State v. Carrie E. Counihan ( 2020 )

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385 Wis. 2d 211,923 N.W.2d 180 - Unpublished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Counihan, seeks review of an unpublished, authored decision of the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
Ohio 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
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.
¶54 Accordingly, we modify the decision of the court of
appeals, and as modified, affirm.
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
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." 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
respectfully concur.
¶72 I am authorized to state that Justice DANIEL KELLY joins
this concurrence.
15
No. 2017AP2265-CR.rgb
1