State v. Carrie E. Counihan, 938 N.W.2d 530

Background

Counihan pleaded no contest to five misdemeanor thefts (Door County Humane Society) under a plea recommending withheld sentence, up to 3 years probation, restitution, fines, and 60 days conditional jail.
At sentencing the judge stated he had reviewed seven Door County case files of similar thefts to gauge the county's institutional sentencing "memory," then described those cases and their jail terms.
The judge rejected the joint recommendation and imposed concurrent nine-month jail terms, no probation, and restitution/fines; Counihan did not object at the hearing.
Counihan moved for postconviction relief claiming (1) due process violation because the court cited previously unknown case files without notice, and (2) ineffective assistance for counsels failure to object or seek an adjournment; a Machner hearing followed.
The court of appeals found forfeiture for lack of a sentencing objection and affirmed; the Wisconsin Supreme Court modified the court of appeals: it held no forfeiture for challenges to information first raised by the court at sentencing, but on the merits found no due process violation and affirmed as modified.

Issues

Issue	Plaintiff's Argument (State)	Defendant's Argument (Counihan)	Held
Whether failure to object at sentencing forfeits a direct challenge to information the court first discloses at sentencing	Forfeiture applies; failing to object at sentencing waives appellate review	Forfeiture should not apply when the court first raises previously unknown information because defense lacked opportunity to investigate or rebut	No forfeiture: when the court first raises previously unknown info at sentencing, a defendant may bring a direct postconviction challenge (filed here)
Whether the judge's review of county case files (without prior notice) violated due process by depriving Counihan of the right to rebut sentencing information	Permissible: sentencing courts may consider distribution of sentences in similar cases; judge sought institutional memory to ensure consistency	Violation: use of previously unknown case files denied Counihan notice and opportunity to rebut, requiring resentencing	No due process violation: judges may broadly consider information and may consult similar-case files; here judge made individualized findings and did not rely improperly on unverified investigative facts
Whether counsel was ineffective for not objecting / seeking adjournment to inspect the files	Counsels omission forfeited direct review; alternatively, counsel was not ineffective because objection would be meritless	Counsel was ineffective for failing to object or seek time to investigate the other files, causing prejudice at sentencing	Court declined to reach prejudice (no due process violation); concurrence would resolve by Machner standard and found counsels strategy reasonable (no deficient performance)

Key Cases Cited

State v. Gallion, 270 Wis. 2d 535 (2004) (trial court must state sentencing objectives and may consider distribution of sentences in similar cases)
State v. Ndina, 315 Wis. 2d 653 (2009) (distinguishes forfeiture from waiver; explains forfeiture doctrine and purposes)
State v. Tiepelman, 291 Wis. 2d 179 (2006) (defendant has right to rebut sentencing information; challenges to sentencing info commonly raised via postconviction motion)
Handel v. State, 74 Wis. 2d 699 (1976) (sentencing inquiry may be broad in scope and source)
In re Judicial Disciplinary Proceedings Against Piontek, 386 Wis. 2d 703 (2019) (improper for judge to rely on independent internet investigation without notice and opportunity to respond)
State v. Grady, 302 Wis. 2d 80 (2007) (postconviction motion is a timely means to raise sentencing errors)
State v. Erickson, 227 Wis. 2d 758 (1999) (issues not objected to at trial are typically reviewed via ineffective assistance of counsel framework)
State v. Loomis, 371 Wis. 2d 235 (2016) (discusses due process concerns where sentencing relies on group data rather than individualized determinations)