State v. Danny Robert Alexander, 858 N.W.2d 662

Background

Danny Alexander pled guilty to felony forgery for cashing forged checks while on extended supervision; the court ordered a presentence investigation (PSI).
Two statements Alexander made to his extended-supervision/probation agent were appended to the PSI; Alexander contends those statements were compelled under his supervision conditions.
At sentencing the court reviewed the PSI (including a victim impact statement by a U.S. Bank fraud investigator) and sentenced Alexander to three years initial confinement and three years extended supervision (concurrent to other time).
Alexander moved for resentencing claiming the circuit court relied on compelled, self-incriminating statements in the PSI; the circuit court denied the motion, finding the PSI and other materials already showed the "bigger picture."
The court of appeals reversed sua sponte on ineffective assistance of counsel and ordered resentencing; the Wisconsin Supreme Court granted review and reversed the court of appeals, affirming denial of resentencing.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether compelled statements appended to the PSI are an improper sentencing factor	Alexander: The compelled statements violated his Fifth Amendment right and the court actually relied on them at sentencing	State/Circuit Court: The court did not actually rely on Alexander's compelled statements; the PSI and victim statements already provided the same information	The court held compelled statements are an improper factor if relied on, but Alexander failed to prove actual reliance by clear and convincing evidence; no resentencing warranted
Whether the circuit court actually relied on the compelled statements in imposing sentence	Alexander: The sentencing transcript shows references tied to the appended statements and thus the court relied on them	State: The court's references trace to the victim impact statement and other PSI material, not Alexander's agent statements	Held: On review of the full transcript, the court did not give explicit attention to the compelled statements nor base the sentence on them
Whether counsel’s failure to object to the appended statements constituted ineffective assistance	Alexander: Counsel’s failure to object prejudiced him because inadmissible statements influenced sentencing	State: Even if counsel erred, Alexander cannot show prejudice because the court did not rely on the statements	Held: Because Alexander cannot show prejudice (no actual reliance), ineffective-assistance claim fails; no Machner hearing required here
Standard/remedy when sentencing includes allegedly improper information	Alexander: Misuse of compelled statements requires resentencing	State: If improper information did not actually affect the sentence, error is harmless	Held: Defendant bears burden to prove actual reliance by clear and convincing evidence; absent that showing, sentence stands

Key Cases Cited

State v. Harris (Landray M.), 326 Wis. 2d 685, 786 N.W.2d 409 (2010) (framework for determining whether court actually relied on improper factors at sentencing)
State v. Tiepelman, 291 Wis. 2d 179, 717 N.W.2d 1 (2006) (two-step test: inaccuracy and actual reliance; defendant bears burden)
McCleary v. State, 49 Wis. 2d 263, 182 N.W.2d 512 (1971) (proper sentencing factors and erroneous exercise of discretion)
Rock v. Arkansas, 483 U.S. 44 (1987) (Fifth Amendment privilege against compelled self-incrimination applies to defendants)
State v. Travis, 347 Wis. 2d 142, 832 N.W.2d 491 (2013) (actual reliance shown by explicit attention to inaccurate or improper information)
State v. Johnson, 273 Wis. 2d 626, 681 N.W.2d 901 (2004) (standards for ineffective-assistance review and mixed questions of law and fact)
State v. Machner, 92 Wis. 2d 797, 285 N.W.2d 905 (1979) (requirement and purpose of a Machner hearing when alleging ineffective assistance)