author:
N. PATRICK CROOKS, J.
      PATIENCE DRAKE ROGGENSACK, J.

text:
    State of Wisconsin, Plaintiff-Respondent, v. Larry A. Tiepelman, Defendant-Appellant-Petitioner.
    Supreme Court

      No. 2004AP914-CR.

      Decided June 9, 2006.

    2006 WI 66
    (Also reported in 717 N.W.2d 1.)

      For the defendant-appellant-petitioner, there were briefs by Suzanne L. Hagopian, assistant state public defender.

      For the plaintiff-respondent, there was a brief by Christopher G. Wren, assistant attorney general, with whom on the brief was Peggy A. Lautenschlager, attorney general.
   N. PATRICK CROOKS, J.

¶ 1. Larxy A. Tiepel-man (Tiepelman) seeks review of a published court of appeals' decision 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 reliance — 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.

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 atten tion 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." 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." 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." 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.

PATIENCE DRAKE ROGGENSACK, J.

¶ 32. 0dissenting). The majority opinion clarifies that the test to be met by a defendant in a challenge to a sentence that was allegedly based on inaccurate information is whether the circuit court actually relied on inaccurate information in its sentencing decision. Majority op., ¶ 2. I agree with the majority opinion's conclusion. However, the majority opinion then accepts the parties' stipulation that the sentencing court did actually rely on inaccurate information. Majority op., ¶ 4. The majority opinion goes on to relate that because "[i]t 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 because the parties agree the matter should be remanded for re-sentencing, it is appropriate to reverse a published court of appeals decision, with no further analysis of the issues that are presented. Majority op., ¶ 4.

¶ 33. When we overturn a published decision of the court of appeals, we must do so based on an error of law that actually requires reversal, not based on a stipulation between the parties. To do as the majority opinion does here is to place the stipulation of parties to litigation above a decision rendered by constitutional officers, the elected judges of the circuit court and the court of appeals. The Wisconsin Supreme Court has no power to overturn a judicial decision based on an agreement between the parties to litigation. See Wis. Stat. § 809.18 (2003-04).

¶ 34. Instead of proceeding as set out in the majority opinion, I would apply the test of actual reliance to the facts of the case, as provided by the record before us. My application of that test to the record and to the arguments provided in the parties' briefs leads me to conclude that Tiepelman has not shown by clear and convincing evidence that the circuit court actually relied on inaccurate information. Furthermore, even if I were to assume, arguendo, that the circuit court did so rely, I conclude that such an error was proved to be harmless beyond a reasonable doubt. Therefore, I would affirm the court of appeals, and I respectfully dissent from the majority opinion.

I. BACKGROUND

¶ 35. The majority concludes that "the record makes it clear that the sentencing court specifically considered the inaccurate information in its decision." Majority op., ¶ 29. It bases this statement on the sentencing transcript, which reveals that the circuit court stated during the sentencing that Tiepelman had more than twenty prior convictions. Majority op., ¶ 29. It then concludes that, based on the court's reference to an incorrect number of convictions and the stipulation of the parties, Tiepelman has met his burden to establish actual reliance on inaccurate information. Majority op., ¶ 30.

¶ 36. The record contains a thorough exposition of the circuit court's reasoning for its sentencing decision, wherein the court cited its considerations. At sentencing, the circuit court said:

In looking at those factors in Mr. Tiepelman's case, first the seriousness of the offense, it is a substantial theft. The original check written by Mr. Tiepelman on his employer's account was — it's all documented in the PSI and in the record here — was over some $24,000. The amount which the Community First Bank, who took the loss, is currently out has been established by earlier proceedings at $9,341.46.
As I recall, Mr. Tiepelman took a substantial portion of the proceeds and bought snowmobiles with it at Viteznik's. It is not a theft which by anybody's account can be considered a minor offense. It was premeditated, it was somewhat sophisticated, and it was obviously an out and out theft of significant proportions.
I believe that it is the highest category of theft that was in the criminal code at the time, that is, exceeding $2,500, so the only thing you can say about it is that this category of theft was intended to reach any amount of felony theft, no matter how large, above $2,500. And it's certainly possible, theoretically possible, to steal an awful lot more than twenty-four- or twelve- or $9,000, but by, I think, anybody's account, to do somebody out of over $9,000 is a substantial theft.
Turning to the character of the offender, I have to agree with... all of the various people who were interviewed for the purposes of the pre-sentence investigation who reported numerous small and large thefts, dishonesties, false identifications, in dealing with Mr. Tiepelman. 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.
There also is a record of assaultive offenses. Although I agree ... that that is not the primary characteristic of Mr. Tiepelman, but nor can it be ignored. He has a conviction for battery, apparently to his now ex-wife. He has a conviction for violating the no contact provision. He has various bail and bond violation convictions, again dealing with the violation of the restrictions against having contact with his wife. So he is properly characterized as assaultive and a domestic abuser, at least to that extent.
Mr. Tiepelman, having accumulated this record, has absolutely no credibility with this Court. ... Mr. Tiepelman takes the tack today in explaining his record —which is a pretty standard approach to take, but given Mr. Tiepelman's record it is all the more breathtaking in its sillyness [sic], and that is that it's someone else's fault that I've committed all these offenses. I haven't gotten the help that I've needed. It's the Department of Corrections' fault because they didn't prohibit me from having a checking account. It's someone else's fault in my past for not getting me the help I needed.
I believe that Mr. Tiepelman can stop himself any time he wants to, and he chooses not to be honest, chooses not to be law abiding. He is a criminal thinker from way hack. Now, it's true that counseling might help, but this is not a mental disease or defect. Has not been asserted as such anywhere during the course of these proceedings. It's a character defect.
Mr. Tiepelman has no moral compass that I could discern. ... Mr. Tiepelman is conning when he gets up in the morning, he's conning as he goes through the day, he's conning before he falls asleep at night if he thinks there's any advantage he can gain from it, if there's any benefit he can accrue to himself. ... I believe that Mr. Tiepelman is a significant risk to the public. ... So the offense is serious; Mr. Tiepelman has very little positive going for him with respect to character, and he presents an ongoing risk to the public.
There is an issue in Mr. Tiepelman's sentencing scenario which calls for punishment, as well as sending a message of deterrence to others, but to me the most significant factor is Mr. Tiepelman's character and the ongoing danger he presents to the public, as well as the seriousness of the offense. ... I am sentencing him in light of his conduct since the offense. I'm also primarily sentencing him for the flat out theft that got him convicted.

¶ 37. The circuit court identified Tiepelman's overall pattern of behavior, the seriousness of the immediate offenses, and his conduct since the conviction of the immediate crimes as the factors that most influenced its decision. Although the circuit court referred to an incorrect number of convictions, the correct number of convictions, as well as other criminal conduct that did not result in convictions, were accurately represented in the presentence investigation report (PSI). The court used the PSI in sentencing Tiepelman. The PSI reveals the following: (1) the offenses for which he was sentenced began with a series of transactions in 1995 to buy two snowmobiles with bad checks; (2) Tiepelman blamed the crime on his emotional state that resulted from his divorce and the death of his father and on his desire to have nice things; (3) the First Community Bank's representative stated that the bank wished to recover the funds paid out for those bad checks, but that Tiepelman had not followed through on his restitution obligation while on probation.

¶ 38. The PSI shows that Tiepelman has an extensive adult record, both before and after the convictions that were the subject of the sentencing, including: (1) a 1988 charge of issuing a worthless check for which a bench warrant was issued because Tiepelman did not appear; (2) a 1990 charge of issuing a worthless check, which was subsequently dismissed; (3) a 1990 charge of issuing a worthless check, for which Tiepel-man was convicted; (4) a 1990 charge of issuing a worthless check, for which charges were dismissed; (5) 1991 charges of battery, disorderly conduct, bail jumping, bond violation and violating a no contact provision that were dismissed for a plea to a charge of issuing a worthless check; (6) a 1991 issuing a worthless check charge, for which the disposition remained unknown; (7) 1991 convictions of forgery, felony theft and false representation; (8) a 1992 conviction of disorderly conduct and dismissal of a count of battery and consolidation of a bond violation charge; (9) a 1995 conviction of issuing worthless checks; (10) a 1995 conviction of theft in a business setting; (11) a 1995 conviction of theft and false representation with an habitual criminality enhancer; (12) 2001 convictions of disorderly conduct with an habitual criminality enhancer; (13) a 2002 no contest plea to speeding; and (14) two pending counts of issuing worthless checks with habitual criminality enhancers. The PSI also relayed information about Tiepelman's periods of incarceration for the above listed convictions, problems that he had with his correctional programming and family and social issues that pertained to his criminality.

¶ 39. In his postconviction motion, Tiepelman challenged the sentence because of the circuit court's reference to an inaccurate number of Tiepelman's convictions. Tiepelman alleged that:

Nothing in the record, including the presentence report (PSI), supports the court's statement that Mr. Tiepelman had "something over twenty prior convictions at the time of the commission of this offense back in 1995." Although the PSI lists some twenty prior charges, it shows only nine of the charges resulted in criminal convictions. . ..
The court sentenced Mr. Tiepelman with the belief that his prior record consisted of twice as many convictions than is correct. Moreover, the court's belief that he had been convicted of battery and various bond violations can only be characterized as aggravating, not mitigating, factors. The state cannot prove the error was harmless.

¶ 40. Because of Tiepelman's postconviction motion, the circuit court had the opportunity to review its sentencing decision, including its misstatements and the information the court relied on for the sentence it chose. The circuit court's statements are instructive:

In addressing the sentencing decision, in exercising the sentencing decision, in performing the sentencing function at that time, the Court addressed the three primary factors or characteristics in sentencing: the character, seriousness of the offense, the character of the offender, and the need for the protection of the public, and those points are separately addressed in the transcript.
In the analysis of the character of the offender, the Court did note 20 prior convictions which is concededly in error in that it's nine or ten, depending on how you want to count the read-in, and I don't really recall and I'm not suggesting in the record that that was misspeaking on my part referring to the 20 entries or whether or not I was actually mistaken as to the number of convictions at that point. I will note that neither M[r]. Tiepelman [n]or Ms. Oliveto spoke up and said that's not correct. So how that was understood at the time that's not clear either, but it is clear, first of all, that the sentence was, sentencing determination was based on factors that went considerably beyond whether there was ten or twenty convictions and addressed the other matters which are appropriate to being addressed in sentencing, and the transcript of course sets forth exactly what was discussed at that point.
The behavior both before and since the original probation disposition was addressed particularly ... in the arguments and... in my sentencing comments I say, "... I am sentencing him in light of his conduct since the offense. I'm also primarily sentencing him for the flat out theft that got him convicted."
So I believe that the defense in its argument in support of its motion wants to focus upon the ten versus twenty convictions and not consider the other factors that are appropriate to a sentencing determination, which were specifically addressed and weighed as well... [tjhese [other charges] apparently were dismissed for whatever reason but the record reflects that many of them were dismissed as part of a disposition which occurred on a couple of different occasions, but the conduct itself was conceded both at the time of the original sentencing and again today, and all of that conduct, even if the defendant was not specifically convicted for those offenses, is certainly appropriately considered by the Court. So the defense, as I say, in its argument focuses in and accentuates the 10 versus 20, or nine and a read-in versus 20, without regard to the other issues.
I believe, frankly, there is an issue as to whether or not this information was inaccurate in any substantial sense. ... I simply do not believe that the, whether it's ten or twenty, when the conduct is conceded and in light of the other — well, whether it's 10 or 20, when the conduct's conceded amounts to inaccuracy in any material sense and, secondly, in light of the other factors which the court analyzed in length in its sentencing decision, I do not believe that the defense has established by clear and convincing evidence either the inaccuracy or that it was relied on in imposing the sentence so the motion to vacate the sentence and resentence Mr. Tiepelman is denied.

II. DISCUSSION

A. Standard of Review

¶ 41. Sentencing is a decision within the discretion of the circuit court and appellate review will set aside a sentence only when there has been an erroneous exercise of discretion. State v. Patino, 177 Wis. 2d 348, 384, 502 N.W.2d 601 (Ct. App. 1993). In reviewing whether a circuit court has misused its sentencing discretion, we presume that the circuit court acted reasonably. State v. J.E.B., 161 Wis. 2d 655, 661, 469 N.W.2d 192 (Ct. App. 1991). A sentencing court misuses its discretion, as a matter of law, when it sentences in contravention of a defendant's due process rights. See State v. Coolidge, 173 Wis. 2d 783, 788-89, 496 N.W.2d 701 (Ct. App. 1993). We review this constitutional issue independently. Id.

B. Sentencing

¶ 42. When sentencing a defendant, the circuit court considers three main factors: (1) the seriousness of the offense of conviction, (2) the character of the defendant and (3) the public's need for protection from the defendant. State v. Larsen, 141 Wis. 2d 412, 427, 415 N.W.2d 535 (Ct. App. 1987). It is permissible for the sentencing court to consider criminal conduct that has not resulted in a conviction, in evaluating a defendant's character. State v. McQuay, 154 Wis. 2d 116, 126, 452 N.W.2d 377 (1990). However, a sentence may not be based on the violation of a constitutional right. J.E.B., 161 Wis. 2d at 663. A convicted defendant has a due process right to be sentenced based on accurate information. Townsend v. Burke, 334 U.S. 736, 740-41 (1948).

C. Actual Reliance

¶ 43. I agree with the majority opinion's conclusion that a defendant who claims that inaccurate information was used in his sentencing must prove by clear and convincing evidence that: (1) the information was inaccurate and (2) the circuit court actually relied on inaccurate information. Majority op., ¶ 26. Once a defendant does so, the burden shifts to the State to show that the error was harmless. State v. Marsh, 177 Wis. 2d 643, 653, 502 N.W.2d 899 (Ct. App. 1993). A convicted defendant is not required to prove that the circuit court prejudicially relied on inaccurate information. Majority op., ¶ 27.

¶ 44. Here, the circuit court's commentary about Tiepelman's overall pattern of behavior, the nature of the crime, Tiepelman's conduct since the commission of the crimes for which he was being sentenced and his credibility before the court were not erroneous factual statements, but rather, they were taken from the PSI and are not challenged in this review. Furthermore, at the hearing on Tiepelman's postconviction motion, the circuit court was very direct in explaining that it did not rely on Tiepelman having twenty convictions when it made its sentencing decision. The circuit court said:

In the analysis of the character of the offender, the Court did note 20 prior convictions which is concededly in error in that it's nine or ten, depending on how you want to count the read-in ....
The behavior both before and since the original probation disposition was addressed particularly ... in the arguments and ... in my sentencing comments I say, "... I am sentencing him in light of his conduct since the offense. I'm also primarily sentencing him for the flat out theft that got him convicted."
[ I]n light of the other factors which the court analyzed in length in its sentencing decision, I do not believe that the defense has established by clear and convincing evidence either the inaccuracy or that it was relied on in imposing the sentence so the motion to vacate the sentence and resentence Mr. Tiepelman is denied.

¶ 45. In so explaining, the circuit court said it did not actually rely on Tiepelman having twenty convictions, but rather, the court was concerned with his character as evidenced by his continuing criminal conduct. The circuit court was in the best position to evaluate its sentencing decision and what it actually relied upon. Based on my review of the information in the record, unlike the majority, I am satisfied that Tiepelman has not met his burden of showing, by clear and convincing evidence, that the circuit court actually relied on inaccurate information in reaching its sentencing decision.

D. Harmless Error

¶ 46. However, even if I were to assume actual reliance on inaccurate information, arguendo, I would continue to dissent from the majority opinion's assumption that the error was not harmless, which conclusion is based on the stipulation of the parties rather than on an application of the law to the record before us.

¶ 47. We have explained that for an error to affect the substantial rights of a party and warrant reversal, it must be clear beyond a reasonable doubt that the result of the proceeding would not have been the same absent the error. State v. Harvey, 2002 WI 93, ¶ 46, 254 Wis. 2d 442, 647 N.W.2d 189. This is a test that we have concluded is based on Chapman v. California, 386 U.S. 18 (1967). Harvey, 254 Wis. 2d 442, ¶¶ 44-46. It is also asserted that the test was established in Neder v. United States, 527 U.S. 1 (1999). Harvey, 254 Wis. 2d 442, ¶ 51 (Crooks, J., concurring). We have earlier articulated the test for harmless error as "whether there is a reasonable possibility that the error contributed" to the outcome. State v. Dyess, 124 Wis. 2d 525, 543, 370 N.W.2d 222 (1985). We explained that a "reasonable possibility" under Wisconsin law is the equivalent of "reasonable probability" in United States Supreme Court parlance. Harvey, 254 Wis. 2d 442, ¶ 41. The specific wording of the test has been a matter of dispute on this court for some time. Id., ¶ 52 n.1, (Crooks, J., concurring).

¶ 48. I note that the doctrine of harmless error applies to sentencing decisions. Marsh, 177 Wis. 2d at 653-55. Wisconsin courts have applied harmless error in a sentencing context, basing their analyses on whether the alleged errors affected the ultimate sentence that was imposed. State v. Anderson, 222 Wis. 2d 403, 410-411, 588 N.W.2d 75 (Ct. App. 1998) (concluding that the circuit court relied on errors in the PSI that the State had not proved there was "no reasonable probability that the error contributed to the outcome"); Marsh, 177 Wis. 2d at 653-55 (concluding that the circuit court's forceful assertion that the inaccurate information did not affect its sentencing decision was dispositive in determining that the claimed error was harmless).

¶ 49. Although reliance on inaccurate information in sentencing can constitute a due process violation, the presence of inaccurate information at sentencing does not fall within the limited class of errors that are "so intrinsically harmful as to require automatic reversal... without regard to their effect on the outcome." See Harvey, 254 Wis. 2d 442, ¶ 37 (citing Neder, 527 U.S. at 7). In other words, sentencing where inaccurate information has been presented is not a "structural error," one that automatically warrants reversal without regard to the influence of the error on the process.

¶ 50. However, based on my review of the statements of the circuit court presented by the record of Tiepelman's sentencing and the hearing on his postcon-viction motion, I conclude it does not matter which test for harmless error is used, the result is the same: it is clear beyond a reasonable doubt that the circuit court would have given Tiepelman the same sentence if the erroneous reference to twenty convictions had not been a part of the court's narration at sentencing. Therefore, Tiepelman suffered no prejudice because his substantial right to be sentenced based on correct information was not affected. When an error is committed that is not structural error and the defendant suffers no prejudice, the error is harmless. Koffman v. Leichtfuss, 2001 WI 111, ¶ 51, 246 Wis. 2d 31, 630 N.W.2d 201.

¶ 51. In addition, there is no basis for accepting the assistant attorney general's assertion that harmless error has not been adequately briefed. Majority op., ¶ 30. The State argued below that if there were error, it was harmless, and it briefed the harmless error issue for this court. See State's brief, pp. 17-22. Tiepelman anticipated the State's harmless error argument in his brief in chief, pp. 24-29, and he responded to the State's argument in his brief in reply, Tiepelman's brief in reply, pp. 3-6. A harmless error analysis can be done on the record before us and the briefing of the parties.

¶ 52. The State's brief relied heavily on the sentencing transcript and the court's explanation of the sentence at the hearing on Tiepelman's postconviction motion, as quoted at length above. I agree with the State's brief that "the transcript all but... speaks for itself' as to the harmlessness of the court's misstatement of fact. I have examined the sentencing and conclude that if the court actually relied on its statement that Tiepelman had twenty convictions, it did not do so to Tiepelman's prejudice and therefore any error was harmless. I come to this conclusion because of the direct and clear statements from the circuit court at the sentencing:

[ T]o me the most significant factor is Mr. Tiepelman's character and the ongoing danger he presents to the public, as well as the seriousness of the offense. I am sentencing him in light of his conduct since the offense. .. . I'm also primarily sentencing him for the flat out theft that got him convicted.

¶ 53. Furthermore, the legislature has directed the appellate courts of Wisconsin not to overturn earlier court decisions if the claimed of error is harmless. Wis. Stat. § 805.18(1). Section 805.18(1) provides:

The court shall, in every stage of an action, disregard any error or defect in the pleadings or proceedings which shall not affect the substantial rights of the adverse party.

Section 805.18(1) is made applicable to criminal cases by Wis. Stat. § 972.11(1). While I agree with the majority opinion that a convicted defendant has a due process right to be sentenced based on accurate information, majority op., ¶ 10, we are not free to ignore Wisconsin statutes for the convenience of the parties. See Harvey, 254 Wis. 2d 442, ¶ 39. Accordingly, unless the alleged error was prejudicial to Tiepelman, the sentencing cannot be set aside.

¶ 54. And finally, the decision of the majority also contravenes the spirit, if not the letter, of Wis. Stat. § 809.18. Section 809.18 provides:

The dismissal of an appeal by the appellant or by agreement of the parties or their counsel does not affect the status of a lower court decision ....

¶ 55. The stipulation that the majority opinion accepts does not result in a complete dismissal of the proceedings before us because we clarify that the prejudicial reliance test the court of appeals applied is not the correct test. Majority op., ¶ 2. However, it does result in a partial dismissal of the review because the majority opinion overturns the sentence of the circuit court, which was affirmed by the court of appeals. The majority opinion does so based solely on the stipulation of the parties, which requested this court to assume both actual reliance on inaccurate information by the circuit court and that such error was not harmless. When the majority opinion permits two private parties to overturn the decisions of two constitutionally established courts, it operates outside of its statutory and constitutional authority.

III. CONCLUSION

¶ 56. In sum, while I agree with the majority opinion's conclusion that actual reliance is the test to be met by a defendant in a challenge to a sentence that was allegedly based on inaccurate information, I disagree with the majority opinion's sweeping acceptance of the parties' stipulations that result in reversal of the sentencing decision of the circuit court, which decision was affirmed by the court of appeals. My application of the test of actual reliance to the record and to the arguments provided in the parties' briefs leads me to conclude that Tiepelman has not shown by clear and convincing evidence that the circuit court actually relied on inaccurate information. Furthermore, even if I were to assume, arguendo, that the circuit court did so rely, I conclude that such an error was proved to be harmless beyond a reasonable doubt. Therefore, I would affirm the court of appeals.

¶ 57. For the foregoing reasons, I respectfully dissent from the majority opinion.

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

       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.

       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.

       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).

       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.

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

       All further references to the Wisconsin statutes are to the 2003-04 version unless otherwise noted.

       Federal courts have also applied harmless error analysis to sentencing decisions. See United States v. Burke, 425 F.3d 400, 417 (7th Cir. 2005); United States v. Paulus, 419 F.3d 693, 699-700 (7th Cir. 2005); United States v. Williams, 298 F.3d 688, 693 (7th Cir. 2002); United States v. Smith, 218 F.3d 777, 783 (7th Cir. 2000).

       Structural errors are "defect[s] affecting the framework within which the trial proceeds, rather than simply an error in the trial process itself." State v. Harvey, 2002 WI 93, ¶ 37, 254 Wis. 2d 442, 647 N.W.2d 189 (citation omitted). As we noted in Harvey, if the defendant had counsel and an impartial adjudicator, "there is a strong presumption that any other constitutional errors that may have occurred are subject to harmless-error analysis." Id. (citing Rose v. Clark, 478 U.S. 570, 579 (1986)). We identified errors in this limited class in Harvey. Harvey, 254 Wis. 2d 442, ¶ 37.

       We note that the federal harmless error rule, Rule 52(a) of the Federal Rules of Criminal Procedure, contains substantially similar language, and that federal harmless error review also addresses the protection of "substantial rights." See Harvey, 254 Wis. 2d 442, ¶ 36 (discussing Neder v. United States, 527 U.S. 1, 7 (1999)).


source: Caselaw Access Project

author: KESSLER, J.

license: Public Domain

text:
    State of Wisconsin, Plaintiff-Respondent, v. Randy McGowan, Defendant-Appellant.
    Court of Appeals

      No. 2004AP3380-CR.

      Oral argument January 18, 2006.

      Decided March 7, 2006.

    2006 WI App 80
    (Also reported in 715 N.W.2d 631.)

      On behalf of the defendant-appellant, the cause was submitted on the briefs and oral argument of Dianne M. Erickson of Wasielewski and Erickson of Milwaukee.
    On behalf of the plaintiff-respondent, the cause was submitted on the brief of Juan B. Colas, assistant attorney general and Peggy A. Lautenschlager, attorney general. There was oral argument by Juan B. Colas.

    Before Wedemeyer, PJ., Curley and Kessler, JJ.
   KESSLER, J.

¶ 1. Randy McGowan appeals from an amended judgment of conviction entered after a jury found him guilty of four counts of first-degree sexual assault of a child, contrary to Wis. Stat. § 948.02(1) (1993-94). McGowan argues that he is entitled to a new trial because the trial court erroneously admitted evidence of another act that was alleged to have occurred when McGowan was ten years old and that involved a different alleged victim. We conclude that the evidence in question was improperly admitted and that the error was not harmless beyond a reasonable doubt. We reverse and remand with directions.

BACKGROUND

¶ 2. In May 2003, then-eighteen-year-old Sasha C. reported to the Milwaukee Police Department that McGowan had repeatedly sexually assaulted her. Sasha told police that McGowan, who is her older cousin, sexually assaulted her over a two-and-a-half-year period beginning when Sasha was eight years old and McGowan was eighteen years old. McGowan was arrested and charged with four counts of first-degree sexual assault of a child. He pled not guilty and the case proceeded to trial.

¶ 3. At trial, Sasha testified that the abuse began in the summer of 1993. Sasha said that she and her brother both slept in the basement that summer. She said during that time, McGowan often stayed at her house with her mother, stepfather and brother. McGowan, who was visiting from Chicago, would perform yard work for Sasha's family.

¶ 4. Sasha said that she remembers the first time McGowan abused her. She testified that she and McGowan were in the basement of her house, which served as a recreation room. She and McGowan were sitting on the couch, watching television. She testified:

He turned my body to the left, placed my left leg on top of the back of the couch and placed — and he scooted in between — in between me, placed my right leg onto his lap. Then he began to scooch my shorts and my panties down, and then he got them all the way down, and he began oral sex on me.

Sasha said that McGowan then had sexual intercourse with her on the couch. She said that she screamed and McGowan covered her mouth.

¶ 5. Sasha testified that McGowan eventually stopped, and told Sasha to put her clothes back on. Sasha said that after this, "he said don't tell anyone, and if I did he'll kill me, and no one would ever believe me anyway."

¶ 6. Sasha said that the next night, McGowan woke her in the middle of the night and indicated that she should follow him. She said McGowan took her to the other side of the basement and made her perform oral sex on him. She said McGowan then had anal sex with her.

¶ 7. Sasha testified that over the following months, McGowan continued to wake her at night and force her to engage in sexual activity in the basement. "We would have not too much anal sex but oral and vaginal sex." She said she did not tell anyone about the abuse because she was afraid that McGowan would kill her. "He had me believing everything that he said. No one would believe me, he would kill me, I believed it."

¶ 8. Sasha said the sexual abuse continued during the summer of 1993, and then continued sporadically over the next three years, when McGowan would visit from out of town. Sasha said the abuse stopped in 1996 when her stepfather went to prison, which caused McGowan to stop visiting.

¶ 9. In addition to Sasha's testimony, the jury also heard testimony from a female cousin, Janis W., who was twenty-four years old at the time of the trial, about a single incident she said occurred with McGowan when she was approximately five years old and in kindergarten, and McGowan was ten years old. Janis said that on that occasion, McGowan forced her to perform oral sex on him and urinated in her mouth. This took place in the bathroom of a house where Janis and her family were living with McGowan's family. Janis said she did not tell anyone about the incident because she thought no one would believe her. She said the first time she told anyone was after McGowan was arrested for allegedly abusing Sasha. Janis explained that when her mother told her about McGowan's arrest, Janis then told her mother that McGowan had also abused her. Janis's disclosure was nineteen years after her experience with McGowan.

¶ 10. Janis's testimony was allowed over the objection of the defense. The trial court concluded that this other acts evidence was admissible to show McGowan's intent and motive.

¶ 11. McGowan did not testify. In closing argument, his trial counsel argued that there was insufficient evidence to convict McGowan. Trial counsel contended that Sasha's story was ridiculous because her screams would have awakened her brother and emphasized the fact that there was no physical evidence indicating that the assaults took place. Trial counsel argued that it was inconceivable that no one would have had an indication that abuse was going on, given Sasha's size and the assumption that she would have suffered physical injury from the abuse.

¶ 12. McGowan was found guilty of four counts of first-degree sexual assault of a child and sentenced to ten years on count one, concurrent with ten years on count two. McGowan was sentenced to ten years on counts three and four, concurrent to one another, but consecutive to counts one and two. This appeal followed.

DISCUSSION

¶ 13. McGowan argues that the trial court erred when it admitted Janis's testimony as other acts evidence, and that he is therefore entitled to a new trial. We agree.

I. Legal standards

¶ 14. The admissibility of other acts evidence is governed by Wis. Stat Rule 904.04(2), which provides:

Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that the person acted in conformity therewith. This subsection does not exclude the evidence when offered for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.

The supreme court has provided significant guidance concerning the use of other acts evidence in child sexual assault cases. In State v. Davidson, 2000 WI 91, 236 Wis. 2d 537, 613 N.W.2d 606, the court discussed the three-step framework, which was originally set forth in State v. Sullivan, 216 Wis. 2d 768, 780, 576 N.W.2d 30 (1998), that courts must follow when deciding whether to admit other acts evidence in all Wisconsin cases:

1. Is the other acts evidence offered for an acceptable purpose under Wis. Stat. § (Rule) 904.04(2)?
2. Is the other acts evidence relevant under Wis. Stat. § (Rule) 904.01?
3. Is the probative value of the evidence substantially outweighed by the danger of unfair prejudice, confusion, or delay under Wis. Stat. § (Rule) 904.03?

Davidson, 236 Wis. 2d 537, ¶ 35. Davidson also recognized that "alongside this general framework, there also exists in Wisconsin law the longstanding principle that in sexual assault cases, particularly cases that involve sexual assault of a child, courts permit a 'greater latitude of proof as to other like occurrences.1" Id., ¶ 36 (citations omitted). Davidson held that "in sexual assault cases, especially those involving assaults against children, the greater latitude rule applies to the entire analysis of whether evidence of a defendant's other crimes was properly admitted at trial." Id., ¶ 51.

¶ 15. When reviewing a trial court's decision to admit or exclude other acts evidence, we consider whether the trial court " 'exercised its discretion in accordance with accepted legal standards and in accordance with the facts of record.'" Id., ¶ 53 (citation omitted). We will affirm if the trial court "reviewed the relevant facts; applied a proper standard of law; and using a rational process, reached a reasonable conclusion." Id. If the trial court failed to articulate its reasoning, we will review the record independently to determine whether there is any reasonable basis for the trial court's discretionary decision. Id.

II. Application of the Sullivan test

¶ 16. With these standards in mind, we now review the trial court's decision to admit evidence that McGowan assaulted Janis, keeping in mind the obligation imposed upon this court to independently review the record to ascertain whether there is a reasonable basis for the trial court to have admitted other acts evidence. See State v. Hunt, 2003 WI 81, ¶ 4, 263 Wis. 2d 1, 666 N.W.d 771.

A. Was the evidence offered for a proper purpose

¶ 17. The trial court concluded that Janis's other acts testimony was admissible as proof of motive and intent. The State, at oral argument, argued the testimony was also properly admissible as evidence of "background and context" and to "bolster the credibility" of the complaining witness, Sasha. We question whether the evidence could properly be admitted as evidence of motive and intent in a case where intent is not at issue. However, we will assume for purposes of this opinion that the evidence was offered for a proper purpose and move on to the second step of the Sullivan analysis.

B. Relevance to a fact of consequence to the determination of the action

¶ 18. The second step in the Sullivan analysis involves relevance. "Relevance under Wis. Stat. § (Rule) 904.01 has two components; the evidence must relate to some fact that is of consequence to the determination of the action, and it must have some tendency to make that fact more or less probable than it would be without the evidence." Davidson, 236 Wis. 2d 537, ¶ 64. "However, if the other acts evidence is probative of nothing more than the defendant's propensity to act a certain way, the evidence is not admissible." State v. Barreau, 2002 WI App 198, ¶ 40, 257 Wis. 2d 203, 651 N.W.2d 12.

¶ 19. Here, the trial court concluded that the fact or proposition of consequence was "the defendant's intent as to his interaction with the alleged victim here[.]" It further recognized that when examining the evidence's probative value, it was to consider the "incident's nearness in time, place, and circumstances to the alleged crime or the fact or proposition sought to be proved. The greater the similarity, complexity and distinctiveness of the events, the stronger is the case for the admission of the other acts evidence." Applying these standards to Janis's proffered testimony, the trial court stated:

Here the nearness in time, it's not a set of allegations which is near in time. The court notes that the place and circumstances to the alleged crime, in that instance it would... [have occurred in] the area of 24th and Hadley in Milwaukee.
The Court notes that... Janis recalls her family slept in one bedroom. She notes . .. [that her family and the defendant's family lived] together for a short period. That does have a similarity with the action here in that the allegations in the criminal complaint would be that [McGowan] was staying over and doing work at the house in which Sasha [] lived.
The Court would note here with regard to relevance that... the sexual acts that would be testified to by [Janis] are similar in nature to the criminal complaint which has been filed here .... [Sasha] goes into great detail about an incident involving penis to mouth sexual intercourse....

Thus, the trial court concluded that because the acts involved cousins living in the same household and penis-to-mouth intercourse, Janis's allegations were probative of Sasha's allegations.

¶ 20. We cannot conclude that the allegations are sufficiently factually similar to justify admission of Janis's testimony as other acts evidence. Assuming the truthfulness of both Sasha and Janis for purposes of this analysis, we conclude that a single assault, by one young child on another young child, eight years before repeated assaults by an adult on a different child who was three years older than the first victim, together with significant differences in the nature and quality of the assaults, does not tend to make the latter frequent and more complex assaults of Sasha more probable. Nor does such testimony make Sasha's testimony about the later events more credible because of the significant differences in the details involving the earlier event and the later events. Nor does the conduct of a ten-year-old child give "context" to, or provide evidence of the motive or intent of, an adult some eight or more years later. See Barreau, 257 Wis. 2d 203, ¶ 38 ("Because of the considerable changes in character that most individuals experience between childhood and adulthood, behavior that occurred when the defendant was a minor is much less probative than behavior that occurred while the defendant was an adult.").

¶ 21. We conclude that Janis's testimony was inadmissible under part two of the Sullivan test. However, even if the testimony were relevant, we conclude that it would be inadmissible because it also fails under the third part of the Sullivan test.

C. Does the clanger of unfair prejudice substantially outweigh the probative value of the evidence

¶ 22. The third prong of the Sullivan test requires courts to

determine whether under Wis. Stat. § (Rule) 904.03 the probative value of the evidence was substantially outweighed by the danger of unfair prejudice. " 'Unfair prejudice results when the proffered evidence has a tendency to influence the outcome by improper means or if it appeals to the jury's sympathies, arouses its sense of horror, provokes its instinct to punish or otherwise causes a jury to base its decision on something other than the established propositions in the case.'"

Davidson, 236 Wis. 2d 537, ¶ 73 (citations omitted).

¶ 23. Here, the offered evidence (testimony of forced fellatio, performed by a five-year-old child victim, followed by urination in the victim's mouth) undoubtedly aroused the jury's "sense of horror" and "provoke[d] its instinct to punish." See Sullivan, 216 Wis. 2d at 789-90. Revulsion as to this conduct is not significantly mitigated by the fact that McGowan was only ten years old at the time and the event was an isolated incident. Given the obvious probable prejudice to the defendant, the probative value of the evidence to prove a legitimate fact of consequence — which is not proof of the defendant's character — should be strong indeed. The slim reeds of probative value identified above crumble here under the weight of prejudice to the defendant.

¶ 24. For all of the aforementioned reasons, we conclude that the trial court erroneously admitted Janis's testimony as other acts evidence.

III. Harmless error analysis

¶ 25. Having determined that admission of the other acts evidence was improper, we must next determine whether that error was harmless. See State v. Gary M.B., 2003 WI App 72, ¶ 28, 261 Wis. 2d 811, 661 N.W.2d 435 (wrongly admitted evidence of other acts is subject to harmless error analysis), aff'd, 2004 WI 33, 270 Wis. 2d 62, 676 N.W.2d 475. Our supreme court recently explained that "[a]n error is harmless if the beneficiary of the error proves 'beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.'" State v. Hale, 2005 WI 7, ¶ 60, 277 Wis. 2d 593, 691 N.W.2d 637 (citation and footnote omitted).

¶ 26. In determining whether an error is harmless, we may consider some or all of the following factors:

the frequency of the error, the importance of the erroneously admitted evidence, the presence or absence of evidence corroborating or contradicting the erroneously admitted evidence, whether the erroneously admitted evidence duplicates untainted evidence, the nature of the defense, the nature of the State's case, and the overall strength of the State's case.

Id., ¶ 61. After reviewing the present record with these factors in mind, we cannot conclude beyond a reasonable doubt that the admission of Janis's testimony did not contribute to the verdict obtained. Id., ¶ 60.

¶ 27. As we begin our analysis of the trial testimony, we note that McGowan's defense theory was that the events charged never happened. The defense claimed Sasha was fabricating her claims. The State's case depended on the jury believing Sasha's testimony. There was no physical evidence, and there were no witnesses to the alleged assaults.

¶ 28. According to the trial testimony, Sasha did not disclose the assaults until specifically confronted by her mother in 2003, ten years after the beginning of the assaults she describes. Initially, Sasha twice denied, then admitted to her mother, that she had been assaulted by McGowan.

¶ 29. As summarized earlier, Sasha testified that she was first assaulted beginning in the summer of 1993, when she was eight. She testified that she and her brother both slept in the basement most of the summer of 1993. She provided a detailed, and graphic, description of the first assault. Sasha testified that she screamed and cried. There was no testimony that anyone heard her. Sasha described a variety of sexual acts involving mouth, vagina, penis and anus. She described burning and painful sensations during this contact. Sasha testified that she told no one of the assaults, and she did not exhibit any signs of physical harm during or after the time of the assaults.

¶ 30. Brian Patterson, a cousin to both Sasha and McGowan, who has known both all his life, testified for the State. Patterson described a road trip he, his daughter, his girlfriend, and another cousin, Anthony Glave, took to New York. He testified about a statement Glave made during the drive to New York, which Glave attributed to McGowan. According to Patterson, Glave said that McGowan had told Glave that McGowan "had sexual relations with Sasha when she was younger." Patterson conveyed this information to Sasha's mother upon his return from the trip.

¶ 31. Although the jury heard testimony that McGowan had admitted the offense to Glave, Glave did not testify at trial. Detective Laurie Gaglione testified about her unsuccessful efforts to locate Glave so that he could testify.

¶ 32. Sasha's mother, Tracy D., testified. Tracy confirmed that McGowan frequently stayed at their home and worked with her husband. She acknowledged that McGowan spent several nights a week there during the summer of 1993. Tracy testified that Sasha and Sasha's brother slept in the basement for only a short time after they moved into the house, until their bedroom furniture arrived. She testified that after that short time, both Sasha and her brother generally slept in their bedrooms upstairs, not in the basement. She did agree that occasionally the children fell asleep watching television in the basement and slept on the couch down there. Tracy also testified that in the summer of 1993, they were breeding German Shepherd dogs at their home and had two adult dogs and one puppy — providing a basis for the defense to argue that the dogs would have barked if they had heard screams. Tracy testified that she had no reason to believe that anything unusual had happened to Sasha during the summer of 1993.

¶ 33. A social worker for child protective services testified as an expert witness on child sexual abuse. The social worker testified that in her experience, most child sexual abuse cases are not reported right away. The social worker also testified that she had never interviewed Sasha or any other witness involved in this case.

¶ 34. Robert McGowan, the defendant's older brother, testified on behalf of the defense about where he and McGowan lived during the summer of 1993. Robert testified that his brother essentially stayed at Robert's home, with the exception of approximately thirty days spread throughout the summer when McGowan stayed with Sasha's parents and worked for Sasha's stepfather. Robert worked in the auto body shop owned by Sasha's stepfather, where McGowan also occasionally worked.

¶ 35. McGowan's fiancée, Shamilwa Harris, testified about McGowan's living arrangements. She said that McGowan lived with Harris's aunt, Evelyn Harris, from approximately the end of 1993 to the beginning of 1997.

¶ 36. Sasha's cousin, Janis, whose testimony we discussed at length above, testified that on a single occasion, nineteen years earlier, when she was approximately five years old and McGowan was ten, he forced her to perform fellatio on him and urinated in her mouth. She testified that she remembered this because it was "gross and disgusting." She acknowledged that she never told anyone until she learned of Sasha's allegations.

¶ 37. Based on our review, we are not convinced beyond a reasonable doubt that the admission of Janis's testimony did not contribute to the verdict. The State's case was based entirely on various recollections about events that occurred years earlier. The defense disputed many of those recollections and noted the lack of physical evidence of any sort corroborating physical abuse by a large man of a small child. The other acts evidence suggesting that he had sexual contact as a child with another cousin actually attacked McGowan's character. We cannot say it did not affect the jury's assessment of McGowan's character and contribute to the verdict. The State, as the beneficiary of the error, has not proven " 'beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.'" See id., ¶ 60 (citation and footnote omitted). For these reasons, we must reverse and remand for a new trial.

By the Court. — Judgment reversed and cause remanded for further proceedings consistent with this opinion.

       All references to the Wisconsin Statutes are to the 2003-04 version unless otherwise noted.

       McGowan was also charged with two counts of repeatedly sexually assaulting a child, contrary to Wis. Stat. § 948.025(1) (effective April 23, 1994). The jury found him guilty of one count and not guilty of the other. The trial court convicted McGowan of one count based on the jury's verdict, but vacated that conviction when postconviction counsel pointed out that § 948.025(1), created by 1993 Wis. Act 227, was effective only for offenses that occurred on or after April 23, 1994. The amended judgment from McGowan's appeal does not include a conviction for repeatedly sexually assaulting a child. Thus, we will not further address alleged violations of § 948.025(1) in this appeal.

        See earlier descriptions of evidence, ¶¶ 3-9 and ¶¶ 28-36.


author: HOOVER, PJ.

text:
    State of Wisconsin, Plaintiff-Respondent, v. Jonathan Owens, Defendant-Appellant.

    Court of Appeals

      Nos. 2005AP1850-CR, 2005AP1851-CR.

      Submitted on briefs February 20, 2006.

    Decided March 7, 2006.

    2006 WI App 75
    (Also reported in 713 N.W.2d 187.)

      On behalf of the defendant-appellant, the cause was submitted on the briefs of Dianne M. Erickson of Wasielewski and Erickson, Milwaukee.
    On behalf of the plaintiff-respondent, the cause was submitted on the brief of Peggy A. Lautenschlager, attorney general, and Eileen IE Pray, assistant attorney general.
    Before Cane, C.J., Hoover, PJ., and Peterson, J.

       Petition to review denied 6-14-06.

   HOOVER, PJ.

¶ 1. Jonathan Owens appeals judgments of conviction for burglary and robbery and orders denying his motion seeking participation in the Earned Release Program (ERP). Owens asserts the trial court failed to adequately explain why it denied his request for ERP eligibility. We conclude the trial court articulated sufficient and substantial reasons for denying Owens's request. We affirm the judgments and orders.

¶ 2. On March 31, 2004, in Milwaukee County case No. 2003CF4705, Owens pled guilty to one count of burglary to a dwelling. On October 25, in case No. 2003CF6557, Owens pled guilty to one count of robbery. At sentencing on December 3, the court sentenced Owens to four years' initial confinement and one year of extended supervision on the burglary charge, plus ten years' initial confinement and four years' extended supervision on the robbery charge, to be served consecutively. In both cases, the court determined Owens was ineligible for the ERP and the Challenge Incarceration Program.

¶ 3. Initially, it appeared that the court stated Owens was "not eligible by age" for either program. Owens moved for reconsideration because while the Challenge Incarceration Program has age restrictions, the ERP does not. The court stated that it had intended to refer to Owens's age regarding his eligibility for the Challenge Incarceration Program only. It then explained why it had denied Owens's participation in the ERP and denied the motion for reconsideration. Owens appeals.

¶ 4. The sole issue on appeal is whether the court properly exercised its discretion when it denied Owens participation in the ERE He does not otherwise challenge the imposition of sentence.

¶ 5. The ERP is a substance abuse program administered by the Department of Corrections. Wis. Stat. § 302.05. An inmate serving the confinement portion of a bifurcated sentence who successfully completes the ERP will have his or her remaining confinement period converted to extended supervision, although the total length of the sentence will not change. Wis. Stat. § 302.05(3)(c)2.

¶ 6. Subject to a few exceptions irrelevant to this appeal, when imposing a bifurcated sentence, "the court shall, as part of the exercise of its sentencing discretion, decide whether the person being sentenced is eligible or ineligible to participate in the earned release program . . . ." Wis. Stat. § 973.01(3g) (emphasis added).

¶ 7. Sentencing decisions are discretionary; we review only whether the trial court erroneously exercised its discretion. State v. Spears, 227 Wis. 2d 495, 506, 596 N.W.2d 375 (1999). A discretionary decision will be affirmed if it is made based upon the facts of record and in reliance on the appropriate law. Id. There is a strong public policy against interfering with the trial court's sentencing discretion, and we presume the trial court acted reasonably. State v. Harris, 119 Wis. 2d 612, 622, 350 N.W.2d 633 (1984).

¶ 8. In imposing sentence, the court must consider at least the three primary factors or objectives: the gravity and nature of the offense, including the effect on the victim; the character and rehabilitative needs of the offender; and the need to protect the public. Spears, 227 Wis. 2d at 507. There are several additional factors, related to the primary factors, that the court is allowed to consider if deemed appropriate, including the defendant's prior record, need for "close rehabilitative control," and aggravated nature of the crime. See id. (citing Harris, 119 Wis. 2d at 623-24). Punishment of the defendant is also a valid sentencing objective. State v. Gallion, 2004 WI 42, ¶ 40, 270 Wis. 2d 535, 678 N.W.2d 197.

¶ 9. Owens complains that even though the trial court set forth an explanation for its sentence, it failed to separately explain its rationale for denying his ERP participation request. However, Wis. Stat. § 973.01(3g) explicitly states an ERP eligibility decision is part of the court's exercise of sentencing discretion. Thus, while the trial court must state whether the defendant is eligible or ineligible for the program, we do not read the statute to require completely separate findings on the reasons for the eligibility decision, so long as the overall sentencing rationale also justifies the ERP determination.

¶ 10. Moreover, the sentencing transcript here reveals the court more than adequately explained its decision. When Owens asserted that he had a drug problem and needed assistance, the court observed that treatment had been made available to him for years and yet he never availed himself of those opportunities. Accordingly, to the extent Owens complains the court failed to assess the likelihood of his success in the ERR it is evident the court inferred, from his past apathy and failure to seek help, that Owens was neither sincere about wanting substance abuse treatment nor likely to succeed in the treatment program.

¶ 11. The court then determined that, given Owens's criminal record and the particularly aggravated nature of the robbery, protection of the community was the paramount sentencing objective, although punishment was also important. Ultimately, the court denied Owens's participation in the ERR stating:

He's not eligible for ... the Earned Release Program. The time behind bars accomplishes protection of the community, as well as punishment. Given his long record of thievery and the viciousness of the crimes, any rehabilitation in my view can only take place behind the walls of a prison, in view of his intractable anti-social manner of living and committing crimes.

In other words, the court determined the ERP to be inconsistent with the protection and punishment objectives and would not provide sufficiently "close rehabilitative control." This is not an erroneous exercise of discretion.

By the Court. — Judgments and orders affirmed.

       The Honorable Richard J. Sankowitz accepted Owens's plea and adjudicated him guilty on the burglary charge. The Honorable Jean W DiMotto accepted the plea on the robbery charge and presided over the consolidated sentencing hearing.

       All references to the Wisconsin Statutes are to the 2003-04 version unless otherwise noted.

       Because the statute specifies that the eligibility determination is part of sentencing discretion, and because sentencing factors are well-established, we decline Owens's invitation to "come up with factors judges might use" for ERP eligibility decisions.

       According to the complaint, Owens approached the victim on her front steps, placed a handgun to her face, demanded her purse, and threatened to kill her if she did not comply.