                                                                 2015 WI 6

                  SUPREME COURT            OF   WISCONSIN
CASE NO.:              2013AP843-CR
COMPLETE TITLE:        State of Wisconsin,
                                 Plaintiff-Respondent-Petitioner,
                            v.
                       Danny Robert Alexander,
                                 Defendant-Appellant.



                          REVIEW OF A DECISION OF THE COURT OF APPEALS
                         (Reported at 352 Wis. 2d 755, 843 N.W.2d 711)
                                  (Ct. App. 2014 – Unpublished)

OPINION FILED:         January 27, 2015
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:         October 7, 2014

SOURCE OF APPEAL:
   COURT:              Circuit
   COUNTY:             Milwaukee
   JUDGE:              Jeffrey A. Wagner

JUSTICES:
   CONCURRED:          ABRAHAMSON, C.J., BRADLEY, J., concur. (Opinion
                       filed.)
                       PROSSER, J., concurs. (Opinion filed.)
                       GABLEMAN, J., concurs. (Opinion filed.)
  DISSENTED:
  NOT PARTICIPATING:

ATTORNEYS:
       For      the    plaintiff-respondent-petitioner,   the   cause   was
argued by Thomas J. Balistreri, assistant attorney general, with
whom on the briefs was J.B. Van Hollen, attorney general.


       For the defendant-appellant, there was a brief by Matthew
S. Pinix and Law Office of Matthew S. Pinix, Milwaukee, and oral
argument by Matthew S. Pinix.
2
                                                                              2015 WI 6
                                                                    NOTICE
                                                      This opinion is subject to further
                                                      editing and modification.   The final
                                                      version will appear in the bound
                                                      volume of the official reports.
No.        2013AP843-CR
(L.C. No.     12CF202)

STATE OF WISCONSIN                                :             IN SUPREME COURT

State of Wisconsin,

               Plaintiff-Respondent-Petitioner,                          FILED
       v.                                                           JAN 27, 2015
Danny Robert Alexander,                                                Diane M. Fremgen
                                                                    Clerk of Supreme Court
               Defendant-Appellant.




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



       ¶1      PATIENCE DRAKE ROGGENSACK, J.               We review a decision

of    the    court   of   appeals1   that     granted    resentencing         based     on

ineffective assistance of counsel, which reversed the circuit
court's2       denial     of   Danny     Robert       Alexander's        motion       for

resentencing.        Alexander contends his Fifth Amendment right not

to be sentenced based on an improper factor was violated at

sentencing because compelled, self-incriminating statements to

       1
       State v. Alexander, No. 2013AP843-CR, unpublished slip op.
(Wis. Ct. App. Jan. 28, 2014).
       2
       The      Honorable      Jeffrey   A.    Wagner      of    Milwaukee        County
presided.
                                                                         No.     2013AP843-CR



his    probation       agent    were        appended      to     the     report     of   the

presentence investigation (PSI) the circuit court reviewed.                              The

State does not contest Alexander's assertion that his statements

to    his    probation    agent       were     compelled;        therefore,        in    this

decision, we assume, without deciding, that they were compelled.

In order to establish circuit court error, Alexander must prove

the circuit court actually relied on his compelled statements.

Accordingly, our review focuses on whether the circuit court

actually      relied    on     Alexander's        compelled          statements     to   his

probation agent when the court sentenced him.                                See State v.

Harris      (Landray M.),      2010    WI     79,      ¶30,    326     Wis. 2d    685,    786

N.W.2d 409.

       ¶2     We conclude that Alexander failed to prove by clear

and    convincing      evidence       that     the      circuit      court     erroneously

exercised      its   discretion        by    actually         relying    on    Alexander's

compelled,      incriminating          statements         in      imposing        sentence.

Therefore, we conclude that Alexander was not prejudiced by his

counsel's      lack      of     objection         to     those        same     statements.
Accordingly, it follows that Alexander was not denied effective

assistance of counsel.           We reverse the decision of the court of

appeals and affirm the circuit court's denial of Alexander's

motion for resentencing.

                                  I.    BACKGROUND

       ¶3     This case arises from the circuit court's sentencing

where compelled, incriminating statements that Alexander made to

his probation agent were appended to the PSI.                            Alexander moved
for resentencing alleging a violation of his Fifth Amendment
                                              2
                                                                   No.     2013AP843-CR



right against compelled self-incrimination, which the circuit

court     denied.      We     must    decide     whether    the     circuit       court

erroneously exercised its discretion at sentencing by actually

relying upon Alexander's compelled statements.

     ¶4     On January 13, 2012, Alexander was charged with one

count of felony forgery.             The complaint alleged that Alexander

presented    two     forged    checks    for     payment    at     two     U.S.   Bank

locations:    one for $1,749.13 and one for $1,456.23.3                    The checks

were drawn on the same Silver Mill Management Co. bank account.

U.S. Bank gave Alexander cash for the checks.                     Alexander cashed

the forged checks while he was on extended supervision for an

earlier conviction.

     ¶5     Alexander pled guilty to felony forgery.                      The circuit

court accepted Alexander's plea and ordered a PSI.                        The circuit

court received the PSI before the sentencing hearing.                          The PSI

included a description of the offense, a victim statement, an

examination     of     Alexander's       prior     record     and        correctional

experience, a personal history, and the recommendation of the
Department of Corrections (DOC) agent who prepared the PSI.                        The

recommendation       noted     that     Alexander    committed           the   forgery

offense while on extended supervision, just over a month after

he   was    released        from     prison.       The     agent     characterized




     3
       This figure reflects an error in the complaint. The copy
of this check attached to the complaint shows the amount of
$1,461.23.


                                          3
                                                                  No.    2013AP843-CR



Alexander's offenses as brazen and said Alexander exhibited a

willingness to commit illegal activities.

       ¶6      The PSI victim statement quoted a fraud investigator

with U.S. Bank:           "Well here, we [U.S. Bank] have a total loss of

$12,000 from Danny and his accomplices.                    And that's just us;

there are other victims here and other pending cases."                       In the

PSI author's recommendation for restitution, a $12,000 loss due

to   offenses       committed     by   Alexander    and   his    codefendants    was

again noted.4

       ¶7      Appended to the PSI report were two of Alexander's

statements         to     his   extended     supervision    agent.5         In   the

statements, Alexander described cashing three checks from Dave's

Machine Repair and two from Silver Mill, which are the checks

from       which   this    conviction      arose.    In    his   plea,    Alexander



       4
       U.S. Bank also completed a Crime Victim Impact Statement
stating "U.S. Bank suffered a financial loss of $9,626.50 due to
counterfeit checks cashed against Silver Mills Management LLC
[sic]. Danny Alexander cashed two of them for $3,210.36."
       5
       The DOC-1305/1305A    forms, upon which the DOC agent
recorded Alexander's statements, each contain a header stating:

       I have been advised that I must account in a truthful
       and accurate manner for my whereabouts and activities,
       and that failure to do so is a violation for which I
       could be revoked. I have also been advised that none
       of this information can be used against me in criminal
       proceedings.

The header was followed by "I have read or have had read to me,
the above warning," which Alexander initialed. Alexander signed
the statement and initialed each page.


                                            4
                                                            No.   2013AP843-CR



admitted to the facts in the complaint that described cashing

the Silver Mill checks and the dollar amount of each check.

    ¶8    At Alexander's sentencing hearing, the PSI report was

discussed:

    THE COURT:    Counsel . . . is here for sentencing.
    Have you gone over the pre-sentence report with your
    client?    If you have, are there any additions or
    corrections to it?

    [ATTORNEY] JOHNSON:      Yes.       You saw the pre-sentence,
    right?

    [ALEXANDER]:    They didn't come and see me.

    . . . .

    THE COURT: Okay.       But you looked——You have read this
    report, right?

    [ALEXANDER]:    Yes.

    THE COURT:     Okay.   Any additions or corrections by the
    state?

    [THE STATE]:    No.

    THE COURT:      So then        we    are   ready   to     proceed,
    [Attorney] Johnson?

    [ATTORNEY] JOHNSON:     Yes.
    ¶9    After hearing the parties' recommendations, the court

stated:

         Well, it appears based upon the U.S. Bank that
    these checks were from Silver [Mill] Management
    Company and in their statement, at least their
    investigator said that there were several individuals
    that were involved in fraudulent activities, involved
    in area businesses.

         I don't know whether or not you were one of those
    individuals, but apparently you did so in this case
    before the court. Your prior record——Before the court

                                    5
                                                        No.   2013AP843-CR


    imposes a sentence the court takes into consideration
    the nature of the offense and what's been represented
    as to your character and the rights of the victim and
    the rights of the community that you present.       A
    punishment aspect as an objective of sentencing and a
    rehabilitative aspect and a deterrent aspect.

         It would appear that you haven't really been
    deterred from further criminal activity even though
    this may have been what was set as a crime of
    opportunity because every time, you know . . . there
    is a continued pattern of behavior that you have been
    on probation.    That was revoked.   You ended up in
    prison and then there was an armed robbery in '94
    where you had 96 months in prison. And then there was
    a reckless second degree recklessly endangering safety
    that you received prison for.

    . . . .

         Quite frankly, it says as far as the assessment
    of yourself by the agent is that you were on your
    second chance of extended supervision and only been
    out of prison for just over a month when you committed
    the present offenses.    That [he has] been a repeat
    offender for the majority of his adult life and has
    several convictions.

         And it goes on to say that within those
    dispositions in the past he was afforded opportunities
    at treatment, skills and education, however the
    defendant has not truly made himself [amenable] to
    Correctional intervention that will motivate him to
    redirect the direction of his life.     Then [the PSI
    author goes on to] recommend the sentence that they
    do.
    ¶10   The   court   after   hearing   the   recommendations   of   the

district attorney and Alexander's counsel sentenced Alexander:

         What the court will do, the court is going to
    follow the recommendation of the pre-sentence to some
    extent, and impose a sentence of seven years in the




                                   6
                                                            No.    2013AP843-CR


      Wisconsin state prison system.6  The court will make
      that concurrent to whatever time that you're serving
      now.

           The court believes that you have to have some
      extra time on this because of the fact . . . of your
      continuous undesirable behavior patterns.
The court waived all costs but imposed the restitution amount,

$3,210.32,7 to which Alexander had agreed.

      ¶11   Alexander moved for resentencing.           Alexander argued

that his Fifth Amendment privilege against self-incrimination

was violated by the circuit court's reliance on the PSI with the

appended statements he made to his probation agent.                 Alexander

argued that his statements were compelled because conditions of

his   extended    supervision    required   truthful   reporting      of   his

activities.8

      ¶12   The   circuit   court    denied     Alexander's       motion   for

resentencing.      The   court   noted   that   Alexander    agreed    during

sentencing that he had read the PSI.            Regarding the information

contained in Alexander's compelled statements, the court said

that when Alexander pled guilty he admitted the facts in the

      6
       The circuit court initially ordered three years of
confinement and four years of extended supervision.      When
advised that the extended supervision could not exceed three
years,   the  court   corrected the  sentence  to  six  years
imprisonment, consisting of three years confinement and three
years extended supervision.
      7
       This figure was taken from the circuit court's order even
though it is not the sum of the two checks attached to the
complaint.
      8
       As we have noted above, we assume without deciding that
Alexander's statements were compelled.


                                     7
                                                                        No.    2013AP843-CR



complaint      were     true.9      The   court        also    explained      that    while

Alexander's       statements       referred       to    other    forged       and    cashed

checks in separate incidents, "the body of the [PSI] report also

refers to an amount of loss suffered by the victim much greater

than the $3,210.32" for the checks on which his conviction was

based.       The court noted that the "Crime Victim Impact Statement

also       referenced    a    $9,626.50      loss      by     U.S.    Bank    from    these

transactions, indicating that the defendant had cashed two of

the checks."       The court concluded:

       Clearly, the court and the parties were aware of the
       bigger picture of what had been going on, and the
       defendant's statement to his [probation] agent did not
       reveal anything not already known to the court.
       ¶13     Alexander appealed the circuit court's denial of his

motion for resentencing.              Alexander argued on appeal that the

circuit court erred in denying his motion for resentencing due

to the violation of his Fifth Amendment right against self-

incrimination         that   he    alleged       had   occurred.         The    court    of

appeals       reversed       the   circuit        court       based    on     ineffective

assistance of counsel, which the court of appeals raised sua

sponte, and remanded for a new sentencing hearing.                              State v.

Alexander, No. 2013AP843-CR, unpublished slip op., ¶¶12-15 (Wis.

Ct. App. Jan. 28, 2014).

       9
       During his guilty plea, Alexander acknowledged his
understanding of the circuit court's statement:  "You would be
waiving any possible defenses that you may have to the offense
charged in the criminal complaint."   The court also explained
that it would use the complaint as the factual basis for
Alexander's plea.


                                             8
                                                                                No.    2013AP843-CR



    ¶14     We granted review, and now reverse the decision of the

court of appeals.

                                         II.    DISCUSSION

                                   A.    Standard of Review

    ¶15     We        review       the     court         of    appeals'        conclusion         that

Alexander       was    denied       effective            assistance       of    counsel      in   the

context    of    the        circuit       court's        review    of     the    PSI    report     at

sentencing.           Whether           counsel      was      ineffective        in    failing     to

object to the PSI report because it appended compelled, self-

incriminating           statements             and       whether        the      defendant        was

prejudiced by counsel's failure, present mixed questions of fact

and law.        State v. Johnson, 2004 WI 94, ¶10, 273 Wis. 2d 626,

681 N.W.2d 901.              We uphold a circuit court's factual findings

unless    they        are    clearly       erroneous.              Id.         However,      whether

counsel's performance was deficient and whether a defendant was

prejudiced       thereby,          present      questions         of     law    that    we   review

independently.          Id.

    ¶16     On review, we will affirm the sentencing decision of a
circuit court so long as the court does not erroneously exercise

its discretion.             Harris (Landray M.), 326 Wis. 2d 685, ¶3; State

v. Brown, 2006 WI 131, ¶5, 298 Wis. 2d 37, 725 N.W.2d 262.

                               B.        Sentencing Decision

    ¶17     A circuit court erroneously exercises its sentencing

discretion when it "actually relies on clearly irrelevant or

improper factors."              Harris (Landray M.), 326 Wis. 2d 685, ¶66.

A defendant bears the burden of proving, by clear and convincing
evidence,       that         the        sentencing         court       actually        relied      on
                                                     9
                                                                     No.     2013AP843-CR



irrelevant or improper factors.                    Id.; see State v. Tiepelman,

2006 WI 66, ¶26, 291 Wis. 2d 179, 717 N.W.2d 1 (concluding that

a   defendant      who    asserts       that      the   circuit     court     erred    by

employing inaccurate information at sentencing must show that:

(1) the information was inaccurate, and (2) the circuit court

actually relied on the inaccurate information); see McCleary v.

State, 49 Wis. 2d 263, 278, 182 N.W.2d 512 (1971) (concluding

where the sentencing discretion was exercised on the basis of

clearly irrelevant or improper factors, an erroneous exercise of

discretion occurs10).               Before the court of appeals, Alexander

claimed that the circuit court erred in denying his motion for

resentencing because the circuit court based his sentence on the

PSI that improperly appended a compelled statement.

       ¶18     The two-step framework to determine whether a circuit

court erroneously exercised its sentencing discretion based on

an improper factor that we set out in Tiepelman is helpful here.

Tiepelman, 291 Wis. 2d 179, ¶26.                    In Tiepelman, we noted that

"[a]    defendant       has    a    constitutionally       protected       due    process
right to be sentenced [on] accurate information."                       Id., ¶9.       We

discussed the two-step framework wherein a defendant must prove

that:        (1)   information         was   inaccurate,      and    (2)     the   court

actually relied on the inaccurate information in the sentencing.

Id.,    ¶26.       If    the       defendant      proves   inaccuracy       and    actual

       10
       McCleary v. State, 49 Wis. 2d 263, 278, 182 N.W.2d 512
(1971), employed the term "abuse of discretion," a term we no
longer employ.   We now employ the term "erroneous exercise of
discretion."


                                             10
                                                                            No.     2013AP843-CR



reliance, the burden shifts to the State to prove the error was

harmless.     Id., ¶¶26-27.

       ¶19   In Harris (Landray M.), we also applied this framework

to a contention that a sentencing court had relied on improper

factors,      rather          than      inaccurate          information.                  Harris

(Landray M.), 326 Wis. 2d 685, ¶24.                    We concluded that race and

gender,      the        two        factors    under      examination              in      Harris

(Landray M.), were improper sentencing factors.                              Id., ¶33.           We

recognized a defendant's due process right not to be sentenced

on the basis of race and held that a defendant also has a due

process right not to be sentenced based on gender.                            Id.

       ¶20   We        discussed      the    difficulty           in     proving         that     a

sentencing court actually relied on improper factors.                                Id., ¶34.

However, we concluded that requiring a defendant to prove his

case    "'promotes           the    policy    of     finality          of    judgments          and

satisfies the purpose of sentence modification, which is the

correction        of    unjust       sentences.'"           Id.        (quoting      State       v.

Littrup, 164 Wis. 2d 120, 132, 473 N.W.2d 164 (Ct. App. 1991)).
       ¶21   Harris          (Landray M.)          explained       how       the       two-part

Tiepelman test applied to an "improper factor," as compared with

"inaccurate        information."             Id.,    ¶32.          "Proving         inaccurate

information       is     a    threshold      question——you         cannot         show    actual

reliance     on        inaccurate      information       if       the       information         is

accurate.     When the question relates to other improper factors

like race and gender, only the second part of the test, actual

reliance, is relevant."               Id., ¶33 n.10.


                                              11
                                                             No.     2013AP843-CR



                           1.     Improper factor

    ¶22    We first consider whether compelled statements are an

improper factor to rely on at sentencing.              When sentencing a

defendant, a circuit court should use three primary factors:

the gravity of the offense, the character of the offender, and

the need to protect the public.            State v. Harris (Denia), 119

Wis. 2d 612, 623, 350 N.W.2d 633 (1984) (citing McCleary, 49

Wis. 2d   at    274-76).     The    circuit    court   may    also     consider

additional factors, including:

         (1) Past record of criminal offenses; (2) history
    of undesirable behavior pattern; (3) the defendant's
    personality, character and social traits; (4) result
    of   presentence   investigation;    (5)   vicious  or
    aggravated nature of the crime; (6) degree of the
    defendant's culpability; (7) defendant's demeanor at
    trial; (8) defendant's age, educational background and
    employment record; (9) defendant's remorse, repentance
    and cooperativeness; (10) defendant's need for close
    rehabilitative control; (11) the rights of the public;
    and (12) the length of pretrial detention.
Id. at 623-24 (quoting Harris (Robert Lee) v. State, 75 Wis. 2d

513, 519-20, 250 N.W.2d 7 (1977)).            The circuit court's proper
exercise of discretion includes individualizing the sentence "to

the defendant based on the facts of the case" and may include

"identifying the most relevant factors and explaining how the

sentence imposed furthers the sentencing objectives."                    Harris

(Landray M.), 326 Wis. 2d 685, ¶29 (citing State v. Gallion,

2004 WI 42, ¶¶39-48, 270 Wis. 2d 535, 678 N.W.2d 197).

    ¶23    We    have   already    decided    that   certain       factors   are

improper for the circuit court to consider at sentencing and
therefore violate a defendant's right to due process:                   race or

                                      12
                                                                    No.    2013AP843-CR



national       origin,11      gender,12        alleged         extra-jurisdictional

offenses,13 and the defendant's or victim's religion.14

      ¶24     Alexander     has    a   Fifth       Amendment    right     not   to   be

compelled to be a witness against himself.15                     Rock v. Arkansas,

483 U.S. 44, 51-53 (1987).              The Fourteenth Amendment requires

that states afford the protections of the Fifth Amendment to

defendants in state criminal actions.                   State v. Lonkoski, 2013

WI 30, ¶23 n.8, 346 Wis. 2d 523, 828 N.W.2d 552 (citing Malloy

v. Hogan, 378 U.S. 1, 6 (1964)).                   The Fifth Amendment privilege

against self-incrimination continues after a plea and through

sentencing.      State v. McConnohie, 121 Wis. 2d 57, 68, 358 N.W.2d

256 (1984) (concluding that where a defendant has pleaded guilty

to a criminal charge but has not yet been sentenced, he retains

his        constitutional         privilege         against      compelled      self-

incrimination).           Accordingly,         a    circuit     court     employs    an

improper factor in sentencing if it actually relies on compelled

statements made to a probation agent.

      11
       State v. Harris (Landray M.), 2010 WI 79, ¶33 n.9, 326
Wis. 2d 685, 786 N.W.2d 409 (citing United States v. Munoz, 974
F.2d 493, 495 (4th Cir. 1992)).
      12
           Id., ¶33.
      13
           Rosado v. State, 70 Wis. 2d 280, 290-91, 234 N.W.2d 69
(1975).
      14
       State v. Ninham, 2011 WI 33, ¶96, 333 Wis. 2d 335, 797
N.W.2d 451.
      15
       The Fifth Amendment to the United States Constitution
states in relevant part: "No person . . . shall be compelled in
any criminal case to be a witness against himself."


                                          13
                                                                      No.     2013AP843-CR



                             2.   Actual reliance

      ¶25    The second part of our inquiry is to determine whether

the   circuit     court    actually   relied    on      an     improper          factor   in

sentencing Alexander, i.e., Alexander's compelled statements.                              A

circuit     court   "must    articulate      the       basis    for     the       sentence

imposed."         Harris     (Denia),     119      Wis. 2d       at     623.          This

articulation plays an important role in determining whether the

circuit court actually relied on an improper factor.                             We review

the circuit court's articulation of its basis for sentencing in

the context of the entire sentencing transcript to determine

whether     the   court    gave   "explicit     attention"        to        an    improper

factor, and whether the improper factor "formed part of the

basis for the sentence."16              Tiepelman, 291 Wis. 2d 179, ¶14;

State v. Travis, 2013 WI 38, ¶¶28, 31, 347 Wis. 2d 142, 832

N.W.2d 491.

      ¶26    We   have    evaluated   whether      a    circuit       court       actually

relied on an inaccuracy or an improper factor in many cases.                              In

some cases where we have concluded there was no actual reliance,
the circuit court has made comments that allegedly constituted

explicit attention to an improper factor.                    State v. Lechner, 217




      16
       Though State v. Tiepelman, 2006 WI 66, 291 Wis. 2d 179,
717 N.W.2d 1, provides this method for determining actual
reliance, we look to other cases for its application because
Tiepelman is based in part on the parties' stipulation and
therefore did not apply this method. Id., ¶4 n.3.


                                        14
                                                                         No.     2013AP843-CR



Wis. 2d      392,    419-22,     576    N.W.2d      912       (1998)17    (stating         that

although the circuit court explicitly referred to an inaccurate

number of prior convictions when considering the character of

the defendant, it did so to recognize defendant's long history

of drug and alcohol abuse); Harris (Landray M.), 326 Wis. 2d

685,    ¶¶45,       48-52    (reviewing      comments         by   the    circuit      court

allegedly         constituting      "explicit       attention").               However,      we

reviewed the circuit court's comments in the context of the

whole       sentencing       transcript      and        concluded     that      the    court

actually based its sentence on proper, rather than improper,

factors.          Lechner,    217    Wis. 2d       at    421-22     (stating        that   the

circuit      court    considered       the   alleged         convictions       as   "warning

signals," focusing on the underlying factual events rather than

actual convictions); see Harris (Landray M.), 326 Wis. 2d 685,

¶¶52, 60, 64 (reviewing the circuit court's use of the term,

"baby mama" in the context of the whole sentencing transcript

and concluding that the defendant failed                           to prove the court

actually relied on race or gender in sentencing him).
       ¶27    In cases concluding that the circuit court actually

relied       on    inaccurate       information         or    improper     factors,         the

circuit court explicitly considered the inaccurate information


       17
       After receiving no relief in state court, the defendant
in Lechner v. Frank, 341 F.3d 635 (7th Cir. 2003), filed a
habeas petition. On appeal, the Seventh Circuit agreed with our
conclusion that the record did not demonstrate that the circuit
court based its sentence in part on an inaccurate prior
conviction history. Id. at 639-40.


                                             15
                                                                                No.     2013AP843-CR



and also would not have sentenced the defendant in the same

manner    without        the    inaccurate           information.           For       example,     in

Travis,       we     noted     that        the       circuit        court       explicitly        and

repetitively         referred        to    the       inaccurate       penalty         information.

Travis,       347    Wis. 2d        142,    ¶¶32-33.           The       circuit       court     also

explained      that      if    it    were       to    impose    a     sentence,        it   had    an

obligation          to    impose          the        minimum        sentence,          which      was

inaccurately stated.            Id., ¶34.

    ¶28        In State v. Anderson, 222 Wis. 2d 403, 588 N.W.2d 75

(Ct. App. 1998), the defendant contended that the circuit court

had relied on a portion of the PSI that included allegations of

sexual assault that were later recanted.                              Id. at 409-10.               The

court of appeals held that the circuit court relied on that

portion of the PSI.                 Id. at 410.             In regard to reliance, the

court    of    appeals        stated:           "The    tenor       of    the    trial      court's

sentencing          remarks     is       inconsistent          with      the     facts      of    the

offenses to which [the defendant] pled no contest," implying

that the inaccurate allegations formed part of the court's basis
for the sentence.              Id.; see also United States v. Tucker, 404

U.S. 443, 447 (1972) (concluding that the sentencing transcript

demonstrated the district court gave explicit consideration to

the inaccurate number of previous convictions, and also actually

relied on inaccurate information).

    ¶29        When a sentencing challenge is grounded in the use of

allegedly erroneous information, we look to the circuit court's

articulation of its basis for imposing the sentence.                                          Harris
(Denia),      119     Wis. 2d       at     623.        In   the     context       of    the      whole
                                                  16
                                                                               No.     2013AP843-CR



sentencing transcript, we examine first whether the court gave

explicit attention to the allegedly improper factor and second,

whether the improper factor "formed part of the basis for the

sentence,"         which       could      show      actual      reliance.            See     Harris

(Landray M.),           326    Wis. 2d       685,      ¶¶53,     60,    64;    Tiepelman,         291

Wis. 2d 179, ¶14.

                                        3.     Application

       ¶30       As we explained above, Alexander has the burden to

prove by clear and convincing evidence that the circuit court

actually     relied        on     an    improper        factor    in    imposing        sentence.

Compelled, incriminating statements are an improper factor in

determining         a     defendant's          sentence       because     their        use      would

violate      the    defendant's           Fifth     Amendment          right       against      self-

incrimination.            Rock, 483 U.S. at 51-53; Lonkoski, 346 Wis. 2d

523, ¶23 & n.8.               Therefore, the remaining question before us is

whether      the        circuit        court     actually        relied        on    Alexander's

compelled         statements            that     were         appended        to     the     PSI.18

Accordingly, we review the entire sentencing transcript to see
whether      the        circuit        court     gave    explicit        attention         to    the

compelled statements.                   Harris (Landray M.), 326 Wis. 2d 685,

¶45.        We     also       review     whether        the    compelled,           incriminating

statements "formed part of the basis for the sentence," which

could indicate that the circuit court actually relied on the

       18
       "When the question relates to other improper factors like
race and gender, only the second part of the test, actual
reliance, is relevant."   Harris (Landray M.), 326 Wis. 2d 685,
¶32 n.10.


                                                  17
                                                                 No.     2013AP843-CR



compelled statements.        Tiepelman, 291 Wis. 2d 179, ¶14; Travis,

347   Wis. 2d    142,    ¶¶28,   31.        We   also     review       the     court's

statements      made    in   response       to    Alexander's          motion      for

resentencing.     Harris (Landray M.), 326 Wis. 2d 685, ¶49.

      ¶31   In his compelled statements, Alexander admitted his

role in the Silver Mill forgeries and in other forgeries not

involved herein.        At sentencing, the circuit court referred to

information     that    could    be    found     in     Alexander's          compelled

statement.       However,    viewed    in    context,      the     circuit       court

actually based its reference to this information on the PSI

victim statement and the Crime Victim Impact Statement of U.S.

Bank's senior fraud investigator.19            The circuit court stated:

           Well, it appears based upon the U.S. Bank that
      these checks were from Silver [Mill] Management
      Company and in their statement, at least their
      investigator said that there were several individuals
      that were involved in fraudulent activities, involved
      in area businesses.

           I don't know whether or not you were one of those
      individuals, but apparently you did so in this case
      before the court.
By referring to the fraud investigator's statement, the circuit
court identified that the source for its reference to other

offenses was the U.S. Bank investigator.                Additionally, when the

court related that it did not know whether Alexander was one of

      19
        It was proper for the circuit court to consider the PSI
victim statement and the Crime Victim Impact Statement, even
though Alexander's involvement in other forgeries had not been
proven.   Elias v. State, 93 Wis. 2d 278, 284, 286 N.W.2d 559
(1980).


                                       18
                                                                     No.     2013AP843-CR



the   individuals       involved       in   the    other    forgeries,       the    court

confirmed that the source of its information was not Alexander's

compelled statements where his involvement was admitted.

      ¶32     At Alexander's sentencing, the circuit court discussed

other proper sentencing factors, including the nature of the

offense,      Alexander's          record   of     past    criminal        convictions,

Alexander's undesirable behavior pattern, and his character in

failing      to     accept     correctional        intervention.           See     Harris

(Denia), 119 Wis. 2d at 623-24.                   The circuit court stated that

it was "going to follow the recommendation of the pre-sentence

to some extent."         The PSI recommended a term of three to four

years of initial confinement followed by a three year term of

extended supervision.              The circuit court sentenced Alexander to

three      years    initial        confinement,     consistent   with       the    PSI's

recommendation,         and        ultimately      three     years     of        extended

supervision.20

      ¶33     The    sentencing transcript clearly reflects that the

basis of Alexander's sentence overall was Alexander's history of
criminal     offenses        and    his   failure    to    correct    his     behavior.

Alexander's history was the focus of the court's discussion,

including the court's response to Alexander's comments.                              The

sentencing transcript reveals that the circuit court did not

give explicit attention to Alexander's compelled statements, and

information from those statements did not form part of the basis


      20
           See note 6 above.


                                            19
                                                                      No.    2013AP843-CR



for the sentence imposed.             See Tiepelman, 291 Wis. 2d 179, ¶14;

Travis, 347 Wis. 2d 142, ¶¶28, 31.                    Therefore, the circuit court

did   not   actually     rely    on    an    improper        factor    in    sentencing

Alexander, and did not erroneously exercise its discretion.                          See

Tiepelman, 291 Wis. 2d 179, ¶26.

      ¶34   Our    conclusion,       based       on    our   review   of    the   entire

sentencing transcript, is supported by the circuit court's order

denying Alexander's motion for resentencing.                      The circuit court

explained that "the court and the parties were aware of the

bigger picture of what had been going on, and the defendant's

statement to his agent did not reveal anything not already known

to the court."         The court noted alternative sources for the

information       included      in    Alexander's            compelled      statements.

First, the court noted that Alexander admitted to the Silver

Mills forgeries when he entered his guilty plea.                            Second, the

court explained that the body of the PSI referred to an amount

of loss suffered by U.S. Bank greater than the sum of the Silver

Mills checks that were the basis for Alexander's conviction.                          In
that regard, the court referred to a U.S. Bank senior fraud

investigator's statement in the Crime Victim Impact Statement

section of the PSI.          The investigator placed the amount of loss

from "Danny and his accomplices" at $12,000, while Alexander was

convicted of check forgeries totaling $3,210.32.                            The circuit

court explained that given the additional sources in the PSI

indicating Alexander's potential involvement in other forgeries,

the   attachment    of   Alexander's         compelled        statements     that   also
spoke of additional forgeries, did not affect the sentence it
                                            20
                                                                          No.        2013AP843-CR



imposed.      The court termed the attachment, "harmless at best."

Third, the circuit court's order denying Alexander's motion for

resentencing reiterated that the court did not actually rely on

Alexander's compelled statements in sentencing him.

       ¶35    In sum, after reviewing the sentencing transcript as a

whole and the court's comments in denying Alexander's motion for

resentencing,        we    conclude       that    the   circuit          court       relied   on

proper factors in imposing sentence and did not actually rely on

Alexander's compelled statements.                  The circuit court considered

the nature of the offense, Alexander's record of past criminal

convictions, Alexander's undesirable behavior pattern, and his

repeated     failures       to    accept     correctional          intervention.              The

circuit      court    explained        its   basis      for    imposing          Alexander's

sentence,      both        at    sentencing       and    in        its     order        denying

Alexander's     motion          for   resentencing.           We    conclude          there    is

nothing to indicate that the circuit court's sentence was an

erroneous exercise of discretion.

                     C.    Ineffective Assistance of Counsel
       ¶36    As we noted at the beginning of this decision, the

court of appeals ordered resentencing based on its conclusion

that   Alexander          was    denied    effective      assistance            of     counsel.

Alexander, No. 2013AP843-CR, unpublished slip op., ¶¶12-15.                                    In

order to prevail on an ineffective assistance of counsel claim,

a defendant must prove both deficient performance and prejudice.

Johnson, 273 Wis. 2d 626, ¶11.




                                             21
                                                                 No.    2013AP843-CR



      ¶37   When a claim of ineffective assistance of counsel is

made, the circuit court often holds a Machner hearing.21                      State

v. Allen, 2004 WI 106, ¶8 n.3, 274 Wis. 2d 568, 682 N.W.2d 433.

The circuit court did not hold a Machner hearing in this case

because the court of appeals raised the ineffective assistance

of   counsel    issue    sua   sponte.        Alexander,    No.    2013AP843-CR,

unpublished slip op., ¶¶12-15.                Therefore, we do not have a

record describing why counsel did not object to the compelled

statements appended to the PSI.

      ¶38   However,     because     proof    of   prejudice      is   intertwined

with whether the circuit court actually relied on Alexander's

compelled statements when sentencing him and because we have a

full record to review on sentencing, we are not hampered by the

lack of a Machner hearing record.22

      ¶39   Furthermore,       if    Alexander     was     not    prejudiced     by

counsel's   lack    of   an    objection,     we   need    not    decide   whether

counsel's      performance     was    deficient      in    not     objecting     to

Alexander's compelled statements appended to the PSI.                      Johnson,
273 Wis. 2d 626, ¶11.

      ¶40   In the discussion above, we concluded that the circuit

court did not actually rely on Alexander's compelled statements

when imposing sentence.         Accordingly, it follows that Alexander

      21
       State v. Machner, 92 Wis. 2d 797, 804, 285 N.W.2d 905
(Ct. App. 1979).
      22
       A Machner hearing is not required where the record shows
that the defendant cannot establish prejudice.          State v.
Roberson, 2006 WI 80, ¶44, 292 Wis. 2d 280, 717 N.W.2d 111.


                                         22
                                                                   No.    2013AP843-CR



was not prejudiced by his counsel's lack of objection to those

same   statements.        Therefore,      it   also    follows     that    Alexander

cannot prevail on an ineffective assistance of counsel claim.

                                III.     CONCLUSION

       ¶41    We conclude that Alexander failed to prove by clear

and    convincing      evidence    that    the      circuit    court     erroneously

exercised      its    discretion    by    actually     relying     on    Alexander's

compelled,         incriminating    statements        in      imposing     sentence.

Therefore, we conclude that Alexander was not prejudiced by his

counsel's      lack     of   objection         to    those     same      statements.

Accordingly, it follows that Alexander was not denied effective

assistance of counsel.          We reverse the decision of the court of

appeals and affirm the circuit court's denial of Alexander's

motion for resentencing.

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

reversed.




                                          23
                                                                        No.    2013AP843-CR.ssa


       ¶42     SHIRLEY S. ABRAHAMSON, C.J.                   (concurring).            Compelled

statements by the defendant to his extended supervision agent

were       erroneously       appended      to       the    presentence         investigation

report      (PSI)      in   the   instant    case.          The    defendant         moved    for

resentencing,           arguing     that        the       circuit       court        improperly

considered these statements when imposing sentence, violating

the defendant's privilege against self-incrimination.

       ¶43     The circuit court denied the defendant's motion.                               The

court of appeals granted the defendant resentencing based on

ineffective         assistance      of     counsel,         an    issue   it       raised     sua

sponte.

       ¶44     I agree with the majority opinion that the court of

appeals' decision granting the defendant resentencing based on

ineffective assistance of counsel should be reversed.                                  I write

to clarify several points of law.

       ¶45     First, the majority opinion fails to correct errors in

the    court      of    appeals'    approach         to    the    issue       of    ineffective

assistance of counsel.               Its silence about these errors might
imply that it is endorsing the court of appeals' approach.

       ¶46     The court of appeals erred in concluding that defense

counsel's trial performance was deficient.                          The court of appeals

could       not        determine     whether          defense          counsel        performed

deficiently without a Machner hearing.1

       ¶47     Because      the    court    of      appeals       in    the    instant       case

raised      the     issue    of    ineffective            assistance      of       counsel    sua

       1
       See State v. Machner, 92 Wis. 2d 797, 804, 285 N.W.2d 905
(Ct. App. 1979).


                                                1
                                                                      No.   2013AP843-CR.ssa


sponte, no Machner hearing had been held.                        A Machner hearing is

critical to address the competency of defense counsel and to

preserve defense counsel's testimony.2                   Indeed, a Machner hearing

"is       a      prerequisite            to       a      claim        of       ineffective

representation . . . ."3

      ¶48       Thus, the court of appeals should have remanded the

cause to the circuit court for a Machner hearing.                             The court of

appeals       erred   in     determining          that    the      defendant        received

deficient assistance of counsel without first providing defense

counsel an opportunity to explain "the reasons underlying his

handling of [the] case."4

      ¶49       The majority opinion determines that defense counsel's

trial     performance      was     not   prejudicial.5           In    contrast      to   the

determination         that        defense     counsel        was       deficient,         the



      2
       In       Machner,     92    Wis. 2d    at      804,   the      court    of    appeals
stated:

      We hold that it is a prerequisite to a claim of
      ineffective representation on appeal to preserve the
      testimony of trial counsel.      We cannot otherwise
      determine whether trial counsel's actions were the
      result of incompetence or deliberate trial strategies.
      In such situations, then, it is the better rule, and
      in the client's best interests, to require trial
      counsel to explain the reasons underlying his handling
      of a case.
      3
          Machner, 92 Wis. 2d at 804.
      4
          Id.
      5
       After determining that defense counsel's trial performance
was deficient, the court of appeals further concluded that the
deficiency was prejudicial.


                                              2
                                                      No.    2013AP843-CR.ssa


determination of prejudice can be made by an appellate court

regardless of whether a Machner hearing has been held.6

     ¶50    I do not object to the majority opinion's resolution

of the ineffective assistance of counsel issue.             Rather, I take

issue with the majority opinion's failure to clarify that a

Machner    hearing   is   required   before   an   appellate    court    can

determine that defense counsel's performance was deficient.              The

majority opinion is too cryptic and fails to make the court of

appeals' error clear.

     ¶51    Further, after the court of appeals raised the issue

of ineffective assistance of counsel sua sponte (which of course

it may do), it failed to allow briefing on the matter.              This is

particularly    problematic    considering     the   court     of   appeals

determined that the issue of ineffective assistance of counsel

was dispositive of the case.         Moreover, had the parties briefed

the issue of defense counsel's competency, the court of appeals

may not have erroneously disregarded the Machner requirement.



     6
       See State v. Roberson, 2006 WI 80, ¶44, 292 Wis. 2d 280,
717   N.W.2d 111   ("Because   we  conclude   that    the   record
sufficiently establishes that Roberson was not prejudiced by his
counsel's actions, we further conclude that the circuit court
did not err in denying Roberson a hearing on his postconviction
motion alleging ineffective assistance of trial counsel in
accordance   with   Machner"  (citation  omitted).);    State   v.
Rodriguez, 2006 WI App 163, ¶40, 295 Wis. 2d 801, 722 N.W.2d 136
("A Machner hearing here, however, was not required, because we
agree with the trial court, on our de novo review, that
Rodriguez has not shown the requisite prejudice.").       See also
majority op., ¶38 n.22 ("A Machner hearing is not required where
the   record   shows   that  the   defendant   cannot    establish
prejudice.").


                                     3
                                                             No.   2013AP843-CR.ssa


     ¶52    We have previously admonished that before a court acts

on its own initiative, it must accord the parties an opportunity

to present their positions.7       (Admittedly, this court frequently

fails to follow its own advice in this regard.8)

     ¶53    Second,   the   majority       opinion   fails    to   caution    that

this court generally does not consider dispositive "[a] circuit

court's after-the-fact assertion of non-reliance" on an improper

factor     at   sentencing.9    Rather,       "[a]    reviewing      court    must

independently review the record of the sentencing hearing to


     7
       See, e.g., Bartus v. DHSS, 176 Wis. 2d 1063, 1073, 501
N.W.2d 419 (1993) ("We therefore urge the courts to exercise
caution when determining an issue sua sponte without the
assistance of supplemental briefs and to ask for briefs unless
the matter is quite clear."); Cemetery Servs., Inc. v. Wis.
Dep't Reg. & Licensing, 221 Wis. 2d 817, 831, 586 N.W.2d 191
(Ct. App. 1998) ("We cannot serve as both advocate and court.
For this reason, we generally choose not to decide issues that
are not adequately developed by the parties in their briefs.").
See also Day v. McDonough, 547 U.S. 198, 210 (2006) ("Of course,
before acting on its own initiative, a court must accord the
parties fair notice and an opportunity to present their
positions.").
     8
       See, e.g., Maurin v. Hall, 2004 WI 100, ¶¶119-121, 274
Wis. 2d 28, 682 N.W.2d 866 (Abrahamson, C.J. & Crooks, J.,
concurring), overruled on other grounds by Bartholomew v. Wis.
Patients Comp. Fund, 2006 WI 91, 293 Wis. 2d 38, 717 N.W.2d 216.
In Maurin, Justice Crooks and I criticized the majority opinion
for deciding the case on the basis of a "novel interpretation of
the statutes" without first requesting supplemental briefs or
reargument.   Maurin, 274 Wis. 2d 28, ¶120 (Abrahamson, C.J. &
Crooks, J., concurring). Our concurrence stated: "We are at a
loss to understand why the majority refuses to call for
additional briefs."   Maurin, 274 Wis. 2d 28, ¶121 (Abrahamson,
C.J. & Crooks, J., concurring).
     9
       See State v. Travis, 2013 WI 38, ¶48, 347 Wis. 2d 142, 832
N.W.2d 491.


                                       4
                                                     No.    2013AP843-CR.ssa


determine the existence of any actual reliance on [an improper

factor]."10

     ¶54    The majority opinion concludes that the defendant is

not entitled to resentencing because he has failed to meet his

burden of proving by clear and convincing evidence that the

circuit    court   actually   relied   on   an   improper    factor    when

imposing sentence.11



     10
       Travis, 347 Wis. 2d 14, ¶48. The Travis court summarized
the court's approach to the question of whether a circuit court
relied on inaccurate or improper information at sentencing as
follows:

     The standard, as stated in Tiepelman, to determine
     whether the circuit court "actually relied" on the
     incorrect information at sentencing is based upon
     whether the circuit court gave "explicit attention" or
     "specific consideration" to it, so that the inaccurate
     information "formed part of the basis for the
     sentence."   A circuit court's "explicit attention to
     the misinformation demonstrates [the circuit court's]
     reliance on that misinformation in passing sentence."

     "[T]he   fact  that   other  information  might  have
     justified the sentence, independent of the inaccurate
     information, is irrelevant when the court has relied
     on inaccurate information as part of the basis of the
     sentence."

     A reviewing court must independently review the record
     of the sentencing hearing to determine the existence
     of any actual reliance on inaccurate information.    A
     circuit court's after-the-fact assertion of non-
     reliance on allegedly inaccurate information is not
     dispositive of the issue of actual reliance.

Travis, 347 Wis. 2d 14, ¶¶46-48 (footnotes omitted; alterations
& emphasis in original).
     11
          See majority op., ¶¶2, 31-35.


                                   5
                                                                      No.    2013AP843-CR.ssa


     ¶55    In    reaching        this       conclusion,        the    majority      opinion

relies on the circuit court's order, which states that "the

court and the parties were aware of the bigger picture of what

had been going on, and the defendant's statement to his agent

did not reveal anything not already known to the court."12

     ¶56    The circuit court did not say it did not actually rely

on the inadmissible information appended to the PSI.                                 Rather,

the circuit court declared that it did not need to rely on the

defendant's inadmissible statements because it was already aware

of the information contained in those statements.

     ¶57    In      any      event,      a    circuit          court's      after-the-fact

assertions       are      not    dispositive.              Nevertheless,          after     an

independent review of the sentencing record, I agree with the

majority opinion that the defendant has failed to prove the

circuit court actually relied on an improper factor.

     ¶58    Third,        the    majority          opinion      fails       to    explicitly

conclude     that      the      statements         by    the    defendant         that    were

erroneously      appended        to   the     PSI       constitute       compelled       self-
incrimination.            The   defendant,         the    State,      and   the    court    of

appeals correctly state the law:                         The defendant's statements




     12
          Majority op., ¶34.


                                               6
                                                              No.   2013AP843-CR.ssa


were compelled self-incrimination and were inadmissible against

him at sentencing in the present case.13

       ¶59    The majority's unwillingness to acknowledge this clear

instance of compelled self-incrimination is mystifying and may

have    the   unintended      consequence    of     raising    questions     about

existing law.       As I recently stated in my concurrence in 118th

Street Kenosha, LLC v. Wisconsin Department of Transportation,

2014 WI 125, ¶67, ___ Wis. 2d ___, 856 N.W.2d 486 (Abrahamson,

C.J., concurring):

       This court is developing the bad habit of assuming
       applicable legal principles without deciding the legal
       issues that are presented and briefed.      This habit
       "has the unfortunate effect of ducking [] vital
       issue[s] that should be decided," "fails to provide
       adequate guidance to litigants, the circuit courts,
       and the court of appeals," and flouts this court's
       "ultimate responsibility for development of the law."
       (Footnotes omitted.)
       ¶60    In   sum,   I   take   issue   with    the   majority      opinion's

failure to clarify three points of law:                (1) a Machner hearing

is required for an appellate court to determine whether defense

counsel's performance was deficient; (2) this court does not

consider dispositive a circuit court's after-the-fact assertion

       13
       See State v. Alexander, No. 2013AP843-CR, unpublished
slip op., ¶¶9-11 (Wis. Ct. App. Jan. 28, 2014). See also State
v. Spaeth, 2012 WI 95, ¶¶55-56, 343 Wis. 2d 220, 819 N.W.2d 769
(stating that Wisconsin courts recognize "the right of the State
to compel statements from probationers and the corresponding
obligation to provide immunity coextensive with the Fifth
Amendment privilege"); State v. Peebles, 2010 WI App 156, ¶19,
330 Wis. 2d 243, 792 N.W.2d 212 ("[I]f a probationer is
compelled by way of probation rules to incriminate himself or
herself, the resulting statements may not be used in any
criminal proceeding.").


                                        7
                                                       No.   2013AP843-CR.ssa


of non-reliance on an improper factor at sentencing; and (3) the

statements by the defendant that were erroneously appended to

the   PSI    constitute    compelled       self-incrimination    and    were

inadmissible at sentencing in the present case.

      ¶61   For the reasons set forth, I write separately.

      ¶62   I   am   authorized   to   state   that   Justice   ANN    WALSH

BRADLEY joins this opinion.




                                       8
                                                                 No.    2013AP843-CR.dtp

    ¶63    DAVID       T.   PROSSER,      J.        (concurring).           This       case

involves   alleged      irregularities         in     the     sentencing       of     Danny

Robert Alexander, Sr. (Alexander).

    ¶64    Alexander        was    charged         with    presenting       two     forged

checks for payment at different U.S. Bank branches in Milwaukee

County on December 15, 2011.              The two forgeries were contained

in a single count that was filed on January 16, 2012.

    ¶65    Alexander pled guilty to the single count on February

21, 2012, before Milwaukee County Circuit Judge Jeffrey Wagner,

who ordered a PSI.          He was sentenced on the Milwaukee forgeries

on April 10, 2012.

    ¶66    The agent who prepared the PSI for the court did not

interview Alexander personally.               Instead, the agent attached to

the PSI certain admissions that Alexander made to another agent

on December 30 after his December 27 arrest.                           The admissions

acknowledged Alexander's involvement in additional forgeries in

Waukesha     County.        The    form       on    which     Alexander        made    the

admissions (DOC-1305) included the following language at the top

of the form:

    I have been advised that I must account in a truthful
    and accurate manner for my whereabouts and activities,
    and that failure to do so is a violation for which I
    could be revoked. I have also been advised that none
    of this information can be used against me in criminal
    proceedings.
    ¶67    The   essence      of   Alexander's            grievance    is   that      these

admissions     were     confidential,          could       not   be     used        against

Alexander in any criminal proceeding, and should not have been

attached to the PSI.         He demands resentencing before a different
judge, as ordered by the court of appeals.

                                          1
                                                                   No.   2013AP843-CR.dtp

      ¶68    There is no dispute that Alexander should have been

interviewed personally by the PSI writer.                    If Alexander had been

interviewed personally, he likely would have been asked about

other forgeries because that information was known to the PSI

writer.     There also is no dispute that Alexander's admissions to

the other agent should not have been attached to the PSI by the

PSI writer.

      ¶69    Nonetheless, mistakes in criminal procedure are not

uncommon and are normally evaluated in terms of their impact on

the defendant.        "The court shall, in every stage of an action,

disregard any error or defect in the pleadings or proceedings

which shall not affect the substantial rights of the adverse

party."     Wis. Stat. § 805.18(1).

      ¶70    In   this       case,      neither        the   defendant          nor    the

defendant's attorney objected to the errant attachments.                              This

failure to object amounted to a forfeiture and shifted the case

to a claim of ineffective assistance of counsel.                         No matter how

one looks at the case, however, the defendant bears the burden

of showing that he suffered prejudice from any alleged error.
      ¶71    Plainly, there was no prejudice in this case.                       This is

evident from the following historical facts.

      ¶72    First,    the     initial    CCAP    entry      in    the   present      case

reads as follows: "01-16-12 Complaint filed.                        Additional text:

OTP from Waukesha County" (emphasis added).                       This CCAP entry is

in   the    record.      OTP    means    "order    to    produce"        from   Waukesha

County,     implying     that    Alexander       was    in   custody      in    Waukesha

County.     An inquiring mind would want to know why Alexander was
in custody.

                                          2
                                                             No.   2013AP843-CR.dtp

     ¶73    Second, the PSI contained a statement from the victim:

     Mr. Harlan Peterson, Senior Fraud investigator for US
     Bank Corporation, was interviewed for the PSI.     Mr.
     Peterson stated that he has been highly involved in
     this case as there were several checks cashed by
     several suspects in a ring of fraudulent activities
     involving area businesses and US Bank, as well as
     other financial institutions.    Mr. Peterson stated,
     "I'm tired of the Danny Alexander's [sic] of the world
     who come into our banks and have the audacity to cash
     as many fraudulent checks as they want and leave.
     They are caught, because they usually don't care if
     they get caught; but at sentencing the Defense
     Attorney will say, 'well, it's only a couple thousand
     dollars.'   Well here, we (US Bank) have a total loss
     of $12,000 from Danny and his accomplices. And that's
     just us; there are other victims here and other
     pending cases."
(Emphasis added.)

     ¶74    Third,    the     PSI     also    states,     under     the     heading

"PERSONAL   HISTORY":       "The    defendant   has   five   siblings:       Jackie

Alexander, John Alexander, Chris Alexander, Jamie Alexander, and

Michael Alexander.      His brothers Chris, Jamie, and Michael are

all suspects in offenses related to the present offense in both

Milwaukee and Waukesha Counties." (Emphasis added.)

     ¶75    Fourth,   CCAP     indicates      that    criminal     charges     were

filed against Danny R. Alexander, Sr. in Waukesha County on
March 13, 2012.        Alexander was charged with three counts of

violating Wis. Stat. § 943.38(2) (forgery-uttering).

     ¶76    The March 13, 2012, complaint was issued before the

PSI in the Milwaukee case was filed (March 29, 2012) and before

Alexander was sentenced in the Milwaukee case (April 10, 2012).

Moreover, the Waukesha charges against Danny Alexander were part
of   a   15-count     complaint       filed     against    Danny's        brothers,

Christopher N. Alexander, Jamie D. Alexander, and Michael C.
                                        3
                                                                   No.    2013AP843-CR.dtp

Alexander, and three others.              All defendants pled to the charges

against    them    in   due     course,    and    all   the    Alexander         brothers

received felony convictions.

    ¶77     Is there any wonder then why there was no explicit

discussion of the errant attachments to the PSI, which sugar-

coated Alexander's involvement in a substantial forgery scheme?

    ¶78     Fifth,      Danny    Alexander       was    revoked      on    one    of   his

multiple prior felony convictions on March 23, 2012 before he

was sentenced on the Milwaukee forgery.                       His sentence on the

Milwaukee     forgery      was     made     concurrent        to     the     revocation

sentence, so that he will serve less than two years of his

three-year confinement in prison solely because of the Milwaukee

conviction.        Moreover, his sentence in Waukesha County on one

felony    count,    plus   two     felony      read-ins,      was    three     years    of

extended supervision consecutive to the extended supervision in

the Milwaukee case.           In other words, the Waukesha County court

gave him no additional prison confinement time for the three

Waukesha County forgeries.

    ¶79     How exactly has the defendant been prejudiced by the
mistaken attachments to the PSI?               Inasmuch as I believe there is

no convincing answer to this question, I respectfully concur in

the majority opinion.




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       ¶80   MICHAEL J. GABLEMAN, J.                (concurring).           I agree with

the conclusion and analysis of the majority opinion and join it.

I   write    separately,       however,      to     explain    that        the     court    of

appeals does, and should, have the power to raise and decide

issues not briefed by the parties.

       ¶81   The     court    of     appeals      raised     the    issue     of    whether

Alexander's counsel was ineffective sua sponte.                             Majority op.,

¶13.     The State argues that this was error because Alexander

"forfeited"        this    argument,        as    he   did    not         object    to     the

statements in the PSI report at the circuit court or raise the

issue to the court of appeals.                   Before this court, both parties

briefed the issue of whether the court of appeals has the power

to raise and decide on its own an issue that is not raised or

briefed by the parties.              The majority opinion does not address

the issue squarely, but because it resolves the case on the

issue of prejudice, rather than forfeiture, one might assume

that this court agrees that the court of appeals has power to

raise an issue sua sponte.
       ¶82   I believe that we should answer the issue briefed by

the parties more directly and reaffirm our previous holdings

concerning the power of the court of appeals in this regard.

       ¶83   Ordinarily,       appellate         courts    "will     not     consider       or

decide    issues     which    are     not    specifically          raised    on    appeal."

Waushara     Cnty.    v.     Graf,    166    Wis. 2d 442,          451,    480     N.W.2d 16

(1992).      However, it is axiomatic that this court is not bound

by the issues presented or the arguments made by the parties.                                A
similar principle applies to the court of appeals.                               See id. at

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453 (noting that "the court of appeals had no obligation to look

beyond the issues presented" but that "it was within the court's

discretion to do so").            The court of appeals is primarily an

error correcting court.           Were it not allowed to reach certain

issues    not   briefed     by    the    parties,    that    purpose          would   be

frustrated.

    ¶84     Contrary to the argument advanced by the State, the

court of appeals does, and should, have the power to raise the

issue of ineffective assistance of counsel on its own.                          In our

"two-tiered appellate system, the court of appeals is destined

to be the court of last resort for most cases."                              Vollmer v.

Luety, 156 Wis. 2d 1, 15, 456 N.W.2d 797 (1990).                             While the

court of appeals does not have the broad powers that this court

has to review any issue, in order to fulfill its purpose as an

error correcting court the court of appeals must be able to

reach issues such as ineffective assistance of counsel even when

they are not raised by the parties.                 See State v. Schumacher,

144 Wis. 2d 388, 408 n.14, 424 N.W.2d 672 (1988) ("the court of
appeals'    discretionary        power    must   extend     to    a    discretionary

power to review such matters as . . . ineffective-assistance-of-

counsel claims").

    ¶85     It will be the normal case where the parties to a

particular action drive the litigation and frame the issues on

appeal.    However, there are situations in which an issue such as

ineffective assistance of counsel is not raised, but should have

been.      In   such   a   case   it     is   appropriate    for       the    court   of



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appeals, or this court, to raise the issue on its own, and, if

the record permits, decide the case on that ground.

    ¶86   For the foregoing reasons, I respectfully concur.




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