formed part of

the basis for the sentence.'" Tiepelman, 291 Wis. 2d 179, ¶14

(quoting Lane, 738 F.2d at 866). If the defendant meets this

burden, then the burden shifts to the State to prove beyond a reasonable doubt that the error was harmless. Travis, 347

18 No. 2017AP2292-CR

Wis. 2d 142, ¶86. If the State fails to meet this burden, then

the defendant is entitled to resentencing. If the State meets

this burden, then the sentence remains undisturbed. "The State

can meet its burden to prove harmless error by demonstrating that

the sentencing court would have imposed the same sentence absent

the error." Id., ¶73. The most important piece of evidence for

a reviewing court is the sentencing transcript itself, not "the

[postconviction] court's assertions" or "speculation about what a

circuit court would do in the future upon resentencing." Id.

(citing State v. Smith, 207 Wis. 2d 258, 262-63, 280, 558

N.W.2d 379 (1997); Lane, 738 F.2d at 868; Tucker, 404 U.S. 443).

Accordingly, our analysis in this case focuses on the sentencing

transcript and avoids speculation.

D. The Error Was Harmless.

¶39 The record is clear that the State introduced inaccurate

information at sentencing——Coffee was not arrested for armed

robbery in December 2011. The record is also clear that the

circuit court actually relied on the armed robbery arrest at the sentencing hearing——the court specifically referenced it twice.

Coffee met his burden. The issue before this court then becomes

whether the State has demonstrated that the error was harmless.

¶40 Coffee argues that the error was not harmless because

the inaccurate information here was so integral to the sentencing

hearing that it cannot be "excised" without speculation or a

"retrospective hunt" for other information to justify the

sentence, both of which are forbidden by Tiepelman, Travis, and Lane. The State argues that the error was harmless because, 19 No. 2017AP2292-CR

regardless of whether Coffee had a prior arrest for armed robbery,

the circuit court's statements at sentencing remain accurate and

the circuit court would have imposed the same sentence. We agree

with the State.

¶41 We note that the postconviction court had the

opportunity to address this issue. It made clear that its sentence

would have been the same. The postconviction court concluded,

"[T]o the extent that the [circuit] court relied upon the December

2011 incident at the sentencing hearing, the error was harmless

because it did not materially affect the court's sentencing

decision in this case." But we look to the sentencing transcript

to determine whether the State has met its burden. Travis, 347

Wis. 2d 142, ¶73.

¶42 At the sentencing hearing, the first time the circuit

court gave "specific consideration" to the arrest for "armed

robbery," it was in the context of a discussion of Coffee's

multiple prior police contacts. The circuit court then asked,

"Any reason why those contacts were not enough to get you to kind of think about your associations and your choices that you were

making out there?" Thus, to the circuit court, prior police

contacts put Coffee on notice, and ought to have given him pause.

Importantly, this logic would remain true regardless of whether

Coffee was arrested for armed robbery in December 2011. Coffee

had two prior misdemeanor convictions for domestic abuse and

carrying a concealed weapon. He also had a prior arrest for

misdemeanor battery. Based on those three prior police contacts

20 No. 2017AP2292-CR

alone, the circuit court's question made sense. "Any reason why

those contacts were not enough . . . ?"

¶43 The second time the circuit court gave "specific

consideration" to the arrest for "armed robbery," it was in the

context of Coffee's escalating criminal conduct. The circuit court

described the prior convictions and other police contacts, and

then concluded, "So that pattern of your behavior or undesirable

behavior is escalating." This conclusion also remains true

regardless of whether Coffee was arrested for armed robbery in

December 2011. Coffee had been convicted for domestic abuse and

carrying a weapon on separate occasions. And in this case, he had

shot a man. His conduct was getting increasingly violent, and

increasingly serious, from misdemeanors to felonies. Prior armed

robbery arrest or no, Coffee's "undesirable behavior [was]

escalating."

¶44 We conclude beyond a reasonable doubt that the State has

met its burden to demonstrate that the circuit court's remarks and

conclusions at Coffee's sentencing would have been the same absent the inaccurate information. Furthermore, it cannot be said that

the prior arrest for armed robbery was integral to Coffee's

sentence.

¶45 At sentencing, the circuit court's remarks began with a

discussion of Coffee's victims. The circuit court stated:

They really change the way they live their lives because now they're afraid it might happen again.

This poor gentleman that you shot, those feelings of violation and fear and taking away whatever security

21 No. 2017AP2292-CR

he might have felt to that point, that's really amplified in his situation. ¶46 Second, the circuit court discussed the increasing gun

violence problem in Milwaukee. The circuit court stated:

We're getting killed here in Milwaukee with gun violence. I mean, it is off the charts. We have so many shootings, robberies involving guns, drug activities involving guns, people with disputes, beefs against each other involving guns. ¶47 Third, the circuit court discussed Coffee's criminal

intent, saying it "seem[ed] like it was just as much for kicks,

fun, enjoyment, thrill, whatever it was, for actually taking

property from these particular individuals."

¶48 Fourth, the circuit court discussed the impact to

Coffee's family. "Even when they aren't directly the victims,

they suffer consequences too, because this is the city they have

to live in also with all of these kinds of things going on." The

circuit court also noted the impact on Coffee's young son.

¶49 Fifth, the circuit court considered Coffee's education

and work experience. And sixth, the circuit court considered the

need to protect the public. "Suffice it to say, that there's a

real community interest in being protected here." The circuit

court then took a brief recess prior to pronouncing sentence.

¶50 After the recess, the circuit court did not mention a

prior arrest for armed robbery whatsoever. Rather, the circuit

court noted that both the State and Coffee's counsel understood

this case required prison time. "[T]hey believe because of what

you did and for the good of the community, you do have to be removed from the community for a substantial period of time." The

22 No. 2017AP2292-CR

circuit court stated that Coffee had caused "substantial harm to

the victims" and that Coffee had been on "probation before, and

it's not been successful." The circuit court then pronounced a

sentence of 13 years of initial confinement and nine years of

extended supervision.

¶51 The sentencing transcript is clear that the circuit

court based its sentence on Coffee's contribution to gun violence

in Milwaukee, the harm to the community, the harm to the victims,

and Coffee's need to be removed from the community. It is clear

that these factors were not merely other factors that supported

Coffee's sentence, but were the basis of the sentence. We have

not gone on a "retrospective hunt" for other information that would

have justified Coffee's sentence. The circuit court clearly stated

on the record at the sentencing hearing what justified the

sentence. We conclude beyond a reasonable doubt that "the

sentencing court would have imposed the same sentence absent the

error." Travis, 347 Wis. 2d 142, ¶73. Thus, we conclude that the

error was harmless.

V. CONCLUSION

¶52 We conclude that the forfeiture rule does not apply to

previously unknown, inaccurate information first raised by the

State at sentencing. Rather, a postconviction motion is also a

conclude that Coffee did not forfeit his ability to challenge the

inaccurate information at his sentencing. We nonetheless conclude that the circuit court's reliance on inaccurate information at

23 No. 2017AP2292-CR

Coffee's sentencing was harmless error. Thus, we affirm the court

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

affirmed.

24 No. 2017AP2292-CR.dk

¶53 DANIEL KELLY, J. (concurring). Mr. Coffee forfeited

his right to object to the inaccurate information about his arrest,

so I disagree with that part of the court's opinion. But since I,

like the majority, agree that the circuit court's reliance on the

mistake was harmless, I join the court's mandate as well as Parts

I-III and Part IV.C & D of the majority opinion.

I. FORFEITURE

¶54 When the circuit court said Mr. Coffee "had a couple of

police contacts . . . [and] one of them was an armed robbery," it

misstated the facts. One of those contacts was for strong-arm

robbery, not armed robbery. But Mr. Coffee held his tongue and

allowed the court to pronounce sentence based on information he

knew to be incorrect.1 The majority says he may simultaneously

preserve his silence and his right to challenge his sentence at

some later point based on the misstatement about which he said

nothing.

¶55 The court says this rule is necessary to avoid putting

defense counsel "in an impossible predicament——between a rock and a hard place":

If counsel fails to object, then the claim may be forfeited. If counsel objects, and the information is in fact accurate, then the objection may have actually made the defendant's position at sentencing worse. If the information is inaccurate, but the truth is even more damaging to the defendant, then the defendant could face a harsher sentence than if defense counsel had not objected. This could also result in an ineffective

1 According to the police report——created at the time of his arrest——Mr. Coffee was arrested specifically for strong-arm robbery.

1 No. 2017AP2292-CR.dk

assistance of counsel claim if counsel's objection prejudiced the defendant. Majority op., ¶28 n.5.

¶56 But defense attorneys are intimately familiar with rocks

and hard places. This so-called "predicament" is really just the

omnipresent, on-going cost-benefit calculation counsel must

perform as a matter of course throughout trial. As the prosecution

presents its case, defense counsel must carefully consider, in

real time, every piece of evidence as it comes in throughout the

entirety of the proceeding. Upon hearing each piece of

information, often for the first time, he must assess its accuracy

against the information in his possession, weigh its likely impact

on the jury, consider how it might strengthen or weaken his theory

of defense, determine its effect on evidence yet to be introduced,

and analyze its compliance with evidentiary rules. And he must do

all of that in the heartbeat that passes between when he hears the

evidence and he rises to announce his objection. This he must do

upon pain of forfeiting the claimed error: "Error may not be

predicated upon a ruling which admits or excludes evidence

unless . . . a timely objection or motion to strike appears of

record . . . ." Wis. Stat. § 901.03(1)(a)(2017-18). We have

reiterated that rule many times. See, e.g., Allen v. Allen, 78

Wis. 2d 263, 270, 254 N.W.2d 244 (1977) ("A failure to make a

timely objection constitutes a waiver of the objection."); Holmes

v. State, 76 Wis. 2d 259, 272, 251 N.W.2d 56 (1977) ("This court

has repeatedly held that one of the rules of evidence is that an

objection must be made as soon as the opponent might reasonably be aware of the objectionable nature of the testimony.").

2 No. 2017AP2292-CR.dk

¶57 So why do we suddenly change the rules when the case

enters the sentencing phase? With respect to evidentiary matters,

the statutory and constitutional safeguards are no different. The

majority says that "[d]efendants have a due process right to be

sentenced based upon accurate information." Majority op., ¶37

(citing State v. Tiepelman, 2006 WI 66, ¶9, 291 Wis. 2d 179, 717

N.W.2d 1). But that's true of the conviction-producing trial,

too. The whole purpose of an adversarial justice system is the

ascertainment of the truth. See In re Winship, 397 U.S. 358, 362

(1970) ("[P]roof of a criminal charge beyond a reasonable doubt is

constitutionally required. . . . These rules are historically

grounded rights of our system, developed to safeguard men from

dubious and unjust convictions, with resulting forfeitures of

life, liberty and property." (quoted source and internal marks

omitted)); McLemore v. State, 87 Wis. 2d 739, 751, 275 N.W.2d 692

(1979) ("To safeguard the system of the search for truth we have

built up the various rules of evidence, again based on long

experience, so that evidence and testimony going to the jury will be free from elements tending to distort the search."); Mathews v.

Eldridge, 424 U.S. 319, 348, (1976) ("The essence of due process

is the requirement that 'a person in jeopardy of serious loss [be

given] . . . [an] opportunity to meet it.'" (quoted source

omitted, some alterations in original)). If there is some

principle lurking around our constitutional jurisprudence that

says a defendant has a lesser due process interest in conviction

upon accurate information than in sentencing upon accurate information, no one has identified it.

3 No. 2017AP2292-CR.dk

II. HARMLESS ERROR

¶58 Although I believe there is no need to consider Mr.

Coffee's claimed error, I agree with the court that the distinction

between "armed robbery" and "strong arm robbery" was harmless.

But that was not the only error Mr. Coffee assigned to the court's

treatment of the arrest record. The second is Mr. Coffee's claim

that referencing the arrest at all, without regard to its taxonomy,

was problematic because he did not commit the crime. And according

to Mr. Coffee, the police records vindicate him on this point.

The court's opinion, however, refuses to engage with this alleged

error.

¶59 I want to address this aspect of the court's opinion

(or, rather, its lack of this aspect) because of a curious, and

troubling, juxtaposition between two of the thoughts it expressed.

The first is the premise of the analysis: "A defendant has a

constitutional due process right to be sentenced upon accurate

information," the court says. Majority op., ¶2. The second is

the court's casual indifference to whether the arrest tells us anything accurate about Mr. Coffee at all:

Some conclude that Coffee did not commit strong- arm robbery; that he was wrongfully arrested because two witnesses told law enforcement that the offender was not Coffee. The presumption of innocence certainly applies, but experience demonstrates that, without knowing more, we can reach no conclusion. Using a police report alone to analyze and conclude the guilt or innocence of a person is not what our court should do. Who committed the strong-arm robbery is not an issue before us today. Indeed, Coffee has not been charged with strong-arm robbery. Id., ¶9 n.3 (emphasis added).

4 No. 2017AP2292-CR.dk

¶60 Actually, who committed the strong-arm robbery is at

issue today. It's true that "without knowing more, we can reach

no conclusion"2 about whether Mr. Coffee had anything to do with

the alleged offense. But we still consider ourselves free to use

that arrest against him. And that, oddly enough, is actually the

rule in Wisconsin: "This court has stated that the trial court in

imposing sentence for one crime can consider other unproven

offenses, since those other offenses are evidence of a pattern of

behavior which is an index of the defendant's character, a critical

factor in sentencing." Elias v. State, 93 Wis. 2d 278, 284, 286

N.W.2d 559 (1980) (emphasis added); id. ("This court held in Grant

v. State, 73 Wis. 2d 441, 243 N.W.2d 186 (1976) that the trial

court could consider offenses which were uncharged and unproven.")

(emphasis added).

¶61 Here's the juxtaposition that worries me. We affirm Mr.

Coffee's constitutionally-protected right to have his sentence

based on nothing but accurate information while simultaneously

denying any interest in the accuracy of one of the pieces of information used against him. It is certainly true that we use

uncharged and unproven offenses against defendants at sentencing

because——we say——they "are evidence of a pattern of behavior which

is an index of the defendant's character." Id. But it is also

patently true that this is absurd. Every single person ever

acquitted after trial was first arrested. Sometimes the defendant

is acquitted because the State didn't meet its high standard of

proof. But sometimes it's because the defendant didn't actually

2 Majority op., ¶9 n.3.

5 No. 2017AP2292-CR.dk

commit the crime. And arrestees frequently don't even go to trial

because the police find the perpetrator who did commit the offense.

And yet, according to our rules, that arrest forever remains a

valid basis for influencing a sentence, even though it may not in

fact say anything at all about him.

¶62 With respect to character, an arrest (by itself) is a

question mark, nothing more. Police may arrest an individual based

on information "which would 'warrant a man of reasonable caution

in the belief' that a felony has been committed." Wong Sun v.

United States, 371 U.S. 471, 479 (1963) (quoted source omitted).

This is not "evidence which would suffice to convict," id., it is

simply the reasonable belief of a single person. And sometimes

that belief is mistaken. A witness may have inaccurately

identified the arrestee as the culprit, or he may have been driving

the same type of car as the actual perpetrator, or he was just at

the wrong place at the wrong time——the explanations could go on at

length. And, of course, we sometimes find that an officer simply

didn't have sufficient information to arrest the individual.3 All of this demonstrates why an arrest——without more——is not proof of

See, e.g., Henes v. Morrissey, 194 Wis. 2d 338, 355, 533 3

N.W.2d 802 (1995) ("[W]e conclude that the deputies lacked probable cause to arrest [the defendant] for refusing to identify himself; his refusal could not elevate the deputies' reasonable suspicion that he committed the car theft to probable cause that he obstructed their investigation."); State v. Marquardt, 2001 WI App 219, ¶19, 247 Wis. 2d 765, 635 N.W.2d 188 (Explaining that there was "nothing in the facts to tie [the defendant] to the crime, much less to tie his home to the crime."); State v. Travis, No. 1994AP385-CR, unpublished slip op., *4 (Wis. Ct. App. Nov. 17, 1994) (Holding that an informant's tip did not provide enough information to create probable cause to arrest the defendant.).

6 No. 2017AP2292-CR.dk

the arrestee's character. At most, it is proof of what the

arresting officer thought about the person at the time of arrest.

Those are not the same things, but we act as though they are.

¶63 If we are committed to sentences based on accurate

information, it should matter whether an arrest really does

evidence culpable behavior or bad character. If it doesn't matter,

then we are at risk of increasing a defendant's sentence based on

a criterion that says nothing relevant about him.

* * *

¶64 Ultimately, the error in this case is still harmless

because the circuit court would have imposed the same sentence

even without referring to the arrest at all. The circuit court's

rationale for the sentence was that Mr. Coffee's "pattern

of . . . behavior or undesirable behavior [was] escalating." That

is obvious from Mr. Coffee's record. Mr. Coffee had already been

convicted for two misdemeanors (criminal damage to property and

carrying a concealed weapon) before facing these charges, and now

he has been convicted of armed robbery, attempted armed robbery, and first-degree recklessly endangering safety. Majority op.,

¶¶7-8. So, the circuit court was correct that Mr. Coffee "was

engag[ed] in behavior that [was] kind of getting more serious."

Therefore, I concur with the court's conclusion that the circuit

court's mention of the arrest (without regard to the inaccurate

characterization of the robbery) was harmless.

¶65 I am authorized to state Justice REBECCA GRASSL BRADLEY

joins ¶¶59-63 of this opinion.

7 No. 2017AP2292-CR.awb

¶66 ANN WALSH BRADLEY, J. (dissenting). Donavinn Coffee

was arrested for a strong-arm robbery. Yet, there is not a shred

of evidence that he had anything to do with it. Nothing.

¶67 In fact, he was quickly released after the victims of

the robbery told police that it was a misidentification. Coffee

didn't rob them. Such a course of action was further supported by

the available evidence: the robber had tattoos on his arms, and

Coffee does not.

¶68 Nevertheless, the State brought up this mistaken arrest

at Coffee's sentencing for a completely separate crime to which he

did plead guilty. The circuit court relied on the mistaken arrest

as an example of Coffee's supposedly "escalating" conduct and

sentenced him to a total of 13 years of initial confinement and

nine years of extended supervision. All parties now agree that

the information the State gave to the circuit court, and on which

the circuit court relied, was inaccurate.

¶69 No harm, no foul, says the majority.

1 No. 2017AP2292-CR.awb

¶70 I agree with the majority/lead opinion1 that "the

forfeiture rule does not apply to previously unknown, inaccurate

information first raised by the State at sentencing" and that "a

postconviction motion is also a timely manner in which to bring

that claim." Majority/lead op., ¶3. Therefore, I also agree that

under the facts of this case, Coffee has not forfeited his direct

challenge to this inaccurate information. Id.

1 I refer to Justice Ziegler's opinion as the "majority/lead" opinion because the opinion in its entirety is not joined by a majority of the court. Justice Kelly joins Parts I-III and Part IV.C and D of the opinion, but he does not join Part IV.A and B. See Justice Kelly's concurrence, ¶53. Despite this dissent's agreement that the forfeiture rule does not apply in this case, Parts IV.A and B do not constitute a "majority" opinion of the court under State v. Griep, 2015 WI 40, ¶37 n.16, 361 Wis. 2d 657, 863 N.W.2d 567. In Griep, the court set forth, "[u]nder Marks, the positions of the justices who dissented from the judgment are not counted in examining the divided opinions for holdings." Id. (citing Marks v. United States, 430 U.S. 188, 193 (1977)). Although the vitality of Griep has been called into question, currently it remains in force. See State v. Hawley, No. 2015AP1113-CR, unpublished certification, 2-3 (Nov. 21, 2018).

The only reference to "lead opinions" in our Internal Operating Procedures (IOPs) states that if during the process of circulating and revising opinions, "the opinion originally circulated as the majority opinion does not garner the vote of a majority of the court, it shall be referred to in separate writings as the 'lead opinion' unless a separate writing garners the vote of a majority of the court." IOP III.G.4.

For further discussion of our procedure regarding lead opinions, see Koss Corp. v. Park Bank, 2019 WI 7, ¶76 n.1, 385 Wis. 2d 261, 922 N.W.2d 20 (Ann Walsh Bradley, J., concurring). See also two prior certifications from the court of appeals that have asked us to reexamine our lead opinion procedure. State v. Dowe, 120 Wis. 2d 192, 192-93, 352 N.W.2d 660 (1984) (per curiam); Hawley, No. 2015AP1113-CR, unpublished certification, 2-3; see also State v. Lynch, 2016 WI 66, ¶145, 371 Wis. 2d 1, 885 N.W.2d 89 (Abrahamson and Ann Walsh Bradley, JJ., concurring in part, dissenting in part).

2 No. 2017AP2292-CR.awb

¶71 However, I part ways with the majority's harmless error

analysis. The circuit court's reliance on the inaccurate

information the State presented was not harmless, and instead

permeated the proceeding to an extent that resentencing should be

required.

¶72 Accordingly, I respectfully dissent.

I

¶73 After pleading guilty to three separate charges, Coffee

came before the circuit court for sentencing. Majority/lead op.,

¶8. At the sentencing hearing, the State "told the circuit court

that Coffee had a prior arrest for armed robbery." Id., ¶9.

Specifically, the State argued at sentencing:

What's alarming from the State's [perspective] because of the nature of this offense that's in front of the Court is that December 2011 there was an armed robbery case that was sent to my office. That was a no process.

So what the defendant has shown here with his past criminal conduct, not only is there a weapon[s] related offense, but there was something that triggered a law enforcement investigation and reviewed by my office for offenses by a title similar in nature to this. ¶74 As the majority acknowledges, "[t]hat was inaccurate."

Id. It turned out that Coffee was arrested for strong-arm robbery,

the arrest was the result of a misidentification, and Coffee was

quickly released. But these facts were not presented to the

circuit court and it specifically cited the inaccurate information

in fashioning Coffee's sentence. On several occasions during its

sentencing remarks, the circuit court mentioned Coffee's previous

mistaken arrest for armed robbery, and it tied the arrest into

3 No. 2017AP2292-CR.awb

what it termed Coffee's "escalating" undesirable behavior. Id.,

¶10.

¶75 After he was sentenced, Coffee moved for postconviction

relief, arguing that the circuit court's reliance on the inaccurate

information violated his due process right to be sentenced upon

accurate information. Id., ¶13. The circuit court denied his

motion, indicating that it had considered the incorrect

information in pronouncing Coffee's sentence, but that even

without the information it would have reached the same sentence.

Id., ¶14. In the circuit court's words, "the error was harmless

because it did not materially affect the court's sentencing

decision in this case." Id.

¶76 The court of appeals affirmed. But rather than embracing

the explanation given by the circuit court, it relied on different

grounds. It determined that by failing to object at the sentencing

hearing, "Coffee forfeited the claim that he was sentenced based

on inaccurate information . . . ." State v. Coffee, No.

2017AP2292-CR, unpublished slip op., ¶1 (Wis. Ct. App. Nov. 6, 2018) (per curiam).

¶77 Now affirming the court of appeals, the majority/lead

relies on the same grounds utilized by the circuit court——harmless

error. Majority/lead op., ¶52. Contrary to the court of appeals,

the majority/lead determines that Coffee did not forfeit his

inaccurate information claim. Id., ¶26. However, it concludes

that the circuit court's reliance on the incorrect information was

harmless. Id., ¶51.

4 No. 2017AP2292-CR.awb

II

¶78 As an initial matter, I write to clear up a fact of

record that has been severely muddied by the majority.. Somewhat

inexplicably, the majority views the only inaccuracy in the

information relied upon by the circuit court as that Coffee was

arrested for strong-arm robbery and not armed robbery. Id., ¶9.

¶79 The majority appears to insinuate that Coffee could have

had something to do with the strong-arm robbery for which he was

mistakenly arrested. Id., ¶9 n.3. It declares that "[s]ome

conclude that Coffee did not commit strong-arm robbery; that he

was wrongfully arrested because two witnesses told law enforcement

that the offender was not Coffee. The presumption of innocence

certainly applies, but experience demonstrates that, without

knowing more, we can reach no conclusion." Id. Whose experience?

And why does it justify turning a blind eye to the actual facts of

this case?

¶80 Based on this self-proclaimed "experience," the

majority/lead glosses over the record facts indicating that the arrest was the result of a misidentification. There is no evidence

at all in the record tying Coffee to either the crime of strong-

arm robbery or armed robbery. The police report from the incident,

which is included in the record before this court, reveals the

majority's error.

¶81 In the report, it is related that a victim of the strong-

arm robbery for which Coffee was initially arrested stated that he

first observed the perpetrators from behind and that Coffee "could" have been a subject who robbed him. However, after viewing

5 No. 2017AP2292-CR.awb

Coffee's face, he determined that Coffee was "not involved in this

incident." The report further indicates the witness's description

of the suspect as having dreadlocks and tattoos on his arms.

Coffee has dreadlocks, but does not have tattoos on his arms.

¶82 The record therefore does not indicate that the only

error in the information presented to the circuit court was the

type of robbery for which Coffee was arrested. Indeed, there was

no evidence at all that Coffee committed a robbery of any type in

2011.

¶83 Which brings me to the majority's harmless error

analysis. In the majority's view, the circuit court's sentence

would have been the same even if the inaccurate information

regarding Coffee's arrest was not considered. Majority/lead op.,

¶¶40-41.

¶84 Pursuant to this court's established methodology, a

defendant seeking resentencing based on the presentation of

inaccurate information before the sentencing court must

demonstrate that the information was inaccurate and that the circuit court actually relied on the inaccurate information. State

v. Tiepelman, 2006 WI 66, ¶2, 291 Wis. 2d 179, 717 N.W.2d 1. After

the defendant meets this burden, the burden then shifts to the

State to demonstrate that the error was harmless beyond a

reasonable doubt. Id., ¶3; State v. Travis, 2013 WI 38, ¶86, 347

Wis. 2d 142, 832 N.W.2d 491.

¶85 The State can meet its burden to prove harmless error in

a sentencing proceeding by demonstrating that the sentencing court would have imposed the same sentence absent the error. Id., ¶73.

6 No. 2017AP2292-CR.awb

But we cannot simply take the circuit court's word that it would

have done so. See id. ("The State therefore correctly relies on

the transcript of the sentencing proceeding in making its argument,

and correctly refrains from relying on the circuit court's

assertions during the hearing on the defendant's postconviction

motion or speculation about what a circuit court would do in the

future upon resentencing.").

¶86 Thus, I turn to the transcript of the sentencing

proceeding. When pronouncing its sentence, the circuit court

specifically referenced this arrest, speaking of Coffee's police

contacts and stating that this arrest is of "significant concern

because it sounds like it was an armed robbery which is what these

offenses are." The circuit court saw this arrest as indicative of

the "escalating" nature of Coffee's "undesirable behavior."

¶87 But what does the mistaken arrest really tell us about

Coffee's behavior? What does it tell us about his character? What

information does it provide that is at all relevant to his

sentence? Given the facts in the record that Coffee had nothing to do with the crime, the answer to all of these questions is

"nothing."

¶88 As Coffee posits in his reply brief, "his arrest for a

robbery, armed or otherwise, was plainly irrelevant to his

character. Instead, evidence of the prior arrest spoke only to

the fact that as a young black man with long dreadlocks, Coffee

once resembled someone who committed a robbery in December 2011."

¶89 It is true that Coffee pleaded guilty to a violent crime. The majority focuses on the circuit court's comments in this

regard, stating that "the circuit court based its sentence on

Coffee's contribution to gun violence in Milwaukee, the harm to

the community, the harm to the victims, and Coffee's need to be

removed from the community." Majority/lead op., ¶51.

¶90 But that the nature of Coffee's offense demanded a prison

sentence does not mean that Coffee would have received the same

sentence had the State not raised the inaccurate information

regarding Coffee's prior arrest. The erroneous consideration of

an arrest for a violent offense can certainly affect a circuit

court's view of a defendant.

¶91 Indeed, the references in the sentencing transcript to

Coffee's mistaken arrest indicate that the circuit court viewed

the arrest as a step in Coffee's "escalating" behavior. Absent

consideration of the arrest, would the same pattern of "escalating"

behavior have been established? We cannot be sure beyond a

reasonable doubt as we must be to say the error was harmless. See

Travis, 347 Wis. 2d 142, ¶86. Accordingly, Coffee is entitled to

resentencing. ¶92 For the foregoing reasons, I respectfully dissent.

¶93 I am authorized to state that Justices REBECCA GRASSL

BRADLEY and REBECCA FRANK DALLET join this dissent.

8 No. 2017AP2292-CR.awb