State v. Tiepelman

• Decision Date: 09 June 2006
• Docket Number: No. 2004AP914-CR.,2004AP914-CR.
• Citation: 717 N.W.2d 1,2006 WI 66
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. Larry A. TIEPELMAN, Defendant-Appellant-Petitioner.
• Court: Wisconsin Supreme Court

Page 1

717 N.W.2d 1

2006 WI 66

STATE of Wisconsin, Plaintiff-Respondent, v. Larry A. TIEPELMAN, Defendant-Appellant-Petitioner.

No. 2004AP914-CR.

Supreme Court of Wisconsin.

June 9, 2006.

For the defendant-appellant-petitioner, there were briefs by Suzanne L. Hagopian, assistant state public defender.

For the plaintiff-respondent, there was a brief, by Christopher G. Wren, assistant attorney general, with whom on the brief was Peggy A. Lautenschlager, attorney general.

¶ 1 N. PATRICK CROOKS, J

Larry A. Tiepelman (Tiepelman) seeks review of a published court of appeals' decision¹ affirming a circuit court's judgment of conviction and postconviction order that denied his motion for resentencing. Tiepelman's motion was based on his claim that the circuit court relied on inaccurate information at his sentencing hearing. The issue before this court is whether, on a motion for resentencing based on the circuit court's alleged reliance on inaccurate information, a defendant must prove that the circuit court actually relied on the inaccurate information, or that the court prejudicially relied on the inaccurate information.

¶ 2 We hold that in a motion for resentencing based on a circuit court's alleged reliance on inaccurate information, a defendant must establish that there was information before the sentencing court that was inaccurate, and that the circuit court actually relied on the inaccurate information. Here, the court of appeals applied the wrong test—prejudicial reliance² — when it affirmed the circuit court. We must, therefore, reverse that affirmance, and withdraw any language in State v. Montroy, 2005 WI App. 230, 287 Wis.2d 430, 706 N.W.2d 145, State v. Groth, 2002 WI App 299, 258 Wis.2d 889, 655 N.W.2d 163, State v. Suchocki, 208 Wis.2d 509, 516, 561 N.W.2d 332 (Ct.App.1997), State v. Coolidge, 173 Wis.2d 783, 496 N.W.2d 701 (Ct.App.1993), and State v. Littrup, 164 Wis.2d 120, 473 N.W.2d 164 (Ct.App.1991), to the contrary.

¶ 3 Only after the defendant meets this burden to show that the sentencing court actually relied on inaccurate information, does the burden then shift to the state to establish that the error was harmless.

¶ 4 Here the parties agree, as does this court, that there was inaccurate information actually relied on by the circuit court at sentencing. It seems clear that the parties also agree that the issue of harmless error was not developed to the degree necessary to assist this court in resolving that issue, and since they also agree that this matter should be remanded for resentencing, it is appropriate that, under such circumstances, we accept their stipulation. We, therefore, reverse the decision of the court of appeals and remand this case to the circuit court for resentencing.³

I

¶ 5 On December 17, 1996, Tiepelman was convicted of one count of theft by false representation as a repeat offender, contrary to Wis. Stat. §§ 943.20(1)(d) and 939.62 (1995-96). Following his conviction, the circuit court withheld sentence and placed Tiepelman on probation for 16 years. On April 21, 2003, Tiepelman's probation was revoked, and he returned to the circuit court for sentencing.

¶ 6 On September 5, 2003, the Richland County Circuit Court, Judge Edward E. Leineweber presiding, held a sentencing hearing, resulting in the imposition of an indeterminate sentence of 12 years imprisonment. In reaching its sentencing decision, the circuit court considered Tiepelman's presentence investigation report (PSI), which had correctly documented his criminal background. However, when referring to the PSI, the circuit court mistakenly stated that the PSI showed "something over twenty prior convictions at the time of the commission of this offense back in [November] 1995." While the PSI had shown 20 charged offenses as of November 1995, it had also accurately reflected that only five of those offenses had resulted in convictions as of that date.

¶ 7 Tiepelman filed a postconviction motion seeking resentencing, arguing that the circuit court violated his right to due process, because the circuit court relied on inaccurate information about Tiepelman's criminal record. At the postconviction hearing, Judge Leineweber again presiding, the circuit court acknowledged that the reference to "over twenty prior convictions" was wrong. However, the court stated that there had not been reliance on an inaccuracy that was material, because Tiepelman conceded the pertinent underlying conduct, and, therefore, the circuit court denied Tiepelman's motion for resentencing. State v. Tiepelman, 2005 WI App 179, ¶ 5, 286 Wis.2d 464, 703 N.W.2d 683.

¶ 8 Tiepelman appealed the denial, and the court of appeals affirmed the circuit court. Citing Groth and Littrup, the court of appeals set forth Tiepelman's burden as "showing, by clear and convincing evidence, both the inaccuracy of some information and that the sentencing judge prejudicially relied on the inaccurate information." Id., ¶ 7, 473 N.W.2d 164. As the State of Wisconsin (State) had conceded that Tiepelman had met his burden of showing the inaccuracy of the information, the court of appeals stated "[t]he dispositive issue here is the second prong: Did Tiepelman meet his burden of showing prejudicial reliance?" Id. (emphasis omitted). Based largely on statements made by the circuit court during the motion hearing, the court of appeals held that Tiepelman had failed to prove prejudicial reliance, and therefore affirmed the circuit court's denial of the motion for resentencing and Tiepelman's conviction. Tiepelman petitioned for review of the decision of the court of appeals, and his petition was accepted.

II

¶ 9 A defendant has a constitutionally protected due process right to be sentenced upon accurate information. State v. Johnson, 158 Wis.2d 458, 468, 463 N.W.2d 352 (Ct.App.1990) (citing United States v. Tucker, 404 U.S. 443, 447, 92 S.Ct. 589, 30 L.Ed.2d 592 (1972)). Whether a defendant has been denied this due process right is a constitutional issue that an appellate court reviews de novo. Coolidge, 173 Wis.2d at 789, 496 N.W.2d 701.

¶ 10 A defendant's right to be sentenced upon accurate information was first set forth by the United States Supreme Court in Townsend v. Burke, 334 U.S. 736, 68 S.Ct. 1252, 92 L.Ed. 1690 (1948). Townsend held that a sentence based on "assumptions concerning . . . [a person's] criminal record which were materially untrue. . . is inconsistent with due process of law, and such a conviction cannot stand." Id. at 741, 68 S.Ct. 1252. The Court specifically noted that the sentence in question was "within the limits set by the statute" and therefore not "unduly severe." Id.

It is not the duration or severity of this sentence that renders it constitutionally invalid; it is the careless or designed pronouncement of sentence on a foundation so extensively and materially false, which the prisoner had no opportunity to correct by the services which counsel would provide, that renders the proceedings lacking in due process.

Id.

¶ 11 This due process right to be sentenced upon accurate information was further developed by the United States Supreme Court in Tucker, 404 U.S. 443, 92 S.Ct. 589, 30 L.Ed.2d 592. During Tucker's sentencing proceeding, the sentencing judge had "conducted an inquiry into the respondent's background, and, the record shows, gave explicit attention to the three previous felony convictions the respondent had acknowledged." Id. at 444, 92 S.Ct. 589 (emphasis added) (footnote omitted). However, it was later conclusively determined that two of the defendant's prior convictions were constitutionally invalid under Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963), having "resulted from proceedings in which the respondent had been unrepresented by counsel, and that he had been neither advised of his right to legal assistance nor did he intelligently and understandingly waive this right to the assistance of counsel." Tucker, 404 U.S. at 445, 92 S.Ct. 589 (internal quotations omitted) (footnote omitted).

¶ 12 The Tucker Court emphasized that the record made "evident that the sentencing judge gave specific consideration to the respondent's previous convictions before imposing sentence upon him." Id. at 447, 92 S.Ct. 589 (emphasis added). As two of those convictions were determined to be invalid, the United States Supreme Court remanded the case to the circuit court for reconsideration of Tucker's sentence. Id. at 449, 92 S.Ct. 589. The Court reasoned:

For if the trial judge in 1953 had been aware of the constitutional infirmity of two of the previous convictions, the factual circumstances of the respondent's background would have appeared in a dramatically different light at the sentencing proceeding. Instead of confronting a defendant who had been legally convicted of three previous felonies, the judge would have been dealing with a man who beginning at age 17, had been unconstitutionally imprisoned for more than ten years, including five and one-half years on a chain gang.

Id. at 448, 92 S.Ct. 589 (footnote omitted). While not explicitly addressing the issue of harmless error, the Court stated that "the real question here is . . . whether the sentence in the 1953 federal case might have been different if the sentencing judge had known that at least two of the respondent's previous convictions had been unconstitutionally obtained." Id. (footnote omitted).

¶ 13 The actual reliance standard was subsequently followed by the Seventh Circuit Court of Appeals in Welch v. Lane, 738 F.2d 863 (7th Cir.1984). In that case, "[a]lthough the prosecutor told the court quite clearly that petitioner had been convicted of robbery in 1976, [during the defendant's sentencing hearing] the sentencing judge said that petitioner had been convicted of armed robbery, a Class X offense under Illinois law." Id. at 864 (emphasis in original). In explaining his decision to sentence Welch to the maximum allowable term, the...