State of Wisconsin, Plaintiff-Respondent, v. Carrie E. Counihan, Defendant-Appellant-Petitioner.
Case No.: 2017AP2265-CR
Supreme Court of Wisconsin
February 13, 2020
2020 WI 12
L.C. No. 2015CF41. REVIEW OF DECISION OF THE COURT OF APPEALS. 385 Wis. 2d 211, 923 N.W.2d 180 - Unpublished. Oral Argument: October 21, 2019. Source of Appeal: Circuit Court, Door County, David L. Weber, Judge.
For the plaintiff-respondent, there was a brief filed by Courtney K. Lanz, assistant attorney general, with whom on the brief was Joshua L. Kaul attorney general there was an oral argument by Courtney K. Lanz.
For the defendant-appellant-petitioner, there were briefs filed by Ana L. Babcock and Babcock Law, LLC, Green Bay. There was an oral argument by Ana L. Babcock.
This opinion is subject to further editing and modification. The final version will appear in the bound volume of the official reports.
STATE OF WISCONSIN : IN SUPREME COURT
FILED FEB 13, 2020
Sheila T. Reiff, Clerk of Supreme Court
ANN WALSH BRADLEY, J. delivered the majority opinion of the Court, in which ROGGENSACK, C.J., ZIEGLER, DALLET, and HAGEDORN, JJ., joined, and REBECCA GRASSL BRADLEY and KELLY, JJ., joined with respect to ¶¶39-51. REBECCA GRASSL BRADLEY, J., filed a concurring opinion, in which KELLY, J., joined.
REVIEW of a decision of the Court of Appeals. Modified, and as modified, affirmed.
¶1 ANN WALSH BRADLEY, J. The petitioner, Carrie E. Counihan, seeks review of an unpublished, authored decision of the court of appeals affirming her judgment of conviction and the
¶2 Specifically, she argues that the circuit court denied her due process at sentencing by failing to provide her with notice that it would consider previously unknown information first raised by the circuit court at sentencing. Further, Counihan contends that her trial counsel was ineffective for failing to object to the consideration of such information and for failing to seek an adjournment to allow time to investigate and review the information on which the circuit court relied.
¶3 In response, the State asserts that Counihan forfeited her direct challenge to the previously unknown information considered at sentencing because she failed to object at the sentencing hearing. It further contends that Counihan‘s trial counsel was not ineffective for failing to object or seek an adjournment.
¶4 We conclude that where previously unknown information is raised by the circuit court at the sentencing hearing, a defendant does not forfeit a direct challenge to the use of the information
¶5 Further, we conclude that Counihan‘s due process rights were not violated by the circuit court‘s use of the previously unknown information regarding similarly situated defendants. Because there was no due process violation, we need not address Counihan‘s alternative argument that her counsel provided ineffective assistance at sentencing.
¶6 Accordingly, we modify the decision of the court of appeals, and as modified, affirm.
I
¶7 As part of a plea agreement, Counihan pleaded no contest to five misdemeanor counts of theft in a business setting.2 The charges stemmed from allegations that, while Counihan was the executive director of the Door County Humane Society, she used an organizational credit card to pay personal expenses totaling over $22,000.
¶8 Pursuant to the plea agreement, the parties jointly recommended that the circuit court withhold sentence and place Counihan on probation for up to three years, which could end any time after two years if all other conditions of probation were fulfilled. The joint recommendation also included conditions that Counihan pay restitution along with fines and costs, pen a written apology to the Humane Society, and serve 60 days of conditional
¶9 After hearing from both parties and several witnesses at the sentencing hearing, the circuit court began its sentencing remarks by explaining its methodology in determining the appropriate sentence. The circuit court explained that it had read the file in detail, including the criminal complaint, information and police report. It further indicated that it had read all victim impact statements, as well as several other letters that the court had received and some credit card entries submitted by defense counsel.
¶10 Most relevant to the issue we are examining in this appeal, the circuit court also indicated that as part of its sentencing methodology it had reviewed the sentences imposed in other similar cases within the county. Specifically, the circuit court stated, “Perhaps most significantly, I pulled all files that we could find in Door County where somebody has pled to theft in a business-type setting. There were about six or seven of them that we could find, and I have reviewed those files in detail.”
¶11 The circuit court provided for the record the seven case numbers of the cases it reviewed and stated that “[s]ome of the themes and dynamics of these cases were very interesting to me.” It subsequently described the facts of these cases and the sentences imposed as follows:
The amount stolen in these cases ranged over just several thousand dollars to as much as $300,000. Every one of the defendants in these cases, except one, spent time in jail. Every single one of them. The one person that
did not spend time in jail paid all of the money back before sentencing. It did not involve a public entity, it was a private association. The jail time for the others ranged from 15 days in jail to up to a year in jail. Several people spent a year in jail. Several spent six months. Every single one of those defendant[s] was placed on probation; in other words, the sentence was actually withheld and the jail was placed on them as a condition of probation.
After discussing the jail and probation ordered in the other cases, the circuit court also observed that in the other cases “[a]ll were ordered to pay fines and restitution. Every single one of them.”
¶12 Continuing in its remarks, the circuit court found one of the other cases particularly analogous to Counihan‘s case. It emphasized, however, that every case is different.
Now, this case here is most like a case where a woman stole approximately $30,000 from a local business, was not a charity, and stole the money over many months. And that particular woman spent 11 months in jail and was ordered to pay full restitution.
Now, this Court realizes——this Court, this person, this attorney practiced law for many years, 30 years, and I certainly understand that every single case is different. Every case has a nuance. So these prior cases, these other cases in Door County, have provided this Court guidance, but I am not relying solely on these other cases.
¶13 With respect to the facts of this case, the circuit court observed that Counihan was in a position of trust, and that she committed the thefts over the course of many years. It further noted the effect Counihan‘s crimes had on the Humane Society and on nonprofit organizations in general: “to the extent that donors will be less likely to donate money for fear that their money will
¶14 Prior to formally pronouncing the sentence, the circuit court asked Counihan if she knew “any reason why sentence should not be pronounced . . . .” Counihan responded, “No, Your Honor.”
¶15 Subsequently, the circuit court rejected the parties’ joint recommendation and sentenced Counihan to nine months in jail on each count, to be served concurrently. It found such a sentence to be consistent with the sentences ordered in the similar cases in the county it had considered: “All other cases, except one, received jail time, and I don‘t see any reason why you shouldn‘t serve jail time.”
¶16 Probation was not ordered because in the circuit court‘s view, “probation would unduly depreciate the seriousness of the offenses here.” The circuit court further ordered Counihan to pay restitution, fines and court costs. After the sentence had been handed down and before concluding proceedings, the circuit court asked if either Counihan or the State had “anything further” to discuss, and each responded in the negative.
¶17 Counihan moved for postconviction relief.3 As relevant here, she argued that her counsel was ineffective at sentencing
¶18 Following a Machner5 hearing, the circuit court denied Counihan‘s postconviction motion. As relevant here, it determined that Counihan‘s counsel at sentencing was not ineffective, reasoning that “his tactical decision not to object or ask for a recess or to try to make distinguishing arguments from those cases” did not fall “below an objective standard of care . . . .” Further, the circuit court found that even if the attorney‘s representation was deficient, “I don‘t find that it would have changed anything.”
¶19 In denying Counihan‘s motion, the circuit court reiterated that it did not rely solely on the other Door County cases: “I came to a conclusion independently of any of these cases, but I wanted to use the cases to make sure they supported what I was going to do.” The circuit court further commented on the propriety of seeking out similar cases from the county, stating:
[W]hen I sentenced Miss Counihan I had been on the bench for about three or four months at that
time. . . . [W]hat my goal was in conducting this inquiry into other cases was to determine what the institutional memory of this Court was, because I didn‘t have it myself. I felt like if I had been a judge for twenty years, of course I would have fallen back on my memory of what I had done in other cases. I probably wouldn‘t need to look at other cases literally. I would look at them in my mind. And I think judges do that all the time. They can‘t erase their memories. But I didn‘t have that memory, so it felt, in my opinion, to me that I had the responsibility——I had the responsibility not only to Miss Counihan, but to the community, to determine what had been done in other cases.
And I didn‘t do so in order to get a litmus test or a necessarily a recipe that I could come up with a sentence for Miss Counihan. I felt like I want to know if what I was going to do with Miss Counihan, what I was going to sentence her to, was consistent with what had been done in the past.
¶20 Counihan appealed, asserting that the circuit court‘s reliance on past case files without providing notice violated her due process rights. In the alternative, she maintained her claim that her counsel at sentencing was ineffective for failing to object or request an adjournment for the purpose of investigating the circuit court‘s cited cases.
¶21 The court of appeals rejected Counihan‘s arguments and affirmed the circuit court. It determined first that Counihan forfeited her due process argument because she did not object to the use of the similar Door County cases at the sentencing hearing. State v. Counihan, No. 2017AP2265-CR, unpublished slip op., ¶10 (Wis. Ct. App. Nov. 6, 2018). Accordingly, the court of appeals did not address the merits of Counihan‘s claim that the use of
¶22 Second, the court of appeals concluded that Counihan failed to demonstrate ineffective assistance of counsel because she did not establish that she was prejudiced by any allegedly deficient performance. Id., ¶13. Specifically, the court of appeals determined that “Counihan cannot show that but for her attorney‘s alleged error, there is a reasonable probability that her sentence would have been different.” Id., ¶14. It reached this conclusion because in its view “[t]he record supports the circuit court‘s finding at the postconviction hearing that if the Door County cases played any role in her sentence, the role was minimal.” Id.
II
¶23 We are called upon to determine whether Counihan forfeited her direct challenge to the use of previously unknown information raised by the circuit court at sentencing. If Counihan did not forfeit this direct challenge, then we must address the merits of her argument that the circuit court violated her right to due process. These issues present questions of law that we review independently of the determinations rendered by the circuit court and court of appeals. See State v. Corey J.G., 215 Wis. 2d 395, 405, 572 N.W.2d 845 (1998); State v. Loomis, 2016 WI 68, ¶29, 371 Wis. 2d 235, 881 N.W.2d 749.
III
¶24 We begin by addressing whether Counihan forfeited her direct due process challenge to the circuit court‘s use of
¶25 Forfeiture is the failure to make the timely assertion of a right.6 State v. Ndina, 2009 WI 21, ¶29, 315 Wis. 2d 653, 761 N.W.2d 612 (quoting United States v. Olano, 507 U.S. 725, 733 (1993)). Some rights are forfeited when they are not claimed at trial, and a mere failure to object constitutes forfeiture of the right on appellate review. Id., ¶30.
¶26 The purpose of the forfeiture rule is to enable the circuit court to avoid or correct any error as it comes up, with minimal disruption of the judicial process and maximum efficiency. Id.; see Townsend v. Massey (In re Guardianship of Willa L.), 2011 WI App 160, ¶26, 338 Wis. 2d 114, 808 N.W.2d 155. Such a practice encourages timely objections and obviates the need for appeal. State v. Erickson, 227 Wis. 2d 758, 766, 596 N.W.2d 749 (1999); State v. Huebner, 2000 WI 59, ¶12, 235 Wis. 2d 486, 611 N.W.2d 727.
¶27 Further, the forfeiture rule gives the parties and the circuit court notice of an issue and a fair opportunity to address the objection. Ndina, 315 Wis. 2d 653, ¶30. It additionally
¶28 Generally, if a claim is forfeited, we address that claim in the context of ineffective assistance of counsel. See Erickson, 227 Wis. 2d at 766. That is, the defendant must demonstrate that counsel‘s failure to object constituted deficient performance and that such deficient performance prejudiced the defendant. State v. Maloney, 2005 WI 74, ¶14, 281 Wis. 2d 595, 698 N.W.2d 583 (citing Strickland v. Washington, 466 U.S. 668, 687 (1984)).
¶29 The court of appeals here determined that Counihan forfeited her challenge to the circuit court‘s use of the analogous Door County cases when she failed to object at the sentencing hearing. Counihan, No. 2017AP2265-CR, unpublished slip op., ¶10. It further refused to ignore the forfeiture, thereby declining to address the underlying merits of the issue. Id.
¶30 Counihan contends that the court of appeals erred by applying the forfeiture rule to her claim. In Counihan‘s view, the forfeiture rule should not apply to information first disclosed during the sentencing hearing because such an application undermines the values the forfeiture rule intends to protect.
¶32 Applying forfeiture under such circumstances would not promote judicial efficiency, but instead would actually hinder it. Rather than forfeit an issue, defendants would likely seek adjournments for purposes of investigation, thus delaying sentencing hearings. Such a practice would run counter to the stated purposes of the forfeiture rule of maximizing the efficiency of the judicial process. See Ndina, 315 Wis. 2d 653, ¶30.
¶33 Contrary to the State‘s argument, Counihan‘s negative response when the circuit court asked her if she knew “any reason why sentence should not be pronounced” prior to setting forth the sentence does not indicate that forfeiture should be applied. Likewise, the circuit court perfunctorily asking if either Counihan or the State had “anything further” to discuss before the close of the hearing has no effect on the outcome. Although Counihan could have spoken up at either of these points, and it is certainly the best practice to do so, it does not behoove the
¶34 The State points us to several cases to support the broad proposition that defendants can incur forfeiture by failing to object at sentencing. Yet, none of these cases deals with the specific circumstances we review here——where information was first raised by the court in its sentencing remarks. The present situation is different from a breach of a plea agreement,7 a claim of inaccurate information in a report introduced by defense counsel8 or in a presentence investigation report,9 or the consideration of behavior underlying expunged convictions.10
¶35 Unlike the claim at issue here, the aforementioned claims involve information to which a defendant would have access and the ability to investigate prior to the sentencing hearing. However, when the circuit court first raises information during its sentencing remarks, a defendant has been deprived of the opportunity to investigate and defense counsel must act on the basis of incomplete information. This weighs against the
¶36 Our refusal to apply forfeiture in the circumstances presented is consistent with this court‘s precedent. Specifically, in State v. Grady, we stated that the defendant “did not waive the issues presented because he filed a postconviction motion pursuant to
¶37 Accordingly, we conclude that where previously unknown information is raised by the circuit court at the sentencing hearing, a defendant does not forfeit a direct challenge to the use of the information by failing to object at the sentencing hearing. Under the facts of this case, Counihan appropriately raised the alleged error in a postconviction motion. Because the
IV
¶38 Because Counihan did not forfeit her direct due process challenge to the use of previously unknown information at sentencing, we next address the merits of that claim.
¶39 As part of the constitutional due process guarantee that a defendant be sentenced on reliable information, the defendant has the right to rebut evidence that is admitted by a sentencing court. State v. Spears, 227 Wis. 2d 495, 508, 596 N.W.2d 375 (1999). “Obviously, if sentencing information is kept from the defendant, [the defendant] cannot exercise this right.” State v. Lynch, 2006 WI App 231, ¶24, 297 Wis. 2d 51, 724 N.W.2d 656.
¶40 Circuit courts are required to set forth on the record the reasons for sentences they impose. Gallion, 270 Wis. 2d 535, ¶¶38-39. This includes explanation of the objectives of the sentence, which may be, without limitation, the protection of the community, punishment of the defendant, rehabilitation of the defendant, and deterrence to others. Id., ¶¶40-41. The facts relevant to these objectives and an explanation of why the particular component parts of the sentence imposed advance the specified objectives must also be set forth on the record. Id., ¶42.
¶41 “Courts must also identify the factors that were considered in arriving at the sentence and indicate how those
¶42 Counihan contends that the circuit court‘s consideration of the sentences given in similar cases without providing her with notice that it would do so violates her due process right to rebut information presented at sentencing. She asserts that she is entitled to resentencing because she was not given the opportunity
¶43 We disagree with Counihan‘s argument. “[I]n sentencing, a trial judge may appropriately conduct an inquiry broad in scope and largely unlimited either as to the kind of information considered or the source from which it comes.” Handel v. State, 74 Wis. 2d 699, 703, 247 N.W.2d 711 (1976). Consistent with this mandate in Handel, we expressly stated in Gallion that circuit courts “may . . . consider information about the distribution of sentences in cases similar to the case before it.” Gallion, 270 Wis. 2d 535, ¶47.
¶44 Such a practice is congruent with the general policy that “consistency in criminal sentencing is desirable . . . .” In re Felony Sentencing Guidelines, 120 Wis. 2d 198, 203, 353 N.W.2d 793 (1984) (per curiam). Indeed, the court‘s statement in Gallion does not limit the circuit court to considering only “the distribution of sentences in cases similar to the case before it” that are within its unassisted recollection. See Gallion, 270 Wis. 2d 535, ¶47.
¶45 The circuit court‘s actions in this case are fundamentally different from those in In re Judicial Disciplinary Proceedings Against Piontek, 2019 WI 51, 386 Wis. 2d 703, 927 N.W.2d 552, to which Counihan attempts to draw a parallel. As relevant here, in Piontek, the circuit court conducted its own
¶46 Without providing notice to the parties or their attorneys, the circuit court brought up its independent investigation at the sentencing hearing. Id., ¶¶17-18. In fashioning the sentence, the circuit court relied on the incorrect information it had obtained from its internet research. Id., ¶18. Imposing judicial discipline, this court stated that “it is clearly improper for a judge to both conduct an independent investigation and to fail to give a party a chance to respond to the judge‘s misinformed allegations based on that investigation.” Id., ¶37.
¶47 The circuit court‘s “investigation” in this case was of a completely different nature. Unlike in Piontek, the circuit court here did not investigate facts or gather evidence related to Counihan‘s case. Instead, it merely conducted a file review to “determine what the institutional memory of [the] Court was” due to its relative inexperience.
¶48 We are loath to adopt a rule that would prevent a circuit court from accessing its institutional memory, thereby requiring it to view each exercise of its discretion in a vacuum. Such a rule would run counter to the consistency in criminal sentencing that we have previously stated is “desirable.” Felony Sentencing,
¶49 Further, the failure to provide notice of the cases considered likewise does not violate due process. When a circuit court accesses its institutional memory without the aid of written material, it is not required to inform the parties of all past cases that came to mind. The use of hard copy files does not occasion a different rule.
¶50 Nothing in this record indicates that Counihan did not receive the individualized sentence to which she is entitled. See Gallion, 270 Wis. 2d 535, ¶48 (“Individualized sentencing, after all, has long been a cornerstone to Wisconsin‘s criminal justice jurisprudence.“); Loomis, 371 Wis. 2d 235, ¶¶67-68, 74 (recognizing the due process implications of sentences based on group data rather than individualized determinations). On the
¶51 Accordingly, we conclude that Counihan‘s due process rights were not violated by the circuit court‘s use of the previously unknown information regarding similarly situated defendants.15
V
¶52 In sum, we conclude that where previously unknown information is raised by the circuit court at the sentencing hearing, a defendant does not forfeit a direct challenge to the use of the information by failing to object at the sentencing hearing. Under the facts of this case, Counihan appropriately raised the alleged error in a postconviction motion.
¶54 Accordingly, we modify the decision of the court of appeals, and as modified, affirm.
By the Court.—The decision of the court of appeals is modified, and as modified, affirmed.
¶56 Because Counihan‘s counsel did not object during the sentencing hearing, this case should have been resolved under the rubric of ineffective assistance of counsel. See State v. Erickson, 227 Wis. 2d 758, 766-68, 596 N.W.2d 749 (1999) (explaining that when defense counsel fails to object in criminal cases, appellate courts typically “analyze the waiver within the ineffective assistance of counsel framework.“). During the Machner hearing,1 Counihan‘s counsel expressed a reasonable, strategic basis for not objecting to the sentencing court‘s consideration of sentences in former cases in fashioning Counihan‘s sentence. The assistance counsel provided to Counihan was not ineffective. That should suffice to end the analysis and defeat Counihan‘s claims. Instead, the majority disregards the ineffective assistance of counsel rubric in order to address the issues of forfeiture and due process. Because the majority‘s due process analysis is correct, I join it. In choosing to reach the
I. INEFFECTIVE ASSISTANCE OF COUNSEL
¶57 When a defendant bases her appeal on trial counsel‘s failure to object, we review the case under the ineffective assistance of counsel rubric. “The absence of any objection warrants that we follow ‘the normal procedure in criminal cases,’ which is to address the alleged forfeiture ‘within the rubric of the ineffective assistance of counsel.‘” State v. Carprue, 2004 WI 111, ¶¶36-47, 274 Wis. 2d 656, 683 N.W.2d 31 (quoted and cited sources omitted); see also Kimmelman v. Morrison, 477 U.S. 365, 374-75 (1986) (in absence of objection, error should be analyzed under ineffective assistance of counsel standards, even when error is of constitutional dimension). Reviewing the Machner2 hearing
¶58 During the Machner hearing, Counihan‘s defense lawyer repeatedly explained why he did not object to the sentencing court‘s reference to similar cases in arriving at Counihan‘s sentence: “I can‘t say it was so out-of-the-box as to be concerning to -- concerning to me overall. Judges do that all the time about what -- what they think the going rate is for something or what the guidelines are for a particular offense in the county.” In fact, defense counsel perceived the circuit court‘s consideration of this information as favorable for his client: “I thought it was . . . kind of thoughtful that [the judge] was being so measured.” Defense counsel believed examination of prior cases would likely prevent the circuit court from imposing too high a sentence in response to strong community anger over the defendant‘s crime: “[T]hat sort of research to figure out if there has been a case like that in the past, I can see where the judge would be interested to know -- to know to make sure that he‘s not punishing -- overpunishing, despite the fact there‘s so many angry people here.” When asked if he thought it would have been helpful for him to review the prior cases the sentencing court referenced, Counihan‘s trial lawyer said: “If there was a benefit it would have been tremendously minimal” because Counihan‘s actions were more aggravated than the conduct of similarly-charged defendants in other cases. When asked whether his strategy was to avoid repeatedly objecting during sentencing because he thought repeated objections would “cause more harm” to his client‘s case, Counihan‘s
¶59 Because there was nothing objectionable about the circuit court‘s consideration of sentences imposed in prior cases, Counihan‘s counsel did not provide ineffective assistance. Even if an argument could be made that defense counsel should have objected, his testimony at the Machner hearing disclosed ample strategic reasons why he chose not to. Instead of deciding the case on these well-established grounds, the majority allowed Counihan to present a substantive issue, thereby opening the door for defendants to dodge the previously prevailing ineffective assistance of counsel rubric on appeal, a tougher hurdle to overcome than a review on the merits.3 The majority‘s new procedure allows defendants to do an end run around ineffective assistance
II. FORFEITURE
¶60 Because the majority chose to focus on forfeiture in deciding this case, an overview of the application of this doctrine in Wisconsin merits discussion. Forfeiture results from a defendant‘s failure to timely assert her rights. State v. Ndina, 2009 WI 21, ¶29, 315 Wis. 2d 653, 761 N.W.2d 612 (citation omitted); majority op., ¶25. Forfeiture has long been engrained in procedural law. See Yakus v. United States, 321 U.S. 414, 444 (1944) (“No procedural principle is more familiar . . . than that a constitutional right may be forfeited in criminal as well as civil cases by the failure to make timely assertion of the right before a tribunal having jurisdiction to determine it.” (citations omitted)); see also Clements v. Macheboeuf, 92 U.S. 418, 425 (1875) (“Matters not assigned for error will not be examined[.]“). “The rule preventing an appellate court from considering an issue not
¶61 “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.” Ndina, 315 Wis. 2d 653, ¶30 (emphasis added; footnote omitted). Other “underlying justifications for the raise or lose rule are the adversarial process, judicial efficiency and finality, and respect for the differing roles of the trial and appellate courts.” Tory A. Weigand, Raise or Lose: Appellate Discretion and Principled Decision-Making, 17 Suffolk J. Trial & App. Advoc. 179, 183 (footnote omitted) (referring to forfeiture as the “raise or lose” rule). In State v. Huebner, this court expressed the “several important objectives” of the rule:
Raising issues at the trial court level allows the trial court to correct or avoid the alleged error in the first place, eliminating the need for appeal. It also gives both parties and the trial judge notice of the issue and a fair opportunity to address the objection. Furthermore, the . . . rule encourages attorneys to diligently prepare for and conduct trials. Finally, the rule prevents attorneys from “sandbagging” errors, or failing to object to an error for strategic reasons and later claiming that the error is grounds for reversal. For all of these reasons, the . . . rule is essential to the efficient and fair conduct of our adversary system of justice.
2000 WI 59, ¶12, 235 Wis. 2d 486, 611 N.W.2d 727 (internal citations omitted); see also Ndina, 315 Wis. 2d 653, ¶30. Huebner referenced these objectives while using the term “waiver,” but the
¶62 While the rationale underlying the forfeiture rule is clearly established, the application of the rule by our courts has been anything but discernable. In some cases, we apply the forfeiture rule when a party fails to timely object. See, e.g., State v. Pinno, 2014 WI 74, ¶¶2, 57, 66, 68, 356 Wis. 2d 106, 850 N.W.2d 207 (holding that two defendants who knew of a courtroom closure and failed to object forfeited the right to a public trial); Village of Trempealeau v. Mikrut, 2004 WI 79, ¶¶3, 8, 15, 27, 31, 273 Wis. 2d 76, 681 N.W.2d 190 (holding that the defendant forfeited an objection to the circuit court‘s competency by failing to object in the circuit court); Huebner, 235 Wis. 2d 486, ¶¶8, 10, 36 (concluding the defendant forfeited his right to a 12-person jury because he failed to object to the use of a 6-person jury at trial). In other cases, we forego applying forfeiture when a party fails to object, and instead reach the substantive merits. See, e.g., State v. Wilson, 2017 WI 63, ¶51 n.7, 376 Wis. 2d 92, 896 N.W.2d 682 (not applying forfeiture even though the defendant failed to object to a circuit court ruling, because the “important” issue on appeal was already briefed and argued); State v. McKellips, 2016 WI 51, ¶47, 369 Wis. 2d 437, 881 N.W.2d 258 (reaching the merits of whether a jury instruction was misleading even though the defendant forfeited the claim by failing to object); Ndina, 315 Wis. 2d 653, ¶38 (reaching the merits even though the defendant did not assert his public trial right and failed to object when the circuit court excluded family members from the courtroom because the State also forfeited an issue and the parties already briefed the underlying legal issues).
[An exception to the general rule of forfeiture] has never developed into a principled test, but has remained essentially a vehicle for reversal when the predilections of a majority of an appellate court are offended. . . . The other major weakness of [the exception] is its ad hoc nature. The [exception] has been formulated in terms of what a particular majority of an appellate court considers basic or fundamental. Such a test is unworkable when neither the [exception] itself nor the case law applying it develop a predictable, neutrally-applied standard.
Dilliplaine v. Lehigh Valley Trust Co., 322 A.2d 114, 116-17 (1974) (emphasis added; internal footnotes omitted).
Making adherence to the general rule [of raising issues in the trial court] a matter of discretion in the appellate court has resulted in the effective abolition of the general rule. The general rule has been replaced by a system in which the question . . . is decided solely on the basis of whether a majority of the court considers the new issue necessary to decide the case in accordance with their view of the relative equities of the parties. The only consistent feature of the current system is inconsistency. If courts are free to disregard the general rule whenever they wish to do so, in effect there is no general rule. The current situation is destructive of the adversary system, causes substantial harm to the interests that the general rule is designed to protect, and is an open invitation to the appellate judges to “do justice” on ad hoc rather than principled bases.
Martineau, supra ¶60, at 1061.
III. NEW FORFEITURE EXCEPTION IN SENTENCING
¶67 As the majority points out, this court previously decided that sentencing courts may consider the “distribution of sentences in cases similar to the case before it.” Majority op., ¶¶43-44 (quoting State v. Gallion, 2004 WI 42, ¶47, 270 Wis. 2d 535, 678 N.W.2d 197). That is precisely what the sentencing court did in this case. Nevertheless, the majority perceives a need to create a new rule: “where previously unknown information is raised by the circuit court at the sentencing hearing, a defendant does not forfeit a direct challenge to the use of the information by failing to object at the sentencing hearing.” Majority Op., ¶¶4, 37, 52.
¶68 Adopting the majority‘s new rule is unnecessary because, as the majority recognizes, accessing the circuit court‘s institutional memory is entirely permissible during sentencing. Furthermore, such information is not “unknown“; as defense counsel testified during the Machner hearing, sentencing courts “do that all the time.” If, as explained in Gallion, the sentencing court “may . . . consider information about the distribution of sentences in cases similar to the case before it[,]”6 then the sentencing court‘s consideration of such information in this case could not be objectionable. If there was no basis for Counihan to object to this information, then why is the majority deciding whether Counihan forfeited her challenge to the sentencing court‘s consideration of information we have long recognized to be a permissible factor in sentencing? The legal issues in this case are not novel at all, yet the majority nevertheless devises a new rule. Why?
IV. CONCLUSION
¶70 Our forfeiture jurisprudence suffers from inconsistency leading to unpredictability in applying the general rule, which has largely been swallowed by exceptions.7 In some cases, our appellate courts apply the general rule of forfeiture if a party fails to object in a proceeding below. In other cases, we ignore forfeiture, with scant explanation. Wisconsin‘s “discretionary conferring approach” to forfeiture renders it “very difficult to predict with any certainty when an issue will be deemed [forfeited] or not[.]” Weigand, supra ¶61, at 245. The bench and bar would benefit from clear guidance regarding when forfeiture will apply as well as identifiable bases for instead invoking one of its exceptions.