State v. Benson
| Decision Date | 28 August 2018 |
| Docket Number | Appeal No. 2017AP1353-CR |
| Parties | STATE of Wisconsin, Plaintiff-Respondent, v. Darryl P. BENSON, Defendant-Appellant. |
| Court | Wisconsin Court of Appeals |
¶ 1 Darryl P. Benson, pro se , appeals from an order of the circuit court that denied his "motion to modify sentence and presentence investigation report based upon ‘new factors’ " and his request for a hearing to correct the presentence investigation report (PSI). The circuit court concluded the motion was procedurally barred under State v. Escalona-Naranjo , 185 Wis. 2d 168, 517 N.W.2d 157 (1994), and that, alternatively, there was no basis for relief. We affirm, using slightly different grounds than the circuit court.
¶ 2 In 2009, Benson was charged with four counts of first-degree sexual assault of a child, contrary to WIS. STAT. § 948.02(1)(e) (2009-10).1 Count two alleged Benson had engaged in sexual intercourse with the child; the other three counts alleged sexual contact. The jury convicted Benson of the three sexual contact charges and acquitted him on the sexual intercourse charge. The trial court imposed three consecutive sentences, each consisting of six years’ initial confinement and four years’ extended supervision.2
¶ 3 In his direct appeal, Benson claimed ineffective assistance of trial counsel for counsel’s failure to challenge the charges as duplicitous and counsel’s failure to investigate and impeach certain witnesses. The motion was denied without a hearing, and we affirmed. In 2013, Benson pursued a pro se postconviction motion under WIS. STAT. § 974.06 (2013-14), raising additional claims of ineffective assistance of trial counsel. That motion was also denied without a hearing, and we affirmed.
¶ 4 Benson filed the motion underlying the current appeal in June 2017. He sought sentence modification claiming new factors—specifically, the lack of a risk assessment within the PSI and certain inaccuracies in the PSI. Benson also requested a hearing to correct the PSI, claiming it was causing the Department of Corrections to deny him appropriate programming and custody classifications.
¶ 5 The circuit court, noting that any objections to the PSI could have been made in the prior postconviction motion, concluded that the motion was barred by Escalona . The circuit court also noted that only the Department has the authority to modify the PSI and that, even if the procedural bar did not apply, Benson "has not set forth any basis on which modification of his sentence would be appropriate." The circuit court thus denied the motion without a hearing, and Benson appeals.
¶ 6 A prisoner who has had a direct appeal or other postconviction motion may not seek collateral review of an issue that was or could have been raised in the earlier proceeding, unless there is a "sufficient reason" for failing to raise it earlier. See Escalona , 185 Wis. 2d at 185 ; see also WIS. STAT. § 974.06(4) (2015-16). Whether a procedural bar applies is a question of law. See State v. Tolefree , 209 Wis. 2d 421, 424, 563 N.W.2d 175 (Ct. App. 1997).
¶ 7 Despite the existence of a procedural bar, a circuit court may still modify a sentence if the defendant shows a new factor that warrants modification. See State v. Harbor , 2011 WI 28, ¶¶ 35, 51, 333 Wis. 2d 53, 797 N.W.2d 828. A "new factor" is a fact or facts "highly relevant to the imposition of sentence, but not known to the trial judge at the time of original sentencing, either because it was not then in existence or because, even though it was then in existence, it was unknowingly overlooked by all the parties." Rosado v. State , 70 Wis. 2d 280, 288, 234 N.W.2d 69 (1975), reaffirmed by Harbor , 333 Wis. 2d 53, ¶¶ 40, 52. "[F]rustration of the purpose of the original sentence is not an independent requirement when determining whether a fact or set of facts ... constitutes a new factor." Harbor , 333 Wis. 2d 53, ¶ 48.
¶ 8 "The defendant has the burden to demonstrate by clear and convincing evidence the existence of a new factor." Harbor , 333 Wis. 2d 53, ¶ 36. Whether facts constitute a new factor is a question of law. See id. If the defendant demonstrates that there is a new factor, the question of whether that new factor warrants sentence modification is committed to the circuit court’s discretion. See id. , ¶ 37. If one of these two prongs is unfulfilled, the circuit court need not address the other. See id. , ¶ 38.
¶ 9 Benson claims that the existence of WIS. STAT. § 972.15(1m) is a new factor. That statute, which was created by 2007 Wis. Act 80 § 22 and which took effect on April 1, 2009, provides in relevant part:
If a person is convicted for a felony that requires him or her to register under [ WIS. STAT. §] 301.45 and if the victim was under 18 years of age at the time of the offense, the court may order the department to conduct a presentence investigation report to assess whether the person is at risk for committing another sex offense[.]
Benson contends that the sentencing court’s failure to utilize this section frustrated the purpose of sentencing and left the court without guidance. He claims that the statute is highly relevant because if it had been utilized, the sentencing court would have known there was no mandatory minimum sentence and would have been more likely to give him probation.
¶ 10 WISCONSIN STAT. § 972.15(1m) is not a new factor. It existed at the time of sentencing, and we presume judges know the law. See Tri-State Mech., Inc. v. Northland Coll. , 2004 WI App 100, ¶ 10, 273 Wis. 2d 471, 681 N.W.2d 302. Benson has not shown that the statute was "unknowingly overlooked" by the sentencing court. Even if Benson could show the sentencing court overlooked § 972.15(1m), the court certainly would have been aware that there was no mandatory minimum for Benson’s offenses, so Benson does not show how the statute was "highly relevant to the imposition of sentence." Because the existence of § 972.15(1m) is not a new factor, it is subject to a procedural bar, and Benson does not provide sufficient reason for failure to raise this issue in his prior WIS. STAT. § 974.06 motion.
¶ 11 In any event, showing a new factor is not the end of the analysis. If a new factor is shown, the circuit court then determines whether that new factor warrants sentence modification. The circuit court’s conclusion that Benson "has not set forth any basis on which modification of his sentence would be appropriate" is effectively a determination that even if the statute were a new factor, it would not warrant sentence modification. We discern no erroneous exercise of the circuit court’s discretion in this regard. Benson complains that the purpose of sentencing was frustrated without a risk assessment, but whether to order the risk assessment is a discretionary decision for the sentencing court: the statute states that the court "may order" the PSI to assess the offender’s risk of re-offense. See Thielman v. Leean , 2003 WI App 33, ¶ 10, 260 Wis. 2d 253, 659 N.W.2d 73 (). Benson simply does not show that the circuit court erroneously exercised its discretion in failing to order a risk assessment as part of the PSI.3
¶ 12 "[A] criminal defendant has a due process right to be sentenced only upon materially accurate information." State v. Lechner , 217 Wis. 2d 392, 419, 576 N.W.2d 912 (1998). A defendant who seeks resentencing based on the circuit court’s use of inaccurate information must show that the information was inaccurate and that the circuit court actually relied on the inaccuracy in the sentencing. See State v. Tiepelman , 2006 WI 66, ¶ 26, 291 Wis. 2d 179, 717 N.W.2d 1. However, "[a] defendant ‘cannot show actual reliance on inaccurate information if the information is accurate.’ " State v. Travis , 2013 WI 38, ¶ 22, 347 Wis. 2d 142, 832 N.W.2d 491 (citation omitted). We review de novo whether a defendant has been denied his due process right to be sentenced on accurate information. See Tiepelman , 291 Wis. 2d 179, ¶ 9.
¶ 13 As grounds for resentencing, Benson claims multiple inaccuracies in the PSI. He claims his sentence is wrong because the sentencing court failed to consider WIS. STAT. §§ 939.66(2p) and 948.025, resulting in multiplicitous sentences; the sentencing court erroneously said he made his victim touch his penis; and the sentencing guidelines were not considered. Benson also claims the PSI is erroneous because the PSI writer was biased, no risk assessment was performed, and the PSI author should not have imported facts from the criminal complaint because he was convicted based on the information, not the complaint.
¶ 14 Each of these complaints is barred. Any challenge to the accuracy of the PSI had to be raised at the sentencing hearing; failure to do so constitutes forfeiture. See State v. Johnson , 158 Wis. 2d 458, 470, 463 N.W.2d 352 (Ct. App. 1990), abrogated on other grounds by Harbor , 333 Wis. 2d 53, ¶ 47 n.11. Additionally, complaints about the sentencing court’s commentary or rationale in exercising its sentencing discretion must be preserved by postconviction motion. See State v. Walker , 2006 WI 82, ¶¶ 30-31, 292 Wis. 2d 326, 716 N.W.2d 498. Third, Benson offers no reason for failing to raise these issues in earlier challenges, so they are procedurally barred by Escalona .
¶ 15 Relying on State v. Norton , 2001 WI App 245, 248 Wis. 2d 162, 635 N.W.2d 656, Benson contends that the alleged inaccuracies are new factors, allowing him to avoid any procedural bars. In Norton , however, the inaccuracy that was deemed a new factor—the fact that Norton’s probation was revoked in another case despite the sentencing court relying on a representation that it would not be—did not exist until Norton’s probation was actually revoked subsequent to his sentencing hearing. See id...
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