State v. Tiepelman

2006 WI 66, 717 N.W.2d 1, 291 Wis. 2d 179, 2006 Wisc. LEXIS 359

• Court: Wisconsin Supreme Court
• Decided: June 9, 2006
• Docket: 2004AP914-CR
• Status: Published

Opinions

N. PATRICK CROOKS, J.

¶ 1. Larxy A. Tiepel-man (Tiepelman) seeks review of a published court of appeals' decision¹ affirming a circuit court's judgment of conviction and postconviction order that denied his motion for resentencing. Tiepelman's motion was based on his claim that the circuit court relied on inaccurate information at his sentencing hearing. The issue before this court is whether, on a motion for resentencing based on the circuit court's alleged reliance on inaccurate information, a defendant must prove that the circuit court actually relied on the inaccurate information, or that the court prejudicially relied on the inaccurate information.

¶ 2. We hold that in a motion for resentencing based on a circuit court's alleged reliance on inaccurate information, a defendant must establish that there was information before the sentencing court that was inaccurate, and that the circuit court actually relied on the inaccurate information. Here, the court of appeals applied the wrong test — prejudicial reliance² — when it affirmed the circuit court. We must, therefore, reverse that affirmance, and withdraw any language in State v. Montroy, 2005 WI App. 230, 287 Wis. 2d 430, 706 N.W.2d 145, State v. Groth, 2002 WI App 299, 258 Wis. 2d. 889, 655 N.W.2d 163, State v. Suchocki, 208 Wis. 2d. 509, 516, 561 N.W.2d 332 (Ct. App. 1997), State v. Coolidge, 173 Wis. 2d 783, 496 N.W.2d 701 (Ct. App. 1993), and State v. Littrup, 164 Wis. 2d 120, 473 N.W.2d 164 (Ct. App. 1991), to the contrary.

¶ 3. Only after the defendant meets this burden to show that the sentencing court actually relied on inaccurate information, does the burden then shift to the state to establish that the error was harmless.

¶ 4. Here the parties agree, as does this court, that there was inaccurate information actually relied on by the circuit court at sentencing. It seems clear that the parties also agree that the issue of harmless error was not developed to the degree necessary to assist this court in resolving that issue, and since they also agree that this matter should be remanded for resentencing, it is appropriate that, under such circumstances, we accept their stipulation. We, therefore, reverse the decision of the court of appeals and remand this case to the circuit court for resentencing.³

H

¶ 5. On December 17, 1996, Tiepelman was convicted of one count of theft by false representation as a repeat offender, contrary to Wis. Stat. §§ 943.20(l)(d) and 939.62 (1995-96). Following his conviction, the circuit court withheld sentence and placed Tiepelman on probation for 16 years. On April 21, 2003, Tiepelman's probation was revoked, and he returned to the circuit court for sentencing.

¶ 6. On September 5, 2003, the Richland County Circuit Court, Judge Edward E. Leineweber presiding, held a sentencing hearing, resulting in the imposition of an indeterminate sentence of 12 years imprisonment. In reaching its sentencing decision, the circuit court considered Tiepelman's presentence investigation report (PSI), which had correctly documented his criminal background. However, when referring to the PSI, the circuit court mistakenly stated that the PSI showed "something over twenty prior convictions at the time of the commission of this offense back in [November] 1995." While the PSI had shown 20 charged offenses as of November 1995, it had also accurately reflected that only five of those offenses had resulted in convictions as of that date.

¶ 7. Tiepelman filed a postconviction motion seeking resentencing, arguing that the circuit court violated his right to due process, because the circuit court relied on inaccurate information about Tiepelman's criminal record. At the postconviction hearing, Judge Leineweber again presiding, the circuit court acknowledged that the reference to "over twenty prior convictions" was wrong. However, the court stated that there had not been reliance on an inaccuracy that was material, because Tiepelman conceded the pertinent underlying conduct, and, therefore, the circuit court denied Tiepelman's motion for resentencing. State v. Tiepelman, 2005 WI App 179, ¶ 5, 286 Wis. 2d 464, 703 N.W.2d 683.

¶ 8. Tiepelman appealed the denial, and the court of appeals affirmed the circuit court. Citing Groth and Littrup, the court of appeals set forth Tiepelman's burden as "showing, by clear and convincing evidence, both the inaccuracy of some information and that the sentencing judge prejudicially relied on the inaccurate information." Id., ¶ 7. As the State of Wisconsin (State) had conceded that Tiepelman had met his burden of showing the inaccuracy of the information, the court of appeals stated "[t]he disposi-tive issue here is the second prong: Did Tiepelman meet his burden of showing prejudicial reliance?" Id. (emphasis omitted). Based largely on statements made by the circuit court during the motion hearing, the court of appeals held that Tiepelman had failed to prove prejudicial reliance, and therefore affirmed the circuit court's denial of the motion for resentencing and Tiepelman's conviction. Tiepelman petitioned for review of the decision of the court of appeals, and his petition was accepted.

II

¶ 9. A defendant has a constitutionally protected due process right to be sentenced upon accurate information. State v. Johnson, 158 Wis. 2d 458, 468, 463 N.W.2d 352 (Ct. App. 1990) (citing United States v. Tucker, 404 U.S. 443, 447 (1972)). Whether a defendant has been denied this due process right is a constitutional issue that an appellate court reviews de novo. Coolidge, 173 Wis. 2d at 789.

¶ 10. A defendant's right to be sentenced upon accurate information was first set forth by the United States Supreme Court in Townsend v. Burke, 334 U.S. 736 (1948). Townsend held that a sentence based on "assumptions concerning... [a person's] criminal record which were materially untrue ... is inconsistent with due process of law, and such a conviction cannot stand." Id. at 741. The Court specifically noted that the sentence in question was "within the limits set by the statute" and therefore not "unduly severe." Id.

It is not the duration or severity of this sentence that renders it constitutionally invalid; it is the careless or designed pronouncement of sentence on a foundation so extensively and materially false, which the prisoner had no opportunity to correct by the services which counsel would provide, that renders the proceedings lacking in due process.

Id.

¶ 11. This due process right to be sentenced upon accurate information was further developed by the United States Supreme Court in Tucker, 404 U.S. 443. During Tucker's sentencing proceeding, the sentencing judge had "conducted an inquiry into the respondent's background, and, the record shows, gave explicit attention to the three previous felony convictions the respondent had acknowledged." Id. at 444 (emphasis added) (footnote omitted). However, it was later conclusively determined that two of the defendant's prior convictions were constitutionally invalid under Gideon v. Wainwright, 372 U.S. 335 (1963), having "resulted from proceedings in which the respondent had been unrepresented by counsel, and that he had been neither advised of his right to legal assistance nor did he intelligently and understanding^ waive this right to the assistance of counsel." Tucker, 404 U.S. at 445 (internal quotations omitted) (footnote omitted).

¶ 12. The Tucker Court emphasized that the record made "evident that the sentencing judge gave specific consideration to the respondent's previous convictions before imposing sentence upon him." Id. at 447 (emphasis added). As two of those convictions were determined to be invalid, the United States Supreme Court remanded the case to the circuit court for reconsideration of Tucker's sentence. Id. at 449. The Court reasoned:

For if the trial judge in 1953 had been aware of the constitutional infirmity of two of the previous convictions, the factual circumstances of the respondent's background would have appeared in a dramatically different light at the sentencing proceeding. Instead of confronting a defendant who had been legally convicted of three previous felonies, the judge would have been dealing with a man who beginning at age 17, had been unconstitutionally imprisoned for more than ten years, including five and one-half years on a chain gang.

Id. at 448 (footnote omitted). While not explicitly addressing the issue of harmless error, the Court stated that "the real question here is . . . whether the sentence in the 1953 federal case might have been different if the sentencing judge had known that at least two of the respondent's previous convictions had been unconstitutionally obtained." Id. (footnote omitted).

¶ 13. The actual reliance standard was subsequently followed by the Seventh Circuit Court of Appeals in Welch v. Lane, 738 F.2d 863 (7th Cir. 1984). In that case, "[although the prosecutor told the court quite clearly that petitioner had been convicted of robbery in 1976, [during the defendant's sentencing hearing] the sentencing judge said that petitioner had been convicted of armed robbery, a Class X offense under Illinois law." Id. at 864 (emphasis in original). In explaining his decision to sentence Welch to the maximum allowable term, the judge stated: "The jury found the defendant guilty of three Class X offenses and a significant factor in the Court's determination of the sentence here is that this defendant has within the past ten years been convicted of the offense of armed rob-beiy which is an offense of the same magnitude ... of which he is now convicted." Id.

¶ 14. Lane articulated the Townsend/Tucker test as requiring that a sentence be "set aside where the defendant can show that false information was part of the basis for the sentence. The two elements of that showing are, first, that information before the sentencing court was inaccurate, and second, that the sentencing court relied on the misinformation in passing sentence." Id. at 865. Whether the court "actually relied" on the incorrect information at sentencing was based upon whether the court gave "explicit attention" or "specific consideration" to it, so that the misinformation "formed part of the basis for the sentence." Id. at 866.

¶ 15. An examination of case law in Wisconsin reveals that, although the actual reliance standard was properly formulated, initially, the court of appeals began to stray from that standard in some cases by requiring the proof of prejudicial, rather than actual reliance.

¶ 16. In Johnson, 158 Wis. 2d 458, the defendant requested resentencing, based upon allegations that the court had relied on erroneous information at his sentencing. Specifically, Johnson challenged "the court's statement that it was aware of the severe emotional damage and the 'suffering' incurred by the victims," because he claimed that "one of the victims was not emotionally damaged," by Johnson's repeated sexual assaults. Id. at 468.

¶ 17. The court of appeals in Johnson correctly articulated the standard, stating "a defendant who requests resentencing based on inaccurate information must show both that the information was inaccurate, and that the court actually relied on the inaccurate information in the sentencing." Id. (citing Lane, 738 F.2d at 865). Because the court concluded that Johnson had failed to prove that the information on the victim's emotional damage was inaccurate, he "failed to carry his burden of establishing that the trial court improperly relied on erroneous information." Id. at 469.

¶ 18. Just one year later, in Littrup, 164 Wis. 2d 120, defendant Littrup challenged the accuracy of the state's PSI, claiming "that alleged inaccuracies in it violated his due process rights by influencing the sentence of the trial court." Id. at 128 (footnote omitted). The defendant argued that he did not need to show prejudice to establish a due process violation, relying on State v. Skaff, 152 Wis. 2d 48, 58, 447 N.W.2d 84 (Ct. App. 1989). The court of appeals rejected Littrup's position, distinguishing the facts of his case from those in Skaff. In Skaff, the court of appeals held that the defendant need not show prejudice from a PSI to prevail on a claim, because the court concluded the circuit "court's blanket policy of refusing to allow defendants to read their PSI[s]" constituted a due process violation in and of itself. Littrup, 164 Wis. 2d at 127 (citing Skaff, 152 Wis. 2d at 58).

¶ 19. Noting that there were "no cases in Wisconsin dealing with the proper burden of proof for claims of due process violations in the sentencing process," the court of appeals determined that on due process claims based on reliance on misinformation, the clear and convincing evidence burden of proof applied to sentence modification claims based upon the existence of a "new factor."⁴ Id. at 131 (citing State v. Franklin, 148 Wis. 2d 1, 8-9, 434 N.W.2d 609 (1989)). The court of appeals then held that:

to establish a due process violation in the sentencing process, a defendant has the burden of proving by clear and convincing evidence both the inaccuracy prong and the prejudice prong of the due process test. Only after the defendant meets that burden does the burden of persuasion to establish harmlessness rest with the state.

Id. at 132 (citing Skaff, 152 Wis. 2d at 58). Since the decision was published, Littrup has been cited numerous times by the court of appeals for the proposition that a defendant must show prejudicial reliance on inaccurate information in sentencing to be resentenced on that basis. See, e.g., Montroy, 287 Wis. 2d. 430, ¶ 8; Groth, 258 Wis. 2d 889, ¶ 22; Suchocki, 208 Wis. 2d. at 516.

¶ 20. In State v. Lechner, this court considered a due process challenge to a sentence based upon the alleged reliance on inaccurate information in the defendant's PSI. State v. Lechner, 217 Wis. 2d 392, 419, 576 N.W.2d 912 (1998). Lechner pled no contest to second-degree reckless homicide, homicide by intoxicated use of a vehicle, causing great bodily harm by intoxicated use of a vehicle, and two counts of second-degree recklessly endangering the safety of another. Id. at 399-400. The circuit court sentenced Lechner to the maximum sentence on each count, running consecutively, for a total sentence of 30 years in prison. Id. at 400. Lechner challenged the sentence, arguing that the PSI contained inaccurate information regarding the number of his prior convictions. Id. at 419. The parties agreed that the PSI incorrectly listed four prior criminal convictions, when the defendant actually had three prior arrests, but only one prior criminal conviction. Id. at 419-20.

¶ 21. In its consideration of whether Lechner was entitled to resentencing, this court adopted the test set forth in Johnson, stating: "A defendant who requests resentencing due to the circuit court's use of inaccurate information at the sentencing hearing 'must show both that the information was inaccurate and that the court actually relied on the inaccurate information in the sentencing.'" Id. at 419 (quoting Johnson, 158 Wis. 2d at 468). Although this court recognized that the PSI did contain inaccurate information, after examining the record, it concluded that the circuit court did not actually rely on the inaccurate information in arriving at the sentence imposed. Id. at 419-20.

¶ 22. Later that same year, the court of appeals seemed to apply the correct test in State v. Anderson, 222 Wis. 2d 403, 588 N.W.2d 75 (Ct. App. 1998). In Anderson, the defendant pled no contest to two counts of first-degree sexual assault of a child and two counts of causing mental harm to a child. Id. at 404. At the sentencing hearing, defendant's counsel advised the court that Anderson objected to portions of the PSI. Among other things, Anderson argued "that the victims' statements were partially inaccurate, and that information derived from police reports was later determined to be untrue." Id. at 405. Moreover, "[cjounsel stated that the PSI did not disclose that some of the PSI's [more serious] allegations of sexual abuse had been investigated and found to be baseless." Id. In addition to a due process challenge based on the circuit court's alleged reliance on inaccurate information, Anderson also alleged his counsel had been ineffective in handling the sentencing.

¶ 23. Although it did not discuss Lechner, the court of appeals in Anderson did cite Johnson for the proposition that a defendant must show that specific information was inaccurate and "that the court actually relied upon the inaccurate information in sentencing." Id. at 408 (citation omitted). However, in its reasoning, the Anderson court came perilously close to conflating its analysis of the due process challenge with the claim of ineffective assistance of counsel, which does require a showing of prejudice. Id. at 410.

¶ 24. In 2002, the court of appeals returned to the requirement of "prejudicial reliance" in its decision in Groth, 258 Wis. 2d 889. Defendant Groth was convicted of second-degree reckless homicide while armed with a dangerous weapon. During his sentencing hearing, the prosecutor made repeated references to Groth's history of violence, including statements that Groth "beats up women who are pregnant." Id., ¶ 16 (emphasis omitted). Groth moved for resentencing, arguing his sentence had been based on inaccurate information. The prosecutor later conceded that, although Groth did have a history of domestic violence, he could not" 'find any factual basis for the representation that the defendant beats 'pregnant women."" Id., ¶ 18.

¶ 25. Citing Littrup, the court of appeals set forth the requirement that a defendant must establish "inaccuracy of the information and prejudicial reliance by the sentencing court — by clear and convincing evidence."⁵ Id., ¶ 22. The Groth court determined, however, that "Notwithstanding the postconviction court's disclaimer of reliance on the inaccurate information about beating pregnant women, we conclude . . . that the record establishes a very strong likelihood that the sentencing court did indeed rely on the information." Id., ¶ 27. Therefore, the court concluded, Groth had satisfied his burden, and in turn, "the State [had] not established that the error was harmless." Id. (citing Anderson, 222 Wis. 2d at 411).

I — I I — I h-H

¶ 26. We hold that the correct standard was set forth by this court in Lechner, in which the court held: "A defendant who requests resentencing due to the circuit court's use of inaccurate information at the sentencing hearing 'must show both that the information was inaccurate and that the court actually relied on the inaccurate information in the sentencing.'" Lechner, 217 Wis. 2d at 419 (quoting Johnson, 158 Wis. 2d at 468). Once actual reliance on inaccurate information is shown, the burden then shifts to the state to prove the error was harmless. As the Seventh Circuit Court of Appeals concluded in Lane:

A convicted offender does not have a constitutional right to a particular sentence available within a range of alternatives, but the offender does 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.

Lane, 738 F.2d at 864-65 (emphasis in original).

¶ 27. Moreover, requiring a defendant to prove prejudicial reliance when there was inaccurate information relied upon at sentencing would effectively eliminate the state's burden of proving that such error was harmless. If reliance is prejudicial, by definition it cannot be harmless. Therefore, requiring a defendant to establish prejudicial rather than actual reliance, before the burden shifts to the state to prove the error was harmless, is illogical.

¶ 28. Applying the correct standard to this case, Tiepelman must establish two things: that some of the information presented was inaccurate, and that the sentencing court actually relied on that misinformation in reaching its determination in regard to the sentence imposed. Here, since the State concedes that the information was inaccurate, the first prong is satisfied.

¶ 29. In this case, the record makes it clear that the sentencing court specifically considered the inaccurate information in its decision. During the proceeding, the court referred to the contents of the PSI, stating:

Mr. Tiepelman, at the time of the commission of this offense, had a long pattern of similar offenses — or at least offenses of dishonesty, theft, false pretenses, et cetera. I counted something over twenty prior convictions at the time of the commission of this offense back in 1995. They include numerous issuance of worthless checks, they include other forgeries, thefts by false representation, several — more than one forgery, looks like a couple of forgeries, couple of thefts by false representation, theft in a business setting, again, worthless checks. A well-established pattern of criminal behavior dealing with theft and false representation, issuance of worthless checks, prior to the commission of this offense.

¶ 30. We are satisfied, based on the record and on the stipulation of the parties, that Tiepelman met his burden of showing that the circuit court actually relied on inaccurate information in reaching its decision on sentencing, thus meeting the requirements of the second prong of the test. We disagree with the circuit court's determination that the inaccurate information was not "material."⁶ It was. Having met the burden of establishing that there was actual reliance on inaccurate information, as noted previously, the burden then shifts to the State to prove that the error was, nonetheless, harmless. However, in the State's letter, it was indicated that "a claim like Mr. Tiepelman's implicates additional tests and issues that neither the State nor Mr. Tiepelman addressed in the briefs in this court or in the court of appeals." Because the issue of harmless error was neither fully argued nor fully briefed by the parties to the degree that would allow this court to resolve the issue, we decline to address it further here.

IV

¶ 31. We hold that in a motion for resentencing based on a circuit court's alleged reliance on inaccurate information, a defendant must establish that there was information before the sentencing court that was inaccurate, and that the circuit court actually relied on the inaccurate information. Here, the court of appeals applied the wrong test — prejudicial reliance — when it affirmed the circuit court. We must, therefore, reverse that affirmance, and withdraw any language in Montroy, 287 Wis. 2d 430, Groth, 258 Wis. 2d. 889, Suchocki, 208 Wis. 2d. 509, Coolidge, 173 Wis. 2d 783, and Littrup, 164 Wis. 2d 120, to the contrary. Only after the defendant meets this burden to show that the sentencing court actually relied on inaccurate information, does the burden then shift to the state to establish that the error was harmless. Here the parties agree, as does this court, that there was inaccurate information actually relied on by the circuit court at sentencing. It seems clear that the parties also agree that the issue of harmless error was not developed to the degree necessary to assist this court in resolving that issue, and since they also agree that this matter should be remanded for resentencing, it is appropriate under such circumstances that we accept their stipulation. We, therefore, reverse the decision of the court of appeals and remand this case to the circuit court for resentenc-ing.

By the court. — The decision of the court of appeals is reversed, and this matter is remanded to the circuit court for resentencing.

1 State v. Tiepelman, 2005 WI App 179, 286 Wis. 2d 464, 703 N.W.2d 683.

2 Whether the test is actual reliance or prejudicial reliance is significant. Obviously, establishing prejudicial reliance presents a far more difficult barrier for a defendant to overcome -than establishing that the circuit court actually relied on inaccurate information at sentencing.

3 In a letter dated March 31, 2006, the State of Wisconsin wrote to the court to inform it that the parties had reached an agreement that Tiepelman should be resentenced. The letter reads, in relevant part:

The State and Mr. Tiepelman have already concurred on the principal issue in this case: the defendant's burden when claiming that the circuit court imposed a sentence based on inaccurate information. Although I recognize that the court can disregard concessions or stipulations on legal issues, I urge the court not to do so. I believe the burden on which the State and Mr. Tiepelman have agreed represents the correct statement of the two conflicting standards found in Wisconsin case law.

The remaining issue concerns the matter of the State's obligation to prove harmless error once the defendant satisfies his or her burden. In the briefs in this court, the parties have presented differing declarations of the harmless-error standard. ... I concluded that the harmless-error issue in the context of a claim like Mr. Tiepelman's implicates additional tests and issues that neither the State nor Mr. Tiepelman addressed in the briefs in this court or in the court of appeals. Consequently, in my view, the harmless-error issue is not developed at this point to a degree that would usefully assist the court in dealing with this issue.

4 In State v. Franklin, this court defined "new factor" to be " 'a fact or set of facts highly relevant to the imposition of a sentence, but not known to the trial judge at the time of original sentencing.'" State v. Franklin, 148 Wis. 2d 1, 8, 434 N.W.2d 609 (1989) (citation omitted).

5 There is nothing in State v. Johnson, 158 Wis. 2d 458, 463 N.W.2d 352 (Ct. App. 1990), State v. Lechner, 217 Wis. 2d 392, 576 N.W.2d 912 (1998), nor Welch v. Lane, 738 F.2d 863 (7th Cir. 1984), which indicates whether the defendant's burden of proof is clear and convincing evidence. Therefore, we do not decide that issue.

6 By use of the word "material," the circuit court appeared to indicate that it did not actually rely on the inaccurate information.