State v. Donavinn D. Coffee

2020 WI 1
SUPREME COURT OF WISCONSIN
CASE NO.: 2017AP2292-CR
COMPLETE TITLE: State of Wisconsin,
Plaintiff-Respondent,
v.
Donavinn D. Coffee,
Defendant-Appellant-Petitioner.
REVIEW OF DECISION OF THE COURT OF APPEALS
Reported at 385 Wis. 2d 211,923 N.W.2d 181
(2018 – unpublished)
OPINION FILED: January 9, 2020
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: October 21, 2019
SOURCE OF APPEAL:
COURT: Circuit
COUNTY: Milwaukee
JUDGE: Fredrick C. Rosa
JUSTICES:
ZIEGLER, J., announced the judgment of the Court and delivered
the majority opinion of the Court with respect to Parts I
through III and Part IV.C. and D., in which ROGGENSACK, C.J.,
HAGEDORN, and KELLY, JJ., joined. KELLY, J., filed a concurring
opinion, in which REBECCA GRASSL BRADLEY, J., joined ¶¶59-63.
ANN WALSH BRADLEY, J., filed a dissenting opinion, in which
REBECCA GRASSL BRADLEY and DALLET, JJ., joined.
NOT PARTICIPATING:
ATTORNEYS:
For the defendant-appellant-petitioner, there were briefs
filed by Nicole M. Masnica, assistant state public defender. There
was an oral argument by Nicole M. Masnica.
For the plaintiff-respondent, there was a brief filed by Aaron
R. O’Neil, assistant attorney general, with whom on the brief was
Joshua L. Kaul, attorney general. There was an oral argument by
Aaron R. O’Neil.
2020 WI 1
NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2017AP2292-CR
(L.C. No. 2015CF4965)
STATE OF WISCONSIN : IN SUPREME COURT
State of Wisconsin,
Plaintiff-Respondent, FILED
v. JAN 9, 2020
Donavinn D. Coffee, Sheila T. Reiff
Clerk of Supreme Court
Defendant-Appellant-Petitioner.
ZIEGLER, J., announced the judgment of the Court and delivered the
majority opinion of the Court with respect to Parts I through III
and Part IV.C. and D., in which ROGGENSACK, C.J., HAGEDORN, and
KELLY, JJ., joined. KELLY, J., filed a concurring opinion, in
which REBECCA GRASSL BRADLEY, J., joined ¶¶59-63. ANN WALSH
BRADLEY, J., filed a dissenting opinion, in which REBECCA GRASSL
BRADLEY and DALLET, JJ., joined.
REVIEW of a decision of the Court of Appeals. Affirmed.
¶1 ANNETTE KINGSLAND ZIEGLER, J. This is a review of a
per curiam decision of the court of appeals, State v. Coffee, No.
2017AP2292-CR, unpublished slip. op. (Wis. Ct. App. Nov. 6, 2018),
affirming the Milwaukee County circuit court's1 judgment of
1 The Honorable Frederick C. Rosa presided.
No. 2017AP2292-CR
conviction and order denying Donavinn D. Coffee's ("Coffee")
postconviction motion for resentencing.2 Coffee argues that the
circuit court violated his due process rights because the circuit
court relied on inaccurate information at sentencing, and that
error was not harmless. Neither Coffee nor his counsel objected
to the inaccurate information at the sentencing hearing. Rather,
Coffee's first objection to the inaccurate information was in his
postconviction motion. The postconviction court concluded that:
(1) the State introduced inaccurate information at the sentencing
hearing; and (2) the circuit court actually relied on the
inaccurate information; but (3) the error was harmless. Thus, the
postconviction court denied Coffee's motion for resentencing. The
court of appeals affirmed, but not on the merits of Coffee's
inaccurate information at sentencing claim. Instead, the court of
appeals concluded that Coffee forfeited his claim because he failed
to object at the sentencing hearing. We now affirm, but we resolve
this case on the merits.
¶2 A defendant has a constitutional 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. Coffee's constitutional
due process right was violated. Indeed, both Coffee and the State
agree that the circuit court actually relied on inaccurate
information when it sentenced Coffee. Accordingly, the issues
before this court are: (1) whether Coffee forfeited his ability to
2 The postconviction court also denied Coffee's motion for a
sentence modification. Coffee did not appeal that denial and the
issue is not before this court.
2
No. 2017AP2292-CR
later challenge the inaccurate information because he failed to
object at the sentencing hearing; and, (2) if Coffee did not
forfeit his claim, whether the circuit court's reliance on the
inaccurate information at sentencing was harmless error.
¶3 We conclude that the forfeiture rule does not apply to
previously unknown, inaccurate information first raised by the
State at sentencing. Rather, a postconviction motion is also a
timely manner in which to bring that claim. Accordingly, we
conclude that Coffee did not forfeit his ability to challenge the
inaccurate information at his sentencing. We nonetheless conclude
that the circuit court's reliance on inaccurate information at
Coffee's sentencing was harmless error. Thus, we affirm the court
of appeals.
I. FACTUAL BACKGROUND
¶4 On November 10, 2015, in Milwaukee, G.B. was robbed at
gunpoint. He stated that he was talking on the phone in an alley
when a white Mercury Mountaineer sped toward him. It stopped near
him and a black male with dreadlocks exited the rear passenger-
side door of the SUV, gun in hand. The driver and the gunman
demanded that G.B. give them all his "stuff." G.B. gave the gunman
$50.00, and the gunman took G.B.'s cell phone and wallet. Both
suspects then fled in the white SUV.
¶5 About five minutes later, just a few blocks away, D.J.
was shot from behind while attempting to flee from a white SUV.
He stated that the white SUV pulled up alongside him, and a black
male with dreadlocks opened the rear passenger-side door. He
3
No. 2017AP2292-CR
exited the SUV, holding a gun, and told D.J., "[Y]ou better not
run." But, fearing for his safety, D.J. did run. Moments later,
he was shot in the back. D.J. suffered shotgun pellet wounds to
the upper back and left ear.
¶6 City of Milwaukee police officers investigated shots
fired in the area. Officer Joseph Goggins spotted a white Mercury
Mountaineer, turned on his emergency lights and siren, and pursued
the suspect SUV. The SUV sped up, forcing a pursuit for 22 blocks.
It finally stopped, but the two suspects then fled on foot.
Donavinn Coffee and Antonio Hazelwood were eventually detained.
Coffee later admitted he was the gunman.
II. PROCEDURAL POSTURE
¶7 On November 15, 2015, the State filed a criminal
complaint against Coffee and Hazelwood, charging them each with
three counts——armed robbery, attempted armed robbery, and first-
degree recklessly endangering safety, all as a party to a crime.
The State also charged Hazelwood with a fourth count of fleeing or
eluding an officer.
¶8 On June 6, 2016, Coffee pled guilty to all three counts
against him. Pursuant to the plea agreement, the State would
recommend "a substantial prison sentence." On June 23, 2016, the
circuit court held a sentencing hearing. What unfolded at the
sentencing hearing is crucial to Coffee's appeal. At the hearing,
the prosecutor recommended "substantial" prison time. During his
statement to the circuit court, the prosecutor discussed Coffee's
record. He stated:
4
No. 2017AP2292-CR
[Coffee] does have two prior convictions. There was a
2014 misdemeanor case. It came in as a criminal damage
to property, disorderly conduct and contact after
domestic abuse arrest.
The conviction was for the contact after the
domestic abuse arrest. He pled guilty on that July 1,
2014. Judge Flanagan sentenced him to probation. He
also has a conviction in January of 2013 for carrying a
concealed weapon. In that case, he received probation
as well.
There were two cases that were no process by my
office, October 2014, there was a misdemeanor battery.
What's alarming from the State's [perspective] because
of the nature of this offense that's in front of the
Court is that December 2011 there was an armed robbery
case that was sent to my office. That was a no process.
So what the defendant has shown here with his past
criminal conduct, not only is there a weapon's related
offense, but there was something that triggered a law
enforcement investigation and reviewed by my office for
offenses by a title similar in nature to this.
(Emphasis added.)
¶9 The State told the circuit court that Coffee had a prior
arrest for armed robbery. That was inaccurate. He was not
arrested for armed robbery, but rather for suspicion of strong-
arm robbery and then released. The State concedes that Coffee was
never arrested for armed robbery in December 2011. The State never
filed any charges against Coffee for strong-arm robbery in December
5
No. 2017AP2292-CR
2011.3 Thus, the State introduced inaccurate information at the
sentencing hearing.
¶10 Next, Coffee's counsel and Coffee each made a statement.
Consistent with the plea agreement, each acknowledged that prison
time was merited in this case. Then the circuit court spoke.
Importantly, the circuit court explicitly referenced a prior
arrest for armed robbery. The circuit court said to Coffee:
So [the prosecutor] there says you had a couple of police
contacts. No charges but one of them was an armed
robbery. Then you had these domestic violence
situations. So then you were kind of becoming acquainted
with the criminal justice system.
Any reason why those contacts were not enough to
get you to kind of think about your associations and
your choices that you were making out there?
(Emphasis added.) And later the circuit court stated:
So you have got some misdemeanor cases; one
successful probation, one unsuccessful probation. You
have got a couple of police contacts; one significant
concern because it sounds like it was an armed robbery
which is what these offenses are.
So you basically are engaging in behavior that is
kind of getting more serious. Domestic violence by
itself is natured as assaultive behavior, meaning
violence against another human being.
3 Some conclude that Coffee did not commit strong-arm robbery;
that he was wrongfully arrested because two witnesses told law
enforcement that the offender was not Coffee. The presumption of
innocence certainly applies, but experience demonstrates that,
without knowing more, we can reach no conclusion. Using a police
report alone to analyze and conclude the guilt or innocence of a
person is not what our court should do. Who committed the strong-
arm robbery is not an issue before us today. Indeed, Coffee has
not been charged with strong-arm robbery.
6
No. 2017AP2292-CR
But these other things are violence and property
crimes, and I don't know what else to call it. So that
pattern of your behavior or undesirable behavior is
escalating.
(Emphasis added.)
¶11 Thus, the circuit court relied on the inaccurate
information——a prior arrest for armed robbery——at the sentencing
hearing. But the circuit court also discussed other relevant
information at the hearing. Indeed, the circuit court began its
sentencing remarks by stating, "My responsibility in imposing a
sentence is to look at the gravity of the offense. I look at your
character, offenses, plural, look at the need to protect the
public." The circuit court then went on to discuss the significant
harm to the victims in this case, the increasing gun violence
problem in Milwaukee, Coffee's criminal intent, the harm to
Coffee's family (including his young son), Coffee's education and
work history, and the need to protect the public. We describe the
circuit court's discussion of each of these factors in more detail
below.
¶12 The circuit court then took a brief recess to deliberate
over the proper sentence for Coffee. After the recess, the circuit
court noted that both parties agreed that prison time was
appropriate in this case. "Nobody has requested probation in this
case because it isn't a probation case. These are really serious
offenses. There's been substantial harm to the victims." The
circuit court added that it imposed consecutive sentences for each
count to "underscore" that each count was a serious offense. The
circuit court then pronounced a sentence of four years of initial
7
No. 2017AP2292-CR
confinement and three years of extended supervision each for the
armed robbery and attempted armed robbery counts. For the first-
degree reckless endangerment count, the circuit court imposed five
years of initial confinement and three years of extended
supervision. Thus, Coffee was sentenced to 13 years of initial
confinement and nine years of extended supervision.
¶13 On August 7, 2017, Coffee filed a motion for
postconviction relief. Coffee argued that he must be resentenced
because the State introduced inaccurate information at sentencing,
the circuit court actually relied on it, and the error was not
harmless. Specifically, Coffee argued that his Criminal
Information Bureau ("CIB") report did not show any arrests in
December 2011. The State filed a response brief, to which it
appended a Milwaukee Police Department Incident Report from
December 27, 2011. According to that report, Coffee and another
person were arrested for suspicion of strong-arm robbery. The
State provided no explanation as to why the December 2011 arrest
was not included in Coffee's CIB report.
¶14 On October 31, 2017, the postconviction court issued a
decision and order denying Coffee's motion for postconviction
relief. The postconviction court took issue with the State's use
of the incident report because it described an arrest for strong-
arm robbery, not armed robbery, "and more significantly, [Coffee]
apparently was not involved in the offense." Ultimately, the
postconviction court concluded that it had considered the December
2011 arrest at the sentencing hearing, but the error was harmless.
8
No. 2017AP2292-CR
Although the court considered the December 2011 incident
during its sentencing decision, the court focused
primarily on the defendant's conduct in this case, his
contribution to the prevalence of gun violence that is
threatening the fabric of our community, the impact of
his crimes upon the victims and the greater community,
his background and rehabilitative needs, and the need to
protect the public. Even without information about the
December 2011 police contact, the fact that the
defendant used a weapon in the commission of the offenses
in this case and that he shot one of his victims would
have led the court to the same conclusion that he was
"engaging in behavior that is getting more serious" and
that his "pattern . . . of undesirable behavior is
escalating." . . . Consequently, to the extent that
the court relied upon the December 2011 incident at the
sentencing hearing, the error was harmless because it
did not materially affect the court's sentencing
decision in this case.
¶15 Coffee appealed. He again argued that his due process
right to be sentenced based on accurate information was violated,
and the error was not harmless. In response, the State argued for
the first time that Coffee had forfeited his inaccurate information
at sentencing claim because he failed to object at the sentencing
hearing. The court of appeals agreed. On November 6, 2018, the
court of appeals concluded that Coffee had forfeited his claim
because he "had numerous chances to object to the 2011 arrest
information during the sentencing hearing and failed to do so."
Coffee, No. 2017AP2292-CR, unpublished slip op., ¶12.
¶16 On December 4, 2018, Coffee petitioned this court for
review. We granted the petition.
III. STANDARD OF REVIEW
¶17 We are asked to decide whether Coffee forfeited his
inaccurate information at sentencing claim and, if not, whether
9
No. 2017AP2292-CR
the error was harmless. Whether a claim is forfeited or adequately
preserved for appeal is a question of law this court reviews de
novo. State v. Corey J.G., 215 Wis. 2d 395, 405, 572 N.W.2d 845
(1998). Whether a defendant has been sentenced in violation of
his due process rights, and whether that error is harmless are
questions of law this court reviews de novo. Tiepelman, 291
Wis. 2d 179, ¶9; State v. Travis, 2013 WI 38, ¶20, 347 Wis. 2d 142,
832 N.W.2d 491.
IV. ANALYSIS
A. Forfeiture Generally
¶18 The State argues that Coffee forfeited his inaccurate
information at sentencing claim because he failed to object at the
sentencing hearing. Coffee argues that the forfeiture rule does
not, and should not, apply to inaccurate information at sentencing
claims because applying the forfeiture rule would not promote the
fair and orderly administration of justice. Before we analyze the
issue, a summary of the forfeiture rule, its purpose, and its
effect is helpful.
¶19 Forfeiture is the failure to timely assert a right.
State v. Ndina, 2009 WI 21, ¶29, 315 Wis. 2d 653, 761 N.W.2d 612.
Under the forfeiture rule, a defendant may forfeit a right if the
defendant fails to object at the time the right is violated. Id.,
¶30. The forfeiture rule fosters the fair, efficient, and orderly
administration of justice.
The purpose of the "forfeiture" rule is to enable the
circuit court to avoid or correct any error with minimal
disruption of the judicial process, eliminating the need
10
No. 2017AP2292-CR
for appeal. The forfeiture rule also gives both parties
and the circuit court notice of the issue and a fair
opportunity to address the objection; encourages
attorneys to diligently prepare for and conduct trials;
and prevents attorneys from "sandbagging" opposing
counsel by failing to object to an error for strategic
reasons and later claiming that the error is grounds for
reversal.
Id. (footnotes omitted); see also State v. Pinno, 2014 WI 74, ¶56,
356 Wis. 2d 106, 850 N.W.2d 207; State v. Huebner, 2000 WI 59,
¶11, 235 Wis. 2d 486, 611 N.W.2d 727.
¶20 Some rights are so fundamental that they are not subject
to the forfeiture rule. Ndina, 315 Wis. 2d 653, ¶31. For example,
the right to counsel, the right to refrain from self-incrimination,
and the right to a jury trial are not subject to forfeiture.
Huebner, 235 Wis. 2d 486, ¶14. Rather, those fundamental
constitutional rights generally must be waived.4 Id. But see
State v. Suriano, 2017 WI 42, ¶1, 374 Wis. 2d 683, 893 N.W.2d 543
(holding that the defendant forfeited the right to counsel by his
conduct).
¶21 And in some cases, a court may choose to ignore the
forfeiture rule and reach the merits of a claim. After all, the
forfeiture rule is a rule of judicial administration, not a
mandate. See, e.g., Ndina, 315 Wis. 2d 653, ¶38 (reaching the
merits of a claim where "both parties failed to make objections in
a timely manner"). The forfeiture rule should not be applied where
4 "'Whereas forfeiture is the failure to make the timely
assertion of a right, waiver is the intentional relinquishment or
abandonment of a known right.'" State v. Ndina, 2009 WI 21, ¶29,
315 Wis. 2d 653, 761 N.W.2d 612 (quoting United States v. Olano,
507 U.S. 725, 733 (1993)).
11
No. 2017AP2292-CR
its application would not further its purpose——the fair,
efficient, and orderly administration of justice.
¶22 If a court applies the forfeiture rule to a claim, then
"the normal procedure in criminal cases is to address [that claim]
within the rubric of the ineffective assistance of counsel." State
v. Erickson, 227 Wis. 2d 758, 766, 596 N.W.2d 749 (1999). Thus,
rather than arguing the merits of an underlying claim, the
defendant would have to argue that defense counsel performed
deficiently when counsel failed to object (forfeiting the
defendant's claim) and that failure to object prejudiced the
defendant. See Strickland v. Washington, 466 U.S. 668 (1984).
¶23 Bearing in mind the purpose and effect of the forfeiture
rule, we now turn to the issue of whether Coffee forfeited his
ability to later challenge by postconviction motion the inaccurate
information presented at his sentencing.
B. Coffee Did Not Forfeit His Inaccurate
Information At Sentencing Claim.
¶24 In this case, the State first introduced inaccurate
information regarding a December 2011 prior arrest, stating that
it was for armed robbery rather than strong-arm robbery, at
Coffee's sentencing hearing. Coffee's counsel did not object at
sentencing. Rather, Coffee filed a postconviction motion, arguing
that his due process right to be sentenced based on accurate
information was violated.
¶25 The State argues that Coffee forfeited his request to be
resentenced because he failed to object to the inaccurate
information at the sentencing hearing. Furthermore, the State
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No. 2017AP2292-CR
argues that the failure to contemporaneously object is harmful to
the judicial process and the State's interest in finality. Coffee
argues that the forfeiture rule should not apply in cases like
this——where the previously unknown, inaccurate information is
first introduced by the State at the sentencing hearing and counsel
has not had an opportunity to confer with the defendant regarding
the nature and extent of the inaccuracy. According to Coffee,
application of the forfeiture rule to claims of inaccurate
information first introduced and known at sentencing would not
promote the fair and orderly administration of justice. We agree
with Coffee.
¶26 We conclude that the forfeiture rule does not preclude
the ability to later challenge the State's spontaneous
presentation at sentencing of previously unknown, inaccurate
information. Rather, while counsel may object to this information
at the sentencing hearing, and while that may be the best practice
to ensure the sentence is based on accurate information, a
postconviction motion like that presented here is also available.
Applying the forfeiture rule to these claims would not promote the
fair, efficient, and orderly administration of justice because it
could put defense counsel in an impossible predicament.
¶27 The State's position here is that the forfeiture rule
requires defense counsel to object contemporaneously at sentencing
to previously unknown and largely unavailable information and to
spontaneously understand the importance of that information to
sentencing. We recognize that a best practice in these cases may
be to contemporaneously bring this new information to the circuit
13
No. 2017AP2292-CR
court's attention and object to the circuit court relying on the
new information or to request adjournment. This practice might
obviate the need to later file a postconviction motion.
¶28 Requesting an adjournment, however, has its
shortcomings. Discovering the details of the new information may
actually be to the detriment of the defendant, and counsel may
have consequently acted contrary to the defendant's interest by
requesting adjournment. While it is just and fair to ensure that
the circuit court has the most accurate information at sentencing,
and a defense lawyer's duty is to act as an officer of the court,
a defense lawyer's duty is also to properly advocate for the
client.5
¶29 When suspected inaccurate information is first
introduced by the State at sentencing, defense counsel does not
know what defense counsel does not know. Defense counsel cannot
possibly make an informed decision of how exactly to object, if at
all. Nor can defense counsel possibly know whether the objection
would help or hurt the defendant. Nor can defense counsel know,
at the time the suspected inaccurate information is introduced,
whether the circuit court will actually rely on it. At oral
Applying the forfeiture rule here could put defense counsel
5
in an impossible predicament——between a rock and a hard place. If
counsel fails to object, then the claim may be forfeited. If
counsel objects, and the information is in fact accurate, then the
objection may have actually made the defendant's position at
sentencing worse. If the information is inaccurate, but the truth
is even more damaging to the defendant, then the defendant could
face a harsher sentence than if defense counsel had not objected.
This could also result in an ineffective assistance of counsel
claim if counsel's objection prejudiced the defendant.
14
No. 2017AP2292-CR
argument, this court asked the State what an appropriate
contemporaneous objection at sentencing would look like. The
State's only response was that it would depend on the facts of
each case. But if counsel does not know what counsel does not
know, then defense counsel cannot possibly be required to make an
appropriate objection based on the unknown facts.
¶30 In contrast, if the forfeiture rule does not apply to
challenges to this type of spontaneously raised information, then
defense counsel has time to evaluate the information, discuss it
with the defendant, determine if it is indeed inaccurate, and
ascertain whether it was actually relied on at sentencing. A
postconviction motion may or may not be necessary.
¶31 The forfeiture rule is supposed to promote the fair,
efficient, and orderly administration of justice. See Huebner,
235 Wis. 2d 486, ¶11. Its application here could actually promote
the opposite. Thus, we conclude that the forfeiture rule does not
apply to previously unknown, inaccurate information first raised
by the State at sentencing. Rather, while an objection may be the
best practice, a postconviction motion is also a timely manner in
which to assert that claim.
¶32 The State's argument that the forfeiture rule should
apply at sentencing relies in part on Handel v. State, 74
Wis. 2d 699, 247 N.W.2d 711 (1976), State v. Mosley, 201
Wis. 2d 36, 547 N.W.2d 806 (Ct. App. 1996), and State v. Johnson,
158 Wis. 2d 458, 463 N.W.2d 352 (Ct. App. 1990). In each case,
the court concluded that a claim regarding inaccurate or improper
information at sentencing was forfeited for failure to object at
15
No. 2017AP2292-CR
sentencing. But each of those cases involved information in a
presentence investigation report ("PSI"). Importantly, defense
counsel receives a copy and has the opportunity to review the PSI
with the defendant before the sentencing hearing. And defense
counsel can make a fully-informed and carefully-prepared objection
to the contents of a PSI at sentencing. The same cannot be said
here.
¶33 The State also relies on the court of appeals' decisions
in State v. Samuel, 2001 WI App 25, 240 Wis. 2d 756, 623 N.W.2d 565
(claim that circuit court relied on sealed record defendant did
not have access to before sentencing was forfeited), and State v.
Leitner, 2001 WI App 172, 247 Wis. 2d 195, 633 N.W.2d 207 (claim
that circuit court relied on behavior underlying expunged
convictions at sentencing was forfeited). But neither of those
cases involved inaccurate information at sentencing claims.
¶34 Finally, the State cites State v. Benson, where the court
of appeals held that a defendant forfeited an inaccurate
information at sentencing claim by failing to object at sentencing.
2012 WI App 101, ¶17, 344 Wis. 2d 126, 822 N.W.2d 484. But this
case is also easily distinguished. In Benson, it was defense
counsel who introduced the allegedly inaccurate information at
sentencing. Id. Before the sentencing hearing, defense counsel
submitted a report detailing the presence of Ambien in Benson's
system at the time of his car crash. Id., ¶5. Defense counsel
had the information before sentencing and had time to determine
whether the information was accurate. Furthermore, it was defense
16
No. 2017AP2292-CR
counsel who submitted the inaccurate information, not the State.
Thus the court of appeals concluded:
Because Benson's counsel himself submitted [the]
report to the court and failed to correct or object to
the Ambien-related information prior to Benson's
sentencing, Benson cannot now claim his due process
rights were violated by the court's consideration of
that same information. He has forfeited the issue.
Id., ¶17. Application of the forfeiture rule was appropriate in
Benson. Benson is readily distinguishable from the case at issue.
¶35 We are also unpersuaded by the State's argument that the
forfeiture rule should apply because it has a reliance interest in
finality. Finality is important, but so is the opportunity to
evaluate previously unknown, inaccurate information first raised
by the State at sentencing.
¶36 Having concluded that Coffee did not forfeit his
inaccurate information at sentencing claim, we now proceed to
further analyze whether a resentencing is warranted.
C. Inaccurate Information At Sentencing Claims Generally
¶37 "No person may be held to answer for a criminal offense
without due process of law . . . ." Wis. Const. art. I, § 8, cl.
1. Defendants have a due process right to be sentenced based upon
accurate information. Tiepelman, 291 Wis. 2d 179, ¶9. This right
was first set forth by the United States Supreme Court in Townsend
v. Burke, 334 U.S. 736 (1948), and further developed in United
States v. Tucker, 404 U.S. 443 (1972).6 This court's analysis has
6Under the United States Constitution, "No person shall
be . . . deprived of life, liberty, or property, without due
process of law . . . ." U.S. Const. amend. V.
17
No. 2017AP2292-CR
also been informed by the Seventh Circuit Court of Appeals'
decision in United States ex rel. Welch v. Lane, 738 F.2d 863 (7th
Cir. 1984). Defendants "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." Id. at 865. As this court has stated:
When a circuit court relies on inaccurate information,
we are dealing "not with a sentence imposed in the
informed discretion of a trial judge, but with a sentence
founded at least in part upon misinformation of
constitutional magnitude." A criminal sentence based
upon materially untrue information, whether caused by
carelessness or design, is inconsistent with due process
of law and cannot stand.
Travis, 347 Wis. 2d 142, ¶17 (footnotes omitted) (quoting Tucker,
404 U.S. at 447).
¶38 A defendant who was sentenced based on inaccurate
information may request resentencing. Tiepelman, 291 Wis. 2d 179,
¶26. The defendant must show by clear and convincing evidence
that: (1) some information at the original sentencing was
inaccurate, and (2) the circuit court actually relied on the
inaccurate information at sentencing. Id.; Travis, 347
Wis. 2d 142, ¶22. A circuit court actually relies on incorrect
information when it gives "'explicit attention' or 'specific
consideration' to it, so that the misinformation 'formed part of
the basis for the sentence.'" Tiepelman, 291 Wis. 2d 179, ¶14
(quoting Lane, 738 F.2d at 866). If the defendant meets this
burden, then the burden shifts to the State to prove beyond a
reasonable doubt that the error was harmless. Travis, 347
18
No. 2017AP2292-CR
Wis. 2d 142, ¶86. If the State fails to meet this burden, then
the defendant is entitled to resentencing. If the State meets
this burden, then the sentence remains undisturbed. "The State
can meet its burden to prove harmless error by demonstrating that
the sentencing court would have imposed the same sentence absent
the error." Id., ¶73. The most important piece of evidence for
a reviewing court is the sentencing transcript itself, not "the
[postconviction] court's assertions" or "speculation about what a
circuit court would do in the future upon resentencing." Id.
(citing State v. Smith, 207 Wis. 2d 258, 262-63, 280, 558
N.W.2d 379 (1997); Lane, 738 F.2d at 868; Tucker, 404 U.S. 443).
Accordingly, our analysis in this case focuses on the sentencing
transcript and avoids speculation.
D. The Error Was Harmless.
¶39 The record is clear that the State introduced inaccurate
information at sentencing——Coffee was not arrested for armed
robbery in December 2011. The record is also clear that the
circuit court actually relied on the armed robbery arrest at the
sentencing hearing——the court specifically referenced it twice.
Coffee met his burden. The issue before this court then becomes
whether the State has demonstrated that the error was harmless.
¶40 Coffee argues that the error was not harmless because
the inaccurate information here was so integral to the sentencing
hearing that it cannot be "excised" without speculation or a
"retrospective hunt" for other information to justify the
sentence, both of which are forbidden by Tiepelman, Travis, and
Lane. The State argues that the error was harmless because,
19
No. 2017AP2292-CR
regardless of whether Coffee had a prior arrest for armed robbery,
the circuit court's statements at sentencing remain accurate and
the circuit court would have imposed the same sentence. We agree
with the State.
¶41 We note that the postconviction court had the
opportunity to address this issue. It made clear that its sentence
would have been the same. The postconviction court concluded,
"[T]o the extent that the [circuit] court relied upon the December
2011 incident at the sentencing hearing, the error was harmless
because it did not materially affect the court's sentencing
decision in this case." But we look to the sentencing transcript
to determine whether the State has met its burden. Travis, 347
Wis. 2d 142, ¶73.
¶42 At the sentencing hearing, the first time the circuit
court gave "specific consideration" to the arrest for "armed
robbery," it was in the context of a discussion of Coffee's
multiple prior police contacts. The circuit court then asked,
"Any reason why those contacts were not enough to get you to kind
of think about your associations and your choices that you were
making out there?" Thus, to the circuit court, prior police
contacts put Coffee on notice, and ought to have given him pause.
Importantly, this logic would remain true regardless of whether
Coffee was arrested for armed robbery in December 2011. Coffee
had two prior misdemeanor convictions for domestic abuse and
carrying a concealed weapon. He also had a prior arrest for
misdemeanor battery. Based on those three prior police contacts
20
No. 2017AP2292-CR
alone, the circuit court's question made sense. "Any reason why
those contacts were not enough . . . ?"
¶43 The second time the circuit court gave "specific
consideration" to the arrest for "armed robbery," it was in the
context of Coffee's escalating criminal conduct. The circuit court
described the prior convictions and other police contacts, and
then concluded, "So that pattern of your behavior or undesirable
behavior is escalating." This conclusion also remains true
regardless of whether Coffee was arrested for armed robbery in
December 2011. Coffee had been convicted for domestic abuse and
carrying a weapon on separate occasions. And in this case, he had
shot a man. His conduct was getting increasingly violent, and
increasingly serious, from misdemeanors to felonies. Prior armed
robbery arrest or no, Coffee's "undesirable behavior [was]
escalating."
¶44 We conclude beyond a reasonable doubt that the State has
met its burden to demonstrate that the circuit court's remarks and
conclusions at Coffee's sentencing would have been the same absent
the inaccurate information. Furthermore, it cannot be said that
the prior arrest for armed robbery was integral to Coffee's
sentence.
¶45 At sentencing, the circuit court's remarks began with a
discussion of Coffee's victims. The circuit court stated:
They really change the way they live their lives because
now they're afraid it might happen again.
This poor gentleman that you shot, those feelings
of violation and fear and taking away whatever security
21
No. 2017AP2292-CR
he might have felt to that point, that's really amplified
in his situation.
¶46 Second, the circuit court discussed the increasing gun
violence problem in Milwaukee. The circuit court stated:
We're getting killed here in Milwaukee with gun
violence. I mean, it is off the charts. We have so
many shootings, robberies involving guns, drug
activities involving guns, people with disputes, beefs
against each other involving guns.
¶47 Third, the circuit court discussed Coffee's criminal
intent, saying it "seem[ed] like it was just as much for kicks,
fun, enjoyment, thrill, whatever it was, for actually taking
property from these particular individuals."
¶48 Fourth, the circuit court discussed the impact to
Coffee's family. "Even when they aren't directly the victims,
they suffer consequences too, because this is the city they have
to live in also with all of these kinds of things going on." The
circuit court also noted the impact on Coffee's young son.
¶49 Fifth, the circuit court considered Coffee's education
and work experience. And sixth, the circuit court considered the
need to protect the public. "Suffice it to say, that there's a
real community interest in being protected here." The circuit
court then took a brief recess prior to pronouncing sentence.
¶50 After the recess, the circuit court did not mention a
prior arrest for armed robbery whatsoever. Rather, the circuit
court noted that both the State and Coffee's counsel understood
this case required prison time. "[T]hey believe because of what
you did and for the good of the community, you do have to be
removed from the community for a substantial period of time." The
22
No. 2017AP2292-CR
circuit court stated that Coffee had caused "substantial harm to
the victims" and that Coffee had been on "probation before, and
it's not been successful." The circuit court then pronounced a
sentence of 13 years of initial confinement and nine years of
extended supervision.
¶51 The sentencing transcript is clear that the circuit
court based its sentence on Coffee's contribution to gun violence
in Milwaukee, the harm to the community, the harm to the victims,
and Coffee's need to be removed from the community. It is clear
that these factors were not merely other factors that supported
Coffee's sentence, but were the basis of the sentence. We have
not gone on a "retrospective hunt" for other information that would
have justified Coffee's sentence. The circuit court clearly stated
on the record at the sentencing hearing what justified the
sentence. We conclude beyond a reasonable doubt that "the
sentencing court would have imposed the same sentence absent the
error." Travis, 347 Wis. 2d 142, ¶73. Thus, we conclude that the
error was harmless.
V. CONCLUSION
¶52 We conclude that the forfeiture rule does not apply to
previously unknown, inaccurate information first raised by the
State at sentencing. Rather, a postconviction motion is also a
timely manner in which to bring that claim. Accordingly, we
conclude that Coffee did not forfeit his ability to challenge the
inaccurate information at his sentencing. We nonetheless conclude
that the circuit court's reliance on inaccurate information at
23
No. 2017AP2292-CR
Coffee's sentencing was harmless error. Thus, we affirm the court
of appeals.
By the Court.—The decision of the court of appeals is
affirmed.
24
No. 2017AP2292-CR.dk
¶53 DANIEL KELLY, J. (concurring). Mr. Coffee forfeited
his right to object to the inaccurate information about his arrest,
so I disagree with that part of the court's opinion. But since I,
like the majority, agree that the circuit court's reliance on the
mistake was harmless, I join the court's mandate as well as Parts
I-III and Part IV.C & D of the majority opinion.
I. FORFEITURE
¶54 When the circuit court said Mr. Coffee "had a couple of
police contacts . . . [and] one of them was an armed robbery," it
misstated the facts. One of those contacts was for strong-arm
robbery, not armed robbery. But Mr. Coffee held his tongue and
allowed the court to pronounce sentence based on information he
knew to be incorrect.1 The majority says he may simultaneously
preserve his silence and his right to challenge his sentence at
some later point based on the misstatement about which he said
nothing.
¶55 The court says this rule is necessary to avoid putting
defense counsel "in an impossible predicament——between a rock and
a hard place":
If counsel fails to object, then the claim may be
forfeited. If counsel objects, and the information is
in fact accurate, then the objection may have actually
made the defendant's position at sentencing worse. If
the information is inaccurate, but the truth is even
more damaging to the defendant, then the defendant could
face a harsher sentence than if defense counsel had not
objected. This could also result in an ineffective
1 According to the police report——created at the time of his
arrest——Mr. Coffee was arrested specifically for strong-arm
robbery.
1
No. 2017AP2292-CR.dk
assistance of counsel claim if counsel's objection
prejudiced the defendant.
Majority op., ¶28 n.5.
¶56 But defense attorneys are intimately familiar with rocks
and hard places. This so-called "predicament" is really just the
omnipresent, on-going cost-benefit calculation counsel must
perform as a matter of course throughout trial. As the prosecution
presents its case, defense counsel must carefully consider, in
real time, every piece of evidence as it comes in throughout the
entirety of the proceeding. Upon hearing each piece of
information, often for the first time, he must assess its accuracy
against the information in his possession, weigh its likely impact
on the jury, consider how it might strengthen or weaken his theory
of defense, determine its effect on evidence yet to be introduced,
and analyze its compliance with evidentiary rules. And he must do
all of that in the heartbeat that passes between when he hears the
evidence and he rises to announce his objection. This he must do
upon pain of forfeiting the claimed error: "Error may not be
predicated upon a ruling which admits or excludes evidence
unless . . . a timely objection or motion to strike appears of
record . . . ." Wis. Stat. § 901.03(1)(a)(2017-18). We have
reiterated that rule many times. See, e.g., Allen v. Allen, 78
Wis. 2d 263, 270, 254 N.W.2d 244 (1977) ("A failure to make a
timely objection constitutes a waiver of the objection."); Holmes
v. State, 76 Wis. 2d 259, 272, 251 N.W.2d 56 (1977) ("This court
has repeatedly held that one of the rules of evidence is that an
objection must be made as soon as the opponent might reasonably be
aware of the objectionable nature of the testimony.").
2
No. 2017AP2292-CR.dk
¶57 So why do we suddenly change the rules when the case
enters the sentencing phase? With respect to evidentiary matters,
the statutory and constitutional safeguards are no different. The
majority says that "[d]efendants have a due process right to be
sentenced based upon accurate information." Majority op., ¶37
(citing State v. Tiepelman, 2006 WI 66, ¶9, 291 Wis. 2d 179, 717
N.W.2d 1). But that's true of the conviction-producing trial,
too. The whole purpose of an adversarial justice system is the
ascertainment of the truth. See In re Winship, 397 U.S. 358, 362
(1970) ("[P]roof of a criminal charge beyond a reasonable doubt is
constitutionally required. . . . These rules are historically
grounded rights of our system, developed to safeguard men from
dubious and unjust convictions, with resulting forfeitures of
life, liberty and property." (quoted source and internal marks
omitted)); McLemore v. State, 87 Wis. 2d 739, 751, 275 N.W.2d 692
(1979) ("To safeguard the system of the search for truth we have
built up the various rules of evidence, again based on long
experience, so that evidence and testimony going to the jury will
be free from elements tending to distort the search."); Mathews v.
Eldridge, 424 U.S. 319, 348, (1976) ("The essence of due process
is the requirement that 'a person in jeopardy of serious loss [be
given] . . . [an] opportunity to meet it.'" (quoted source
omitted, some alterations in original)). If there is some
principle lurking around our constitutional jurisprudence that
says a defendant has a lesser due process interest in conviction
upon accurate information than in sentencing upon accurate
information, no one has identified it.
3
No. 2017AP2292-CR.dk
II. HARMLESS ERROR
¶58 Although I believe there is no need to consider Mr.
Coffee's claimed error, I agree with the court that the distinction
between "armed robbery" and "strong arm robbery" was harmless.
But that was not the only error Mr. Coffee assigned to the court's
treatment of the arrest record. The second is Mr. Coffee's claim
that referencing the arrest at all, without regard to its taxonomy,
was problematic because he did not commit the crime. And according
to Mr. Coffee, the police records vindicate him on this point.
The court's opinion, however, refuses to engage with this alleged
error.
¶59 I want to address this aspect of the court's opinion
(or, rather, its lack of this aspect) because of a curious, and
troubling, juxtaposition between two of the thoughts it expressed.
The first is the premise of the analysis: "A defendant has a
constitutional due process right to be sentenced upon accurate
information," the court says. Majority op., ¶2. The second is
the court's casual indifference to whether the arrest tells us
anything accurate about Mr. Coffee at all:
Some conclude that Coffee did not commit strong-
arm robbery; that he was wrongfully arrested because two
witnesses told law enforcement that the offender was not
Coffee. The presumption of innocence certainly applies,
but experience demonstrates that, without knowing more,
we can reach no conclusion. Using a police report alone
to analyze and conclude the guilt or innocence of a
person is not what our court should do. Who committed
the strong-arm robbery is not an issue before us today.
Indeed, Coffee has not been charged with strong-arm
robbery.
Id., ¶9 n.3 (emphasis added).
4
No. 2017AP2292-CR.dk
¶60 Actually, who committed the strong-arm robbery is at
issue today. It's true that "without knowing more, we can reach
no conclusion"2 about whether Mr. Coffee had anything to do with
the alleged offense. But we still consider ourselves free to use
that arrest against him. And that, oddly enough, is actually the
rule in Wisconsin: "This court has stated that the trial court in
imposing sentence for one crime can consider other unproven
offenses, since those other offenses are evidence of a pattern of
behavior which is an index of the defendant's character, a critical
factor in sentencing." Elias v. State, 93 Wis. 2d 278, 284, 286
N.W.2d 559 (1980) (emphasis added); id. ("This court held in Grant
v. State, 73 Wis. 2d 441, 243 N.W.2d 186 (1976) that the trial
court could consider offenses which were uncharged and unproven.")
(emphasis added).
¶61 Here's the juxtaposition that worries me. We affirm Mr.
Coffee's constitutionally-protected right to have his sentence
based on nothing but accurate information while simultaneously
denying any interest in the accuracy of one of the pieces of
information used against him. It is certainly true that we use
uncharged and unproven offenses against defendants at sentencing
because——we say——they "are evidence of a pattern of behavior which
is an index of the defendant's character." Id. But it is also
patently true that this is absurd. Every single person ever
acquitted after trial was first arrested. Sometimes the defendant
is acquitted because the State didn't meet its high standard of
proof. But sometimes it's because the defendant didn't actually
2 Majority op., ¶9 n.3.
5
No. 2017AP2292-CR.dk
commit the crime. And arrestees frequently don't even go to trial
because the police find the perpetrator who did commit the offense.
And yet, according to our rules, that arrest forever remains a
valid basis for influencing a sentence, even though it may not in
fact say anything at all about him.
¶62 With respect to character, an arrest (by itself) is a
question mark, nothing more. Police may arrest an individual based
on information "which would 'warrant a man of reasonable caution
in the belief' that a felony has been committed." Wong Sun v.
United States, 371 U.S. 471, 479 (1963) (quoted source omitted).
This is not "evidence which would suffice to convict," id., it is
simply the reasonable belief of a single person. And sometimes
that belief is mistaken. A witness may have inaccurately
identified the arrestee as the culprit, or he may have been driving
the same type of car as the actual perpetrator, or he was just at
the wrong place at the wrong time——the explanations could go on at
length. And, of course, we sometimes find that an officer simply
didn't have sufficient information to arrest the individual.3 All
of this demonstrates why an arrest——without more——is not proof of
See, e.g., Henes v. Morrissey, 194 Wis. 2d 338, 355, 533
3
N.W.2d 802 (1995) ("[W]e conclude that the deputies lacked
probable cause to arrest [the defendant] for refusing to identify
himself; his refusal could not elevate the deputies' reasonable
suspicion that he committed the car theft to probable cause that
he obstructed their investigation."); State v. Marquardt, 2001
WI App 219, ¶19, 247 Wis. 2d 765, 635 N.W.2d 188 (Explaining that
there was "nothing in the facts to tie [the defendant] to the
crime, much less to tie his home to the crime."); State v. Travis,
No. 1994AP385-CR, unpublished slip op., *4 (Wis. Ct. App. Nov. 17,
1994) (Holding that an informant's tip did not provide enough
information to create probable cause to arrest the defendant.).
6
No. 2017AP2292-CR.dk
the arrestee's character. At most, it is proof of what the
arresting officer thought about the person at the time of arrest.
Those are not the same things, but we act as though they are.
¶63 If we are committed to sentences based on accurate
information, it should matter whether an arrest really does
evidence culpable behavior or bad character. If it doesn't matter,
then we are at risk of increasing a defendant's sentence based on
a criterion that says nothing relevant about him.
* * *
¶64 Ultimately, the error in this case is still harmless
because the circuit court would have imposed the same sentence
even without referring to the arrest at all. The circuit court's
rationale for the sentence was that Mr. Coffee's "pattern
of . . . behavior or undesirable behavior [was] escalating." That
is obvious from Mr. Coffee's record. Mr. Coffee had already been
convicted for two misdemeanors (criminal damage to property and
carrying a concealed weapon) before facing these charges, and now
he has been convicted of armed robbery, attempted armed robbery,
and first-degree recklessly endangering safety. Majority op.,
¶¶7-8. So, the circuit court was correct that Mr. Coffee "was
engag[ed] in behavior that [was] kind of getting more serious."
Therefore, I concur with the court's conclusion that the circuit
court's mention of the arrest (without regard to the inaccurate
characterization of the robbery) was harmless.
¶65 I am authorized to state Justice REBECCA GRASSL BRADLEY
joins ¶¶59-63 of this opinion.
7
No. 2017AP2292-CR.awb
¶66 ANN WALSH BRADLEY, J. (dissenting). Donavinn Coffee
was arrested for a strong-arm robbery. Yet, there is not a shred
of evidence that he had anything to do with it. Nothing.
¶67 In fact, he was quickly released after the victims of
the robbery told police that it was a misidentification. Coffee
didn't rob them. Such a course of action was further supported by
the available evidence: the robber had tattoos on his arms, and
Coffee does not.
¶68 Nevertheless, the State brought up this mistaken arrest
at Coffee's sentencing for a completely separate crime to which he
did plead guilty. The circuit court relied on the mistaken arrest
as an example of Coffee's supposedly "escalating" conduct and
sentenced him to a total of 13 years of initial confinement and
nine years of extended supervision. All parties now agree that
the information the State gave to the circuit court, and on which
the circuit court relied, was inaccurate.
¶69 No harm, no foul, says the majority.
1
No. 2017AP2292-CR.awb
¶70 I agree with the majority/lead opinion1 that "the
forfeiture rule does not apply to previously unknown, inaccurate
information first raised by the State at sentencing" and that "a
postconviction motion is also a timely manner in which to bring
that claim." Majority/lead op., ¶3. Therefore, I also agree that
under the facts of this case, Coffee has not forfeited his direct
challenge to this inaccurate information. Id.
1 I refer to Justice Ziegler's opinion as the "majority/lead"
opinion because the opinion in its entirety is not joined by a
majority of the court. Justice Kelly joins Parts I-III and Part
IV.C and D of the opinion, but he does not join Part IV.A and B.
See Justice Kelly's concurrence, ¶53. Despite this dissent's
agreement that the forfeiture rule does not apply in this case,
Parts IV.A and B do not constitute a "majority" opinion of the
court under State v. Griep, 2015 WI 40, ¶37 n.16, 361 Wis. 2d 657,
863 N.W.2d 567. In Griep, the court set forth, "[u]nder Marks,
the positions of the justices who dissented from the judgment are
not counted in examining the divided opinions for holdings." Id.
(citing Marks v. United States, 430 U.S. 188, 193 (1977)).
Although the vitality of Griep has been called into question,
currently it remains in force. See State v. Hawley, No.
2015AP1113-CR, unpublished certification, 2-3 (Nov. 21, 2018).
The only reference to "lead opinions" in our Internal
Operating Procedures (IOPs) states that if during the process of
circulating and revising opinions, "the opinion originally
circulated as the majority opinion does not garner the vote of a
majority of the court, it shall be referred to in separate writings
as the 'lead opinion' unless a separate writing garners the vote
of a majority of the court." IOP III.G.4.
For further discussion of our procedure regarding lead
opinions, see Koss Corp. v. Park Bank, 2019 WI 7, ¶76 n.1, 385
Wis. 2d 261, 922 N.W.2d 20 (Ann Walsh Bradley, J., concurring).
See also two prior certifications from the court of appeals that
have asked us to reexamine our lead opinion procedure. State v.
Dowe, 120 Wis. 2d 192, 192-93, 352 N.W.2d 660 (1984) (per curiam);
Hawley, No. 2015AP1113-CR, unpublished certification, 2-3; see
also State v. Lynch, 2016 WI 66, ¶145, 371 Wis. 2d 1, 885 N.W.2d 89
(Abrahamson and Ann Walsh Bradley, JJ., concurring in part,
dissenting in part).
2
No. 2017AP2292-CR.awb
¶71 However, I part ways with the majority's harmless error
analysis. The circuit court's reliance on the inaccurate
information the State presented was not harmless, and instead
permeated the proceeding to an extent that resentencing should be
required.
¶72 Accordingly, I respectfully dissent.
I
¶73 After pleading guilty to three separate charges, Coffee
came before the circuit court for sentencing. Majority/lead op.,
¶8. At the sentencing hearing, the State "told the circuit court
that Coffee had a prior arrest for armed robbery." Id., ¶9.
Specifically, the State argued at sentencing:
What's alarming from the State's [perspective] because
of the nature of this offense that's in front of the
Court is that December 2011 there was an armed robbery
case that was sent to my office. That was a no process.
So what the defendant has shown here with his past
criminal conduct, not only is there a weapon[s] related
offense, but there was something that triggered a law
enforcement investigation and reviewed by my office for
offenses by a title similar in nature to this.
¶74 As the majority acknowledges, "[t]hat was inaccurate."
Id. It turned out that Coffee was arrested for strong-arm robbery,
the arrest was the result of a misidentification, and Coffee was
quickly released. But these facts were not presented to the
circuit court and it specifically cited the inaccurate information
in fashioning Coffee's sentence. On several occasions during its
sentencing remarks, the circuit court mentioned Coffee's previous
mistaken arrest for armed robbery, and it tied the arrest into
3
No. 2017AP2292-CR.awb
what it termed Coffee's "escalating" undesirable behavior. Id.,
¶10.
¶75 After he was sentenced, Coffee moved for postconviction
relief, arguing that the circuit court's reliance on the inaccurate
information violated his due process right to be sentenced upon
accurate information. Id., ¶13. The circuit court denied his
motion, indicating that it had considered the incorrect
information in pronouncing Coffee's sentence, but that even
without the information it would have reached the same sentence.
Id., ¶14. In the circuit court's words, "the error was harmless
because it did not materially affect the court's sentencing
decision in this case." Id.
¶76 The court of appeals affirmed. But rather than embracing
the explanation given by the circuit court, it relied on different
grounds. It determined that by failing to object at the sentencing
hearing, "Coffee forfeited the claim that he was sentenced based
on inaccurate information . . . ." State v. Coffee, No.
2017AP2292-CR, unpublished slip op., ¶1 (Wis. Ct. App. Nov. 6,
2018) (per curiam).
¶77 Now affirming the court of appeals, the majority/lead
relies on the same grounds utilized by the circuit court——harmless
error. Majority/lead op., ¶52. Contrary to the court of appeals,
the majority/lead determines that Coffee did not forfeit his
inaccurate information claim. Id., ¶26. However, it concludes
that the circuit court's reliance on the incorrect information was
harmless. Id., ¶51.
4
 No. 2017AP2292-CR.awb
II
¶78 As an initial matter, I write to clear up a fact of
record that has been severely muddied by the majority.. Somewhat
inexplicably, the majority views the only inaccuracy in the
information relied upon by the circuit court as that Coffee was
arrested for strong-arm robbery and not armed robbery. Id., ¶9.
¶79 The majority appears to insinuate that Coffee could have
had something to do with the strong-arm robbery for which he was
mistakenly arrested. Id., ¶9 n.3. It declares that "[s]ome
conclude that Coffee did not commit strong-arm robbery; that he
was wrongfully arrested because two witnesses told law enforcement
that the offender was not Coffee. The presumption of innocence
certainly applies, but experience demonstrates that, without
knowing more, we can reach no conclusion." Id. Whose experience?
And why does it justify turning a blind eye to the actual facts of
this case?
¶80 Based on this self-proclaimed "experience," the
majority/lead glosses over the record facts indicating that the
arrest was the result of a misidentification. There is no evidence
at all in the record tying Coffee to either the crime of strong-
arm robbery or armed robbery. The police report from the incident,
which is included in the record before this court, reveals the
majority's error.
¶81 In the report, it is related that a victim of the strong-
arm robbery for which Coffee was initially arrested stated that he
first observed the perpetrators from behind and that Coffee "could"
have been a subject who robbed him. However, after viewing
5
No. 2017AP2292-CR.awb
Coffee's face, he determined that Coffee was "not involved in this
incident." The report further indicates the witness's description
of the suspect as having dreadlocks and tattoos on his arms.
Coffee has dreadlocks, but does not have tattoos on his arms.
¶82 The record therefore does not indicate that the only
error in the information presented to the circuit court was the
type of robbery for which Coffee was arrested. Indeed, there was
no evidence at all that Coffee committed a robbery of any type in
2011.
¶83 Which brings me to the majority's harmless error
analysis. In the majority's view, the circuit court's sentence
would have been the same even if the inaccurate information
regarding Coffee's arrest was not considered. Majority/lead op.,
¶¶40-41.
¶84 Pursuant to this court's established methodology, a
defendant seeking resentencing based on the presentation of
inaccurate information before the sentencing court must
demonstrate that the information 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. After
the defendant meets this burden, the burden then shifts to the
State to demonstrate that the error was harmless beyond a
reasonable doubt. Id., ¶3; State v. Travis, 2013 WI 38, ¶86, 347
Wis. 2d 142, 832 N.W.2d 491.
¶85 The State can meet its burden to prove harmless error in
a sentencing proceeding by demonstrating that the sentencing court
would have imposed the same sentence absent the error. Id., ¶73.
6
 No. 2017AP2292-CR.awb
But we cannot simply take the circuit court's word that it would
have done so. See id. ("The State therefore correctly relies on
the transcript of the sentencing proceeding in making its argument,
and correctly refrains from relying on the circuit court's
assertions during the hearing on the defendant's postconviction
motion or speculation about what a circuit court would do in the
future upon resentencing.").
¶86 Thus, I turn to the transcript of the sentencing
proceeding. When pronouncing its sentence, the circuit court
specifically referenced this arrest, speaking of Coffee's police
contacts and stating that this arrest is of "significant concern
because it sounds like it was an armed robbery which is what these
offenses are." The circuit court saw this arrest as indicative of
the "escalating" nature of Coffee's "undesirable behavior."
¶87 But what does the mistaken arrest really tell us about
Coffee's behavior? What does it tell us about his character? What
information does it provide that is at all relevant to his
sentence? Given the facts in the record that Coffee had nothing
to do with the crime, the answer to all of these questions is
"nothing."
¶88 As Coffee posits in his reply brief, "his arrest for a
robbery, armed or otherwise, was plainly irrelevant to his
character. Instead, evidence of the prior arrest spoke only to
the fact that as a young black man with long dreadlocks, Coffee
once resembled someone who committed a robbery in December 2011."
¶89 It is true that Coffee pleaded guilty to a violent crime.
The majority focuses on the circuit court's comments in this
7
No. 2017AP2292-CR.awb
regard, stating that "the circuit court based its sentence on
Coffee's contribution to gun violence in Milwaukee, the harm to
the community, the harm to the victims, and Coffee's need to be
removed from the community." Majority/lead op., ¶51.
¶90 But that the nature of Coffee's offense demanded a prison
sentence does not mean that Coffee would have received the same
sentence had the State not raised the inaccurate information
regarding Coffee's prior arrest. The erroneous consideration of
an arrest for a violent offense can certainly affect a circuit
court's view of a defendant.
¶91 Indeed, the references in the sentencing transcript to
Coffee's mistaken arrest indicate that the circuit court viewed
the arrest as a step in Coffee's "escalating" behavior. Absent
consideration of the arrest, would the same pattern of "escalating"
behavior have been established? We cannot be sure beyond a
reasonable doubt as we must be to say the error was harmless. See
Travis, 347 Wis. 2d 142, ¶86. Accordingly, Coffee is entitled to
resentencing.
¶92 For the foregoing reasons, I respectfully dissent.
¶93 I am authorized to state that Justices REBECCA GRASSL
BRADLEY and REBECCA FRANK DALLET join this dissent.
8
No. 2017AP2292-CR.awb
1