State v. Alexander

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Justia Opinion Summary

Defendant pled guilty to felony forgery. After Defendant was sentenced he filed a motion for resentencing, arguing that his Fifth Amendment privilege against self-incrimination was violated because compelled, self-incriminating statements to his probation agent were appended to the report of the presentence investigation the circuit court reviewed at sentencing. The circuit court denied the motion. The court of appeals reversed and granted resentencing based on ineffective assistance of counsel, which the court of appeals raised sua sponte. The Supreme Court reversed, holding (1) assuming, without deciding, that Defendant’s statements to his probation agent were compelled, Defendant failed to prove by clear and convincing evidence that the circuit court erroneously exercised its discretion by actually relying on Defendant’s compelling, incriminating statements in imposing sentence; and (2) therefore, Defendant was not prejudiced by his counsel’s lack of objection to those statements.

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2015 WI 6 SUPREME COURT CASE NO.: COMPLETE TITLE: OF WISCONSIN 2013AP843-CR 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 App. 2014 – Unpublished) OPINION FILED: SUBMITTED ON BRIEFS: ORAL ARGUMENT: SOURCE OF APPEAL: COURT: COUNTY: JUDGE: JUSTICES: CONCURRED: January 27, 2015 October 7, 2014 Circuit Milwaukee Jeffrey A. Wagner 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, FILED Plaintiff-Respondent-Petitioner, 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. ¶1 of the PATIENCE DRAKE ROGGENSACK, J. court of appeals1 that granted Reversed. We review a decision resentencing based on ineffective assistance of counsel, which reversed the circuit court's2 denial resentencing. of Danny Robert Alexander's motion for 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 presided. Honorable Jeffrey A. Wagner of Milwaukee County No. his probation agent were appended to the 2013AP843-CR 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 probation agent when the court sentenced him. Harris (Landray M.), 2010 WI 79, ¶30, 326 to his See State v. Wis. 2d 685, 786 N.W.2d 409. ¶2 and We conclude that Alexander failed to prove by clear convincing exercised compelled, its evidence that discretion by incriminating the circuit actually statements court relying in on imposing erroneously Alexander's 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. ¶3 BACKGROUND 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. presented two locations: forged The complaint alleged that Alexander checks for payment at two one for $1,749.13 and one for $1,456.23.3 U.S. Bank 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. recommendation noted that Alexander committed the The forgery offense while on extended supervision, just over a month after he was released from prison. 3 The agent characterized 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: right? [ALEXANDER]: Yes. You saw the pre-sentence, They didn't come and see me. . . . . THE COURT: Okay. report, right? [ALEXANDER]: THE COURT: state? [THE STATE]: But you looked——You have read this Yes. Okay. Any additions or corrections by the No. THE COURT: So then [Attorney] Johnson? [ATTORNEY] JOHNSON: ¶9 we are ready to proceed, Yes. 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 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 the 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 motion for activities.8 ¶12 The resentencing. circuit The court court denied noted that sentencing that he had read the PSI. Alexander's Alexander agreed during 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. complaint true.9 were Alexander's The statements court referred to also explained other forged 2013AP843-CR that and while 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. also The court noted that the "Crime Victim Impact Statement 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 selfincrimination appeals that reversed he the alleged had circuit occurred. court based The on court of 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. ¶14 2013AP843-CR We granted review, and now reverse the decision of the court of appeals. II. A. ¶15 We Alexander context review was of the sentencing. Standard of Review the denied DISCUSSION court of effective circuit Whether conclusion assistance court's counsel appeals' of review the was of counsel ineffective PSI in that in the report at failing to object to the PSI report because it appended compelled, selfincriminating 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 clearly they are erroneous. Id. However, whether counsel's performance was deficient and whether a defendant was prejudiced thereby, independently. ¶16 present questions of law that we review Id. 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. ¶17 Sentencing Decision 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 9 court actually relied on No. irrelevant or improper factors. 2013AP843-CR 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. "[a] defendant has a In Tiepelman, we noted that constitutionally protected right to be sentenced [on] accurate information." due process 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 10 proves inaccuracy and actual 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. ¶19 Id., ¶¶26-27. In Harris (Landray M.), we also applied this framework to a contention that a sentencing court had relied on improper factors, rather than inaccurate (Landray M.), 326 Wis. 2d 685, ¶24. gender, the two factors information. Harris We concluded that race and under examination (Landray M.), were improper sentencing factors. in Harris 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. ¶20 We discussed the difficulty in Id. proving sentencing court actually relied on improper factors. that a 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., information is question——you reliance accurate. on a threshold inaccurate ¶32. information if "Proving cannot the inaccurate show actual information is 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. 1. ¶22 2013AP843-CR Improper factor 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: 12 race or No. origin,11 national gender,12 alleged 2013AP843-CR extra-jurisdictional offenses,13 and the defendant's or victim's religion.14 ¶24 Alexander has a Fifth Amendment compelled to be a witness against himself.15 483 U.S. 44, 51-53 (1987). right not to be Rock v. Arkansas, 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 incrimination). privilege Accordingly, against a circuit compelled court self- 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. 2. ¶25 the 2013AP843-CR Actual reliance The second part of our inquiry is to determine whether circuit court actually relied on an improper factor sentencing Alexander, i.e., Alexander's compelled statements. circuit court imposed." "must Harris articulate (Denia), the 119 basis for Wis. 2d the at in A sentence 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. 16 State v. Lechner, 217 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. Wis. 2d 392, 419-22, 576 N.W.2d 912 (1998)17 2013AP843-CR (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, allegedly 48-52 (reviewing constituting comments "explicit by the circuit attention"). court 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. circuit Lechner, court 217 Wis. 2d considered the at 421-22 alleged (stating convictions as that the "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 relied In cases concluding that the circuit court actually 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 Travis, we the inaccurate that noted information. circuit repetitively referred Travis, Wis. 2d 347 explained that obligation if to to the 142, it to the court inaccurate ¶¶32-33. were impose inaccurately stated. ¶28 the For example, explicitly penalty circuit a sentence, minimum and information. The impose in sentence, court it also had which an was Id., ¶34. 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. court of appeals sentencing remarks Id. at 410. stated: is "The In regard to reliance, the tenor inconsistent of with the the trial court's 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. (Denia), 119 Wis. 2d at 623. In 16 the context of the Harris whole 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 (Landray M.), could 326 show Wis. 2d actual 685, reliance. ¶¶53, 60, See 64; Harris Tiepelman, 291 Wis. 2d 179, ¶14. 3. ¶30 Application 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 violate a the defendant's defendant's incrimination. the Fifth Amendment their would against right use self- Therefore, the remaining question before us is circuit court statements compelled because Rock, 483 U.S. at 51-53; Lonkoski, 346 Wis. 2d 523, ¶23 & n.8. whether sentence that actually were relied appended on to Alexander's the PSI.18 Accordingly, we review the entire sentencing transcript to see whether the circuit court compelled statements. ¶45. We also review gave explicit attention to the Harris (Landray M.), 326 Wis. 2d 685, 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. compelled statements. 347 Wis. 2d statements 142, made resentencing. ¶31 Tiepelman, 291 Wis. 2d 179, ¶14; Travis, ¶¶28, in 2013AP843-CR 31. We response to also review Alexander's the court's motion for Harris (Landray M.), 326 Wis. 2d 685, ¶49. In his compelled statements, Alexander admitted his role in the Silver Mill forgeries and in other forgeries not involved herein. information statement. that At sentencing, the circuit court referred to could However, be viewed found in in Alexander's context, the compelled 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. the individuals involved in the other 2013AP843-CR 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 (Denia), 119 Wis. 2d at 623-24. intervention. See Harris 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. three years initial recommendation, and The circuit court sentenced Alexander to confinement, ultimately consistent three with years of the PSI's 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. for the sentence imposed. See Tiepelman, 291 Wis. 2d 179, ¶14; Travis, 347 Wis. 2d 142, ¶¶28, 31. did not actually rely 2013AP843-CR on an Therefore, the circuit court 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." information The court noted alternative sources for the 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. imposed. 2013AP843-CR 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 circuit failures court sentence, accept explained both Alexander's to at motion correctional its basis sentencing for for and resentencing. intervention. imposing in We its The Alexander's order conclude denying there is nothing to indicate that the circuit court's sentence was an erroneous exercise of discretion. C. ¶36 Ineffective Assistance of Counsel 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. ¶37 2013AP843-CR 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, unpublished slip op., ¶¶12-15. No. 2013AP843-CR, 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 counsel's counsel's Furthermore, lack of an performance if Alexander objection, was we deficient was not prejudiced need not decide in not whether objecting Alexander's compelled statements appended to the PSI. by to 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. ¶41 and CONCLUSION We conclude that Alexander failed to prove by clear convincing exercised its compelled, evidence that discretion by incriminating the circuit actually statements court relying in on imposing erroneously Alexander's 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 reversed. 23 of the court of appeals is No. ¶42 SHIRLEY S. ABRAHAMSON, C.J. 2013AP843-CR.ssa (concurring). Compelled statements by the defendant to his extended supervision agent were erroneously report (PSI) in resentencing, appended the to instant arguing that the presentence case. The the circuit investigation defendant moved court for 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 the First, the majority opinion fails to correct errors in court of appeals' assistance of counsel. approach to the issue of ineffective 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. could not determine whether The court of appeals defense counsel performed deficiently without a Machner hearing.1 ¶47 raised Because the issue the of court of appeals ineffective 1 in assistance the of instant counsel case sua See State v. Machner, 92 Wis. 2d 797, 804, 285 N.W.2d 905 (Ct. App. 1979). 1 No. sponte, no Machner hearing had been held. 2013AP843-CR.ssa A Machner hearing is critical to address the competency of defense counsel and to preserve defense counsel's testimony.2 "is a prerequisite to a Indeed, a Machner hearing claim of ineffective representation . . . ."3 ¶48 Thus, the court of appeals should have remanded the cause to the circuit court for a Machner hearing. appeals erred in determining that the The court of 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 trial The majority opinion determines that defense counsel's performance determination 2 In stated: was that Machner, not prejudicial.5 defense 92 Wis. 2d In counsel was at the 804, contrast to deficient, court of the the appeals 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 appeals problematic considering the court of 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. ¶52 2013AP843-CR.ssa 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 nonreliance 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. ¶55 In reaching this conclusion, the 2013AP843-CR.ssa 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 assertions any are event, not a circuit dispositive. court's after-the-fact 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 conclude Third, that erroneously the the appended incrimination. The majority opinion by statements to the fails defendant PSI defendant, Majority op., ¶34. 6 constitute the appeals correctly state the law: 12 the State, to explicitly that compelled and the were self- court of The defendant's statements 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 existing law. consequence of raising questions about 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 failure to clarify three points of law: the majority opinion's (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 BRADLEY joins this opinion. 8 that Justice ANN WALSH No. ¶63 involves DAVID T. alleged PROSSER, J. irregularities 2013AP843-CR.dtp (concurring). in the This sentencing case 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 admissions essence were of Alexander's confidential, could grievance not be is that used these 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. ¶68 2013AP843-CR.dtp 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." ¶70 Wis. Stat. § 805.18(1). In this case, neither the defendant nor defendant's attorney objected to the errant attachments. the 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 reads as follows: "01-16-12 Complaint filed. OTP from Waukesha County" (emphasis added). in the means "order present case Additional text: This CCAP entry is record. OTP County, implying that County. An inquiring mind would want to know why Alexander was Alexander in custody. 2 to the was produce" in custody from Waukesha in Waukesha No. ¶73 2013AP843-CR.dtp 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 "PERSONAL Third, the HISTORY": PSI "The also states, defendant has under five the heading 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. Alexander, and three others. against them in due course, 2013AP843-CR.dtp All defendants pled to the charges 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 sugarcoated 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. Milwaukee forgery was made concurrent His sentence on the 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. felony count, Moreover, his sentence in Waukesha County on one 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. 4 No. ¶80 (concurring). MICHAEL J. GABLEMAN, J. 2013AP843-CR.mjg 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 Alexander's counsel was ineffective sua sponte. ¶13. of whether Majority op., 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 decide Ordinarily, issues which v. appellate courts "will not are not specifically raised Graf, 166 Wis. 2d 442, 451, consider on 480 or appeal." Waushara Cnty. 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. similar principle applies to the court of appeals. 1 A See id. at No. 2013AP843-CR.mjg 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-ofcounsel 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 2 appropriate for the court of No. 2013AP843-CR.mjg 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. 3 No. 1 2013AP843-CR.mjg