                                                             2020 WI 1

                  SUPREME COURT           OF   WISCONSIN
CASE NO.:              2017AP2292-CR


COMPLETE TITLE:        State of Wisconsin,
                                 Plaintiff-Respondent,
                            v.
                       Donavinn D. Coffee,
                                 Defendant-Appellant-Petitioner.

                          REVIEW OF DECISION OF THE COURT OF APPEALS
                          Reported at 385 Wis. 2d 211,923 N.W.2d 181
                                     (2018 – unpublished)

OPINION FILED:         January 9, 2020
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:         October 21, 2019

SOURCE OF APPEAL:
   COURT:              Circuit
   COUNTY:             Milwaukee
   JUDGE:              Fredrick C. Rosa

JUSTICES:
ZIEGLER, J., announced the judgment of the Court and delivered
the majority opinion of the Court with respect to Parts I
through III and Part IV.C. and D., in which ROGGENSACK, C.J.,
HAGEDORN, and KELLY, JJ., joined. KELLY, J., filed a concurring
opinion, in which REBECCA GRASSL BRADLEY, J., joined ¶¶59-63.
ANN WALSH BRADLEY, J., filed a dissenting opinion, in which
REBECCA GRASSL BRADLEY and DALLET, JJ., joined.
NOT PARTICIPATING:



ATTORNEYS:

      For the defendant-appellant-petitioner, there were briefs
filed by Nicole M. Masnica, assistant state public defender. There
was an oral argument by Nicole M. Masnica.


      For the plaintiff-respondent, there was a brief filed by Aaron
R. O’Neil, assistant attorney general, with whom on the brief was
Joshua L. Kaul, attorney general. There was an oral argument by
Aaron R. O’Neil.
                                                                          2020 WI 1
                                                                NOTICE
                                                  This opinion is subject to further
                                                  editing and modification.   The final
                                                  version will appear in the bound
                                                  volume of the official reports.
No.       2017AP2292-CR
(L.C. No.      2015CF4965)

STATE OF WISCONSIN                            :              IN SUPREME COURT

State of Wisconsin,

               Plaintiff-Respondent,                                  FILED
          v.                                                      JAN 9, 2020
Donavinn D. Coffee,                                                  Sheila T. Reiff
                                                                 Clerk of Supreme Court
               Defendant-Appellant-Petitioner.



ZIEGLER, J., announced the judgment of the Court and delivered the
majority opinion of the Court with respect to Parts I through III
and Part IV.C. and D., in which ROGGENSACK, C.J., HAGEDORN, and
KELLY, JJ., joined.   KELLY, J., filed a concurring opinion, in
which REBECCA GRASSL BRADLEY, J., joined ¶¶59-63.       ANN WALSH
BRADLEY, J., filed a dissenting opinion, in which REBECCA GRASSL
BRADLEY and DALLET, JJ., joined.




      REVIEW of a decision of the Court of Appeals.                Affirmed.



      ¶1       ANNETTE KINGSLAND ZIEGLER, J.          This is a review of a

per curiam decision of the court of appeals, State v. Coffee, No.

2017AP2292-CR, unpublished slip. op. (Wis. Ct. App. Nov. 6, 2018),

affirming      the   Milwaukee   County   circuit      court's1      judgment       of


      1   The Honorable Frederick C. Rosa presided.
                                                                     No.    2017AP2292-CR



conviction      and    order      denying    Donavinn       D.   Coffee's   ("Coffee")

postconviction motion for resentencing.2                    Coffee argues that the

circuit court violated his due process rights because the circuit

court relied on inaccurate information at sentencing, and that

error was not harmless.             Neither Coffee nor his counsel objected

to the inaccurate information at the sentencing hearing.                        Rather,

Coffee's first objection to the inaccurate information was in his

postconviction motion.             The postconviction court concluded that:

(1) the State introduced inaccurate information at the sentencing

hearing;    and       (2)   the    circuit       court   actually      relied   on   the

inaccurate information; but (3) the error was harmless.                       Thus, the

postconviction court denied Coffee's motion for resentencing.                        The

court of appeals affirmed, but not on the merits of Coffee's

inaccurate information at sentencing claim.                      Instead, the court of

appeals concluded that Coffee forfeited his claim because he failed

to object at the sentencing hearing.                We now affirm, but we resolve

this case on the merits.

     ¶2     A defendant has a constitutional due process right to be
sentenced upon accurate information.                 State v. Tiepelman, 2006 WI

66, ¶9, 291 Wis. 2d 179, 717 N.W.2d 1.                      Coffee's constitutional

due process right was violated.              Indeed, both Coffee and the State

agree    that    the    circuit      court       actually    relied    on   inaccurate

information when it sentenced Coffee.                    Accordingly, the issues

before this court are: (1) whether Coffee forfeited his ability to

     2 The postconviction court also denied Coffee's motion for a
sentence modification. Coffee did not appeal that denial and the
issue is not before this court.

                                             2
                                                     No.   2017AP2292-CR



later challenge the inaccurate information because he failed to

object at the sentencing hearing; and, (2) if Coffee did not

forfeit his claim, whether the circuit court's reliance on the

inaccurate information at sentencing was harmless error.

     ¶3     We conclude that the forfeiture rule does not apply to

previously unknown, inaccurate information first raised by the

State at sentencing.     Rather, a postconviction motion is also a

timely manner in which to bring that claim.           Accordingly, we

conclude that Coffee did not forfeit his ability to challenge the

inaccurate information at his sentencing.    We nonetheless conclude

that the circuit court's reliance on inaccurate information at

Coffee's sentencing was harmless error.    Thus, we affirm the court

of appeals.


                        I.   FACTUAL BACKGROUND

     ¶4     On November 10, 2015, in Milwaukee, G.B. was robbed at

gunpoint.     He stated that he was talking on the phone in an alley

when a white Mercury Mountaineer sped toward him.     It stopped near
him and a black male with dreadlocks exited the rear passenger-

side door of the SUV, gun in hand.        The driver and the gunman

demanded that G.B. give them all his "stuff."     G.B. gave the gunman

$50.00, and the gunman took G.B.'s cell phone and wallet.          Both

suspects then fled in the white SUV.

     ¶5     About five minutes later, just a few blocks away, D.J.

was shot from behind while attempting to flee from a white SUV.

He stated that the white SUV pulled up alongside him, and a black
male with dreadlocks opened the rear passenger-side door.            He

                                   3
                                                          No.    2017AP2292-CR



exited the SUV, holding a gun, and told D.J., "[Y]ou better not

run."     But, fearing for his safety, D.J. did run.        Moments later,

he was shot in the back.        D.J. suffered shotgun pellet wounds to

the upper back and left ear.

     ¶6     City of Milwaukee police officers investigated shots

fired in the area.       Officer Joseph Goggins spotted a white Mercury

Mountaineer, turned on his emergency lights and siren, and pursued

the suspect SUV.    The SUV sped up, forcing a pursuit for 22 blocks.

It finally stopped, but the two suspects then fled on foot.

Donavinn Coffee and Antonio Hazelwood were eventually detained.

Coffee later admitted he was the gunman.


                          II.   PROCEDURAL POSTURE

     ¶7     On   November    15,   2015,   the   State   filed   a   criminal

complaint against Coffee and Hazelwood, charging them each with

three counts——armed robbery, attempted armed robbery, and first-

degree recklessly endangering safety, all as a party to a crime.

The State also charged Hazelwood with a fourth count of fleeing or
eluding an officer.

     ¶8     On June 6, 2016, Coffee pled guilty to all three counts

against him.      Pursuant to the plea agreement, the State would

recommend "a substantial prison sentence."          On June 23, 2016, the

circuit court held a sentencing hearing.            What unfolded at the

sentencing hearing is crucial to Coffee's appeal.          At the hearing,

the prosecutor recommended "substantial" prison time.            During his

statement to the circuit court, the prosecutor discussed Coffee's
record.     He stated:

                                      4
                                                   No.   2017AP2292-CR


     [Coffee] does have two prior convictions. There was a
     2014 misdemeanor case. It came in as a criminal damage
     to property, disorderly conduct and contact after
     domestic abuse arrest.

          The conviction was for the contact after the
     domestic abuse arrest. He pled guilty on that July 1,
     2014. Judge Flanagan sentenced him to probation. He
     also has a conviction in January of 2013 for carrying a
     concealed weapon. In that case, he received probation
     as well.

          There were two cases that were no process by my
     office, October 2014, there was a misdemeanor battery.
     What's alarming from the State's [perspective] because
     of the nature of this offense that's in front of the
     Court is that December 2011 there was an armed robbery
     case that was sent to my office. That was a no process.

          So what the defendant has shown here with his past
     criminal conduct, not only is there a weapon's related
     offense, but there was something that triggered a law
     enforcement investigation and reviewed by my office for
     offenses by a title similar in nature to this.
(Emphasis added.)

     ¶9   The State told the circuit court that Coffee had a prior

arrest for armed robbery.        That was inaccurate.    He was not

arrested for armed robbery, but rather for suspicion of strong-

arm robbery and then released.    The State concedes that Coffee was

never arrested for armed robbery in December 2011. The State never

filed any charges against Coffee for strong-arm robbery in December




                                   5
                                                        No.   2017AP2292-CR



2011.3   Thus, the State introduced inaccurate information at the

sentencing hearing.

     ¶10   Next, Coffee's counsel and Coffee each made a statement.

Consistent with the plea agreement, each acknowledged that prison

time was merited in this case.          Then the circuit court spoke.

Importantly,   the   circuit   court    explicitly   referenced   a   prior

arrest for armed robbery.      The circuit court said to Coffee:

     So [the prosecutor] there says you had a couple of police
     contacts.   No charges but one of them was an armed
     robbery.     Then you had these domestic violence
     situations. So then you were kind of becoming acquainted
     with the criminal justice system.

          Any reason why those contacts were not enough to
     get you to kind of think about your associations and
     your choices that you were making out there?
(Emphasis added.)     And later the circuit court stated:

          So you have got some misdemeanor cases; one
     successful probation, one unsuccessful probation. You
     have got a couple of police contacts; one significant
     concern because it sounds like it was an armed robbery
     which is what these offenses are.

          So you basically are engaging in behavior that is
     kind of getting more serious.     Domestic violence by
     itself is natured as assaultive behavior, meaning
     violence against another human being.



     3 Some conclude that Coffee did not commit strong-arm robbery;
that he was wrongfully arrested because two witnesses told law
enforcement that the offender was not Coffee. The presumption of
innocence certainly applies, but experience demonstrates that,
without knowing more, we can reach no conclusion. Using a police
report alone to analyze and conclude the guilt or innocence of a
person is not what our court should do. Who committed the strong-
arm robbery is not an issue before us today. Indeed, Coffee has
not been charged with strong-arm robbery.

                                    6
                                                              No.    2017AP2292-CR


          But these other things are violence and property
     crimes, and I don't know what else to call it. So that
     pattern of your behavior or undesirable behavior is
     escalating.
(Emphasis added.)

     ¶11    Thus,    the   circuit    court   relied     on    the     inaccurate

information——a prior arrest for armed robbery——at the sentencing

hearing.        But the circuit court also discussed other relevant

information at the hearing.          Indeed, the circuit court began its

sentencing remarks by stating, "My responsibility in imposing a

sentence is to look at the gravity of the offense.               I look at your

character, offenses, plural, look at the need to protect the

public." The circuit court then went on to discuss the significant

harm to the victims in this case, the increasing gun violence

problem    in    Milwaukee,     Coffee's   criminal    intent,      the    harm    to

Coffee's family (including his young son), Coffee's education and

work history, and the need to protect the public.              We describe the

circuit court's discussion of each of these factors in more detail

below.

     ¶12    The circuit court then took a brief recess to deliberate

over the proper sentence for Coffee. After the recess, the circuit

court    noted    that   both    parties   agreed     that    prison      time    was

appropriate in this case.         "Nobody has requested probation in this

case because it isn't a probation case.             These are really serious

offenses.       There's been substantial harm to the victims."                    The

circuit court added that it imposed consecutive sentences for each

count to "underscore" that each count was a serious offense.                      The
circuit court then pronounced a sentence of four years of initial


                                       7
                                                                   No.       2017AP2292-CR



confinement and three years of extended supervision each for the

armed robbery and attempted armed robbery counts.                       For the first-

degree reckless endangerment count, the circuit court imposed five

years     of       initial   confinement       and    three     years       of   extended

supervision.          Thus, Coffee was sentenced to 13 years of initial

confinement and nine years of extended supervision.

     ¶13       On     August     7,   2017,    Coffee     filed        a    motion    for

postconviction relief.            Coffee argued that he must be resentenced

because the State introduced inaccurate information at sentencing,

the circuit court actually relied on it, and the error was not

harmless.            Specifically,     Coffee        argued     that       his   Criminal

Information Bureau ("CIB") report did not show any arrests in

December 2011.          The State filed a response brief, to which it

appended       a    Milwaukee     Police   Department         Incident      Report   from

December 27, 2011.             According to that report, Coffee and another

person were arrested for suspicion of strong-arm robbery.                             The

State provided no explanation as to why the December 2011 arrest

was not included in Coffee's CIB report.
     ¶14       On October 31, 2017, the postconviction court issued a

decision and order denying Coffee's motion for postconviction

relief.     The postconviction court took issue with the State's use

of the incident report because it described an arrest for strong-

arm robbery, not armed robbery, "and more significantly, [Coffee]

apparently was not involved in the offense."                           Ultimately, the

postconviction court concluded that it had considered the December

2011 arrest at the sentencing hearing, but the error was harmless.


                                           8
                                                    No.   2017AP2292-CR


     Although the court considered the December 2011 incident
     during its sentencing decision, the court focused
     primarily on the defendant's conduct in this case, his
     contribution to the prevalence of gun violence that is
     threatening the fabric of our community, the impact of
     his crimes upon the victims and the greater community,
     his background and rehabilitative needs, and the need to
     protect the public. Even without information about the
     December 2011 police contact, the fact that the
     defendant used a weapon in the commission of the offenses
     in this case and that he shot one of his victims would
     have led the court to the same conclusion that he was
     "engaging in behavior that is getting more serious" and
     that his "pattern . . . of undesirable behavior is
     escalating." . . . Consequently, to the extent that
     the court relied upon the December 2011 incident at the
     sentencing hearing, the error was harmless because it
     did not materially affect the court's sentencing
     decision in this case.
     ¶15   Coffee appealed.    He again argued that his due process

right to be sentenced based on accurate information was violated,

and the error was not harmless.    In response, the State argued for

the first time that Coffee had forfeited his inaccurate information

at sentencing claim because he failed to object at the sentencing

hearing.    The court of appeals agreed.    On November 6, 2018, the

court of appeals concluded that Coffee had forfeited his claim
because he "had numerous chances to object to the 2011 arrest

information during the sentencing hearing and failed to do so."

Coffee, No. 2017AP2292-CR, unpublished slip op., ¶12.

     ¶16   On December 4, 2018, Coffee petitioned this court for

review.    We granted the petition.


                      III.    STANDARD OF REVIEW

     ¶17   We are asked to decide whether Coffee forfeited his
inaccurate information at sentencing claim and, if not, whether


                                   9
                                                   No.   2017AP2292-CR



the error was harmless. Whether a claim is forfeited or adequately

preserved for appeal is a question of law this court reviews de

novo.     State v. Corey J.G., 215 Wis. 2d 395, 405, 572 N.W.2d 845

(1998).      Whether a defendant has been sentenced in violation of

his due process rights, and whether that error is harmless are

questions of law this court reviews de novo.         Tiepelman, 291

Wis. 2d 179, ¶9; State v. Travis, 2013 WI 38, ¶20, 347 Wis. 2d 142,

832 N.W.2d 491.


                             IV.   ANALYSIS

                       A.   Forfeiture Generally

       ¶18   The State argues that Coffee forfeited his inaccurate

information at sentencing claim because he failed to object at the

sentencing hearing.     Coffee argues that the forfeiture rule does

not, and should not, apply to inaccurate information at sentencing

claims because applying the forfeiture rule would not promote the

fair and orderly administration of justice.    Before we analyze the

issue, a summary of the forfeiture rule, its purpose, and its
effect is helpful.

       ¶19    Forfeiture is the failure to timely assert a right.

State v. Ndina, 2009 WI 21, ¶29, 315 Wis. 2d 653, 761 N.W.2d 612.

Under the forfeiture rule, a defendant may forfeit a right if the

defendant fails to object at the time the right is violated.      Id.,

¶30.    The forfeiture rule fosters the fair, efficient, and orderly

administration of justice.

       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

                                   10
                                                    No.     2017AP2292-CR


     for appeal. The forfeiture rule also gives both parties
     and the circuit court notice of the issue and a fair
     opportunity to address the objection; encourages
     attorneys to diligently prepare for and conduct trials;
     and prevents attorneys from "sandbagging" opposing
     counsel by failing to object to an error for strategic
     reasons and later claiming that the error is grounds for
     reversal.
Id. (footnotes omitted); see also State v. Pinno, 2014 WI 74, ¶56,

356 Wis. 2d 106, 850 N.W.2d 207; State v. Huebner, 2000 WI 59,

¶11, 235 Wis. 2d 486, 611 N.W.2d 727.

     ¶20    Some rights are so fundamental that they are not subject

to the forfeiture rule.    Ndina, 315 Wis. 2d 653, ¶31. For example,

the right to counsel, the right to refrain from self-incrimination,

and the right to a jury trial are not subject to forfeiture.

Huebner,    235   Wis. 2d 486,   ¶14.   Rather,   those    fundamental

constitutional rights generally must be waived.4          Id.   But see

State v. Suriano, 2017 WI 42, ¶1, 374 Wis. 2d 683, 893 N.W.2d 543

(holding that the defendant forfeited the right to counsel by his

conduct).

     ¶21    And in some cases, a court may choose to ignore the

forfeiture rule and reach the merits of a claim.     After all, the

forfeiture rule is a rule of judicial administration, not a

mandate.    See, e.g., Ndina, 315 Wis. 2d 653, ¶38 (reaching the

merits of a claim where "both parties failed to make objections in

a timely manner"). The forfeiture rule should not be applied where


     4 "'Whereas forfeiture is the failure to make the timely
assertion of a right, waiver is the intentional relinquishment or
abandonment of a known right.'" 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)).

                                   11
                                                                      No.    2017AP2292-CR



its   application       would    not   further          its      purpose——the       fair,

efficient, and orderly administration of justice.

      ¶22    If a court applies the forfeiture rule to a claim, then

"the normal procedure in criminal cases is to address [that claim]

within the rubric of the ineffective assistance of counsel." State

v. Erickson, 227 Wis. 2d 758, 766, 596 N.W.2d 749 (1999).                           Thus,

rather   than    arguing   the    merits     of        an    underlying      claim,   the

defendant would have to argue that defense counsel performed

deficiently      when   counsel    failed         to        object    (forfeiting     the

defendant's claim) and that failure to object prejudiced the

defendant.      See Strickland v. Washington, 466 U.S. 668 (1984).

      ¶23    Bearing in mind the purpose and effect of the forfeiture

rule, we now turn to the issue of whether Coffee forfeited his

ability to later challenge by postconviction motion the inaccurate

information presented at his sentencing.

                B.   Coffee Did Not Forfeit His Inaccurate
                      Information At Sentencing Claim.
      ¶24    In this case, the State first introduced inaccurate

information regarding a December 2011 prior arrest, stating that
it was      for armed robbery      rather than strong-arm robbery,                     at

Coffee's sentencing hearing.           Coffee's counsel did not object at

sentencing.     Rather, Coffee filed a postconviction motion, arguing

that his due process right to be sentenced based on accurate

information was violated.

      ¶25    The State argues that Coffee forfeited his request to be

resentenced     because    he    failed      to    object        to    the   inaccurate
information at the sentencing hearing.                       Furthermore, the State

                                        12
                                                                     No.     2017AP2292-CR



argues that the failure to contemporaneously object is harmful to

the judicial process and the State's interest in finality.                        Coffee

argues that the forfeiture rule should not apply in cases like

this——where the previously unknown, inaccurate information is

first introduced by the State at the sentencing hearing and counsel

has not had an opportunity to confer with the defendant regarding

the nature and extent of the inaccuracy.                        According to Coffee,

application      of    the    forfeiture        rule     to    claims   of   inaccurate

information first introduced and known at sentencing would not

promote the fair and orderly administration of justice.                         We agree

with Coffee.

       ¶26     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.      Rather, while counsel may object to this information

at the sentencing hearing, and while that may be the best practice

to    ensure    the    sentence      is   based     on    accurate      information,    a

postconviction motion like that presented here is also available.
Applying the forfeiture rule to these claims would not promote the

fair, efficient, and orderly administration of justice because it

could put defense counsel in an impossible predicament.

       ¶27     The State's position here is that the forfeiture rule

requires defense counsel to object contemporaneously at sentencing

to previously unknown and largely unavailable information and to

spontaneously understand the importance of that information to

sentencing.      We recognize that a best practice in these cases may
be to contemporaneously bring this new information to the circuit
                                               13
                                                        No.    2017AP2292-CR



court's attention and object to the circuit court relying on the

new information or to request adjournment.           This practice might

obviate the need to later file a postconviction motion.

       ¶28    Requesting     an   adjournment,     however,     has      its

shortcomings.        Discovering the details of the new information may

actually be to the detriment of the defendant, and counsel may

have consequently acted contrary to the defendant's interest by

requesting adjournment.        While it is just and fair to ensure that

the circuit court has the most accurate information at sentencing,

and a defense lawyer's duty is to act as an officer of the court,

a defense lawyer's duty is also to properly advocate for the

client.5

       ¶29    When    suspected   inaccurate     information    is     first

introduced by the State at sentencing, defense counsel does not

know what defense counsel does not know.          Defense counsel cannot

possibly make an informed decision of how exactly to object, if at

all.       Nor can defense counsel possibly know whether the objection

would help or hurt the defendant.         Nor can defense counsel know,
at the time the suspected inaccurate information is introduced,

whether the circuit court will actually rely on it.                  At oral

       Applying the forfeiture rule here could put defense counsel
       5

in an impossible predicament——between a rock and a hard place. If
counsel fails to object, then the claim may be forfeited.       If
counsel objects, and the information is in fact accurate, then the
objection may have actually made the defendant's position at
sentencing worse. If the information is inaccurate, but the truth
is even more damaging to the defendant, then the defendant could
face a harsher sentence than if defense counsel had not objected.
This could also result in an ineffective assistance of counsel
claim if counsel's objection prejudiced the defendant.

                                     14
                                                                 No.       2017AP2292-CR



argument,     this   court    asked      the    State     what     an      appropriate

contemporaneous objection at sentencing would look like.                             The

State's only response was that it would depend on the facts of

each case.     But if 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.

     ¶30     In contrast, if the forfeiture rule does not apply to

challenges to this type of spontaneously raised information, then

defense counsel has time to evaluate the information, discuss it

with the defendant, determine if it is indeed inaccurate, and

ascertain whether it was actually relied on at sentencing.                             A

postconviction motion may or may not be necessary.

     ¶31     The forfeiture rule is supposed to promote the fair,

efficient, and orderly administration of justice.                       See Huebner,

235 Wis. 2d 486, ¶11.        Its application here could actually promote

the opposite.    Thus, we conclude that the forfeiture rule does not

apply to previously unknown, inaccurate information first raised

by the State at sentencing.           Rather, while an objection may be the
best practice, a postconviction motion is also a timely manner in

which to assert that claim.

     ¶32     The State's argument that the forfeiture rule should

apply   at   sentencing      relies    in     part   on   Handel      v.    State,    74

Wis. 2d 699,     247   N.W.2d 711        (1976),      State      v.     Mosley,      201

Wis. 2d 36, 547 N.W.2d 806 (Ct. App. 1996), and State v. Johnson,

158 Wis. 2d 458, 463 N.W.2d 352 (Ct. App. 1990).                      In each case,

the court concluded that a claim regarding inaccurate or improper
information at sentencing was forfeited for failure to object at
                                         15
                                                               No.    2017AP2292-CR



sentencing.        But each of those cases involved information in a

presentence investigation report ("PSI").               Importantly, defense

counsel receives a copy and has the opportunity to review the PSI

with the defendant before the sentencing hearing.                     And defense

counsel can make a fully-informed and carefully-prepared objection

to the contents of a PSI at sentencing.              The same cannot be said

here.

       ¶33   The State also relies on the court of appeals' decisions

in State v. Samuel, 2001 WI App 25, 240 Wis. 2d 756, 623 N.W.2d 565

(claim that circuit court relied on sealed record defendant did

not have access to before sentencing was forfeited), and State v.

Leitner, 2001 WI App 172, 247 Wis. 2d 195, 633 N.W.2d 207 (claim

that     circuit     court   relied    on    behavior   underlying       expunged

convictions at sentencing was forfeited).               But neither of those

cases involved inaccurate information at sentencing claims.

       ¶34   Finally, the State cites State v. Benson, where the court

of     appeals     held   that   a    defendant    forfeited     an    inaccurate

information at sentencing claim by failing to object at sentencing.
2012 WI App 101, ¶17, 344 Wis. 2d 126, 822 N.W.2d 484.                   But this

case is also easily distinguished.                In Benson, it was defense

counsel who introduced the allegedly inaccurate information at

sentencing.        Id.    Before the sentencing hearing, defense counsel

submitted a report detailing the presence of Ambien in Benson's

system at the time of his car crash.               Id., ¶5.    Defense counsel

had the information before sentencing and had time to determine

whether the information was accurate.             Furthermore, it was defense


                                        16
                                                         No.    2017AP2292-CR



counsel who submitted the inaccurate information, not the State.

Thus the court of appeals concluded:

           Because Benson's counsel himself submitted [the]
      report to the court and failed to correct or object to
      the Ambien-related information prior to Benson's
      sentencing, Benson cannot now claim his due process
      rights were violated by the court's consideration of
      that same information. He has forfeited the issue.
Id., ¶17.     Application of the forfeiture rule was appropriate in

Benson.     Benson is readily distinguishable from the case at issue.
      ¶35    We are also unpersuaded by the State's argument that the

forfeiture rule should apply because it has a reliance interest in

finality.     Finality is important, but so is the opportunity to

evaluate previously unknown, inaccurate information first raised

by the State at sentencing.

      ¶36    Having   concluded   that   Coffee   did   not    forfeit   his

inaccurate information at sentencing claim, we now proceed to

further analyze whether a resentencing is warranted.

     C.   Inaccurate Information At Sentencing Claims Generally

      ¶37    "No person may be held to answer for a criminal offense

without due process of law . . . ."        Wis. Const. art. I, § 8, cl.

1.   Defendants have a due process right to be sentenced based upon

accurate information.     Tiepelman, 291 Wis. 2d 179, ¶9.        This right

was first set forth by the United States Supreme Court in Townsend

v. Burke, 334 U.S. 736 (1948), and further developed in United

States v. Tucker, 404 U.S. 443 (1972).6       This court's analysis has

      6Under the United States Constitution, "No person shall
be . . . deprived of life, liberty, or property, without due
process of law . . . ." U.S. Const. amend. V.

                                    17
                                                                    No.     2017AP2292-CR



also been informed by the Seventh Circuit Court of Appeals'

decision in United States ex rel. Welch v. Lane, 738 F.2d 863 (7th

Cir. 1984). Defendants "have a right to a fair sentencing process—

—one in which the court goes through a rational procedure of

selecting a sentence based on relevant considerations and accurate

information."         Id. at 865.        As this court has stated:

       When a circuit court relies on inaccurate information,
       we are dealing "not with a sentence imposed in the
       informed discretion of a trial judge, but with a sentence
       founded at least in part upon misinformation of
       constitutional magnitude."    A criminal sentence based
       upon materially untrue information, whether caused by
       carelessness or design, is inconsistent with due process
       of law and cannot stand.
Travis, 347 Wis. 2d 142, ¶17 (footnotes omitted) (quoting Tucker,

404 U.S. at 447).

       ¶38     A    defendant     who    was    sentenced     based    on      inaccurate

information may request resentencing.                   Tiepelman, 291 Wis. 2d 179,

¶26.    The defendant must show by clear and convincing evidence

that:    (1)       some    information     at     the    original     sentencing      was

inaccurate, and (2) the circuit court actually relied on the

inaccurate         information      at     sentencing.         Id.;       Travis,     347

Wis. 2d 142, ¶22.           A circuit court actually relies on incorrect

information        when    it   gives    "'explicit       attention'      or    'specific

consideration' to it, so that the misinformation 'formed part of

the basis for the sentence.'"                   Tiepelman, 291 Wis. 2d 179, ¶14

(quoting Lane, 738 F.2d at 866).                   If the defendant meets this

burden, then the burden shifts to the State to prove beyond a
reasonable         doubt   that   the     error   was     harmless.         Travis,   347


                                            18
                                                              No.     2017AP2292-CR



Wis. 2d 142, ¶86.       If the State fails to meet this burden, then

the defendant is entitled to resentencing.                If the State meets

this burden, then the sentence remains undisturbed.                   "The State

can meet its burden to prove harmless error by demonstrating that

the sentencing court would have imposed the same sentence absent

the error."    Id., ¶73.      The most important piece of evidence for

a reviewing court is the sentencing transcript itself, not "the

[postconviction] court's assertions" or "speculation about what a

circuit court would do in the future upon resentencing."                        Id.

(citing    State   v.   Smith,     207    Wis. 2d 258,      262-63,     280,    558

N.W.2d 379 (1997); Lane, 738 F.2d at 868; Tucker, 404 U.S. 443).

Accordingly, our analysis in this case focuses on the sentencing

transcript and avoids speculation.

                        D.   The Error Was Harmless.

     ¶39    The record is clear that the State introduced inaccurate

information   at   sentencing——Coffee         was   not   arrested     for     armed

robbery in December 2011.           The record is also clear that the

circuit court actually relied on the armed robbery arrest at the
sentencing hearing——the court specifically referenced it twice.

Coffee met his burden.        The issue before this court then becomes

whether the State has demonstrated that the error was harmless.

     ¶40    Coffee argues that the error was not harmless because

the inaccurate information here was so integral to the sentencing

hearing that it cannot be "excised" without speculation or a

"retrospective     hunt"     for   other      information    to     justify     the

sentence, both of which are forbidden by Tiepelman, Travis, and
Lane.     The State argues that the error was harmless because,
                                         19
                                                                  No.     2017AP2292-CR



regardless of whether Coffee had a prior arrest for armed robbery,

the circuit court's statements at sentencing remain accurate and

the circuit court would have imposed the same sentence.                      We agree

with the State.

     ¶41    We    note       that     the    postconviction       court     had    the

opportunity to address this issue. It made clear that its sentence

would have been the same.              The postconviction court concluded,

"[T]o the extent that the [circuit] court relied upon the December

2011 incident at the sentencing hearing, the error was harmless

because    it    did   not    materially         affect   the   court's    sentencing

decision in this case."             But we look to the sentencing transcript

to determine whether the State has met its burden.                        Travis, 347

Wis. 2d 142, ¶73.

     ¶42    At the sentencing hearing, the first time the circuit

court gave "specific consideration" to the arrest for "armed

robbery," it was in the context of a discussion of Coffee's

multiple prior police contacts.                  The circuit court then asked,

"Any reason why those contacts were not enough to get you to kind
of think about your associations and your choices that you were

making out there?"            Thus, to the circuit court, prior police

contacts put Coffee on notice, and ought to have given him pause.

Importantly, this logic would remain true regardless of whether

Coffee was arrested for armed robbery in December 2011.                        Coffee

had two prior misdemeanor convictions for domestic abuse and

carrying a concealed weapon.                He also had a prior arrest for

misdemeanor battery.          Based on those three prior police contacts


                                            20
                                                              No.    2017AP2292-CR



alone, the circuit court's question made sense.               "Any reason why

those contacts were not enough . . . ?"

     ¶43    The    second   time    the    circuit    court   gave     "specific

consideration" to the arrest for "armed robbery," it was in the

context of Coffee's escalating criminal conduct. The circuit court

described the prior convictions and other police contacts, and

then concluded, "So that pattern of your behavior or undesirable

behavior    is    escalating."      This    conclusion    also      remains    true

regardless of whether Coffee was arrested for armed robbery in

December 2011.      Coffee had been convicted for domestic abuse and

carrying a weapon on separate occasions.             And in this case, he had

shot a man.       His conduct was getting increasingly violent, and

increasingly serious, from misdemeanors to felonies.                 Prior armed

robbery    arrest    or   no,    Coffee's    "undesirable     behavior        [was]

escalating."

     ¶44    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.         Furthermore, it cannot be said that

the prior arrest for armed robbery was integral to Coffee's

sentence.

     ¶45    At sentencing, the circuit court's remarks began with a

discussion of Coffee's victims.           The circuit court stated:

     They really change the way they live their lives because
     now they're afraid it might happen again.

          This poor gentleman that you shot, those feelings
     of violation and fear and taking away whatever security


                                      21
                                                           No.    2017AP2292-CR


     he might have felt to that point, that's really amplified
     in his situation.
     ¶46   Second, the circuit court discussed the increasing gun

violence problem in Milwaukee.        The circuit court stated:

          We're getting killed here in Milwaukee with gun
     violence. I mean, it is off the charts. We have so
     many   shootings,   robberies  involving  guns,   drug
     activities involving guns, people with disputes, beefs
     against each other involving guns.
     ¶47   Third, the circuit court discussed Coffee's criminal

intent, saying it "seem[ed] like it was just as much for kicks,

fun, enjoyment, thrill, whatever it was, for actually taking

property from these particular individuals."

     ¶48   Fourth,   the    circuit    court   discussed    the    impact    to

Coffee's family.     "Even when they aren't directly the victims,

they suffer consequences too, because this is the city they have

to live in also with all of these kinds of things going on."                The

circuit court also noted the impact on Coffee's young son.

     ¶49   Fifth, the circuit court considered Coffee's education

and work experience.       And sixth, the circuit court considered the

need to protect the public.       "Suffice it to say, that there's a

real community interest in being protected here."                 The circuit

court then took a brief recess prior to pronouncing sentence.

     ¶50   After the recess, the circuit court did not mention a

prior arrest for armed robbery whatsoever.           Rather, the circuit

court noted that both the State and Coffee's counsel understood

this case required prison time. "[T]hey believe because of what

you did and for the good of the community, you do have to be
removed from the community for a substantial period of time."               The


                                      22
                                                             No.     2017AP2292-CR



circuit court stated that Coffee had caused "substantial harm to

the victims" and that Coffee had been on "probation before, and

it's not been successful."           The circuit court then pronounced a

sentence of 13 years of initial confinement and nine years of

extended supervision.

      ¶51    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 victims,

and Coffee's need to be removed from the community.                  It is clear

that these factors were not merely other factors that supported

Coffee's sentence, but were the basis of the sentence.                   We have

not gone on a "retrospective hunt" for other information that would

have justified Coffee's sentence. The circuit court clearly stated

on   the    record   at   the   sentencing      hearing   what    justified   the

sentence.       We   conclude    beyond     a   reasonable   doubt    that    "the

sentencing court would have imposed the same sentence absent the

error."     Travis, 347 Wis. 2d 142, ¶73.         Thus, we conclude that the

error was harmless.


                                V.   CONCLUSION

      ¶52    We conclude that the forfeiture rule does not apply to

previously unknown, inaccurate information first raised by the

State at sentencing.        Rather, a postconviction motion is also a

timely manner in which to bring that claim.                      Accordingly, we

conclude that Coffee did not forfeit his ability to challenge the

inaccurate information at his sentencing.            We nonetheless conclude
that the circuit court's reliance on inaccurate information at

                                       23
                                                           No.   2017AP2292-CR



Coffee's sentencing was harmless error.       Thus, we affirm the court

of appeals.



     By   the   Court.—The   decision   of   the   court    of   appeals   is

affirmed.




                                   24
                                                  No.   2017AP2292-CR.dk


     ¶53   DANIEL KELLY, J.     (concurring).   Mr. Coffee forfeited

his right to object to the inaccurate information about his arrest,

so I disagree with that part of the court's opinion.     But since I,

like the majority, agree that the circuit court's reliance on the

mistake was harmless, I join the court's mandate as well as Parts

I-III and Part IV.C & D of the majority opinion.

                           I.   FORFEITURE

     ¶54   When the circuit court said Mr. Coffee "had a couple of

police contacts . . . [and] one of them was an armed robbery," it

misstated the facts.     One of those contacts was for strong-arm

robbery, not armed robbery.     But Mr. Coffee held his tongue and

allowed the court to pronounce sentence based on information he

knew to be incorrect.1    The majority says he may simultaneously

preserve his silence and his right to challenge his sentence at

some later point based on the misstatement about which he said

nothing.

     ¶55   The court says this rule is necessary to avoid putting

defense counsel "in an impossible predicament——between a rock and
a hard place":

          If counsel fails to object, then the claim may be
     forfeited. If counsel objects, and the information is
     in fact accurate, then the objection may have actually
     made the defendant's position at sentencing worse. If
     the information is inaccurate, but the truth is even
     more damaging to the defendant, then the defendant could
     face a harsher sentence than if defense counsel had not
     objected.   This could also result in an ineffective



     1 According to the police report——created at the time of his
arrest——Mr. Coffee was arrested specifically for strong-arm
robbery.

                                  1
                                                              No.   2017AP2292-CR.dk

     assistance of counsel claim               if     counsel's     objection
     prejudiced the defendant.
Majority op., ¶28 n.5.

     ¶56   But defense attorneys are intimately familiar with rocks

and hard places.        This so-called "predicament" is really just the

omnipresent,      on-going       cost-benefit        calculation     counsel      must

perform as a matter of course throughout trial. As the prosecution

presents its case, defense counsel must carefully consider, in

real time, every piece of evidence as it comes in throughout the

entirety     of   the       proceeding.       Upon     hearing     each   piece     of

information, often for the first time, he must assess its accuracy

against the information in his possession, weigh its likely impact

on the jury, consider how it might strengthen or weaken his theory

of defense, determine its effect on evidence yet to be introduced,

and analyze its compliance with evidentiary rules.                  And he must do

all of that in the heartbeat that passes between when he hears the

evidence and he rises to announce his objection.                   This he must do

upon pain of forfeiting the claimed error:                    "Error may not be

predicated    upon      a    ruling   which   admits     or   excludes     evidence

unless . . . a timely objection or motion to strike appears of

record . . . ."         Wis. Stat. § 901.03(1)(a)(2017-18).                We have

reiterated that rule many times.              See, e.g., Allen v. Allen, 78

Wis. 2d 263, 270, 254 N.W.2d 244 (1977) ("A failure to make a

timely objection constitutes a waiver of the objection."); Holmes

v. State, 76 Wis. 2d 259, 272, 251 N.W.2d 56 (1977) ("This court

has repeatedly held that one of the rules of evidence is that an

objection must be made as soon as the opponent might reasonably be
aware of the objectionable nature of the testimony.").

                                          2
                                                         No.    2017AP2292-CR.dk


       ¶57   So why do we suddenly change the rules when the case

enters the sentencing phase?       With respect to evidentiary matters,

the statutory and constitutional safeguards are no different.                The

majority says that "[d]efendants have a due process right to be

sentenced based upon accurate information."              Majority op., ¶37

(citing State v. Tiepelman, 2006 WI 66, ¶9, 291 Wis. 2d 179, 717

N.W.2d 1).     But that's true of the conviction-producing trial,

too.    The whole purpose of an adversarial justice system is the

ascertainment of the truth.       See In re Winship, 397 U.S. 358, 362

(1970) ("[P]roof of a criminal charge beyond a reasonable doubt is

constitutionally required.        . . .      These rules are historically

grounded rights of our system, developed to safeguard men from

dubious and unjust convictions, with resulting forfeitures of

life, liberty and property." (quoted source and internal marks

omitted)); McLemore v. State, 87 Wis. 2d 739, 751, 275 N.W.2d 692

(1979) ("To safeguard the system of the search for truth we have

built up the various rules of evidence, again based on long

experience, so that evidence and testimony going to the jury will
be free from elements tending to distort the search."); Mathews v.

Eldridge, 424 U.S. 319, 348, (1976) ("The essence of due process

is the requirement that 'a person in jeopardy of serious loss [be

given] . . . [an]      opportunity     to    meet   it.'"     (quoted     source

omitted,     some   alterations   in   original)).      If     there    is   some

principle lurking around our constitutional jurisprudence that

says a defendant has a lesser due process interest in conviction

upon   accurate     information   than      in   sentencing    upon     accurate
information, no one has identified it.

                                       3
                                                 No.   2017AP2292-CR.dk


                       II.   HARMLESS ERROR

     ¶58   Although I believe there is no need to consider Mr.

Coffee's claimed error, I agree with the court that the distinction

between "armed robbery" and "strong arm robbery" was harmless.

But that was not the only error Mr. Coffee assigned to the court's

treatment of the arrest record.    The second is Mr. Coffee's claim

that referencing the arrest at all, without regard to its taxonomy,

was problematic because he did not commit the crime. And according

to Mr. Coffee, the police records vindicate him on this point.

The court's opinion, however, refuses to engage with this alleged

error.

     ¶59   I want to address this aspect of the court's opinion

(or, rather, its lack of this aspect) because of a curious, and

troubling, juxtaposition between two of the thoughts it expressed.

The first is the premise of the analysis:       "A defendant has a

constitutional due process right to be sentenced upon accurate

information," the court says.     Majority op., ¶2.    The second is

the court's casual indifference to whether the arrest tells us
anything accurate about Mr. Coffee at all:

          Some conclude that Coffee did not commit strong-
     arm robbery; that he was wrongfully arrested because two
     witnesses told law enforcement that the offender was not
     Coffee. The presumption of innocence certainly applies,
     but experience demonstrates that, without knowing more,
     we can reach no conclusion. Using a police report alone
     to analyze and conclude the guilt or innocence of a
     person is not what our court should do. Who committed
     the strong-arm robbery is not an issue before us today.
     Indeed, Coffee has not been charged with strong-arm
     robbery.
Id., ¶9 n.3 (emphasis added).


                                  4
                                                        No.    2017AP2292-CR.dk


     ¶60    Actually, who committed the strong-arm robbery is at

issue today.    It's true that "without knowing more, we can reach

no conclusion"2 about whether Mr. Coffee had anything to do with

the alleged offense.     But we still consider ourselves free to use

that arrest against him.      And that, oddly enough, is actually the

rule in Wisconsin:     "This court has stated that the trial court in

imposing    sentence   for   one   crime   can   consider     other   unproven

offenses, since those other offenses are evidence of a pattern of

behavior which is an index of the defendant's character, a critical

factor in sentencing."       Elias v. State, 93 Wis. 2d 278, 284, 286

N.W.2d 559 (1980) (emphasis added); id. ("This court held in Grant

v. State, 73 Wis. 2d 441, 243 N.W.2d 186 (1976) that the trial

court could consider offenses which were uncharged and unproven.")

(emphasis added).

     ¶61    Here's the juxtaposition that worries me.          We affirm Mr.

Coffee's constitutionally-protected right to have his sentence

based on nothing but accurate information while simultaneously

denying any interest in the accuracy of one of the pieces of
information used against him.        It is certainly true that we use

uncharged and unproven offenses against defendants at sentencing

because——we say——they "are evidence of a pattern of behavior which

is an index of the defendant's character."            Id.     But it is also

patently true that this is absurd.               Every single person ever

acquitted after trial was first arrested.          Sometimes the defendant

is acquitted because the State didn't meet its high standard of

proof.     But sometimes it's because the defendant didn't actually

     2   Majority op., ¶9 n.3.

                                      5
                                                             No.    2017AP2292-CR.dk


commit the crime.        And arrestees frequently don't even go to trial

because the police find the perpetrator who did commit the offense.

And yet, according to our rules, that arrest forever remains a

valid basis for influencing a sentence, even though it may not in

fact say anything at all about him.

       ¶62     With respect to character, an arrest (by itself) is a

question mark, nothing more. Police may arrest an individual based

on information "which would 'warrant a man of reasonable caution

in the belief' that a felony has been committed."                     Wong Sun v.

United States, 371 U.S. 471, 479 (1963) (quoted source omitted).

This is not "evidence which would suffice to convict," id., it is

simply the reasonable belief of a single person.                    And sometimes

that       belief   is   mistaken.   A       witness   may   have    inaccurately

identified the arrestee as the culprit, or he may have been driving

the same type of car as the actual perpetrator, or he was just at

the wrong place at the wrong time——the explanations could go on at

length.       And, of course, we sometimes find that an officer simply

didn't have sufficient information to arrest the individual.3                   All
of this demonstrates why an arrest——without more——is not proof of



       See, e.g., Henes v. Morrissey, 194 Wis. 2d 338, 355, 533
       3

N.W.2d 802 (1995) ("[W]e conclude that the deputies lacked
probable cause to arrest [the defendant] for refusing to identify
himself; his refusal could not elevate the deputies' reasonable
suspicion that he committed the car theft to probable cause that
he obstructed their investigation."); State v. Marquardt, 2001
WI App 219, ¶19, 247 Wis. 2d 765, 635 N.W.2d 188 (Explaining that
there was "nothing in the facts to tie [the defendant] to the
crime, much less to tie his home to the crime."); State v. Travis,
No. 1994AP385-CR, unpublished slip op., *4 (Wis. Ct. App. Nov. 17,
1994) (Holding that an informant's tip did not provide enough
information to create probable cause to arrest the defendant.).

                                         6
                                                            No.    2017AP2292-CR.dk


the arrestee's character.            At most, it is proof of what the

arresting officer thought about the person at the time of arrest.

Those are not the same things, but we act as though they are.

     ¶63    If we are committed to sentences based on accurate

information,   it    should   matter    whether     an    arrest    really    does

evidence culpable behavior or bad character. If it doesn't matter,

then we are at risk of increasing a defendant's sentence based on

a criterion that says nothing relevant about him.

                                     * * *

     ¶64    Ultimately, the error in this case is still harmless

because the circuit court would have imposed the same sentence

even without referring to the arrest at all.              The circuit court's

rationale    for    the   sentence    was    that   Mr.    Coffee's      "pattern

of . . . behavior or undesirable behavior [was] escalating."                  That

is obvious from Mr. Coffee's record.           Mr. Coffee had already been

convicted for two misdemeanors (criminal damage to property and

carrying a concealed weapon) before facing these charges, and now

he has been convicted of armed robbery, attempted armed robbery,
and first-degree recklessly endangering safety.                    Majority op.,

¶¶7-8.     So, the circuit court was correct that Mr. Coffee "was

engag[ed] in behavior that [was] kind of getting more serious."

Therefore, I concur with the court's conclusion that the circuit

court's mention of the arrest (without regard to the inaccurate

characterization of the robbery) was harmless.

     ¶65    I am authorized to state Justice REBECCA GRASSL BRADLEY

joins ¶¶59-63 of this opinion.



                                       7
                                                   No.   2017AP2292-CR.awb


     ¶66   ANN WALSH BRADLEY, J.       (dissenting).     Donavinn Coffee

was arrested for a strong-arm robbery.      Yet, there is not a shred

of evidence that he had anything to do with it.        Nothing.

     ¶67   In fact, he was quickly released after the victims of

the robbery told police that it was a misidentification.          Coffee

didn't rob them.    Such a course of action was further supported by

the available evidence:    the robber had tattoos on his arms, and

Coffee does not.

     ¶68   Nevertheless, the State brought up this mistaken arrest

at Coffee's sentencing for a completely separate crime to which he

did plead guilty.   The circuit court relied on the mistaken arrest

as an example of Coffee's supposedly "escalating" conduct and

sentenced him to a total of 13 years of initial confinement and

nine years of extended supervision.       All parties now agree that

the information the State gave to the circuit court, and on which

the circuit court relied, was inaccurate.

     ¶69   No harm, no foul, says the majority.




                                   1
                                                      No.   2017AP2292-CR.awb


     ¶70   I   agree   with   the   majority/lead   opinion1     that   "the

forfeiture rule does not apply to previously unknown, inaccurate

information first raised by the State at sentencing" and that "a

postconviction motion is also a timely manner in which to bring

that claim."   Majority/lead op., ¶3.     Therefore, I also agree that

under the facts of this case, Coffee has not forfeited his direct

challenge to this inaccurate information.       Id.


     1 I refer to Justice Ziegler's opinion as the "majority/lead"
opinion because the opinion in its entirety is not joined by a
majority of the court. Justice Kelly joins Parts I-III and Part
IV.C and D of the opinion, but he does not join Part IV.A and B.
See Justice Kelly's concurrence, ¶53.      Despite this dissent's
agreement that the forfeiture rule does not apply in this case,
Parts IV.A and B do not constitute a "majority" opinion of the
court under State v. Griep, 2015 WI 40, ¶37 n.16, 361 Wis. 2d 657,
863 N.W.2d 567. In Griep, the court set forth, "[u]nder Marks,
the positions of the justices who dissented from the judgment are
not counted in examining the divided opinions for holdings." Id.
(citing Marks v. United States, 430 U.S. 188, 193 (1977)).
Although the vitality of Griep has been called into question,
currently it remains in force.        See State v. Hawley, No.
2015AP1113-CR, unpublished certification, 2-3 (Nov. 21, 2018).

     The only reference to "lead opinions" in our Internal
Operating Procedures (IOPs) states that if during the process of
circulating and revising opinions, "the opinion originally
circulated as the majority opinion does not garner the vote of a
majority of the court, it shall be referred to in separate writings
as the 'lead opinion' unless a separate writing garners the vote
of a majority of the court." IOP III.G.4.

     For further discussion of our procedure regarding lead
opinions, see Koss Corp. v. Park Bank, 2019 WI 7, ¶76 n.1, 385
Wis. 2d 261, 922 N.W.2d 20 (Ann Walsh Bradley, J., concurring).
See also two prior certifications from the court of appeals that
have asked us to reexamine our lead opinion procedure. State v.
Dowe, 120 Wis. 2d 192, 192-93, 352 N.W.2d 660 (1984) (per curiam);
Hawley, No. 2015AP1113-CR, unpublished certification, 2-3; see
also State v. Lynch, 2016 WI 66, ¶145, 371 Wis. 2d 1, 885 N.W.2d 89
(Abrahamson and Ann Walsh Bradley, JJ., concurring in part,
dissenting in part).

                                     2
                                                    No.   2017AP2292-CR.awb


      ¶71   However, I part ways with the majority's harmless error

analysis.     The   circuit   court's    reliance   on    the   inaccurate

information the State presented was not harmless, and instead

permeated the proceeding to an extent that resentencing should be

required.

      ¶72   Accordingly, I respectfully dissent.

                                   I

      ¶73   After pleading guilty to three separate charges, Coffee

came before the circuit court for sentencing.        Majority/lead op.,

¶8.   At the sentencing hearing, the State "told the circuit court

that Coffee had a prior arrest for armed robbery."               Id., ¶9.

Specifically, the State argued at sentencing:

      What's alarming from the State's [perspective] because
      of the nature of this offense that's in front of the
      Court is that December 2011 there was an armed robbery
      case that was sent to my office. That was a no process.

      So what the defendant has shown here with his past
      criminal conduct, not only is there a weapon[s] related
      offense, but there was something that triggered a law
      enforcement investigation and reviewed by my office for
      offenses by a title similar in nature to this.
      ¶74   As the majority acknowledges, "[t]hat was inaccurate."

Id. It turned out that Coffee was arrested for strong-arm robbery,

the arrest was the result of a misidentification, and Coffee was

quickly released.     But these facts were not presented to the

circuit court and it specifically cited the inaccurate information

in fashioning Coffee's sentence.        On several occasions during its

sentencing remarks, the circuit court mentioned Coffee's previous

mistaken arrest for armed robbery, and it tied the arrest into



                                   3
                                                                  No.    2017AP2292-CR.awb


what it termed Coffee's "escalating" undesirable behavior.                            Id.,

¶10.

       ¶75    After he was sentenced, Coffee moved for postconviction

relief, arguing that the circuit court's reliance on the inaccurate

information violated his due process right to be sentenced upon

accurate information.            Id., ¶13.         The circuit court denied his

motion,      indicating        that     it   had     considered          the    incorrect

information        in    pronouncing     Coffee's     sentence,         but    that   even

without the information it would have reached the same sentence.

Id., ¶14.         In the circuit court's words, "the error was harmless

because      it    did   not   materially        affect   the     court's      sentencing

decision in this case."           Id.

       ¶76    The court of appeals affirmed. But rather than embracing

the explanation given by the circuit court, it relied on different

grounds. It determined that by failing to object at the sentencing

hearing, "Coffee forfeited the claim that he was sentenced based

on     inaccurate        information . . . ."             State     v.     Coffee,     No.

2017AP2292-CR, unpublished slip op., ¶1 (Wis. Ct. App. Nov. 6,
2018) (per curiam).

       ¶77    Now affirming the court of appeals, the majority/lead

relies on the same grounds utilized by the circuit court——harmless

error.    Majority/lead op., ¶52.            Contrary to the court of appeals,

the majority/lead determines that Coffee did not forfeit his

inaccurate information claim.                Id., ¶26.      However, it concludes

that the circuit court's reliance on the incorrect information was

harmless.         Id., ¶51.



                                             4
                                                           No.   2017AP2292-CR.awb


                                     II

     ¶78    As an initial matter, I write to clear up a fact of

record that has been severely muddied by the majority..                  Somewhat

inexplicably,   the     majority   views    the    only    inaccuracy     in   the

information relied upon by the circuit court as that Coffee was

arrested for strong-arm robbery and not armed robbery.                 Id., ¶9.

     ¶79    The majority appears to insinuate that Coffee could have

had something to do with the strong-arm robbery for which he was

mistakenly arrested.        Id., ¶9 n.3.          It declares that "[s]ome

conclude that Coffee did not commit strong-arm robbery; that he

was wrongfully arrested because two witnesses told law enforcement

that the offender was not Coffee.           The presumption of innocence

certainly    applies,    but   experience    demonstrates        that,    without

knowing more, we can reach no conclusion."           Id.    Whose experience?

And why does it justify turning a blind eye to the actual facts of

this case?

     ¶80    Based   on    this     self-proclaimed         "experience,"       the

majority/lead glosses over the record facts indicating that the
arrest was the result of a misidentification. There is no evidence

at all in the record tying Coffee to either the crime of strong-

arm robbery or armed robbery. The police report from the incident,

which is included in the record before this court, reveals the

majority's error.

     ¶81    In the report, it is related that a victim of the strong-

arm robbery for which Coffee was initially arrested stated that he

first observed the perpetrators from behind and that Coffee "could"
have been a subject who robbed him.                 However, after viewing

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Coffee's face, he determined that Coffee was "not involved in this

incident."    The report further indicates the witness's description

of the suspect as having dreadlocks and tattoos on his arms.

Coffee has dreadlocks, but does not have tattoos on his arms.

     ¶82     The record therefore does not indicate that the only

error in the information presented to the circuit court was the

type of robbery for which Coffee was arrested.                   Indeed, there was

no evidence at all that Coffee committed a robbery of any type in

2011.

     ¶83     Which   brings    me    to    the    majority's       harmless   error

analysis.     In the majority's view, the circuit court's sentence

would have been the same even if the inaccurate information

regarding Coffee's arrest was not considered.                Majority/lead op.,

¶¶40-41.

     ¶84     Pursuant to this court's established methodology, a

defendant    seeking   resentencing           based   on   the    presentation    of

inaccurate     information      before         the    sentencing      court    must

demonstrate that the information was inaccurate and that the
circuit court actually relied on the inaccurate information. State

v. Tiepelman, 2006 WI 66, ¶2, 291 Wis. 2d 179, 717 N.W.2d 1. After

the defendant meets this burden, the burden then shifts to the

State   to   demonstrate      that   the      error   was   harmless     beyond    a

reasonable doubt.      Id., ¶3; State v. Travis, 2013 WI 38, ¶86, 347

Wis. 2d 142, 832 N.W.2d 491.

     ¶85     The State can meet its burden to prove harmless error in

a sentencing proceeding by demonstrating that the sentencing court
would have imposed the same sentence absent the error.                   Id., ¶73.

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But we cannot simply take the circuit court's word that it would

have done so.       See id. ("The State therefore correctly relies on

the transcript of the sentencing proceeding in making its argument,

and   correctly     refrains       from     relying     on   the    circuit    court's

assertions during the hearing on the defendant's postconviction

motion or speculation about what a circuit court would do in the

future upon resentencing.").

      ¶86   Thus,     I    turn    to     the    transcript    of    the   sentencing

proceeding.       When pronouncing its sentence, the circuit court

specifically referenced this arrest, speaking of Coffee's police

contacts and stating that this arrest is of "significant concern

because it sounds like it was an armed robbery which is what these

offenses are."      The circuit court saw this arrest as indicative of

the "escalating" nature of Coffee's "undesirable behavior."

      ¶87   But what does the mistaken arrest really tell us about

Coffee's behavior?         What does it tell us about his character?                What

information    does       it    provide     that   is   at   all    relevant   to   his

sentence?     Given the facts in the record that Coffee had nothing
to do with the crime, the answer to all of these questions is

"nothing."

      ¶88   As Coffee posits in his reply brief, "his arrest for a

robbery,    armed     or       otherwise,    was   plainly     irrelevant      to   his

character.     Instead, evidence of the prior arrest spoke only to

the fact that as a young black man with long dreadlocks, Coffee

once resembled someone who committed a robbery in December 2011."

      ¶89   It is true that Coffee pleaded guilty to a violent crime.
The majority focuses on the circuit court's comments in this

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regard, stating 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 victims, and Coffee's need to be

removed from the community."    Majority/lead op., ¶51.

     ¶90   But that the nature of Coffee's offense demanded a prison

sentence does not mean that Coffee would have received the same

sentence had the State not raised the inaccurate information

regarding Coffee's prior arrest.      The erroneous consideration of

an arrest for a violent offense can certainly affect a circuit

court's view of a defendant.

     ¶91   Indeed, the references in the sentencing transcript to

Coffee's mistaken arrest indicate that the circuit court viewed

the arrest as a step in Coffee's "escalating" behavior.         Absent

consideration of the arrest, would the same pattern of "escalating"

behavior have been established?        We cannot be sure beyond a

reasonable doubt as we must be to say the error was harmless.       See

Travis, 347 Wis. 2d 142, ¶86.    Accordingly, Coffee is entitled to

resentencing.
     ¶92   For the foregoing reasons, I respectfully dissent.

     ¶93   I am authorized to state that Justices REBECCA GRASSL

BRADLEY and REBECCA FRANK DALLET join this dissent.




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