Jan. 27, 2015 – Danny Alexander wanted to be resentenced, arguing that he was compelled to make incriminating statements to his probation officer and the sentencing judge relied on them to sentence him. Recently, the state supreme court disagreed.

In State v. Alexander, 2015 WI 6 (Jan. 27, 2015), the Wisconsin Supreme Court concluded that resentencing was not warranted  because Alexander did not prove by clear and convincing evidence that the sentencing judge relied on improper factors.

“Therefore, we conclude that Alexander was not prejudiced by his counsel’s lack of objection to those same statements,” wrote Justice Patience Roggensack in a lead opinion. Four justices agreed with the result but filed or joined concurring opinions.

Alexander pleaded guilty to felony forgery for forging checks while on extended supervision for a different conviction. He had been released from prison a month earlier.

The circuit court ordered a presentence investigation (PSI) report, which included statements that Alexander made to his probation officer. He disclosed that he cashed a total of five forged checks from two businesses, although he was only charged on two.

These statements were included in the PSI report that the sentencing judge consulted before sentencing Alexander to three years in prison with three years extended supervision. Alexander moved for resentencing, based on the Fifth Amendment.

He said his statements were compelled – the conditions of his extended supervision required a truthful reporting of his activities – and it violated his Fifth Amendment right against self-incrimination when the judge relied on those statements at sentencing.

The circuit court denied his resentencing motion, but the appeals court reversed. The appeals court, sua sponte, ruled that Alexander’s counsel was ineffective for failing to object to the PSI report, which contained Alexander’s compelled statements.

Because the state did not contest Alexander’s assertion that those statements were compelled, the majority assumed they were without deciding that point. But even if compelled, the sentencing court did not improperly rely on those statements, it ruled.

“The sentencing transcript clearly reflects that the basis of Alexander’s sentence overall was Alexander’s history of criminal offenses and his failure to correct his behavior,” Justice Roggensack wrote. “[W]e conclude that the circuit court relied on proper factors in imposing sentence and did not actually rely on Alexander’s compelled statements.”

And since the sentencing court did not rely on the statements, Roggensack noted, his lawyer was not ineffective for failing to object when they were included in the PSI report.

Concurrences

Chief Justice Shirley Abrahamson, joined by Justice Ann Bradley, agreed that the appeals court was wrong to grant resentencing based on ineffective assistance of counsel, and Alexander failed to prove the sentencing court relied on improper factors.

But she wrote separately to “clarify several points of law,” noting the appeals court could not rule on ineffective assistance without a Machner hearing, which was not conducted.

“I do not object to the majority opinion’s resolution of the ineffective assistance of counsel issue,” the Chief Justice Abrahamson wrote. “Rather, I take issue with the majority opinion’s failure to clarify that a Machner hearing is required before an appellate court can determine that defense counsel’s performance was deficient.”

The chief justice also said the court “does not consider dispositive a circuit court’s after-the-fact assertion of non-reliance on an improper factor at sentencing,” and that the majority should have recognized this as a clear instance of compelled self-incrimination.

Justice David Prosser concurred but wrote separately to explain that Alexander was not prejudiced by mistaken attachments to the PSI report. He noted other case information, available to the judge, indicating Alexander’s involvement in a larger forgery scheme.

Justice Michael Gableman concurred but wrote separately “to explain that the court of appeals does, and should, have the power to raise and decide issues not briefed by the parties,” noting the appeals court raised the ineffective assistance issue sua sponte.

The state had argued that Alexander forfeited the right to argue ineffective assistance of counsel because he did not raise the issue to the appeals court. The majority opinion did not directly address the power of appeals courts to raise issues that are not briefed.

“The court of appeals is primarily an error correcting court,” Gableman wrote. “Were it not allowed to reach certain issues not briefed by the parties, that purpose would be frustrated.”