State v. Evans, 2014AP480–CR.

• Decision Date: 23 July 2015
• Docket Number: No. 2014AP480–CR.,2014AP480–CR.
• Parties: STATE of Wisconsin, Plaintiff–Respondent, v. Joseph L. EVANS, Defendant–Appellant.
• Court: Wisconsin Court of Appeals

364 Wis.2d 757

869 N.W.2d 169 (Table)

STATE of Wisconsin, Plaintiff–Respondent

v.Joseph L. EVANS, Defendant–Appellant.

No. 2014AP480–CR.

Court of Appeals of Wisconsin.

July 23, 2015.

Opinion

¶ 1 PER CURIAM.

Joseph Evans appeals from a judgment convicting him of being party to the crime of armed robbery on his no contest plea and from an order denying his postconviction motion seeking resentencing because at sentencing, the State breached the plea agreement and the circuit court relied upon inaccurate information. We conclude that the State did not breach the plea agreement and any inaccurate information relied upon by the circuit court at sentencing was harmless. We affirm.

¶ 2 The criminal complaint alleged that Evans, Wayne Bell, and others targeted a specific individual for the armed robbery. Evans remained in the vehicle as the get-away driver; Bell and others confronted the victim. During the robbery, the victim was beaten and shot by a third co-actor as the victim fled. In exchange for Evans's no contest plea to armed robbery as party to the crime, the State agreed, among other things, to take no position on the amount of extended supervision to be imposed. At sentencing, the State referred to Bell's twenty-two-year sentence, which included a ten-year term of extended supervision.

¶ 3 In its sentencing remarks, the circuit court deemed aggravating that Evans had “been to prison for essentially violent offenses and drug offenses. Substantial batteries and the like.” Postconviction, Evans argued that the court misstated his prior custody history and relied upon this misstatement to impose a harsher sentence. The court deemed the inaccurate information harmless.

¶ 4 On appeal, Evans argues that the circuit court relied upon inaccurate information that he had been to prison for violent offenses and the error was not harmless. We agree with the circuit court that, on this record, the error was harmless.

¶ 5 A defendant has a due process right to be sentenced based upon accurate information. State v. Tiepelman, 2006 WI 66, ¶ 9, 291 Wis.2d 179, 717 N.W.2d 1. Whether the circuit court relied upon inaccurate information at sentencing presents a question of law that we decide independently of the circuit court. Id. When the defendant meets his or her burden to show that the circuit court relied upon inaccurate information at sentencing, the burden shifts to the State to show that the error was harmless. Id., ¶ 26. “The State can meet its burden to prove harmless error by demonstrating that the sentencing court would have imposed the same sentence absent the error.” State v. Travis, 2013 WI 38, ¶ 73, 347 Wis.2d 142, 832 N.W.2d 491. The focus is on the sentencing transcript, not on the postconviction motion hearing or speculation about what the circuit court would do at resentencing. Id.

¶ 6 In its sentencing remarks, the circuit court found the armed robbery aggravated, particularly because Evans had socialized with the victim in the past. The court noted Evans's “reduced” role as the get-away driver. The court accurately recited Evans's juvenile adjudications and adult convictions for criminal trespass to a dwelling; multiple simple, intermediate, and substantial batteries, some including use of a weapon; escape; disorderly conduct; obstruction; cocaine possession; and carrying a concealed weapon. The court found aggravating that Evans was in the community on extended supervision when he committed the armed robbery and that Evans has not changed his conduct despite numerous adjudications as a juvenile and convictions as an adult. The court noted that the shooter received a thirty-year sentence, and Bell received a twenty-two-year sentence.

¶ 7 The inaccurate information surfaced when the circuit court compared the criminal histories and custody experiences of Bell and Evans. The court described Bell's prison term as arising from a status offense, failing to register as a sex offender. In contrast, Evans had “been to prison for essentially violent offenses and drug offenses. Substantial batteries and the like. This is an aggravating-aggravating situation.” The court's description of Evans's custody experience was not borne out by the presentence investigation report, which stated that for battery, Evans served time in a juvenile facility and jail. The presentence investigation report did not state that Evans had been sentenced to prison for a violent offense, although it did report a prison sentence for cocaine possession. The court imposed a twenty-two-year consecutive sentence on Evans after finding that he required a significant period of incarceration to deter and punish him and to protect the public from future criminal conduct.

¶ 8 Postconviction, Evans argued that the circuit court had relied upon inaccurate information because he had not been sentenced to prison for a violent offense (battery) and his Ethan Allen School placement was not equivalent to a prison sentence. Evans argued the circuit court relied upon this inaccurate information to impose a harsher sentence.

¶ 9 The State countered that at sentencing, the circuit court accurately stated Evans's prior offenses, including the juvenile institution placement for battery. The State suggested that the circuit court merely misspoke when it stated that Evans had been imprisoned for battery.

¶ 10 The circuit court conceded that it relied upon inaccurate information when it stated that Evans had been incarcerated for battery or other violent offenses. However, the court determined that the inaccuracy was harmless because its mistaken recitation of Evans's custody experience did not cause it to impose either a harsher sentence or the same sentence received by Bell. The court found that it imposed an individualized sentence upon Evans after considering his character; culpability and history of prior, violent offenses (regardless of where Evans served his consequences); and the need to deter, punish, and protect the public. The court denied Evans's postconviction motion seeking resentencing on the grounds that the circuit court relied on inaccurate information.

¶ 11 We conclude that the circuit court's misstatement regarding Evans's prison experience was harmless on this record. The sentencing transcript does not show a causal connection between the misstatement and the length of Evans's sentence. The court made lengthy sentencing remarks and isolating this...