Court may consider disputed allegations at probation revocation sentencing 

By Joe Forward, Legal Writer, State Bar of Wisconsin

Nov. 4, 2010 – Where a probationer does not meet his or her burden to show that a court relied on inaccurate information to impose a probation revocation sentence, the court may consider those allegations even if the probationer disputes them.

In State v. Walker, 2010AP83-CR (Nov. 2, 2010), probationer Jason Walker argued that a circuit court cannot consider certain violations at sentencing unless the state proves he committed them. But the appeals court disagreed, concluding that it was his burden to prove otherwise.

In 2007, the Pepin County Circuit Court convicted Walker on a felony bail jumping charge. The court placed him on three years’ probation.

In 2009, Walker’s probation officer recommended revocation based on three alleged violations: 1) he had unapproved guests at his residence past 11 p.m.; 2) he had sexual intercourse with a minor female; and 3) he attempted to have intercourse with an adult female against her will.

Walker admitted to the first violation and waived his revocation hearing. But he denied the other two violations, which are the subject of pending criminal charges in another county.

At sentencing, Walker did not attempt to rebut the allegations by asking for an evidentiary hearing; he just denied them. The circuit court took the allegations as true, and relied on them to sentence Walker to a four-and-a-half-year prison term.

On appeal, Walker argued that the circuit court “violated his right to due process by sentencing him based on probation violations that the State never proved he committed.”

Noting that a defendant has the burden to prove that a court relied on inaccurate information in making a sentencing decision, the District III Wisconsin appeals court concluded that Walker did not prove the information was inaccurate.

“His mere denial of the sexual assault allegations during the sentencing hearing did not constitute evidence rebutting them, nor did counsel’s statement that Walker intended to defend against the pending charges,” the appeals court wrote.

Walker also argued that he had a right to rebut the allegations before the court relied on them. But the court dismissed this argument, noting that Walker had an opportunity to rebut the allegations during the sentencing hearing, but did not make any attempt to do so.