State v. Alexander

360 Wis.2d 292

858 N.W.2d 662

STATE of Wisconsin, Plaintiff–Respondent–Petitioner

v.Danny Robert ALEXANDER, Defendant–Appellant.

No. 2013AP843–CR.

Supreme Court of Wisconsin.

Argued Oct. 7, 2014.

Decided Jan. 27, 2015.

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.

Opinion

PATIENCE DRAKE ROGGENSACK, J.

¶ 1 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 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 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 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 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 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 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 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, 2014 WL 292407, unpublished slip op., ¶¶ 12–15 (Wis.Ct.App. Jan. 28, 2014).

¶ 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...