District IV
April 30, 2013
To:
Hon. Michael Kirchman
Circuit Court Judge
Crawford County Courthouse
220 N. Beaumont Street
Prairie du Chien, WI 53821
Donna M. Steiner
Clerk of Circuit Court
Crawford County Courthouse
220 N. Beaumont Street
Prairie du Chien, WI 53821
Timothy C. Baxter
District Attorney
220 North Beaumont Road
Prairie du Chien, WI 53821-1405
Donna L. Hintze
Asst. State Public Defender
P.O. Box 7862
Madison, WI 53707-7862
Sarah K. Larson
Assistant Attorney General
P. O. Box 7857
Madison, WI 53707-7857
Noah Hans Frieden 527353
Waupun Corr. Inst.
P.O. Box 351
Waupun, WI 53963-0351
You are hereby notified that the Court has entered the following opinion and order:
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State of Wisconsin v. Noah Hans Frieden (L.C. # 2009CF11) |
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Before Lundsten, P.J., Sherman and Blanchard, JJ.
Noah Hans Frieden appeals a circuit
court order denying his motion for sentence modification and a judgment
convicting him of first-degree sexual assault of a person under the age of
thirteen, after he entered a plea of no contest. See
Wis. Stat. § 948.02(1)(e)
(2011-12).[1] Frieden argues on appeal that he is entitled
to sentence modification because the circuit court relied on inaccurate
information in sentencing him. Based upon our review of the
briefs and record, we conclude at conference that this case is appropriate for
summary disposition. See Wis.
Stat. Rule 809.21(1). We
summarily affirm.
A defendant has a constitutionally protected due
process right to be sentenced based upon accurate information. See United States v. Tucker, 404 U.S.
443 (1972); Wis. Const., art. I, §
8, cl. 1. However, a defendant moving
for resentencing on the basis that the circuit court relied upon inaccurate
information must establish both that there was information before the
sentencing court that was inaccurate and that the circuit court actually relied
on the inaccurate information. State
v. Tiepelman, 2006 WI 66, ¶2, 291 Wis. 2d 179, 717 N.W.2d 1.
Frieden identifies statements in the sentencing
transcript by his counsel, by the therapist who evaluated him, by the district
attorney, and by the court that refer to Frieden’s risk of reoffending as
moderate. Frieden asserts that this
characterization is inaccurate, and that his score on a risk assessment
evaluation done prior to sentencing placed him at a low risk level. Frieden also lists a number of other
statements made by the district attorney at the sentencing hearing that he believes
to have been inaccurate, some of which referenced information contained in the
pre-sentence investigation report.
The State contends that Frieden did not object at the
sentencing hearing to the statements he now challenges and that, therefore, the
issue has not been preserved for appeal. After reviewing the record, we conclude that the
State is correct that no objection was made to the statements Frieden now disputes. Without reaching the question of whether the
sentencing court relied on any allegedly inaccurate information in fashioning
the sentence, because Frieden raises for the first time on appeal the argument
that he was sentenced based on inaccurate information, we need not and do not consider
the issue. See Wirth v. Ehly, 93
Wis. 2d 433, 443-44, 287 N.W.2d 140 (1980), superceded
on other grounds by Wis. Stat. § 895.52.
Frieden also argues that his sentence was improper
because, he asserts, other defendants in cases similar to or more severe than
his have received lesser sentences.
Frieden references a case that he read about in the newspaper in which a
Green Bay man received a sentence less severe than Frieden’s for repeated
sexual assault of a child. Frieden
asserts that his sentence should be reduced because the crime he committed did
not include penetration by force, as did the offense committed by the Green Bay
individual, according to the newspaper account.
Frieden references additional cases in the appendix of his brief, but
offers no explanation of the facts of the other cases or the statutory offenses
for which the other defendants were convicted.
Even if we assume, without deciding the issue, that a comparison
to sentences in unrelated cases could provide a basis for modification of his
sentence, we reject Frieden’s argument as undeveloped. This court need not consider arguments that
either are unsupported by adequate factual and legal citations or are otherwise
undeveloped. See State v. Pettit, 171
Wis. 2d 627, 646-47, 492 N.W.2d 633 (Ct. App. 1992) (undeveloped legal
arguments); Dieck v. Unified Sch. Dist. of Antigo, 157 Wis. 2d 134, 148
n.9, 458 N.W.2d 565 (Ct. App. 1990) (unsupported factual assertions), aff’d, 165 Wis. 2d 458, 477 N.W.2d 613
(1991). While we make some allowances
for the failings of parties who, as here, are not represented by counsel, “[w]e
cannot serve as both advocate and judge,” Pettit, 171 Wis. 2d at 647, and will
not scour the record to develop viable, fact-supported legal theories on the
appellant’s behalf, State v. Jackson, 229 Wis. 2d 328, 337, 600 N.W.2d 39. Here, Frieden has failed to develop his
argument that he was sentenced disproportionately compared with other
defendants, and he does not support the argument with applicable law or
specific facts. Therefore,
IT IS ORDERED that the judgment is summarily affirmed under Wis. Stat. Rule 809.21(1).
Diane M. Fremgen
Clerk of Court of Appeals