State v. Coffee

389 Wis.2d 627

937 N.W.2d 579

2020 WI 1

STATE of Wisconsin, Plaintiff-Respondent,

v.Donavinn D. COFFEE, Defendant-Appellant-Petitioner.

No. 2017AP2292-CR

Supreme Court of Wisconsin.

Oral Argument: October 21, 2019

Opinion Filed: January 9, 2020

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.

ANNETTE KINGSLAND ZIEGLER, J.

¶1 This is a review of a per curiam decision of the court of appeals, State v. Coffee, No. 2017AP2292-CR, 2018 WL 5819588, unpublished slip. op. (Wis. Ct. App. Nov. 6, 2018), affirming the Milwaukee County circuit court’s¹ judgment of 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 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 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:

[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 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.

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 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...