State v. Counihan

• Citation: 938 N.W.2d 530,390 Wis.2d 172,2020 WI 12
• Decision Date: 13 February 2020
• Docket Number: No. 2017AP2265-CR,2017AP2265-CR
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. Carrie E. COUNIHAN, Defendant-Appellant-Petitioner.
• Court: United States State Supreme Court of Wisconsin

390 Wis.2d 172

938 N.W.2d 530

2020 WI 12

STATE of Wisconsin, Plaintiff-Respondent,

v.Carrie E. COUNIHAN, Defendant-Appellant-Petitioner.

No. 2017AP2265-CR

Supreme Court of Wisconsin.

Oral Argument: October 21, 2019

Opinion Filed: February 13, 2020

For the plaintiff-respondent, there was a brief filed by Courtney K. Lanz, assistant attorney general, with whom on the brief was Joshua L. Kaul attorney general there was an oral argument by Courtney K. Lanz.

For the defendant-appellant-petitioner, there were briefs filed by Ana L. Babcock and Babcock Law, LLC, Green Bay. There was an oral argument by Ana L. Babcock.

ANN WALSH BRADLEY, J.

¶1 The petitioner, Carrie E. Counihan, seeks review of an unpublished, authored decision of the court of appeals affirming her judgment of conviction and the denial of her motion for postconviction relief.¹ She asserts that the circuit court violated her right to due process at sentencing and, alternatively, that her trial counsel provided ineffective assistance at sentencing.

¶2 Specifically, she argues that the circuit court denied her due process at sentencing by failing to provide her with notice that it would consider previously unknown information first raised by the circuit court at sentencing. Further, Counihan contends that her trial counsel was ineffective for failing to object to the consideration of such information and for failing to seek an adjournment to allow time to investigate and review the information on which the circuit court relied.

¶3 In response, the State asserts that Counihan forfeited her direct challenge to the previously unknown information considered at sentencing because she failed to object at the sentencing hearing. It further contends that Counihan's trial counsel was not ineffective for failing to object or seek an adjournment.

¶4 We conclude that where previously unknown information is raised by the circuit court at the sentencing hearing, a defendant does not forfeit a direct challenge to the use of the information by failing to object at the sentencing hearing. Under the facts of this case, Counihan appropriately raised the alleged error in a postconviction motion.

¶5 Further, we conclude that Counihan's due process rights were not violated by the circuit court's use of the previously unknown information regarding similarly situated defendants. Because there was no due process violation, we need not address Counihan's alternative argument that her counsel provided ineffective assistance at sentencing.

¶6 Accordingly, we modify the decision of the court of appeals, and as modified, affirm.

I

¶7 As part of a plea agreement, Counihan pleaded no contest to five misdemeanor counts of theft in a business setting.² The charges stemmed from allegations that, while Counihan was the executive director of the Door County Humane Society, she used an organizational credit card to pay personal expenses totaling over $22,000.

¶8 Pursuant to the plea agreement, the parties jointly recommended that the circuit court withhold sentence and place Counihan on probation for up to three years, which could end any time after two years if all other conditions of probation were fulfilled. The joint recommendation also included conditions that Counihan pay restitution along with fines and costs, pen a written apology to the Humane Society, and serve 60 days of conditional jail which would be stayed as long as Counihan complied with all other probation conditions.

¶9 After hearing from both parties and several witnesses at the sentencing hearing, the circuit court began its sentencing remarks by explaining its methodology in determining the appropriate sentence. The circuit court explained that it had read the file in detail, including the criminal complaint, information and police report. It further indicated that it had read all victim impact statements, as well as several other letters that the court had received and some credit card entries submitted by defense counsel.

¶10 Most relevant to the issue we are examining in this appeal, the circuit court also indicated that as part of its sentencing methodology it had reviewed the sentences imposed in other similar cases within the county. Specifically, the circuit court stated, "Perhaps most significantly, I pulled all files that we could find in Door County where somebody has pled to theft in a business-type setting. There were about six or seven of them that we could find, and I have reviewed those files in detail."

¶11 The circuit court provided for the record the seven case numbers of the cases it reviewed and stated that "[s]ome of the themes and dynamics of these cases were very interesting to me." It subsequently described the facts of these cases and the sentences imposed as follows:

The amount stolen in these cases ranged over just several thousand dollars to as much as $300,000. Every one of the defendants in these cases, except one, spent time in jail. Every single one of them. The one person that did not spend time in jail paid all of the money back before sentencing. It did not involve a public entity, it was a private association. The jail time for the others ranged from 15 days in jail to up to a year in jail. Several people spent a year in jail. Several spent six months.

Every single one of those defendant[s] was placed on probation; in other words, the sentence was actually withheld and the jail was placed on them as a condition of probation.

After discussing the jail and probation ordered in the other cases, the circuit court also observed that in the other cases "[a]ll were ordered to pay fines and restitution. Every single one of them."

¶12 Continuing in its remarks, the circuit court found one of the other cases particularly analogous to Counihan's case. It emphasized, however, that every case is different.

Now, this case here is most like a case where a woman stole approximately $30,000 from a local business, was not a charity, and stole the money over many months. And that particular woman spent 11 months in jail and was ordered to pay full restitution.

Now, this Court realizes—this Court, this person, this attorney practiced law for many years, 30 years, and I certainly understand that every single case is different. Every case has a nuance. So these prior cases, these other cases in Door County, have provided this Court guidance, but I am not relying solely on these other cases.

¶13 With respect to the facts of this case, the circuit court observed that Counihan was in a position of trust, and that she committed the thefts over the course of many years. It further noted the effect Counihan's crimes had on the Humane Society and on nonprofit organizations in general: "to the extent that donors will be less likely to donate money for fear that their money will be stolen, or that they would have a question about it, is very, very concerning to this Court."

¶14 Prior to formally pronouncing the sentence, the circuit court asked Counihan if she knew "any reason why sentence should not be pronounced ...." Counihan responded, "No, Your Honor."

¶15 Subsequently, the circuit court rejected the parties' joint recommendation and sentenced Counihan to nine months in jail on each count, to be served concurrently. It found such a sentence to be consistent with the sentences ordered in the similar cases in the county it had considered: "All other cases, except one, received jail time, and I don't see any reason why you shouldn't serve jail time."

¶16 Probation was not ordered because in the circuit court's view, "probation would unduly depreciate the seriousness of the offenses here." The circuit court further ordered Counihan to pay restitution, fines and court costs. After the sentence had been handed down and before concluding proceedings, the circuit court asked if either Counihan or the State had "anything further" to discuss, and each responded in the negative.

¶17 Counihan moved for postconviction relief.³ As relevant here, she argued that her counsel was ineffective at sentencing for failing to object and failing to seek an adjournment to review the similar Door County cases the circuit court cited in fashioning its sentence.⁴

¶18 Following a Machner ⁵ hearing, the circuit court denied Counihan's postconviction motion. As relevant here, it determined that Counihan's counsel at sentencing was not ineffective, reasoning that "his tactical decision not to object or ask for a recess or to try to make distinguishing arguments from those cases" did not fall "below an objective standard of care ...." Further, the circuit court found that even if the attorney's representation was deficient, "I don't find that it would have changed anything."

¶19 In denying Counihan's motion, the circuit court reiterated that it did not rely solely on the other Door County cases: "I came to a conclusion independently of any of these cases, but I wanted to use the cases to make sure they supported what I was going to do." The circuit court further commented on the propriety of seeking out similar cases from the county, stating:

[W]hen I sentenced Miss Counihan I had been on the bench for about three or four months at that time.... [W]hat my goal was in conducting this inquiry into other cases was to determine what the institutional memory of this Court was, because I didn't have it myself. I felt like if I had been a judge for twenty years, of course I would have fallen back on my memory of what I had done in other cases. I probably wouldn't need to look at other cases literally. I would look at them in my mind.

And I think judges do that all the time. They can't erase their memories. But I didn't have that memory, so it felt, in my opinion, to me that I had the responsibility—I had the responsibility not only to Miss Counihan, but to the community, to determine what had been done in other cases.

And I didn't do so in order to get a litmus test or a necessarily a recipe that I could come up with a sentence for Miss Counihan. I felt like I want to

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