Submitted on Briefs: Oral Argument: October 21, 2019
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211, 923 N.W.2d 181 (2018 - unpublished)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.
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.
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.
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unpublished slip.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 judgment of
conviction and order denying Donavinn D. Coffee's
("Coffee") postconviction motion for
resentencing. 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.
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
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.
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.
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
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.
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.
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
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.
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. Thus, the State
introduced inaccurate information at the sentencing hearing.
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
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
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
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.
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.
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.
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
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
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.
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.,
On December 4, 2018, Coffee petitioned this court for review.
We granted the petition.
STANDARD OF REVIEW
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.
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
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
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.
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.Id. But see
State v. Suriano, 2017 WI 42, ...