COURT OF APPEALS DECISION DATED AND FILED November 22, 2011 A. John Voelker Acting Clerk of Court of Appeals |
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NOTICE |
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This opinion is subject to further editing. If published, the official version will appear in the bound volume of the Official Reports. A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals. See Wis. Stat. § 808.10 and Rule 809.62. |
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Appeal No. |
Cir. Ct. No. 2009CF3988 |
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STATE OF WISCONSIN |
IN COURT OF APPEALS |
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DISTRICT I |
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State of Wisconsin, Plaintiff-Respondent, v. Herman Bernell Lucas, Jr., Defendant-Appellant. |
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APPEAL from a judgment and an order of the circuit court for Milwaukee County: Mary m. kuhnmuench, Judge. Affirmed.
Before Curley, P.J., Fine and Brennan, JJ.
¶1 PER CURIAM. Herman Bernell Lucas, Jr., appeals from a judgment of conviction
entered upon his guilty pleas to two felonies.
He also appeals from the postconviction order that denied his motion for
resentencing. He claims that the circuit
court relied on inaccurate information in the presentence investigation report
when imposing sentence. Because we
conclude that Lucas forfeited the claim when he failed to challenge the
allegedly inaccurate information during the original sentencing proceeding, we
affirm.
BACKGROUND
¶2 Lucas shot his girlfriend in the
face. Pursuant to a plea bargain, he
pled guilty to one count of first-degree reckless injury and one count of
possessing a firearm after being adjudicated delinquent for committing a
felonious act. At the conclusion of the
plea hearing, the circuit court ordered a presentence investigation
report. As relevant here, the report
included information that Lucas was expelled from the school where he attended
seventh grade and that he then was expelled from a second school where he
attended eighth grade.
¶3 Trial
counsel confirmed near the outset of the sentencing proceeding that he and
Lucas had reviewed the presentence investigation report, and trial counsel
offered some corrections to the content of the report. Neither trial counsel nor Lucas, however, disputed
the information that Lucas had been expelled from two schools.
¶4 When
imposing sentence, the circuit court discussed a wide variety of factors, and
its remarks included references to Lucas’s expulsions from school. The circuit court then imposed an aggregate
of fifteen years of imprisonment, comprised of ten years of initial confinement
and five years of extended supervision.
¶5 Lucas
filed a postconviction motion seeking resentencing. He claimed that he had never been expelled
from any school, and therefore he was sentenced on the basis of inaccurate
information. The circuit court denied
the motion without a hearing, and this appeal followed.
DISCUSSION
¶6 A
defendant has a due process right to be sentenced upon accurate
information. State v. Tiepelman, 2006
WI 66, ¶9, 291 Wis. 2d 179, 717
N.W.2d 1. To earn resentencing based on
a violation of this right, a defendant must show both that the information was
inaccurate and that the circuit court actually relied on the information in
making its sentencing decision. Id.,
¶26.
¶7 A
defendant, however, forfeits a challenge to the accuracy of information in a
presentence investigation report by failing to raise the challenge during the
sentencing proceeding. See State v. Mosley, 201 Wis. 2d
36, 46, 547 N.W.2d 806 (Ct. App. 1996). In Mosley, we noted the various
safeguards developed to protect the integrity of the sentencing process,
including the defendant’s opportunity to review the presentence investigation
report, to refute it on the record, and to file his or her own presentence
memorandum containing the information that the defendant maintains is true and
correct. Id. at 44. We then rejected a defendant’s effort to
mount a postconviction challenge to his sentence based on alleged inaccuracies
in the presentence investigation report when the defendant and his trial
counsel could have contested the accuracy of the information during the
original sentencing hearing. Id.
at 44-46. We held that “[w]here
the facts stated in a presentence report are not challenged or disputed by the
defendant at the time of sentencing, the sentencing judge may appropriately
consider them.” Id. at 46.
¶8 Nonetheless,
in an appropriate case, we will address a forfeited claim of circuit court
reliance on an inaccurate presentence investigation report. See
State
v. Leitner, 2001 WI App 172, ¶¶41-42, 247 Wis. 2d 195, 633 N.W.2d
207, aff’d, 2002 WI 77, 253 Wis. 2d
449, 646 N.W.2d 341 (stating that we would “ignore the waiver” and address
claim that circuit court relied on inaccurate information in presentence
investigation report despite failure to raise the issue during sentencing
hearing).[1] This, however, is not a proper case for such
forbearance. The record includes trial
counsel’s express acknowledgment that Lucas reviewed the presentence
investigation report and considered its accuracy:
[w]hen I did review the presentence investigation last night with [Lucas], went over everything in the presentence, he is in agreement with pretty much everything in the presentence except we want to make sure that the Court was aware of the disposition of those – of those cases in juvenile court and my client is not in total agreement with all of the statements made by the victim in the PSI in regard to the facts of the case.
Trial counsel explained why Lucas disputed the victim’s statements, and
counsel elaborated on information about Lucas’s prior record. The circuit court thus considered the
uncontested information in the presentence investigation report under
circumstances that fully protected the integrity of the sentencing
process. See Mosley, 201 Wis. 2d at 44.
¶9 The
circuit court can correct or discount erroneous information when a defendant
advises the circuit court at the time of sentencing that a presentence
investigation report contains inaccuracies.
See id. When the defendant does not so advise the
circuit court, however, it may properly consider the information presented at
the sentencing hearing. Id.
at 46. The Mosley
rule prevents a defendant from withholding information that undermines
the accuracy of a presentence investigation report, then disclosing that
information later to obtain resentencing if the original sentence is not to his
or her liking. The rule is appropriately
applied in this case. Therefore, we will
not ignore Lucas’s forfeiture.
¶10 Lucas
protests that no impediment exists to raising his claim for the first time in a
postconviction motion, and, in support, he cites State v. Grady, 2007 WI
81, 302 Wis. 2d 80, 734 N.W.2d 364.
That case is inapposite. In Grady,
the supreme court stated that “a postconviction motion is a timely means of
raising an alleged error by the circuit court during sentencing.” See
id.,
¶14 n.4. Here, however, Lucas complains
that the circuit court considered information at sentencing that he did not
challenge after reviewing it in the presentence investigation report. As Mosley explains, this complaint does
not allege a circuit court error. See id., 201 Wis. 2d at 46. Accordingly, Grady does not apply. We affirm.
By
the Court.—Judgment and order affirmed.
This opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)5. (2009-10).
[1] Our supreme court recently clarified the distinction between “forfeiture” and “waiver.” See State v. Ndina, 2009 WI 21, ¶29, 315 Wis. 2d 653, 761 N.W.2d 612. “Although cases sometimes use the words ‘forfeiture’ and ‘waiver’ interchangeably, the two words embody very different legal concepts. ‘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. (citation omitted). In this case, the word “forfeiture” best describes Lucas’s actions in failing to raise his claim of inaccurate information during the sentencing hearing. We note, however, that we previously used the term “waiver” to describe a similar failure in State v. Leitner, 2001 WI App 172, ¶¶41-42, 247 Wis. 2d 195, 633 N.W.2d 207, aff’d, 2002 WI 77, 253 Wis. 2d 449, 646 N.W.2d 341.