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State v. Coffee

Supreme Court of Wisconsin

January 9, 2020

State of Wisconsin, Plaintiff-Respondent,
v.
Donavinn D. Coffee, Defendant-Appellant-Petitioner.

          Submitted on Briefs: Oral Argument: October 21, 2019

         REVIEW OF DECISION OF THE COURT OF APPEALS Reported at 385 Wis.2d 211, 923 N.W.2d 181 (2018 - unpublished)

          Circuit Court Milwaukee County L.C. No. 2015CF4965 Fredrick C. Rosa Judge.

          For the defendant-appellant-petitioner, there were briefs filed by Nicole M. Masnica, assistant state public defender. There was an oral argument by Nicole M. Masnica.

          For the plaintiff-respondent, there was a brief filed by Aaron R. O'Neil, assistant attorney general, with whom on the brief was Joshua L. Kaul, attorney general. There was an oral argument by Aaron R. O'Neil.

          ZIEGLER, J., announced the judgment of the Court and delivered the majority opinion of the Court with respect to Parts I through III and Part IV.C. and D., in which ROGGENSACK, C.J., HAGEDORN, and KELLY, JJ., joined. KELLY, J., filed a concurring opinion, in which REBECCA GRASSL BRADLEY, J., joined ¶¶59-63. ANN WALSH BRADLEY, J., filed a dissenting opinion, in which REBECCA GRASSL BRADLEY and DALLET, JJ., joined.

          ANNETTE KINGSLAND ZIEGLER, J.

         ¶1 This is a review of a per curiam decision of the court of appeals, State v. Coffee, No. 2017AP2292-CR, unpublished slip. op. (Wis. Ct. App. Nov. 6, 2018), affirming the Milwaukee County circuit court's[1] judgment of conviction and order denying Donavinn D. Coffee's ("Coffee") postconviction motion for resentencing.[2] Coffee argues that the circuit court violated his due process rights because the circuit court relied on inaccurate information at sentencing, and that error was not harmless. Neither Coffee nor his counsel objected to the inaccurate information at the sentencing hearing. Rather, Coffee's first objection to the inaccurate information was in his postconviction motion. The postconviction court concluded that: (1) the State introduced inaccurate information at the sentencing hearing; and (2) the circuit court actually relied on the inaccurate information; but (3) the error was harmless. Thus, the postconviction court denied Coffee's motion for resentencing. The court of appeals affirmed, but not on the merits of Coffee's inaccurate information at sentencing claim. Instead, the court of appeals concluded that Coffee forfeited his claim because he failed to object at the sentencing hearing. We now affirm, but we resolve this case on the merits.

         ¶2 A defendant has a constitutional due process right to be sentenced upon accurate information. State v. Tiepelman, 2006 WI 66, ¶9, 291 Wis.2d 179, 717 N.W.2d 1. Coffee's constitutional due process right was violated. Indeed, both Coffee and the State agree that the circuit court actually relied on inaccurate information when it sentenced Coffee. Accordingly, the issues before this court are: (1) whether Coffee forfeited his ability to later challenge the inaccurate information because he failed to object at the sentencing hearing; and, (2) if Coffee did not forfeit his claim, whether the circuit court's reliance on the inaccurate information at sentencing was harmless error.

         ¶3 We conclude that the forfeiture rule does not apply to previously unknown, inaccurate information first raised by the State at sentencing. Rather, a postconviction motion is also a timely manner in which to bring that claim. Accordingly, we conclude that Coffee did not forfeit his ability to challenge the inaccurate information at his sentencing. We nonetheless conclude that the circuit court's reliance on inaccurate information at Coffee's sentencing was harmless error. Thus, we affirm the court of appeals.

         I. FACTUAL BACKGROUND

         ¶4 On November 10, 2015, in Milwaukee, G.B. was robbed at gunpoint. He stated that he was talking on the phone in an alley when a white Mercury Mountaineer sped toward him. It stopped near him and a black male with dreadlocks exited the rear passenger-side door of the SUV, gun in hand. The driver and the gunman demanded that G.B. give them all his "stuff." G.B. gave the gunman $50.00, and the gunman took G.B.'s cell phone and wallet. Both suspects then fled in the white SUV.

         ¶5 About five minutes later, just a few blocks away, D.J. was shot from behind while attempting to flee from a white SUV. He stated that the white SUV pulled up alongside him, and a black male with dreadlocks opened the rear passenger-side door. He exited the SUV, holding a gun, and told D.J.," [Y]ou better not run." But, fearing for his safety, D.J. did run. Moments later, he was shot in the back. D.J. suffered shotgun pellet wounds to the upper back and left ear.

         ¶6 City of Milwaukee police officers investigated shots fired in the area. Officer Joseph Goggins spotted a white Mercury Mountaineer, turned on his emergency lights and siren, and pursued the suspect SUV. The SUV sped up, forcing a pursuit for 22 blocks. It finally stopped, but the two suspects then fled on foot. Donavinn Coffee and Antonio Hazelwood were eventually detained. Coffee later admitted he was the gunman.

         II. PROCEDURAL POSTURE

         ¶7 On November 15, 2015, the State filed a criminal complaint against Coffee and Hazelwood, charging them each with three counts-armed robbery, attempted armed robbery, and first-degree recklessly endangering safety, all as a party to a crime. The State also charged Hazelwood with a fourth count of fleeing or eluding an officer.

         ¶8 On June 6, 2016, Coffee pled guilty to all three counts against him. Pursuant to the plea agreement, the State would recommend "a substantial prison sentence." On June 23, 2016, the circuit court held a sentencing hearing. What unfolded at the sentencing hearing is crucial to Coffee's appeal. At the hearing, the prosecutor recommended "substantial" prison time. During his statement to the circuit court, the prosecutor discussed Coffee's record. He stated:

[Coffee] does have two prior convictions. There was a 2014 misdemeanor case. It came in as a criminal damage to property, disorderly conduct and contact after domestic abuse arrest.
The conviction was for the contact after the domestic abuse arrest. He pled guilty on that July 1, 2014. Judge Flanagan sentenced him to probation. He also has a conviction in January of 2013 for carrying a concealed weapon. In that case, he received probation as well.
There were two cases that were no process by my office, October 2014, there was a misdemeanor battery. What's alarming from the State's [perspective] because of the nature of this offense that's in front of the Court is that December 2011 there was an armed robbery case that was sent to my office. That was a no process.
So what the defendant has shown here with his past criminal conduct, not only is there a weapon's related offense, but there was something that triggered a law enforcement investigation and reviewed by my office for offenses by a title similar in nature to this.

(Emphasis added.)

         ¶9 The State told the circuit court that Coffee had a prior arrest for armed robbery. That was inaccurate. He was not arrested for armed robbery, but rather for suspicion of strong-arm robbery and then released. The State concedes that Coffee was never arrested for armed robbery in December 2011. The State never filed any charges against Coffee for strong-arm robbery in December 2011.[3] Thus, the State introduced inaccurate information at the sentencing hearing.

         ¶10 Next, Coffee's counsel and Coffee each made a statement. Consistent with the plea agreement, each acknowledged that prison time was merited in this case. Then the circuit court spoke. Importantly, the circuit court explicitly referenced a prior arrest for armed robbery. The circuit court said to Coffee:

So [the prosecutor] there says you had a couple of police contacts. No charges but one of them was an armed robbery. Then you had these domestic violence situations. So then you were kind of becoming acquainted with the criminal justice system.
Any reason why those contacts were not enough to get you to kind of think about your associations and your choices that you were making out there?

(Emphasis added.) And later the circuit court stated:

So you have got some misdemeanor cases; one successful probation, one unsuccessful probation. You have got a couple of police contacts; one significant concern because it sounds like it was an armed robbery which is what these offenses are.
So you basically are engaging in behavior that is kind of getting more serious. Domestic violence by itself is natured as assaultive behavior, meaning violence against another human being.
But these other things are violence and property crimes, and I don't know what else to call it. So that pattern of your behavior or undesirable behavior is escalating.

(Emphasis added.)

         ¶11 Thus, the circuit court relied on the inaccurate information-a prior arrest for armed robbery-at the sentencing hearing. But the circuit court also discussed other relevant information at the hearing. Indeed, the circuit court began its sentencing remarks by stating, "My responsibility in imposing a sentence is to look at the gravity of the offense. I look at your character, offenses, plural, look at the need to protect the public." The circuit court then went on to discuss the significant harm to the victims in this case, the increasing gun violence problem in Milwaukee, Coffee's criminal intent, the harm to Coffee's family (including his young son), Coffee's education and work history, and the need to protect the public. We describe the circuit court's discussion of each of these factors in more detail below.

         ¶12 The circuit court then took a brief recess to deliberate over the proper sentence for Coffee. After the recess, the circuit court noted that both parties agreed that prison time was appropriate in this case. "Nobody has requested probation in this case because it isn't a probation case. These are really serious offenses. There's been substantial harm to the victims." The circuit court added that it imposed consecutive sentences for each count to "underscore" that each count was a serious offense. The circuit court then pronounced a sentence of four years of initial confinement and three years of extended supervision each for the armed robbery and attempted armed robbery counts. For the first-degree reckless endangerment count, the circuit court imposed five years of initial confinement and three years of extended supervision. Thus, Coffee was sentenced to 13 years of initial confinement and nine years of extended supervision.

         ¶13 On August 7, 2017, Coffee filed a motion for postconviction relief. Coffee argued that he must be resentenced because the State introduced inaccurate information at sentencing, the circuit court actually relied on it, and the error was not harmless. Specifically, Coffee argued that his Criminal Information Bureau ("CIB") report did not show any arrests in December 2011. The State filed a response brief, to which it appended a Milwaukee Police Department Incident Report from December 27, 2011. According to that report, Coffee and another person were arrested for suspicion of strong-arm robbery. The State provided no explanation as to why the December 2011 arrest was not included in Coffee's CIB report.

         ¶14 On October 31, 2017, the postconviction court issued a decision and order denying Coffee's motion for postconviction relief. The postconviction court took issue with the State's use of the incident report because it described an arrest for strong-arm robbery, not armed robbery, "and more significantly, [Coffee] apparently was not involved in the offense." Ultimately, the postconviction court concluded that it had considered the December 2011 arrest at the sentencing hearing, but the error was harmless.

Although the court considered the December 2011 incident during its sentencing decision, the court focused primarily on the defendant's conduct in this case, his contribution to the prevalence of gun violence that is threatening the fabric of our community, the impact of his crimes upon the victims and the greater community, his background and rehabilitative needs, and the need to protect the public. Even without information about the December 2011 police contact, the fact that the defendant used a weapon in the commission of the offenses in this case and that he shot one of his victims would have led the court to the same conclusion that he was "engaging in behavior that is getting more serious" and that his "pattern ... of undesirable behavior is escalating." . . . Consequently, to the extent that the court relied upon the December 2011 incident at the sentencing hearing, the error was harmless because it did not materially affect the court's sentencing decision in this case.

         ¶15 Coffee appealed. He again argued that his due process right to be sentenced based on accurate information was violated, and the error was not harmless. In response, the State argued for the first time that Coffee had forfeited his inaccurate information at sentencing claim because he failed to object at the sentencing hearing. The court of appeals agreed. On November 6, 2018, the court of appeals concluded that Coffee had forfeited his claim because he "had numerous chances to object to the 2011 arrest information during the sentencing hearing and failed to do so." Coffee, No. 2017AP2292-CR, unpublished slip op., ¶12.

         ¶16 On December 4, 2018, Coffee petitioned this court for review. We granted the petition.

         III. STANDARD OF REVIEW

         ¶17 We are asked to decide whether Coffee forfeited his inaccurate information at sentencing claim and, if not, whether the error was harmless. Whether a claim is forfeited or adequately preserved for appeal is a question of law this court reviews de novo. State v. Corey J.G., 215 Wis.2d 395, 405, 572 N.W.2d 845 (1998). Whether a defendant has been sentenced in violation of his due process rights, and whether that error is harmless are questions of law this court reviews de novo. Tiepelman, 291 Wis.2d 179, ¶9; State v. Travis, 2013 WI 38, ¶20, 347 Wis.2d 142, 832 N.W.2d 491.

         IV. ANALYSIS

         A. Forfeiture Generally

         ¶18 The State argues that Coffee forfeited his inaccurate information at sentencing claim because he failed to object at the sentencing hearing. Coffee argues that the forfeiture rule does not, and should not, apply to inaccurate information at sentencing claims because applying the forfeiture rule would not promote the fair and orderly administration of justice. Before we analyze the issue, a summary of the forfeiture rule, its purpose, and its effect is helpful.

         ¶19 Forfeiture is the failure to timely assert a right. State v. Ndina, 2009 WI 21, ¶29, 315 Wis.2d 653, 761 N.W.2d 612. Under the forfeiture rule, a defendant may forfeit a right if the defendant fails to object at the time the right is violated. Id., ¶30. The forfeiture rule fosters the fair, efficient, and orderly administration of justice.

The purpose of the "forfeiture" rule is to enable the circuit court to avoid or correct any error with minimal disruption of the judicial process, eliminating the need for appeal. The forfeiture rule also gives both parties and the circuit court notice of the issue and a fair opportunity to address the objection; encourages attorneys to diligently prepare for and conduct trials; and prevents attorneys from "sandbagging" opposing counsel by failing to object to an error for strategic reasons and later claiming that the error is grounds for reversal.

Id. (footnotes omitted); see also State v. Pinno, 2014 WI 74, ¶56, 356 Wis.2d 106, 850 N.W.2d 207; State v. Huebner, 2000 WI 59, ¶11, 235 Wis.2d 486, 611 N.W.2d 727.

         ¶20 Some rights are so fundamental that they are not subject to the forfeiture rule. Ndina, 315 Wis.2d 653, ¶31. For example, the right to counsel, the right to refrain from self-incrimination, and the right to a jury trial are not subject to forfeiture. Huebner, 235 Wis.2d 486, ¶14. Rather, those fundamental constitutional rights generally must be waived.[4]Id. But see State v. Suriano, 2017 WI 42, ...


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