Ineffective Assistance of Reconfinement Counsel: Duty to Correct Misleading DOC Summary

State v. Wayne P. Harris, 2012 wI App 79(recommended for publication); for Harris: Attorney Gary Grass; case activity

We know that “[a] defendant has a due process right to be sentenced based on accurate information.” See State v. Tiepelman, 2006 WI 66, ¶9, 291 Wis. 2d 179, 717 N.W.2d 1 But what happens when the sentencing court relies upon a DOC-prepared revocation summary that is “technically true but misleading” or that is “written in a way that that invite[s] the court to draw negative inferences”? The court of appeals says that defense counsel should object and present accurate information to place the “technically correct but misleading” DOC summary into context so that the court does not draw the wrong conclusions from it. State v. Harris, ¶ 11; see also ¶ 17.

Contrary to the State’s suggestion, our holding is not that in order to avoid being found ineffective, defense counsel must present 156 pages of documentation to a sentencing court. What we are saying is that the summary in this case was skewed so negatively that the inaccurate unfavorable conclusions drawn by the court were foreseeable. Because of that, it was Harris’s counsel’s responsibility to present objective evidence to counter the summary’s negativity. As we noted before, the summary was technically true, but misleading. It is counsel’s duty to investigate and correct misleading histories when the client has so claimed. This is especially so when it is a DOC summary, a document heavily relied upon by our trial courts. ¶ 23.

“Technically true but misleading” . . . what does that remind you of? Statistics? Campaign speech? Advertisements? Something else? Don’t let your mind wander too far because this decision–a very nice victory for the defense–deserves your attention.

According to the court of appeals, Harris’s motion alleged facts which, if proven would entitle him to resentencing based on counsel’s failure to counter an inaccurate characterization before the reconfinement court. It thus reversed the trial court and remanded the case for a Machner hearing to determine whether reconfinement counsel had a strategic reason for dealing with the issues as he did or whether he failed to investigate the accuracy of the DOC’s summary. ¶ 24.

Harris also argued on appeal that the reconfinement court could reach back and modify his original sentence. Not so, says the court of appeals. Section 302.113(9)(am), Wis. Stat., does not authorize a defendant to use his revocation and reconfinement hearing to reduce his overall sentence. He may separately move for sentence modification based upon new factors, but not as part of his motion challenging his reconfinement sentence. SeeState v. Noll, 2002 WI App 273, ¶5, 258Wis. 2d 573, 653 N.W.2d 895