State v. Littrup

• Decision Date: 24 July 1991
• Docket Number: No. 90-2701-CR,90-2701-CR
• Citation: 164 Wis.2d 120,473 N.W.2d 164
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. Kirk LITTRUP, Defendant-Appellant. d
• Court: Wisconsin Court of Appeals

Page 164

473 N.W.2d 164

164 Wis.2d 120

STATE of Wisconsin, Plaintiff-Respondent, v. Kirk LITTRUP, Defendant-Appellant. ^d

No. 90-2701-CR.

Court of Appeals of Wisconsin.

Submitted on Briefs June 11, 1991.

Opinion Released July 24, 1991.

Opinion Filed July 24, 1991.

Reesa Evans, Madison, for defendant-appellant.

James E. Doyle, Atty. Gen., and Christopher G. Wren, Asst. Atty. Gen., for plaintiff-respondent.

Before NETTESHEIM, P.J., and BROWN and ANDERSON, JJ.

BROWN, Judge.

Kirk Littrup appeals a postconviction order denying reconsideration of his sentence for second-degree murder. He argues that the state's presentence investigation report (PSI) was inaccurate and prejudicial, thereby violating his due process rights. Regarding this claim, he questions the burden of proof and who carries it. Littrup also argues that his trial counsel was ineffective because there was no motion for correction or suppression of the allegedly offensive report prior to sentencing.

We hold that a defendant carries the burden to prove by clear and convincing evidence that there was a due process violation in the sentencing process. We conclude that Littrup did not meet this burden. We further conclude that Littrup did not receive ineffective assistance of counsel. Therefore, we affirm the trial court's denial of Littrup's motion for resentencing.

Littrup was charged with party to the crime of first-degree murder, but later pled guilty to a charge of party to the crime of second-degree murder, a violation of sec. 940.02(1), Stats. (1985-86). Littrup and his codefendant bludgeoned a co-worker to death. Then they put the body in a steel drum, poured industrial adhesive ¹ over it, welded the lid on and put the drum in a dumpster. The victim's body was discovered fortuitously because the trash collector happened to see it during the crushing process, when the trash compactor gear caused the top of the barrel to come off and exposed the body. Both defendants described the crime in almost identical detail except that each accused the other of being the main perpetrator and each claimed to have participated in the murder out of fear for his own life.

Littrup's PSI was prepared by Daniel Sartori, a probation/parole agent for the Department of Corrections. The PSI was over sixty pages long. It contained, among other things, Sartori's conclusions about the reasons for the homicide and Littrup's culpability for the murder relative to his codefendant. It also contained police officers' descriptions of the offense and their opinions on motivation and culpability.

At the scheduled sentencing hearing, Littrup objected to the state's PSI, obtained a continuance, and then filed a defense PSI. At sentencing, the court heard character testimony for Littrup and indicated that it had considered the defendant's PSI as well as the state's. The court then sentenced Littrup to eighteen years in prison, two years less than the maximum for his crime.

After sentencing, defense counsel moved to have the defense PSI sent along to the prison system with the state's PSI. The court granted the request. The record contains no indication that both reports were not sent to the prison. Defense counsel also reserved the right to bring postconviction motions to strike certain portions of the state's PSI. Such motions were never made.

Littrup obtained new counsel who filed a postconviction motion for resentencing. Littrup claimed that he was sentenced on the basis of untrue and incorrect information in the PSI. He also alleged that his trial counsel was ineffective at sentencing. Evidentiary hearings on the motion were held in the trial court. The court denied the motion and this appeal ensued. ²

Sentencing is within the sound discretion of the trial court. State v. Tarantino, 157 Wis.2d 199, 221, 458 N.W.2d 582, 591 (Ct.App.1990). The presumption is that the trial court acted reasonably in imposing the sentence. State v. Haskins, 139 Wis.2d 257, 268, 407 N.W.2d 309, 314 (Ct.App.1987). This court will uphold the trial court's sentence unless there was an abuse of discretion. State v. C.V.C., 153 Wis.2d 145, 163, 450 N.W.2d 463, 470 (Ct.App.1989). However, since this appeal deals with the constitutional questions of whether Littrup's rights to due process and to effective assistance of counsel were protected, the appeal presents questions of law. We review questions of law de novo without deference to the trial court. First Nat'l Leasing Corp. v. City of Madison, 81 Wis.2d 205, 208, 260 N.W.2d 251, 253 (1977).

We will initially discuss Littrup's arguments on the burden of proof required to establish a due process violation in the sentencing process. There are two parts to this argument. First, Littrup contends that, to maintain a due process claim, it is sufficient for a defendant to show inaccuracies in the PSI without also showing that the PSI had a prejudicial impact on the sentencing court. Second, Littrup claims that the defendant must show the inaccuracies by the lowest burden of proof--preponderance of the evidence. Then the burden shifts to the state to prove beyond a reasonable doubt that the errors were harmless. Littrup also argues that even if the defendant is required to show prejudice, the burden of proof is preponderance of the evidence.

Littrup's argument that a defendant does not have to show prejudice to establish a due process violation stems from his erroneous belief that there are two kinds of due process claims: first, a strict liability or technical due process claim brought on direct appeal, which only requires the defendant to show that inaccurate information was introduced into the sentencing process; second, a due process claim brought in a collateral proceeding, which requires the defendant to prove both that there was inaccurate information and that it prejudiced the defendant. Littrup relies on State v. Skaff, 152 Wis.2d 48, 447 N.W.2d 84 (Ct.App.1989), and on Blake v. United States, 841 F.2d 203 (7th Cir.1988), as authority for his position that a showing of prejudice is not always required for a due process claim.

In Skaff, the defendant made no showing of prejudice. Yet, we concluded that there was a due process violation based on the trial court's blanket policy of refusing to allow defendants to read their PSI. See Skaff, 152 Wis.2d at 58, 447 N.W.2d at 88-89. However, the defendant in Skaff did not have to show prejudice from the PSI to prevail on his claim because he could not know whether errors in the PSI had skewed the sentence of the trial court until he read the PSI to ascertain whether there were errors. See id. Littrup has read the state's PSI and appeals because he claims that alleged inaccuracies in it violated his due process rights by influencing the sentence of the trial court. ³ Not only is Littrup in a position to show prejudice, if there is any, but prejudice is an essential part of his claim that the PSI had an adverse impact on him. Thus, Skaff does not relieve Littrup of the burden to show prejudice.

Littrup also looks to Blake, 841 F.2d at 205-06. The defendant in Blake alleged a due process violation of the federal sentencing procedures in Fed.R.Crim.P. 32(c)(3)(D). The Court of Appeals for the Seventh Circuit discussed two different kinds of violations that can occur in the sentencing process. Blake, 841 F.2d at 205-06. When a defendant directly appeals a technical violation of a procedural rule, no showing of prejudice is required. See id. When a defendant claims a constitutional due process violation in a collateral proceeding, such as the habeas corpus proceeding used by the defendant in Blake, a showing of prejudice is necessary. See id.

Because Littrup's challenge to his sentencing process arose in a direct appeal rather than in a collateral proceeding, and because his challenge alleges inaccuracies in the PSI which can be characterized as technical violations, Littrup claims that Blake indicates he does not have to show prejudice. Littrup's argument fails for two reasons. First, Wisconsin has no procedural rules comparable to Fed.R.Crim.P. 32(c)(3)(D) that admit of technical violations. Second, Littrup characterizes Blake's difference in the federal requirements as relating to whether the claim arises on direct appeal or in a collateral proceeding. However, the difference in the requirements is actually related to the nature of the claim brought. A claim of a purely technical violation of rules does not require a showing of prejudice. A claim of a constitutional due process violation must show prejudice. The procedural posture of the claim is immaterial to the burden of proof. Here, Littrup claimed a constitutional due process violation. Thus, Blake stands for the proposition that Littrup must show prejudice resulting from the alleged misinformation in the PSI. See Blake, 841 F.2d at 206.

For his argument that the defendant's burden of proof is the lowest one of preponderance of the evidence, Littrup begins by attempting to distinguish State v. Walberg, 109 Wis.2d 96, 325 N.W.2d 687 (1982), cert. denied, 474 U.S. 1013, 106 S.Ct. 546, 88 L.Ed.2d 475 (1985). In Walberg, our supreme court held that in a due process challenge brought under sec. 974.06, Stats., the higher burden of clear and convincing evidence applies. Walberg, 109 Wis.2d at 102, 325 N.W.2d at 690. Since Littrup's postconviction motion was not brought pursuant to a sec. 974.06 procedure, he reasons that Walberg's higher burden does not apply in his case.

Instead, Littrup asks us to look to State v. Haskins, 139 Wis.2d 257, 407 N.W.2d 309 (Ct.App.1987), for an example of the burden of proof required when a postconviction motion is not brought under sec. 974.06, Stats. The postconviction motion at issue in Haskins was based on an ineffective assistance of counsel claim. Littrup states that under Haskins, "a defendant claiming incompetence of counsel has to make the required showing by preponderance of the evidence." ...