COURT OF APPEALS
DECISION
DATED AND FILED
March 30, 2011
A. John Voelker
Acting Clerk of Court of Appeals
Appeal Nos.
NOTICE
This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
A party may file with the Supreme Court a
petition to review an adverse decision by the
Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.
Cir. Ct. No. 2008CM1624
2010AP1327-CR
2010AP2036-CR
STATE OF WISCONSIN
IN COURT OF APPEALS
DISTRICT II
STATE OF WISCONSIN,
PLAINTIFF-RESPONDENT,
V.
THOMAS J. HOFFMAN,
DEFENDANT-APPELLANT.
APPEAL from a judgment and an order of the circuit court for
Kenosha County: BRUCE E. SCHROEDER, Judge. Affirmed.
¶1
NEUBAUER, P.J.1 Thomas J. Hoffman appeals from a judgment of
conviction and a circuit court order denying his motion for reconsideration. The
1
This appeal is decided by one judge pursuant to WIS. STAT. § 752.31(2)(f) (2009-10).
All references to the Wisconsin Statutes are to the 2009-10 version unless otherwise noted.
(continued)
Nos. 2010AP1327-CR
2010AP2036-CR
circuit court sentenced Hoffman on a withheld sentence following a probation
revocation. Hoffman challenges the circuit court’s consideration of a pending
charge at sentencing and also the manner in which the circuit court conducted the
postconviction hearing on Hoffman’s motion for sentence modification.
The
circuit court determined that Hoffman failed to establish by clear and convincing
evidence that the court relied upon inaccurate information at sentencing. While
Hoffman has completed his sentence under the judgment and his appeal is moot,
we nevertheless conclude that the circuit court did not err.
We affirm the
judgment and order.
BACKGROUND
¶2
Hoffman pled guilty to obstructing an officer after he misled the
police during an investigation of a substantial battery. On December 15, 2008, the
circuit court entered a judgment withholding Hoffman’s sentence and imposing
one year of probation. Hoffman was subsequently served with revocation papers
based on a disorderly conduct charge and, on July 22, 2009, Hoffman filed a
motion for rejection of probation. The court held a sentencing hearing on August
19, 2009, at which it advised Hoffman that if he chose to proceed with probation
revocation, the court would take the disorderly conduct allegations as true and
would also consider the fact that it had previously sentenced Hoffman in a
substantial battery case. Hoffman chose to proceed. In reaching its sentencing
determination, the circuit court recounted the allegations against Hoffman
We note that these consolidated appeals concern the same underlying offense. The initial
notice of appeal for No. 2008CM1624 was filed with the court of appeals in May 2010 before the
entry of a written order denying Hoffman’s postconviction motion. A second notice of appeal
was then filed in August 2010 following the entry of a written order. The court of appeals
granted Hoffman’s motion to consolidate the appeals by order dated September 17, 2010.
2
Nos. 2010AP1327-CR
2010AP2036-CR
including witness statements. Hoffman’s counsel in turn noted discrepancies in
the witness accounts underlying the disorderly conduct charge.
The court
acknowledged counsel’s concern, informed Hoffman that the court was
considering the pending charge for purposes of sentencing, and stated, “if it is
demonstrated that [Hoffman is] actually innocent, then I will accept a request for a
modification of this sentence.” The circuit court sentenced Hoffman to seven
months in jail.
¶3
On March 25, 2010, Hoffman filed a postconviction motion for
modification or reduction in sentence. Hoffman asserted in part that the circuit
court erred in its reliance on Hoffman’s suspected guilt in the disorderly conduct
charge, a matter of which “he was later acquitted.” Hoffman argued that he should
have enjoyed a presumption of innocence in that matter and that the circuit court
“ultimately based its sentence on what was found to be inaccurate information.”
Hoffman acknowledged that the dismissal of the disorderly conduct case occurred
after the sentencing at issue and after Hoffman had served the entirety of that
sentence. The State countered that the issue was moot and requested that the
motion be denied.
¶4
In an order dated April 7, 2010, the circuit court took the State’s
mootness objection under advisement and scheduled a hearing to determine the
facts underlying the State’s dismissal of the disorderly conduct charge against
Hoffman.
At the subsequent hearing, the State indicated that it intended to
“reissue the case” but was not sure it could succeed at a preliminary hearing
because the victim was recanting. Hoffman’s counsel conceded that the charge,
while not being pursued by the State at that time, could still be reissued. As to
mootness, Hoffman’s counsel argued that the length of the sentence could have a
3
Nos. 2010AP1327-CR
2010AP2036-CR
future impact if he were to be sentenced for a subsequent offense and could impact
employment and residential options.
¶5
Hoffman’s motion for sentence modification proceeded to an
evidentiary hearing at which the circuit court provided Hoffman the opportunity to
prove his “actual innocence” in the disorderly conduct case. Both Hoffman and
the State had the opportunity to present witnesses and elicit testimony regarding
the disorderly conduct charge. Hoffman testified. At the close of the hearing, the
court found that the State’s evidence “all fits together” and that Hoffman had
failed to meet his burden of proving that the court relied on inaccurate information
at sentencing. The court denied Hoffman’s motion for postconviction sentence
modification. Hoffman appeals.
DISCUSSION
¶6
At the outset, the State contends that Hoffman’s appeal is moot; he
has served his entire seven-month sentence and this court’s review on his motion
for sentence modification will have no practical effect. The State cites to State v.
Walker, 2008 WI 34, 308 Wis. 2d 666, 747 N.W.2d 673, in support. There, the
supreme court held that a challenge to a reconfinement order was moot because
the defendant had completed the reconfinement term and the court’s decision
would not affect the underlying controversy. Id., ¶¶1, 14. Reviewing courts
generally decline to decide moot issues but may do so under certain
circumstances, including when the issue (1) is of great public importance; (2)
occurs so frequently that a definitive decision is necessary to guide circuit courts;
(3) is likely to arise again and a decision of the court would alleviate uncertainty;
or (4) will likely be repeated, but evades appellate review because the appellate
review process cannot be completed or even undertaken in time to have a practical
4
Nos. 2010AP1327-CR
2010AP2036-CR
effect on the parties. State v. Morford, 2004 WI 5, ¶7, 268 Wis. 2d 300, 674
N.W.2d 349. While the Walker court chose to address the issue because of the
frequency with which courts address reconfinement issues, Walker, 308 Wis. 2d
666, ¶14, no such exception applies to this fact-specific motion for sentence
modification.
Nor does Hoffman’s contention that he may someday feel the
effects of the court’s sentence when applying for employment or living
accommodations persuade us otherwise. See State v. Zisch, 243 Wis. 175, 178,
9 N.W.2d 625 (1943) (the defendant must show an existing legal right is affected).
¶7
Although Hoffman’s appeal is moot, we nevertheless affirm the
circuit court’s decision on the merits. Hoffman contends that the postconviction
evidentiary hearing was tantamount to a jury trial on the disorderly conduct
charge, but without a jury. In doing so, Hoffman focuses on the procedure and
abandons any argument that the circuit court erred in its determination that he had
not met his burden. The issue presented on appeal arose with the circuit court’s
consideration of the pending disorderly conduct charge at sentencing, something
Hoffman concedes the circuit court was entitled to do.2 See State v. Leitner, 2002
WI 77, ¶45, 253 Wis. 2d 449, 646 N.W.2d 341. However, once the disorderly
conduct charge was dismissed, Hoffman requested sentence modification. As is
reflected in the facts, Hoffman’s challenge to the circuit court’s consideration of
the pending disorderly conduct charge (which was later dismissed) resulted in
2
As explained by the supreme court in State v. Leitner, 2002 WI 77, ¶45, 253 Wis. 2d
449, 646 N.W.2d 341: “[S]entencing courts are obliged to acquire the ‘full knowledge of the
character and behavior pattern of the convicted defendant before imposing sentence.’ A
sentencing court may consider uncharged and unproven offenses and facts related to offenses for
which the defendant has been acquitted.” (Citation omitted.)
5
Nos. 2010AP1327-CR
2010AP2036-CR
much discussion and a postconviction evidentiary hearing to resolve any factual
disputes relevant to the sentencing decision.
¶8
information.
A defendant has a due process right to be sentenced upon accurate
State v. Tiepelman, 2006 WI 66, ¶9, 291 Wis. 2d 179, 717
N.W.2d 1. As part of this guarantee, a defendant has the right to rebut disputed
factual information considered by the sentencing court. State v. Spears, 227
Wis. 2d 495, 508, 596 N.W.2d 375 (1999).
A defendant who requests
resentencing due to the circuit court’s use of inaccurate information at the
sentencing hearing must show by clear and convincing evidence “both that the
information was inaccurate and that the court actually relied on the inaccurate
information in the sentencing.”
Tiepelman, 291 Wis. 2d 179, ¶26 (citation
omitted); see also State v. Payette, 2008 WI App 106, ¶46, 313 Wis. 2d 39, 756
N.W.2d 423. Here, the disputed facts related to witness accounts of the disorderly
conduct and, as such, Hoffman was afforded an evidentiary hearing. See State v.
Anderson, 222 Wis. 2d 403, 412, 588 N.W.2d 75 (Ct. App. 1998) (“the trial court
has an important factfinding role to perform if facts relevant to the sentencing
decision are in dispute [and] the sentencing court must resolve such disputes”).
The hearing was not for purposes of determining guilt as to a new charge, but
solely for the purpose of assessing the accuracy of the information relied on at
sentencing.
¶9
After considering the testimony of the witnesses, including Hoffman
himself, the circuit court expressly found the testimony in support of the State’s
position to be more credible and determined that Hoffman had failed to carry his
burden of establishing the inaccuracy of the facts relied on at sentencing. While
Hoffman contends that the court erred in requiring him to prove “actual
innocence” for a charge that had been dismissed and, thus, of which he had been
6
Nos. 2010AP1327-CR
2010AP2036-CR
acquitted, we note that the sentencing court would have been entitled to consider
the disorderly conduct charge even if it had been dismissed and not pending at the
time of sentencing. See Leitner, 253 Wis. 2d 449, ¶45 (“A sentencing court may
consider … facts related to offenses for which the defendant has been acquitted.”)
Based on our review of the postconviction evidentiary hearing, we see no error in
the circuit court’s conduct of the hearing or its determination that Hoffman failed
to demonstrate the inaccuracy of the information relied on at sentencing.
CONCLUSION
¶10
We conclude that Hoffman’s appeal is moot; nevertheless, our
review of the record reveals no error by the circuit court. The circuit court was
entitled to consider charges pending at the time of sentencing and although that
charge was later dismissed, Hoffman failed to establish that the facts surrounding
the alleged conduct and considered by the court at sentencing were inaccurate.
We affirm the judgment and order.
By the Court.—Judgment and order affirmed.
This opinion will not be published.
809.23(1)(b)4.
7
See WIS. STAT. RULE
