State v. Danny Robert Alexander , 360 Wis. 2d 292 ( 2015 )

2015 WI 6SUPREME COURT OF WISCONSIN
CASE NO.: 2013AP843-CR
COMPLETE TITLE: State of Wisconsin,
Plaintiff-Respondent-Petitioner,
v.
Danny Robert Alexander,
Defendant-Appellant.
REVIEW OF A DECISION OF THE COURT OF APPEALS
(Reported at 352 Wis. 2d 755, 843 N.W.2d 711)
(Ct. App. 2014 – Unpublished)
OPINION FILED: January 27, 2015
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: October 7, 2014
SOURCE OF APPEAL:
COURT: Circuit
COUNTY: Milwaukee
JUDGE: Jeffrey A. Wagner
JUSTICES:
CONCURRED: ABRAHAMSON, C.J., BRADLEY, J., concur. (Opinion
filed.)
PROSSER, J., concurs. (Opinion filed.)
GABLEMAN, J., concurs. (Opinion filed.)
DISSENTED:
NOT PARTICIPATING:
ATTORNEYS:
For the plaintiff-respondent-petitioner, the cause was
argued by Thomas J. Balistreri, assistant attorney general, with
whom on the briefs was J.B. Van Hollen, attorney general.
For the defendant-appellant, there was a brief by Matthew
S. Pinix and Law Office of Matthew S. Pinix, Milwaukee, and oral
argument by Matthew S. Pinix.
2
2015 WI 6NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2013AP843-CR
(L.C. No. 12CF202)
STATE OF WISCONSIN : IN SUPREME COURT
State of Wisconsin,
Plaintiff-Respondent-Petitioner, FILED
v. JAN 27, 2015
Danny Robert Alexander, Diane M. Fremgen
Clerk of Supreme Court
Defendant-Appellant.
REVIEW of a decision of the Court of Appeals. Reversed.
¶1 PATIENCE DRAKE ROGGENSACK, J. We review a decision
of the court of appeals1 that granted resentencing based on
ineffective assistance of counsel, which reversed the circuit
court's2 denial of Danny Robert Alexander's motion for
resentencing. Alexander contends his Fifth Amendment right not
to be sentenced based on an improper factor was violated at
sentencing because compelled, self-incriminating statements to
1
State v. Alexander, No. 2013AP843-CR, unpublished slip op.
(Wis. Ct. App. Jan. 28, 2014).
2
The Honorable Jeffrey A. Wagner of Milwaukee County
presided.
No. 2013AP843-CR
his probation agent were appended to the report of the
presentence investigation (PSI) the circuit court reviewed. The
State does not contest Alexander's assertion that his statements
to his probation agent were compelled; therefore, in this
decision, we assume, without deciding, that they were compelled.
In order to establish circuit court error, Alexander must prove
the circuit court actually relied on his compelled statements.
Accordingly, our review focuses on whether the circuit court
actually relied on Alexander's compelled statements to his
probation agent when the court sentenced him. See State v.
Harris (Landray M.), 2010 WI 79, ¶30, 326 Wis. 2d 685, 786
N.W.2d 409.
¶2 We conclude that Alexander failed to prove by clear
and convincing evidence that the circuit court erroneously
exercised its discretion by actually relying on Alexander's
compelled, incriminating statements in imposing sentence.
Therefore, we conclude that Alexander was not prejudiced by his
counsel's lack of objection to those same statements.
Accordingly, it follows that Alexander was not denied effective
assistance of counsel. We reverse the decision of the court of
appeals and affirm the circuit court's denial of Alexander's
motion for resentencing.
I. BACKGROUND
¶3 This case arises from the circuit court's sentencing
where compelled, incriminating statements that Alexander made to
his probation agent were appended to the PSI. Alexander moved
for resentencing alleging a violation of his Fifth Amendment
2
No. 2013AP843-CR
right against compelled self-incrimination, which the circuit
court denied. We must decide whether the circuit court
erroneously exercised its discretion at sentencing by actually
relying upon Alexander's compelled statements.
¶4 On January 13, 2012, Alexander was charged with one
count of felony forgery. The complaint alleged that Alexander
presented two forged checks for payment at two U.S. Bank
locations: one for $1,749.13 and one for $1,456.23.3 The checks
were drawn on the same Silver Mill Management Co. bank account.
U.S. Bank gave Alexander cash for the checks. Alexander cashed
the forged checks while he was on extended supervision for an
earlier conviction.
¶5 Alexander pled guilty to felony forgery. The circuit
court accepted Alexander's plea and ordered a PSI. The circuit
court received the PSI before the sentencing hearing. The PSI
included a description of the offense, a victim statement, an
examination of Alexander's prior record and correctional
experience, a personal history, and the recommendation of the
Department of Corrections (DOC) agent who prepared the PSI. The
recommendation noted that Alexander committed the forgery
offense while on extended supervision, just over a month after
he was released from prison. The agent characterized
3
This figure reflects an error in the complaint. The copy
of this check attached to the complaint shows the amount of
$1,461.23.
3
No. 2013AP843-CR
Alexander's offenses as brazen and said Alexander exhibited a
willingness to commit illegal activities.
¶6 The PSI victim statement quoted a fraud investigator
with U.S. Bank: "Well here, we [U.S. Bank] have a total loss of
$12,000 from Danny and his accomplices. And that's just us;
there are other victims here and other pending cases." In the
PSI author's recommendation for restitution, a $12,000 loss due
to offenses committed by Alexander and his codefendants was
again noted.4
¶7 Appended to the PSI report were two of Alexander's
statements to his extended supervision agent.5 In the
statements, Alexander described cashing three checks from Dave's
Machine Repair and two from Silver Mill, which are the checks
from which this conviction arose. In his plea, Alexander
4
U.S. Bank also completed a Crime Victim Impact Statement
stating "U.S. Bank suffered a financial loss of $9,626.50 due to
counterfeit checks cashed against Silver Mills Management LLC
[sic]. Danny Alexander cashed two of them for $3,210.36."
5
The DOC-1305/1305A forms, upon which the DOC agent
recorded Alexander's statements, each contain a header stating:
I have been advised that I must account in a truthful
and accurate manner for my whereabouts and activities,
and that failure to do so is a violation for which I
could be revoked. I have also been advised that none
of this information can be used against me in criminal
proceedings.
The header was followed by "I have read or have had read to me,
the above warning," which Alexander initialed. Alexander signed
the statement and initialed each page.
4
No. 2013AP843-CR
admitted to the facts in the complaint that described cashing
the Silver Mill checks and the dollar amount of each check.
¶8 At Alexander's sentencing hearing, the PSI report was
discussed:
THE COURT: Counsel . . . is here for sentencing.
Have you gone over the pre-sentence report with your
client? If you have, are there any additions or
corrections to it?
[ATTORNEY] JOHNSON: Yes. You saw the pre-sentence,
right?
[ALEXANDER]: They didn't come and see me.
. . . .
THE COURT: Okay. But you looked——You have read this
report, right?
[ALEXANDER]: Yes.
THE COURT: Okay. Any additions or corrections by the
state?
[THE STATE]: No.
THE COURT: So then we are ready to proceed,
[Attorney] Johnson?
[ATTORNEY] JOHNSON: Yes.
¶9 After hearing the parties' recommendations, the court
stated:
Well, it appears based upon the U.S. Bank that
these checks were from Silver [Mill] Management
Company and in their statement, at least their
investigator said that there were several individuals
that were involved in fraudulent activities, involved
in area businesses.
I don't know whether or not you were one of those
individuals, but apparently you did so in this case
before the court. Your prior record——Before the court
5
No. 2013AP843-CR
imposes a sentence the court takes into consideration
the nature of the offense and what's been represented
as to your character and the rights of the victim and
the rights of the community that you present. A
punishment aspect as an objective of sentencing and a
rehabilitative aspect and a deterrent aspect.
It would appear that you haven't really been
deterred from further criminal activity even though
this may have been what was set as a crime of
opportunity because every time, you know . . . there
is a continued pattern of behavior that you have been
on probation. That was revoked. You ended up in
prison and then there was an armed robbery in '94
where you had 96 months in prison. And then there was
a reckless second degree recklessly endangering safety
that you received prison for.
. . . .
Quite frankly, it says as far as the assessment
of yourself by the agent is that you were on your
second chance of extended supervision and only been
out of prison for just over a month when you committed
the present offenses. That [he has] been a repeat
offender for the majority of his adult life and has
several convictions.
And it goes on to say that within those
dispositions in the past he was afforded opportunities
at treatment, skills and education, however the
defendant has not truly made himself [amenable] to
Correctional intervention that will motivate him to
redirect the direction of his life. Then [the PSI
author goes on to] recommend the sentence that they
do.
¶10 The court after hearing the recommendations of the
district attorney and Alexander's counsel sentenced Alexander:
What the court will do, the court is going to
follow the recommendation of the pre-sentence to some
extent, and impose a sentence of seven years in the
6
No. 2013AP843-CR
Wisconsin state prison system.6 The court will make
that concurrent to whatever time that you're serving
now.
The court believes that you have to have some
extra time on this because of the fact . . . of your
continuous undesirable behavior patterns.
The court waived all costs but imposed the restitution amount,
$3,210.32,7 to which Alexander had agreed.
¶11 Alexander moved for resentencing. Alexander argued
that his Fifth Amendment privilege against self-incrimination
was violated by the circuit court's reliance on the PSI with the
appended statements he made to his probation agent. Alexander
argued that his statements were compelled because conditions of
his extended supervision required truthful reporting of his
activities.8
¶12 The circuit court denied Alexander's motion for
resentencing. The court noted that Alexander agreed during
sentencing that he had read the PSI. Regarding the information
contained in Alexander's compelled statements, the court said
that when Alexander pled guilty he admitted the facts in the
6
The circuit court initially ordered three years of
confinement and four years of extended supervision. When
advised that the extended supervision could not exceed three
years, the court corrected the sentence to six years
imprisonment, consisting of three years confinement and three
years extended supervision.
7
This figure was taken from the circuit court's order even
though it is not the sum of the two checks attached to the
complaint.
8
As we have noted above, we assume without deciding that
Alexander's statements were compelled.
7
No. 2013AP843-CR
complaint were true.9 The court also explained that while
Alexander's statements referred to other forged and cashed
checks in separate incidents, "the body of the [PSI] report also
refers to an amount of loss suffered by the victim much greater
than the $3,210.32" for the checks on which his conviction was
based. The court noted that the "Crime Victim Impact Statement
also referenced a $9,626.50 loss by U.S. Bank from these
transactions, indicating that the defendant had cashed two of
the checks." The court concluded:
Clearly, the court and the parties were aware of the
bigger picture of what had been going on, and the
defendant's statement to his [probation] agent did not
reveal anything not already known to the court.
¶13 Alexander appealed the circuit court's denial of his
motion for resentencing. Alexander argued on appeal that the
circuit court erred in denying his motion for resentencing due
to the violation of his Fifth Amendment right against self-
incrimination that he alleged had occurred. The court of
appeals reversed the circuit court based on ineffective
assistance of counsel, which the court of appeals raised sua
sponte, and remanded for a new sentencing hearing. State v.
Alexander, No. 2013AP843-CR, unpublished slip op., ¶¶12-15 (Wis.
Ct. App. Jan. 28, 2014).
9
During his guilty plea, Alexander acknowledged his
understanding of the circuit court's statement: "You would be
waiving any possible defenses that you may have to the offense
charged in the criminal complaint." The court also explained
that it would use the complaint as the factual basis for
Alexander's plea.
8
No. 2013AP843-CR
¶14 We granted review, and now reverse the decision of the
court of appeals.
II. DISCUSSION
A. Standard of Review
¶15 We review the court of appeals' conclusion that
Alexander was denied effective assistance of counsel in the
context of the circuit court's review of the PSI report at
sentencing. Whether counsel was ineffective in failing to
object to the PSI report because it appended compelled, self-
incriminating statements and whether the defendant was
prejudiced by counsel's failure, present mixed questions of fact
and law. State v. Johnson, 2004 WI 94, ¶10, 273 Wis. 2d 626,
681 N.W.2d 901. We uphold a circuit court's factual findings
unless they are clearly erroneous. Id. However, whether
counsel's performance was deficient and whether a defendant was
prejudiced thereby, present questions of law that we review
independently. Id.¶16 On review, we will affirm the sentencing decision of a
circuit court so long as the court does not erroneously exercise
its discretion. Harris (Landray M.), 326 Wis. 2d 685, ¶3; State
v. Brown, 2006 WI 131, ¶5, 298 Wis. 2d 37, 725 N.W.2d 262.
B. Sentencing Decision
¶17 A circuit court erroneously exercises its sentencing
discretion when it "actually relies on clearly irrelevant or
improper factors." Harris (Landray M.), 326 Wis. 2d 685, ¶66.
A defendant bears the burden of proving, by clear and convincing
evidence, that the sentencing court actually relied on
9
No. 2013AP843-CR
irrelevant or improper factors. Id.; see State v. Tiepelman,
2006 WI 66, ¶26, 291 Wis. 2d 179, 717 N.W.2d 1 (concluding that
a defendant who asserts that the circuit court erred by
employing inaccurate information at sentencing must show that:
(1) the information was inaccurate, and (2) the circuit court
actually relied on the inaccurate information); see McCleary v.
State, 49 Wis. 2d 263, 278, 182 N.W.2d 512 (1971) (concluding
where the sentencing discretion was exercised on the basis of
clearly irrelevant or improper factors, an erroneous exercise of
discretion occurs10). Before the court of appeals, Alexander
claimed that the circuit court erred in denying his motion for
resentencing because the circuit court based his sentence on the
PSI that improperly appended a compelled statement.
¶18 The two-step framework to determine whether a circuit
court erroneously exercised its sentencing discretion based on
an improper factor that we set out in Tiepelman is helpful here.
Tiepelman, 291 Wis. 2d 179, ¶26. In Tiepelman, we noted that
"[a] defendant has a constitutionally protected due process
right to be sentenced [on] accurate information." Id., ¶9. We
discussed the two-step framework wherein a defendant must prove
that: (1) information was inaccurate, and (2) the court
actually relied on the inaccurate information in the sentencing.
Id., ¶26. If the defendant proves inaccuracy and actual
10
McCleary v. State, 49 Wis. 2d 263, 278, 182 N.W.2d 512(1971), employed the term "abuse of discretion," a term we no
longer employ. We now employ the term "erroneous exercise of
discretion."
10
No. 2013AP843-CR
reliance, the burden shifts to the State to prove the error was
harmless. Id., ¶¶26-27.
¶19 In Harris (Landray M.), we also applied this framework
to a contention that a sentencing court had relied on improper
factors, rather than inaccurate information. Harris
(Landray M.), 326 Wis. 2d 685, ¶24. We concluded that race and
gender, the two factors under examination in Harris
(Landray M.), were improper sentencing factors. Id., ¶33. We
recognized a defendant's due process right not to be sentenced
on the basis of race and held that a defendant also has a due
process right not to be sentenced based on gender. Id.
¶20 We discussed the difficulty in proving that a
sentencing court actually relied on improper factors. Id., ¶34.
However, we concluded that requiring a defendant to prove his
case "'promotes the policy of finality of judgments and
satisfies the purpose of sentence modification, which is the
correction of unjust sentences.'" Id. (quoting State v.
Littrup, 164 Wis. 2d 120, 132, 473 N.W.2d 164 (Ct. App. 1991)).
¶21 Harris (Landray M.) explained how the two-part
Tiepelman test applied to an "improper factor," as compared with
"inaccurate information." Id., ¶32. "Proving inaccurate
information is a threshold question——you cannot show actual
reliance on inaccurate information if the information is
accurate. When the question relates to other improper factors
like race and gender, only the second part of the test, actual
reliance, is relevant." Id., ¶33 n.10.
11
No. 2013AP843-CR
1. Improper factor
¶22 We first consider whether compelled statements are an
improper factor to rely on at sentencing. When sentencing a
defendant, a circuit court should use three primary factors:
the gravity of the offense, the character of the offender, and
the need to protect the public. State v. Harris (Denia), 119
Wis. 2d 612, 623, 350 N.W.2d 633 (1984) (citing McCleary, 49
Wis. 2d at 274-76). The circuit court may also consider
additional factors, including:
(1) Past record of criminal offenses; (2) history
of undesirable behavior pattern; (3) the defendant's
personality, character and social traits; (4) result
of presentence investigation; (5) vicious or
aggravated nature of the crime; (6) degree of the
defendant's culpability; (7) defendant's demeanor at
trial; (8) defendant's age, educational background and
employment record; (9) defendant's remorse, repentance
and cooperativeness; (10) defendant's need for close
rehabilitative control; (11) the rights of the public;
and (12) the length of pretrial detention.
Id. at 623-24 (quoting Harris (Robert Lee) v. State, 75 Wis. 2d
513, 519-20, 250 N.W.2d 7 (1977)). The circuit court's proper
exercise of discretion includes individualizing the sentence "to
the defendant based on the facts of the case" and may include
"identifying the most relevant factors and explaining how the
sentence imposed furthers the sentencing objectives." Harris
(Landray M.), 326 Wis. 2d 685, ¶29 (citing State v. Gallion,
2004 WI 42, ¶¶39-48, 270 Wis. 2d 535, 678 N.W.2d 197).
¶23 We have already decided that certain factors are
improper for the circuit court to consider at sentencing and
therefore violate a defendant's right to due process: race or
12
No. 2013AP843-CR
national origin,11 gender,12 alleged extra-jurisdictional
offenses,13 and the defendant's or victim's religion.14
¶24 Alexander has a Fifth Amendment right not to be
compelled to be a witness against himself.15 Rock v. Arkansas,
483 U.S. 44, 51-53 (1987). The Fourteenth Amendment requires
that states afford the protections of the Fifth Amendment to
defendants in state criminal actions. State v. Lonkoski, 2013
WI 30, ¶23 n.8, 346 Wis. 2d 523, 828 N.W.2d 552 (citing Malloy
v. Hogan, 378 U.S. 1, 6 (1964)). The Fifth Amendment privilege
against self-incrimination continues after a plea and through
sentencing. State v. McConnohie, 121 Wis. 2d 57, 68, 358 N.W.2d
256 (1984) (concluding that where a defendant has pleaded guilty
to a criminal charge but has not yet been sentenced, he retains
his constitutional privilege against compelled self-
incrimination). Accordingly, a circuit court employs an
improper factor in sentencing if it actually relies on compelled
statements made to a probation agent.
11
State v. Harris (Landray M.), 2010 WI 79, ¶33 n.9, 326
Wis. 2d 685, 786 N.W.2d 409 (citing United States v. Munoz, 974
F.2d 493, 495 (4th Cir. 1992)).
12
Id., ¶33.
13
Rosado v. State, 70 Wis. 2d 280, 290-91, 234 N.W.2d 69(1975).
14
State v. Ninham, 2011 WI 33, ¶96, 333 Wis. 2d 335, 797
N.W.2d 451.
15
The Fifth Amendment to the United States Constitution
states in relevant part: "No person . . . shall be compelled in
any criminal case to be a witness against himself."
13
No. 2013AP843-CR
2. Actual reliance
¶25 The second part of our inquiry is to determine whether
the circuit court actually relied on an improper factor in
sentencing Alexander, i.e., Alexander's compelled statements. A
circuit court "must articulate the basis for the sentence
imposed." Harris (Denia), 119 Wis. 2d at 623. This
articulation plays an important role in determining whether the
circuit court actually relied on an improper factor. We review
the circuit court's articulation of its basis for sentencing in
the context of the entire sentencing transcript to determine
whether the court gave "explicit attention" to an improper
factor, and whether the improper factor "formed part of the
basis for the sentence."16 Tiepelman, 291 Wis. 2d 179, ¶14;
State v. Travis, 2013 WI 38, ¶¶28, 31, 347 Wis. 2d 142, 832
N.W.2d 491.
¶26 We have evaluated whether a circuit court actually
relied on an inaccuracy or an improper factor in many cases. In
some cases where we have concluded there was no actual reliance,
the circuit court has made comments that allegedly constituted
explicit attention to an improper factor. State v. Lechner, 217
16
Though State v. Tiepelman, 2006 WI 66, 291 Wis. 2d 179,
717 N.W.2d 1, provides this method for determining actual
reliance, we look to other cases for its application because
Tiepelman is based in part on the parties' stipulation and
therefore did not apply this method. Id., ¶4 n.3.
14
No. 2013AP843-CR
Wis. 2d 392, 419-22, 576 N.W.2d 912 (1998)17 (stating that
although the circuit court explicitly referred to an inaccurate
number of prior convictions when considering the character of
the defendant, it did so to recognize defendant's long history
of drug and alcohol abuse); Harris (Landray M.), 326 Wis. 2d
685, ¶¶45, 48-52 (reviewing comments by the circuit court
allegedly constituting "explicit attention"). However, we
reviewed the circuit court's comments in the context of the
whole sentencing transcript and concluded that the court
actually based its sentence on proper, rather than improper,
factors. Lechner, 217 Wis. 2d at 421-22 (stating that the
circuit court considered the alleged convictions as "warning
signals," focusing on the underlying factual events rather than
actual convictions); see Harris (Landray M.), 326 Wis. 2d 685,
¶¶52, 60, 64 (reviewing the circuit court's use of the term,
"baby mama" in the context of the whole sentencing transcript
and concluding that the defendant failed to prove the court
actually relied on race or gender in sentencing him).
¶27 In cases concluding that the circuit court actually
relied on inaccurate information or improper factors, the
circuit court explicitly considered the inaccurate information
17
After receiving no relief in state court, the defendant
in Lechner v. Frank, 341 F.3d 635 (7th Cir. 2003), filed a
habeas petition. On appeal, the Seventh Circuit agreed with our
conclusion that the record did not demonstrate that the circuit
court based its sentence in part on an inaccurate prior
conviction history. Id. at 639-40.
15
No. 2013AP843-CR
and also would not have sentenced the defendant in the same
manner without the inaccurate information. For example, in
Travis, we noted that the circuit court explicitly and
repetitively referred to the inaccurate penalty information.
Travis, 347 Wis. 2d 142, ¶¶32-33. The circuit court also
explained that if it were to impose a sentence, it had an
obligation to impose the minimum sentence, which was
inaccurately stated. Id., ¶34.
¶28 In State v. Anderson, 222 Wis. 2d 403, 588 N.W.2d 75(Ct. App. 1998), the defendant contended that the circuit court
had relied on a portion of the PSI that included allegations of
sexual assault that were later recanted. Id. at 409-10. The
court of appeals held that the circuit court relied on that
portion of the PSI. Id. at 410. In regard to reliance, the
court of appeals stated: "The tenor of the trial court's
sentencing remarks is inconsistent with the facts of the
offenses to which [the defendant] pled no contest," implying
that the inaccurate allegations formed part of the court's basis
for the sentence. Id.; see also United States v. Tucker, 404
U.S. 443, 447 (1972) (concluding that the sentencing transcript
demonstrated the district court gave explicit consideration to
the inaccurate number of previous convictions, and also actually
relied on inaccurate information).
¶29 When a sentencing challenge is grounded in the use of
allegedly erroneous information, we look to the circuit court's
articulation of its basis for imposing the sentence. Harris
(Denia), 119 Wis. 2d at 623. In the context of the whole
16
No. 2013AP843-CR
sentencing transcript, we examine first whether the court gave
explicit attention to the allegedly improper factor and second,
whether the improper factor "formed part of the basis for the
sentence," which could show actual reliance. See Harris
(Landray M.), 326 Wis. 2d 685, ¶¶53, 60, 64; Tiepelman, 291
Wis. 2d 179, ¶14.
3. Application
¶30 As we explained above, Alexander has the burden to
prove by clear and convincing evidence that the circuit court
actually relied on an improper factor in imposing sentence.
Compelled, incriminating statements are an improper factor in
determining a defendant's sentence because their use would
violate the defendant's Fifth Amendment right against self-
incrimination. Rock, 483 U.S. at 51-53; Lonkoski, 346 Wis. 2d
523, ¶23 & n.8. Therefore, the remaining question before us is
whether the circuit court actually relied on Alexander's
compelled statements that were appended to the PSI.18
Accordingly, we review the entire sentencing transcript to see
whether the circuit court gave explicit attention to the
compelled statements. Harris (Landray M.), 326 Wis. 2d 685,
¶45. We also review whether the compelled, incriminating
statements "formed part of the basis for the sentence," which
could indicate that the circuit court actually relied on the
18
"When the question relates to other improper factors like
race and gender, only the second part of the test, actual
reliance, is relevant." Harris (Landray M.), 326 Wis. 2d 685,
¶32 n.10.
17
No. 2013AP843-CR
compelled statements. Tiepelman, 291 Wis. 2d 179, ¶14; Travis,
347 Wis. 2d 142, ¶¶28, 31. We also review the court's
statements made in response to Alexander's motion for
resentencing. Harris (Landray M.), 326 Wis. 2d 685, ¶49.
¶31 In his compelled statements, Alexander admitted his
role in the Silver Mill forgeries and in other forgeries not
involved herein. At sentencing, the circuit court referred to
information that could be found in Alexander's compelled
statement. However, viewed in context, the circuit court
actually based its reference to this information on the PSI
victim statement and the Crime Victim Impact Statement of U.S.
Bank's senior fraud investigator.19 The circuit court stated:
Well, it appears based upon the U.S. Bank that
these checks were from Silver [Mill] Management
Company and in their statement, at least their
investigator said that there were several individuals
that were involved in fraudulent activities, involved
in area businesses.
I don't know whether or not you were one of those
individuals, but apparently you did so in this case
before the court.
By referring to the fraud investigator's statement, the circuit
court identified that the source for its reference to other
offenses was the U.S. Bank investigator. Additionally, when the
court related that it did not know whether Alexander was one of
19
It was proper for the circuit court to consider the PSI
victim statement and the Crime Victim Impact Statement, even
though Alexander's involvement in other forgeries had not been
proven. Elias v. State, 93 Wis. 2d 278, 284, 286 N.W.2d 559(1980).
18
No. 2013AP843-CR
the individuals involved in the other forgeries, the court
confirmed that the source of its information was not Alexander's
compelled statements where his involvement was admitted.
¶32 At Alexander's sentencing, the circuit court discussed
other proper sentencing factors, including the nature of the
offense, Alexander's record of past criminal convictions,
Alexander's undesirable behavior pattern, and his character in
failing to accept correctional intervention. See Harris
(Denia), 119 Wis. 2d at 623-24. The circuit court stated that
it was "going to follow the recommendation of the pre-sentence
to some extent." The PSI recommended a term of three to four
years of initial confinement followed by a three year term of
extended supervision. The circuit court sentenced Alexander to
three years initial confinement, consistent with the PSI's
recommendation, and ultimately three years of extended
supervision.20
¶33 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.
Alexander's history was the focus of the court's discussion,
including the court's response to Alexander's comments. The
sentencing transcript reveals that the circuit court did not
give explicit attention to Alexander's compelled statements, and
information from those statements did not form part of the basis
20
See note 6 above.
19
No. 2013AP843-CR
for the sentence imposed. See Tiepelman, 291 Wis. 2d 179, ¶14;
Travis, 347 Wis. 2d 142, ¶¶28, 31. Therefore, the circuit court
did not actually rely on an improper factor in sentencing
Alexander, and did not erroneously exercise its discretion. See
Tiepelman, 291 Wis. 2d 179, ¶26.
¶34 Our conclusion, based on our review of the entire
sentencing transcript, is supported by the circuit court's order
denying Alexander's motion for resentencing. The circuit court
explained that "the court and the parties were aware of the
bigger picture of what had been going on, and the defendant's
statement to his agent did not reveal anything not already known
to the court." The court noted alternative sources for the
information included in Alexander's compelled statements.
First, the court noted that Alexander admitted to the Silver
Mills forgeries when he entered his guilty plea. Second, the
court explained that the body of the PSI referred to an amount
of loss suffered by U.S. Bank greater than the sum of the Silver
Mills checks that were the basis for Alexander's conviction. In
that regard, the court referred to a U.S. Bank senior fraud
investigator's statement in the Crime Victim Impact Statement
section of the PSI. The investigator placed the amount of loss
from "Danny and his accomplices" at $12,000, while Alexander was
convicted of check forgeries totaling $3,210.32. The circuit
court explained that given the additional sources in the PSI
indicating Alexander's potential involvement in other forgeries,
the attachment of Alexander's compelled statements that also
spoke of additional forgeries, did not affect the sentence it
20
No. 2013AP843-CR
imposed. The court termed the attachment, "harmless at best."
Third, the circuit court's order denying Alexander's motion for
resentencing reiterated that the court did not actually rely on
Alexander's compelled statements in sentencing him.
¶35 In sum, after reviewing the sentencing transcript as a
whole and the court's comments in denying Alexander's motion for
resentencing, we conclude that the circuit court relied on
proper factors in imposing sentence and did not actually rely on
Alexander's compelled statements. The circuit court considered
the nature of the offense, Alexander's record of past criminal
convictions, Alexander's undesirable behavior pattern, and his
repeated failures to accept correctional intervention. The
circuit court explained its basis for imposing Alexander's
sentence, both at sentencing and in its order denying
Alexander's motion for resentencing. We conclude there is
nothing to indicate that the circuit court's sentence was an
erroneous exercise of discretion.
C. Ineffective Assistance of Counsel
¶36 As we noted at the beginning of this decision, the
court of appeals ordered resentencing based on its conclusion
that Alexander was denied effective assistance of counsel.
Alexander, No. 2013AP843-CR, unpublished slip op., ¶¶12-15. In
order to prevail on an ineffective assistance of counsel claim,
a defendant must prove both deficient performance and prejudice.
Johnson, 273 Wis. 2d 626, ¶11.
21
No. 2013AP843-CR
¶37 When a claim of ineffective assistance of counsel is
made, the circuit court often holds a Machner hearing.21 State
v. Allen, 2004 WI 106, ¶8 n.3, 274 Wis. 2d 568, 682 N.W.2d 433.
The circuit court did not hold a Machner hearing in this case
because the court of appeals raised the ineffective assistance
of counsel issue sua sponte. Alexander, No. 2013AP843-CR,
unpublished slip op., ¶¶12-15. Therefore, we do not have a
record describing why counsel did not object to the compelled
statements appended to the PSI.
¶38 However, because proof of prejudice is intertwined
with whether the circuit court actually relied on Alexander's
compelled statements when sentencing him and because we have a
full record to review on sentencing, we are not hampered by the
lack of a Machner hearing record.22
¶39 Furthermore, if Alexander was not prejudiced by
counsel's lack of an objection, we need not decide whether
counsel's performance was deficient in not objecting to
Alexander's compelled statements appended to the PSI. Johnson,
273 Wis. 2d 626, ¶11.
¶40 In the discussion above, we concluded that the circuit
court did not actually rely on Alexander's compelled statements
when imposing sentence. Accordingly, it follows that Alexander
21
State v. Machner, 92 Wis. 2d 797, 804, 285 N.W.2d 905(Ct. App. 1979).
22
A Machner hearing is not required where the record shows
that the defendant cannot establish prejudice. State v.
Roberson, 2006 WI 80, ¶44, 292 Wis. 2d 280, 717 N.W.2d 111.
22
No. 2013AP843-CR
was not prejudiced by his counsel's lack of objection to those
same statements. Therefore, it also follows that Alexander
cannot prevail on an ineffective assistance of counsel claim.
III. CONCLUSION
¶41 We conclude that Alexander failed to prove by clear
and convincing evidence that the circuit court erroneously
exercised its discretion by actually relying on Alexander's
compelled, incriminating statements in imposing sentence.
Therefore, we conclude that Alexander was not prejudiced by his
counsel's lack of objection to those same statements.
Accordingly, it follows that Alexander was not denied effective
assistance of counsel. We reverse the decision of the court of
appeals and affirm the circuit court's denial of Alexander's
motion for resentencing.
By the Court.—The decision of the court of appeals is
reversed.
23
No. 2013AP843-CR.ssa
¶42 SHIRLEY S. ABRAHAMSON, C.J. (concurring). Compelled
statements by the defendant to his extended supervision agent
were erroneously appended to the presentence investigation
report (PSI) in the instant case. The defendant moved for
resentencing, arguing that the circuit court improperly
considered these statements when imposing sentence, violating
the defendant's privilege against self-incrimination.
¶43 The circuit court denied the defendant's motion. The
court of appeals granted the defendant resentencing based on
ineffective assistance of counsel, an issue it raised sua
sponte.
¶44 I agree with the majority opinion that the court of
appeals' decision granting the defendant resentencing based on
ineffective assistance of counsel should be reversed. I write
to clarify several points of law.
¶45 First, the majority opinion fails to correct errors in
the court of appeals' approach to the issue of ineffective
assistance of counsel. Its silence about these errors might
imply that it is endorsing the court of appeals' approach.
¶46 The court of appeals erred in concluding that defense
counsel's trial performance was deficient. The court of appeals
could not determine whether defense counsel performed
deficiently without a Machner hearing.1
¶47 Because the court of appeals in the instant case
raised the issue of ineffective assistance of counsel sua
1
See State v. Machner, 92 Wis. 2d 797, 804, 285 N.W.2d 905(Ct. App. 1979).
1
No. 2013AP843-CR.ssa
sponte, no Machner hearing had been held. A Machner hearing is
critical to address the competency of defense counsel and to
preserve defense counsel's testimony.2 Indeed, a Machner hearing
"is a prerequisite to a claim of ineffective
representation . . . ."3
¶48 Thus, the court of appeals should have remanded the
cause to the circuit court for a Machner hearing. The court of
appeals erred in determining that the defendant received
deficient assistance of counsel without first providing defense
counsel an opportunity to explain "the reasons underlying his
handling of [the] case."4
¶49 The majority opinion determines that defense counsel's
trial performance was not prejudicial.5 In contrast to the
determination that defense counsel was deficient, the
2
In Machner, 92 Wis. 2d at 804, the court of appeals
stated:
We hold that it is a prerequisite to a claim of
ineffective representation on appeal to preserve the
testimony of trial counsel. We cannot otherwise
determine whether trial counsel's actions were the
result of incompetence or deliberate trial strategies.
In such situations, then, it is the better rule, and
in the client's best interests, to require trial
counsel to explain the reasons underlying his handling
of a case.
3
Machner, 92 Wis. 2d at 804.
4
Id.
5
After determining that defense counsel's trial performance
was deficient, the court of appeals further concluded that the
deficiency was prejudicial.
2
No. 2013AP843-CR.ssa
determination of prejudice can be made by an appellate court
regardless of whether a Machner hearing has been held.6
¶50 I do not object to the majority opinion's resolution
of the ineffective assistance of counsel issue. 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
majority opinion is too cryptic and fails to make the court of
appeals' error clear.
¶51 Further, after the court of appeals raised the issue
of ineffective assistance of counsel sua sponte (which of course
it may do), it failed to allow briefing on the matter. This is
particularly problematic considering the court of appeals
determined that the issue of ineffective assistance of counsel
was dispositive of the case. Moreover, had the parties briefed
the issue of defense counsel's competency, the court of appeals
may not have erroneously disregarded the Machner requirement.
6
See State v. Roberson, 2006 WI 80, ¶44, 292 Wis. 2d 280,
717 N.W.2d 111 ("Because we conclude that the record
sufficiently establishes that Roberson was not prejudiced by his
counsel's actions, we further conclude that the circuit court
did not err in denying Roberson a hearing on his postconviction
motion alleging ineffective assistance of trial counsel in
accordance with Machner" (citation omitted).); State v.
Rodriguez, 2006 WI App 163, ¶40, 295 Wis. 2d 801, 722 N.W.2d 136("A Machner hearing here, however, was not required, because we
agree with the trial court, on our de novo review, that
Rodriguez has not shown the requisite prejudice."). See also
majority op., ¶38 n.22 ("A Machner hearing is not required where
the record shows that the defendant cannot establish
prejudice.").
3
No. 2013AP843-CR.ssa
¶52 We have previously admonished that before a court acts
on its own initiative, it must accord the parties an opportunity
to present their positions.7 (Admittedly, this court frequently
fails to follow its own advice in this regard.8)
¶53 Second, the majority opinion fails to caution that
this court generally does not consider dispositive "[a] circuit
court's after-the-fact assertion of non-reliance" on an improper
factor at sentencing.9 Rather, "[a] reviewing court must
independently review the record of the sentencing hearing to
7
See, e.g., Bartus v. DHSS, 176 Wis. 2d 1063, 1073, 501
N.W.2d 419 (1993) ("We therefore urge the courts to exercise
caution when determining an issue sua sponte without the
assistance of supplemental briefs and to ask for briefs unless
the matter is quite clear."); Cemetery Servs., Inc. v. Wis.
Dep't Reg. & Licensing, 221 Wis. 2d 817, 831, 586 N.W.2d 191(Ct. App. 1998) ("We cannot serve as both advocate and court.
For this reason, we generally choose not to decide issues that
are not adequately developed by the parties in their briefs.").
See also Day v. McDonough, 547 U.S. 198, 210 (2006) ("Of course,
before acting on its own initiative, a court must accord the
parties fair notice and an opportunity to present their
positions.").
8
See, e.g., Maurin v. Hall, 2004 WI 100, ¶¶119-121, 274
Wis. 2d 28, 682 N.W.2d 866 (Abrahamson, C.J. & Crooks, J.,
concurring), overruled on other grounds by Bartholomew v. Wis.
Patients Comp. Fund, 2006 WI 91, 293 Wis. 2d 38, 717 N.W.2d 216.
In Maurin, Justice Crooks and I criticized the majority opinion
for deciding the case on the basis of a "novel interpretation of
the statutes" without first requesting supplemental briefs or
reargument. Maurin, 274 Wis. 2d 28, ¶120 (Abrahamson, C.J. &
Crooks, J., concurring). Our concurrence stated: "We are at a
loss to understand why the majority refuses to call for
additional briefs." Maurin, 274 Wis. 2d 28, ¶121 (Abrahamson,
C.J. & Crooks, J., concurring).
9
See State v. Travis, 2013 WI 38, ¶48, 347 Wis. 2d 142, 832
N.W.2d 491.
4
No. 2013AP843-CR.ssa
determine the existence of any actual reliance on [an improper
factor]."10
¶54 The majority opinion concludes that the defendant is
not entitled to resentencing because he has failed to meet his
burden of proving by clear and convincing evidence that the
circuit court actually relied on an improper factor when
imposing sentence.11
10
Travis, 347 Wis. 2d 14, ¶48. The Travis court summarized
the court's approach to the question of whether a circuit court
relied on inaccurate or improper information at sentencing as
follows:
The standard, as stated in Tiepelman, to determine
whether the circuit court "actually relied" on the
incorrect information at sentencing is based upon
whether the circuit court gave "explicit attention" or
"specific consideration" to it, so that the inaccurate
information "formed part of the basis for the
sentence." A circuit court's "explicit attention to
the misinformation demonstrates [the circuit court's]
reliance on that misinformation in passing sentence."
"[T]he fact that other information might have
justified the sentence, independent of the inaccurate
information, is irrelevant when the court has relied
on inaccurate information as part of the basis of the
sentence."
A reviewing court must independently review the record
of the sentencing hearing to determine the existence
of any actual reliance on inaccurate information. A
circuit court's after-the-fact assertion of non-
reliance on allegedly inaccurate information is not
dispositive of the issue of actual reliance.
Travis, 347 Wis. 2d 14, ¶¶46-48 (footnotes omitted; alterations
& emphasis in original).
11
See majority op., ¶¶2, 31-35.
5
No. 2013AP843-CR.ssa
¶55 In reaching this conclusion, the majority opinion
relies on the circuit court's order, which states that "the
court and the parties were aware of the bigger picture of what
had been going on, and the defendant's statement to his agent
did not reveal anything not already known to the court."12
¶56 The circuit court did not say it did not actually rely
on the inadmissible information appended to the PSI. Rather,
the circuit court declared that it did not need to rely on the
defendant's inadmissible statements because it was already aware
of the information contained in those statements.
¶57 In any event, a circuit court's after-the-fact
assertions are not dispositive. Nevertheless, after an
independent review of the sentencing record, I agree with the
majority opinion that the defendant has failed to prove the
circuit court actually relied on an improper factor.
¶58 Third, the majority opinion fails to explicitly
conclude that the statements by the defendant that were
erroneously appended to the PSI constitute compelled self-
incrimination. The defendant, the State, and the court of
appeals correctly state the law: The defendant's statements
12
Majority op., ¶34.
6
No. 2013AP843-CR.ssa
were compelled self-incrimination and were inadmissible against
him at sentencing in the present case.13
¶59 The majority's unwillingness to acknowledge this clear
instance of compelled self-incrimination is mystifying and may
have the unintended consequence of raising questions about
existing law. As I recently stated in my concurrence in 118th
Street Kenosha, LLC v. Wisconsin Department of Transportation,
2014 WI 125, ¶67, ___ Wis. 2d ___, 856 N.W.2d 486 (Abrahamson,
C.J., concurring):
This court is developing the bad habit of assuming
applicable legal principles without deciding the legal
issues that are presented and briefed. This habit
"has the unfortunate effect of ducking [] vital
issue[s] that should be decided," "fails to provide
adequate guidance to litigants, the circuit courts,
and the court of appeals," and flouts this court's
"ultimate responsibility for development of the law."
(Footnotes omitted.)
¶60 In sum, I take issue with the majority opinion's
failure to clarify three points of law: (1) a Machner hearing
is required for an appellate court to determine whether defense
counsel's performance was deficient; (2) this court does not
consider dispositive a circuit court's after-the-fact assertion
13
See State v. Alexander, No. 2013AP843-CR, unpublished
slip op., ¶¶9-11 (Wis. Ct. App. Jan. 28, 2014). See also State
v. Spaeth, 2012 WI 95, ¶¶55-56, 343 Wis. 2d 220, 819 N.W.2d 769(stating that Wisconsin courts recognize "the right of the State
to compel statements from probationers and the corresponding
obligation to provide immunity coextensive with the Fifth
Amendment privilege"); State v. Peebles, 2010 WI App 156, ¶19,
330 Wis. 2d 243, 792 N.W.2d 212 ("[I]f a probationer is
compelled by way of probation rules to incriminate himself or
herself, the resulting statements may not be used in any
criminal proceeding.").
7
No. 2013AP843-CR.ssa
of non-reliance on an improper factor at sentencing; and (3) the
statements by the defendant that were erroneously appended to
the PSI constitute compelled self-incrimination and were
inadmissible at sentencing in the present case.
¶61 For the reasons set forth, I write separately.
¶62 I am authorized to state that Justice ANN WALSH
BRADLEY joins this opinion.
8
No. 2013AP843-CR.dtp
¶63 DAVID T. PROSSER, J. (concurring). This case
involves alleged irregularities in the sentencing of Danny
Robert Alexander, Sr. (Alexander).
¶64 Alexander was charged with presenting two forged
checks for payment at different U.S. Bank branches in Milwaukee
County on December 15, 2011. The two forgeries were contained
in a single count that was filed on January 16, 2012.
¶65 Alexander pled guilty to the single count on February
21, 2012, before Milwaukee County Circuit Judge Jeffrey Wagner,
who ordered a PSI. He was sentenced on the Milwaukee forgeries
on April 10, 2012.
¶66 The agent who prepared the PSI for the court did not
interview Alexander personally. Instead, the agent attached to
the PSI certain admissions that Alexander made to another agent
on December 30 after his December 27 arrest. The admissions
acknowledged Alexander's involvement in additional forgeries in
Waukesha County. The form on which Alexander made the
admissions (DOC-1305) included the following language at the top
of the form:
I have been advised that I must account in a truthful
and accurate manner for my whereabouts and activities,
and that failure to do so is a violation for which I
could be revoked. I have also been advised that none
of this information can be used against me in criminal
proceedings.
¶67 The essence of Alexander's grievance is that these
admissions were confidential, could not be used against
Alexander in any criminal proceeding, and should not have been
attached to the PSI. He demands resentencing before a different
judge, as ordered by the court of appeals.
1
No. 2013AP843-CR.dtp
¶68 There is no dispute that Alexander should have been
interviewed personally by the PSI writer. If Alexander had been
interviewed personally, he likely would have been asked about
other forgeries because that information was known to the PSI
writer. There also is no dispute that Alexander's admissions to
the other agent should not have been attached to the PSI by the
PSI writer.
¶69 Nonetheless, mistakes in criminal procedure are not
uncommon and are normally evaluated in terms of their impact on
the defendant. "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." Wis. Stat. § 805.18(1).
¶70 In this case, neither the defendant nor the
defendant's attorney objected to the errant attachments. This
failure to object amounted to a forfeiture and shifted the case
to a claim of ineffective assistance of counsel. No matter how
one looks at the case, however, the defendant bears the burden
of showing that he suffered prejudice from any alleged error.
¶71 Plainly, there was no prejudice in this case. This is
evident from the following historical facts.
¶72 First, the initial CCAP entry in the present case
reads as follows: "01-16-12 Complaint filed. Additional text:
OTP from Waukesha County" (emphasis added). This CCAP entry is
in the record. OTP means "order to produce" from Waukesha
County, implying that Alexander was in custody in Waukesha
County. An inquiring mind would want to know why Alexander was
in custody.
2
No. 2013AP843-CR.dtp
¶73 Second, the PSI contained a statement from the victim:
Mr. Harlan Peterson, Senior Fraud investigator for US
Bank Corporation, was interviewed for the PSI. Mr.
Peterson stated that he has been highly involved in
this case as there were several checks cashed by
several suspects in a ring of fraudulent activities
involving area businesses and US Bank, as well as
other financial institutions. Mr. Peterson stated,
"I'm tired of the Danny Alexander's [sic] of the world
who come into our banks and have the audacity to cash
as many fraudulent checks as they want and leave.
They are caught, because they usually don't care if
they get caught; but at sentencing the Defense
Attorney will say, 'well, it's only a couple thousand
dollars.' Well here, we (US Bank) have a total loss
of $12,000 from Danny and his accomplices. And that's
just us; there are other victims here and other
pending cases."
(Emphasis added.)
¶74 Third, the PSI also states, under the heading
"PERSONAL HISTORY": "The defendant has five siblings: Jackie
Alexander, John Alexander, Chris Alexander, Jamie Alexander, and
Michael Alexander. His brothers Chris, Jamie, and Michael are
all suspects in offenses related to the present offense in both
Milwaukee and Waukesha Counties." (Emphasis added.)
¶75 Fourth, CCAP indicates that criminal charges were
filed against Danny R. Alexander, Sr. in Waukesha County on
March 13, 2012. Alexander was charged with three counts of
violating Wis. Stat. § 943.38(2) (forgery-uttering).
¶76 The March 13, 2012, complaint was issued before the
PSI in the Milwaukee case was filed (March 29, 2012) and before
Alexander was sentenced in the Milwaukee case (April 10, 2012).
Moreover, the Waukesha charges against Danny Alexander were part
of a 15-count complaint filed against Danny's brothers,
Christopher N. Alexander, Jamie D. Alexander, and Michael C.
3
No. 2013AP843-CR.dtp
Alexander, and three others. All defendants pled to the charges
against them in due course, and all the Alexander brothers
received felony convictions.
¶77 Is there any wonder then why there was no explicit
discussion of the errant attachments to the PSI, which sugar-
coated Alexander's involvement in a substantial forgery scheme?
¶78 Fifth, Danny Alexander was revoked on one of his
multiple prior felony convictions on March 23, 2012 before he
was sentenced on the Milwaukee forgery. His sentence on the
Milwaukee forgery was made concurrent to the revocation
sentence, so that he will serve less than two years of his
three-year confinement in prison solely because of the Milwaukee
conviction. Moreover, his sentence in Waukesha County on one
felony count, plus two felony read-ins, was three years of
extended supervision consecutive to the extended supervision in
the Milwaukee case. In other words, the Waukesha County court
gave him no additional prison confinement time for the three
Waukesha County forgeries.
¶79 How exactly has the defendant been prejudiced by the
mistaken attachments to the PSI? Inasmuch as I believe there is
no convincing answer to this question, I respectfully concur in
the majority opinion.
4
No. 2013AP843-CR.mjg
¶80 MICHAEL J. GABLEMAN, J. (concurring). I agree with
the conclusion and analysis of the majority opinion and join it.
I write separately, however, to explain that the court of
appeals does, and should, have the power to raise and decide
issues not briefed by the parties.
¶81 The court of appeals raised the issue of whether
Alexander's counsel was ineffective sua sponte. Majority op.,
¶13. The State argues that this was error because Alexander
"forfeited" this argument, as he did not object to the
statements in the PSI report at the circuit court or raise the
issue to the court of appeals. Before this court, both parties
briefed the issue of whether the court of appeals has the power
to raise and decide on its own an issue that is not raised or
briefed by the parties. The majority opinion does not address
the issue squarely, but because it resolves the case on the
issue of prejudice, rather than forfeiture, one might assume
that this court agrees that the court of appeals has power to
raise an issue sua sponte.
¶82 I believe that we should answer the issue briefed by
the parties more directly and reaffirm our previous holdings
concerning the power of the court of appeals in this regard.
¶83 Ordinarily, appellate courts "will not consider or
decide issues which are not specifically raised on appeal."
Waushara Cnty. v. Graf, 166 Wis. 2d 442, 451, 480 N.W.2d 16(1992). However, it is axiomatic that this court is not bound
by the issues presented or the arguments made by the parties. A
similar principle applies to the court of appeals. See id. at
1
No. 2013AP843-CR.mjg
453 (noting that "the court of appeals had no obligation to look
beyond the issues presented" but that "it was within the court's
discretion to do so"). The court of appeals is primarily an
error correcting court. Were it not allowed to reach certain
issues not briefed by the parties, that purpose would be
frustrated.
¶84 Contrary to the argument advanced by the State, the
court of appeals does, and should, have the power to raise the
issue of ineffective assistance of counsel on its own. In our
"two-tiered appellate system, the court of appeals is destined
to be the court of last resort for most cases." Vollmer v.
Luety, 156 Wis. 2d 1, 15, 456 N.W.2d 797 (1990). While the
court of appeals does not have the broad powers that this court
has to review any issue, in order to fulfill its purpose as an
error correcting court the court of appeals must be able to
reach issues such as ineffective assistance of counsel even when
they are not raised by the parties. See State v. Schumacher,
144 Wis. 2d 388, 408 n.14, 424 N.W.2d 672 (1988) ("the court of
appeals' discretionary power must extend to a discretionary
power to review such matters as . . . ineffective-assistance-of-
counsel claims").
¶85 It will be the normal case where the parties to a
particular action drive the litigation and frame the issues on
appeal. However, there are situations in which an issue such as
ineffective assistance of counsel is not raised, but should have
been. In such a case it is appropriate for the court of
2
No. 2013AP843-CR.mjg
appeals, or this court, to raise the issue on its own, and, if
the record permits, decide the case on that ground.
¶86 For the foregoing reasons, I respectfully concur.
3
No. 2013AP843-CR.mjg
1