State v. Montroy, 2004AP3249-CR.
| Decision Date | 30 August 2005 |
| Docket Number | No. 2004AP3250-CR.,No. 2004AP3249-CR.,2004AP3249-CR.,2004AP3250-CR. |
| Citation | 2005 WI App 230,706 N.W.2d 145 |
| Parties | STATE of Wisconsin, Plaintiff-Respondent, v. James I. MONTROY, Defendant-Appellant. |
| Court | Wisconsin Supreme Court |
On behalf of the defendant-appellant, the cause was submitted on the briefs of Jay E. Heit of Herrick & Hart, S.C., Eau Claire.
On behalf of the plaintiff-respondent, the cause was submitted on the brief of Peggy A. Lautenschlager, Attorney General, and Jeffrey J. Kassel, Assistant Attorney General, Madison.
Before CANE, C.J., HOOVER, P.J., and PETERSON, J.
James Montroy appeals judgments of conviction for burglary and cocaine possession with intent to deliver and an order denying his postconviction motion for sentence modification. Montroy argues the circuit court erred by: (1) concluding he was not entitled to a new presentence investigation report and sentencing hearing; (2) determining he was not eligible for the Earned Release Program; and (3) considering aggravating factors at sentencing that were not proven beyond a reasonable doubt. We disagree and affirm the judgments and order.
¶ 2 Montroy faced five charges in five different Pepin County cases. On August 19, 2003, he pled guilty to two of those charges, burglary and cocaine possession with intent to deliver. The repeater allegations on those charges were dismissed and the remaining three charges were dismissed and read in for sentencing. The presentence investigation report (PSI) erroneously included the repeater allegations. The court ordered a second PSI.
¶ 3 At the February 3, 2004, sentencing hearing, Montroy objected to information contained in the second PSI. Although the repeater allegations had been removed from certain sections, the preparer's sentencing recommendation still contained that erroneous information. The second PSI also incorrectly stated that Montroy had a prior first-degree sexual assault conviction. The court ordered a third PSI and continued the sentencing hearing.
¶ 4 When the sentencing hearing resumed on April 5, 2004, Montroy objected to the third PSI. The incorrect sexual assault conviction was still listed and the third PSI erroneously indicated that Montroy had pending bail jumping charges. Montroy requested a new PSI be prepared. The court denied Montroy's request, instead striking and disregarding the incorrect information. It sentenced Montroy to six years of confinement and four years of extended supervision on the burglary charge and a consecutive sentence of two years' confinement and four years' extended supervision on the drug charge. It also determined he was ineligible for the Challenge Incarceration and Earned Release programs because of his many drug-related convictions.
¶ 5 At a May 17, 2004, motion hearing, Montroy's counsel1 claimed that the court had not made a determination on Montroy's Earned Release eligibility. Montroy's counsel directed the court to the sentencing recommendation in the PSI, which indicated Montroy was ineligible based on his past sexual assault conviction. The court adopted that recommendation.
¶ 6 On August 18, 2004, Montroy moved for sentence modification. He argued that he was prejudiced by inaccuracies in the third PSI, that the court improperly determined he was ineligible for the Earned Release Program based on a sexual assault conviction, and that the court improperly considered aggravating factors that were not supported by sufficient evidence. The court denied Montroy's motion.
¶ 7 Montroy argues he is entitled to a new PSI and a new sentencing hearing because the third PSI contained inaccurate information. A defendant has a due process right to be sentenced based on accurate information. State v. Johnson, 158 Wis.2d 458, 468, 463 N.W.2d 352 (Ct.App.1990). Whether a defendant has been denied this due process right is a question of constitutional fact. State v. Groth, 2002 WI App 299, ¶ 21, 258 Wis.2d 889, 655 N.W.2d 163. We accept the circuit court's findings of fact unless they are clearly erroneous. WIS. STAT. § 805.17(2).2 However, whether the facts amount to a constitutional violation is a question of law that we review independently. State v. Littrup, 164 Wis.2d 120, 126, 473 N.W.2d 164 (Ct.App.1991).
¶ 8 When a defendant seeks resentencing because the court relied on inaccurate information, the defendant must establish by clear and convincing evidence that the information was inaccurate and that the court relied on it to the defendant's detriment. Id. at 132, 473 N.W.2d 164. On appeal, Montroy contends the PSI contained the following inaccurate information: (1) it incorrectly stated he was convicted of first-degree sexual assault; (2) it incorrectly stated he had a pending bail jumping charge; and (3) it included eight juvenile adjudications, when only six should have been included. Montroy argues the court relied on this inaccurate information to his detriment.
¶ 9 The State concedes the third PSI contained inaccurate information. However, it argues that Montroy has not met his burden of proof that the court relied on that inaccurate information when it sentenced him. It contends the court properly struck the sexual assault conviction and pending bail jumping charge from the PSI and did not rely on them when sentencing Montroy. It also argues that even though only six juvenile adjudications should have been listed in the PSI, the court could properly consider all eight at sentencing and, further, that the difference between six and eight juvenile adjudications, in light of Montroy's extensive adult record, was not significant enough to prejudice Montroy.
¶ 10 When Montroy raised the first two errors at the sentencing hearing, the court responded:
Well, the remedy is to strike [the incorrect information] from the Pre-Sentence Investigation. And that is any reference to the bail jumping is stricken.
And, also, the first-degree sexual assault of a child conviction is stricken from it and will not be considered in the Court's sentencing.
The Court doesn't just swallow the Department's recommendations anyway on sentencing, especially in serious cases such as these with the long-term criminal activity of this individual, even striking the two cases.
Montroy argues that even though the court claimed it was not relying on the inaccurate information, he can still demonstrate detrimental reliance through other statements or the sentence itself, citing State v. Anderson, 222 Wis.2d 403, 409-10, 588 N.W.2d 75 (Ct.App.1998).3 In Anderson, we concluded the sentencing court had relied on inaccurate information to Anderson's detriment. We were unpersuaded by the sentencing court's after-the-fact comments at a postconviction motion hearing that it had not relied on inaccurate information because those comments were inconsistent with the court's comments at the sentencing hearing itself. Id. at 410, 588 N.W.2d 75.
¶ 11 The problem with Montroy's reliance on Anderson is that he fails to offer convincing evidence that, contrary to the court's disclaimer, the court actually relied on the inaccurate information when it sentenced him. Montroy contends that the court's statement, "the long string of antisocial criminal activity and manipulation of the system has gone on too long," demonstrates that it improperly relied on the PSI's inaccurate information. However, Montroy's accurate criminal record, which does not include the sexual assault conviction or pending bail jumping charges, is lengthy. The court need not have relied on inaccurate information to reach that conclusion. Therefore, the court's reference to Montroy's lengthy criminal history lends no support to his assertion that the court relied on inaccurate information.
¶ 12 Montroy also asserts that the sentence imposed demonstrates the court relied on inaccurate information. Because the sentence essentially adopted the PSI's sentencing recommendation,4 which was based on inaccurate information, Montroy reasons that the court must have also relied on the inaccurate information. However, as the court here acknowledged on the record, a sentencing court is not bound by the PSI's sentencing recommendation. That the court ultimately reached a sentence in the same range as that recommended by the PSI, without more, does not demonstrate that the court relied on the PSI's inaccuracies. Montroy has not provided evidence that, despite the court's statement that it would not rely on the inaccurate information, it nonetheless did so when it sentenced him. Accordingly, Montroy's reliance on Anderson is misplaced.
¶ 13 Montroy also argues that the PSI improperly included two of his juvenile adjudications, when there was no evidence that he was represented by counsel.5 The State concedes that the Department of Corrections guidelines mandate that unrepresented juvenile adjudications should not be included in a PSI. However, the State argues, and we agree, that regardless of whether the adjudications should have appeared in the PSI, the sentencing court could properly consider all of Montroy's juvenile adjudications at sentencing. See Triplett v. State, 51 Wis.2d 549, 551-52, 187 N.W.2d 318 (1971). Additionally, Montroy's extensive adult criminal history was a sufficient basis for the court's conclusion that he was an habitual criminal, and the deletion of two juvenile adjudications would not have likely changed the court's conclusions on sentencing. Accordingly, Montroy has not met his burden to show prejudice from the two juvenile adjudications improperly included in the PSI.
¶ 14 Montroy also argues a new PSI is necessary because the inaccurate information will continue to prejudice him in the future. He cites WIS. ADMIN. CODE § DOC 328.27 (Nov.2002) for examples of the various uses for a PSI beyond sentencing. However, WIS. STAT. § 973.08(2) requires that the transcript of Montroy's...
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