Jan. 24, 2020 – A circuit court relied on inaccurate information when sentencing a criminal defendant to a 13-year prison term for armed robbery and reckless endangerment, but the error was harmless, the Wisconsin Supreme Court has ruled.
Donavinn Coffee admitted that he robbed a victim at gunpoint in 2015 in Milwaukee, and also shot another potential robbery victim in the back minutes later.
The gunshot pellets were not fatal. Coffee pled guilty to armed robbery, attempted armed robbery, and recklessly endangering safety, all as a party to a crime.
At the sentencing, the prosecutor pushed for “substantial” prison time and said Coffee had a prior arrest for armed robbery. But that information was inaccurate. Coffee was actually arrested for "strong-arm robbery” but was released and never charged.
The sentencing court referenced the inaccurate armed robbery arrest and noted a pattern of “escalating” criminal behavior before sentencing Coffee to a total of 13 years in prison followed by nine years of extended supervision for all charges.
Coffee’s lawyer did not object to the inaccurate information at the sentencing hearing, but Coffee challenged the sentence through a postconviction motion. The postconviction judge acknowledged the error but ruled that the error was harmless.
On Coffee’s appeal, the state argued that Coffee forfeited the right to argue the inaccurate information claim since he did not object at the sentencing hearing. The court of appeals agreed and rejected Coffee’s appeal on grounds of forfeiture.
In State v. Coffee, 2020 WI 1 (Jan. 9, 2020), a supreme court majority (6-1) concluded Coffee did not forfeit his claim by failing to object at sentencing but ruled (4-3) that he is not entitled to a new sentencing because the circuit court’s error was harmless.
Not a Forfeiture
“We conclude that the forfeiture rule does not preclude the ability to later challenge the State’s spontaneous presentation at sentencing of previously unknown, inaccurate information,” wrote Justice Annette Ziegler.
Joe Forward, Saint Louis Univ. School of Law 2010, is a legal writer for the State Bar of Wisconsin, Madison. He can be reached by email or by phone at (608) 250-6161.
Justice Ziegler noted that requiring defense counsel to contemporaneously object to previously unknown and inaccurate information at the sentencing hearing puts defense counsel in an “impossible predicament” because objecting may actually hurt the case.
“Defense counsel cannot possibly make an informed decision of how exactly to object, if at all,” Justice Ziegler wrote. “Nor can defense counsel possibly know whether the objection would help or hurt the defendant.”
“[I]f counsel does not know what counsel does not know, then defense counsel cannot possibly be required to make an appropriate objection based on the unknown facts.”
Five other justices agreed that the forfeiture rule did not bar Coffee’s postconviction challenge. Justice Daniel Kelly was the lone dissenter on this point, concluding Coffee did forfeit his right to object by failing to object at the sentencing hearing.
A 4-3 majority concluded that the state introduced inaccurate information at sentencing, information the court relied on to sentence Coffee, but the error was harmless.
The majority agreed that the sentencing court would have imposed the same sentence regardless of the inaccurate information.
The majority noted that Coffee had two prior misdemeanor convictions for domestic abuse and carrying a concealed weapon, and a prior arrested for misdemeanor battery.
“We conclude beyond a reasonable doubt that the State has met its burden to demonstrate that the circuit court’s remarks and conclusions at Coffee’s sentencing would have been the same absent the inaccurate information,” Justice Ziegler wrote.
“Furthermore, it cannot be said that the prior arrest for armed robbery was integral to Coffee’s sentence.” Ziegler noted other factors the court referenced at sentencing.
“The sentencing transcript is clear that the circuit court based its sentence on Coffee’s contribution to gun violence in Milwaukee, the harm to the community, the harm to the victim’s and Coffee’s need to be removed from the community,” Ziegler wrote.
Justice Kelly, in a concurring opinion, agreed the error was harmless but questioned whether sentencing courts should be able to consider an “arrest” at all, since arrests are not convictions and arrests may be based on inaccurate information at the time.
“If we are committed to sentences based on accurate information, it should matter whether an arrest really does evidence culpable behavior or bad character,” wrote Justice Kelly. Justice Rebecca Bradley joined Kelly’s argument on that point.
Despite Kelly’s argument, he agreed the error was harmless “because the circuit court would have imposed the same sentence even without referring to the arrest at all.”
But Justice R. Bradley, as well as Justice Rebecca Dallet, joined a dissenting opinion by Justice Ann Walsh Bradley, concluding that considering the inaccurate arrest information was not harmless and a new sentencing should have been granted.
“The erroneous consideration of an arrest for a violent offense can certainly affect a circuit court’s view of a defendant,” wrote Justice A.W. Bradley, noting the sentencing court viewed the prior armed robbery arrest as a step in his “escalating behavior.”