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Sentencing Case Analysis

If published as recommended, the decision has potential to be of enormous usefulness to defense attorneys handling appeals.

It goes without saying that bringing a postconviction motion to challenge a sentence as having been based on inaccurate information is one of the most difficult tasks a defense attorney must perform.

Even assuming that you can establish that inaccurate information was presented to the sentencing court, it is standard operating procedure for the circuit court to respond exactly as it did in this case – the information played no role in the sentence.

Standard operating procedure for the appellate courts is then to defer to the sentencing court’s assessment of its own state of mind at sentencing.

If published, this case will be the first since State v. Anderson, 222 Wis.2d 403, 588 N.W.2d 75 (Ct.App.1998), in which the court of appeals overturned a circuit court’s assertion of non-reliance on inaccurate information.

That would be significant in its own right, but the decision here is far more valuable to defense attorneys than Anderson, because courts will certainly find it far more difficult to distinguish.

In Anderson, the defendant pleaded guilty to two counts of sexual contact with a child, based on two incidents that involved only fondling the children.

The sentencing court imposed an 80-year sentence, out of a maximum of one hundred, based on inaccurate allegations involving anal sex, group sex, and other allegations so heinous that, at sentencing, the court called them "some of the most aggravated violations" the court ever heard or read of.

The first reason Groth’s case will be harder to distinguish than Anderson is that the opinion doesn’t even state what sentence was imposed, while, in Anderson, the defendant received a sentence far in excess of that usually imposed in sexual contact cases that involve only fondling.

Second, the language used at sentencing in Groth’s case is far less indicative of reliance on the inaccurate information than in Anderson. "As pointed out by the prosecutor," does not compare to, and is much more common and difficult to distinguish than, "some of the most aggravated violations [the court ever heard of]."

Third, the inaccurate information had nothing to do with the crimes for which the defendant was found guilty. Although the severity of the crime, and the defendant’s character, are two of the most important sentencing factors, it seems intuitive that a sentencing court’s assessment would be given more weight when the inaccurate information at issue had nothing to do with the crime.

It is common for circuit courts faced with inaccurate information to state that the sentence was based on the crime itself, and not peripheral information. Such a conclusion is also difficult to argue with.


Wisconsin Court of Appeals

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By applying Anderson in a case in which the inaccurate information had nothing to do with the crime, and in which the crime itself was a particularly senseless homicide, the decision should help attorneys trying to challenge sentences in such cases.

Perhaps the most important aspect of the decision, at least for those defendants who go to trial and lose, rather than accept plea agreements, is the court’s conclusion that the postconviction court’s disclaimer of reliance on the information cannot account for the extent the court may have been influenced indirectly by the fact that the prosecutor’s recommendation was based in part on inaccurate information.

If the defendant enters a plea agreement, and the inaccurate information is "discovered" by the prosecutor after reaching the agreement, this factor will never be present.

However, whenever the defendant goes to trial, an
d the prosecutor is not bound to any recommendation, this factor will almost invariably be present. No matter how credible the sentencing court’s determination that it did not rely on the information, at least this factor will nevertheless always weigh in favor of permitting resentencing, because the portion of the court’s decision discussing the "indirect" influence of inaccurate information will always be indistinguishable.

– David Ziemer

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David Ziemer can be reached by email.

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