State v. Carrie E. Counihan, 2020WI12, 2/13/20 modifying and affirming an unpublished court of appeals decision, 2017AP2265; case activity (including briefs)

This case is the companion to State v. Coffee, which, though argued on the same day, came out a few weeks earlier and failed, in particularly confusing fashion, to announce any binding rule. This case does make a rule:

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 he sentencing hearing. Under the facts of this case, Counihan appropriately raised the alleged error in a postconviction motion.


Counihan took a plea to several misdemeanor theft counts; she’d embezzled funds over several years from the local humane society. The parties had a joint rec for probation with the only jail time stayed; the judge jumped the deal and gave her nine months of straight jail. Postconviction, she argued the judge erred by seeking out court files from other, similar crimes over the years in order to see what sorts of facts had led to what sorts of sentences–without telling the parties, before sentencing, that it was doing so. (The judge was new to the bench; he explained during the postconviction hearing that he viewed this action as no different from a veteran judge consulting his or her own memory for the same information.)

Counihan raised this issue in two ways: as a straight-up due-process claim, and as ineffective assistance, saying her lawyer should have objected. The circuit court denied both claims on the merits; it held its actions proper and thus unobjectionable. The court of appeals, though, declined to address the due-process claim, saying Counihan had forfeited it by not objecting at sentencing. It also denied the IAC claim on the merits, finding no prejudice.

The supreme court, though, rejects the court of appeals’s conclusion on forfeiture. The doctrine, it notes, is a practical one: meant to encourage efficiency and fair play. Applying it in this sort of situation, the court says, would do the opposite:  it would force defense counsel to decide whether to object to information that, by definition, counsel can’t know the significance of. It might also encourage counsel to move for a continuance in any sentencing where unknown facts emerge. (¶¶31-32).

The discussion on this point is actually pretty thin; there’s a fuller explanation in Coffee.

Turning to the merits, the supreme court agrees with the circuit court: it’s alright for a sentencing judge to dig through court records of other cases in deciding what sentence is appropriate, and the judge need not tell the parties if he or she is doing so. (The court distinguishes this from a judge doing independent research on the facts of the case before him or her, see Piontek; that’s still a no-no.) There’s not even a “the better practice would be” sort of caveat here; thus defense counsel might be wise to do some research of their own to be ready for this kind of thing. (¶¶47-51).  So, no forfeiture but no problem, and no need to address the IAC claim.

Justices R.G. Bradley and Kelly concur to disagree with the majority’s non-forfeiture rule. The argument goes, basically (1) appellate courts shouldn’t decline to apply forfeiture in an ad hoc way so (2) there should be rules about whether forfeiture does or does not apply but (3) neither party here argued that the whole forfeiture doctrine needed to be rejiggered so this case isn’t a good one to do the rejiggering but (4) the actual rule Counihan did argue for, and convince the court to adopt, is a bad one, as it will permit the defense bar to work its typical dark magic, befuddling and clogging up the courts with due-process sentencing claims.