State v. Carrie E. Counihan


     ¶22       Second, the court of appeals concluded that Counihan

failed to demonstrate ineffective assistance of counsel because

she did not establish that she was prejudiced by any allegedly

deficient performance.              Id., ¶13.         Specifically, the court of

appeals determined that "Counihan cannot show that but for her

attorney's alleged error, there is a reasonable probability that

her sentence would have been different."                       Id., ¶14.     It reached

this conclusion because in its view "[t]he record supports the

circuit court's finding at the postconviction hearing that if the

Door County cases played any role in her sentence, the role was

minimal."       Id.

                                            II

     ¶23       We    are   called    upon    to       determine      whether    Counihan

forfeited her direct challenge to the use of previously unknown

information raised by the circuit court at sentencing. If Counihan

did not forfeit this direct challenge, then we must address the
merits of her argument that the circuit court violated her right

to due process.            These issues present questions of law that we

review independently of the determinations rendered by the circuit

court    and    court      of   appeals.        See    State    v.   Corey     J.G.,

215 Wis. 2d 395, 405

572 N.W.2d 845

 (1998); State v. Loomis,

2016 WI 68, ¶29

371 Wis. 2d 235

881 N.W.2d 749

.

                                            III

     ¶24       We begin by addressing whether Counihan forfeited her
direct    due       process     challenge    to   the    circuit      court's    use   of
                                            9
                                                    No.   2017AP2265-CR



previously unknown information raised by the circuit court at

sentencing without providing her with notice.       Subsequently, we

address the merits of Counihan's due process challenge to the use

of such information at sentencing.

     ¶25   Forfeiture is the failure to make the timely assertion

of a right.6     State v. Ndina,

 (quoting United States v. Olano,

507 U.S. 725, 733


(1993)).   Some rights are forfeited when they are not claimed at

trial, and a mere failure to object constitutes forfeiture of the

right on appellate review.    Id., ¶30.

     ¶26   The purpose of the forfeiture rule is to enable the

circuit court to avoid or correct any error as it comes up, with

minimal disruption of the judicial process and maximum efficiency.

Id.; see Townsend v. Massey (In re Guardianship of Willa L.),

2011 WI App 160, ¶26

338 Wis. 2d 114

808 N.W.2d 155

.    Such a practice

encourages timely objections and obviates the need for appeal.

State v. Erickson,

227 Wis. 2d 758, 766

596 N.W.2d 749

 (1999);

State v. Huebner,

2000 WI 59, ¶12

611 N.W.2d 727

.
     ¶27   Further, the forfeiture rule gives the parties and the

circuit court notice of an issue and a fair opportunity to address

the objection.     Ndina,

.     It additionally



     6 "Although cases sometimes use the words 'forfeiture' and
'waiver' interchangeably, the two words embody very different
legal concepts." State v. Ndina,

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

 (quoting
United States v. Olano,

507 U.S. 725, 733

 (1993)).

                                 10
                                                                No.     2017AP2265-CR



"encourages      attorneys      to   diligently     prepare     for    and   conduct

trials"    and    "prevents      attorneys     from    'sandbagging'         opposing

counsel by failing to object to an error for strategic reasons and

later claiming that the error is grounds for reversal."

   The

forfeiture rule is a rule of judicial administration, and thus a

reviewing court may disregard a forfeiture and address the merits

of an unpreserved issue in an appropriate case.                       State ex rel.

Universal Processing Servs. of Wis., LLC v. Cir. Ct. of Milwaukee

Cty.,

2017 WI 26, ¶53

374 Wis. 2d 26

892 N.W.2d 267

.

     ¶28    Generally, if a claim is forfeited, we address that claim

in the context of ineffective assistance of counsel. See Erickson,

227 Wis. 2d at 766

.        That is, the defendant must demonstrate that

counsel's failure to object constituted deficient performance and

that such deficient performance prejudiced the defendant.                       State

v. Maloney,

2005 WI 74, ¶14

281 Wis. 2d 595

698 N.W.2d 583


(citing Strickland v. Washington,

466 U.S. 668, 687

 (1984)).

     ¶29    The    court   of    appeals     here   determined        that   Counihan

forfeited her challenge to the circuit court's use of the analogous
Door County cases when she failed to object at the sentencing

hearing.    Counihan, No. 2017AP2265-CR, unpublished slip op., ¶10.

It further refused to ignore the forfeiture, thereby declining to

address the underlying merits of the issue.

¶30 Counihan contends that the court of appeals erred by

applying the forfeiture rule to her claim. In Counihan's view,

the forfeiture rule should not apply to information first disclosed

during the sentencing hearing because such an application
undermines the values the forfeiture rule intends to protect.
11
No. 2017AP2265-CR

¶31 With respect to the underlying facts of this case, we

agree with Counihan. When previously unknown information is first

raised by the circuit court at the sentencing hearing, the

defendant has not had a chance to investigate or rebut the

information. At the time the information is raised, a defense

attorney is put in a difficult position if the forfeiture rule is

to be applied——either object to the use of the information and

risk that the details will be detrimental to the client or stay

silent and forfeit the argument should the information be

beneficial to the client.

¶32 Applying forfeiture under such circumstances would not

promote judicial efficiency, but instead would actually hinder it.

Rather than forfeit an issue, defendants would likely seek

adjournments for purposes of investigation, thus delaying

sentencing hearings. Such a practice would run counter to the

stated purposes of the forfeiture rule of maximizing the efficiency

of the judicial process. See Ndina,

.

     ¶33      Contrary to the State's argument, Counihan's negative
response when the circuit court asked her if she knew "any reason

why sentence should not be pronounced" prior to setting forth the

sentence does not indicate that forfeiture should be applied.

Likewise,     the     circuit       court    perfunctorily       asking       if   either

Counihan or the State had "anything further" to discuss before the

close of the hearing has no effect on the outcome.                              Although

Counihan could have spoken up at either of these points, and it is

certainly the best practice to do so, it does not behoove the


                                             12
                                                                   No.     2017AP2265-CR



interests protected by the forfeiture rule to require such an

objection lest the claim be forfeited.

      ¶34       The State points us to several cases to support the broad

proposition that defendants can incur forfeiture by failing to

object at sentencing.            Yet, none of these cases deals with the

specific circumstances we review here——where information was first

raised by the court in its sentencing remarks.                            The present

situation is different from a breach of a plea agreement,7 a claim

of   inaccurate       information       in   a    report   introduced      by   defense

counsel8        or   in   a   presentence        investigation    report,9      or   the

consideration of behavior underlying expunged convictions.10

      ¶35       Unlike    the   claim   at    issue    here,    the     aforementioned

claims involve information to which a defendant would have access

and the ability to investigate prior to the sentencing hearing.

However, when the circuit court first raises information during

its sentencing remarks, a defendant has been deprived of the

opportunity to investigate and defense counsel must act on the

basis      of    incomplete     information.          This     weighs    against     the




      7State v. Robinson,

2001 WI App 127, ¶13

246 Wis. 2d 180

629 N.W.2d 810

.
      8State v. Benson,

2012 WI App 101, ¶17

344 Wis. 2d 126

822 N.W.2d 484

.
      9State v. Mosley,

201 Wis. 2d 36, 46

547 N.W.2d 806

 (Ct.
App. 1996).

       State v. Leitner,

2001 WI App 172, ¶41

247 Wis. 2d 195

,
      10

633 N.W.2d 207

, aff'd

2002 WI 77

253 Wis. 2d 449

646 N.W.2d 341

.

                                             13
                                                                   No.   2017AP2265-CR



application of forfeiture and in favor of allowing a defendant to

first raise the issue in a postconviction motion.

       ¶36    Our refusal to apply forfeiture in the circumstances

presented       is      consistent      with      this      court's      precedent.

Specifically, in State v. Grady, we stated that the defendant "did

not waive the issues presented because he filed a postconviction

motion       pursuant    to

Wis. Stat. § 809.30

(2)(h).          Filing    a

postconviction motion is a timely means of raising an alleged error

by the circuit court during sentencing."

2007 WI 81

, ¶14 n.4,

302 Wis. 2d 80

734 N.W.2d 364

 (citing State v. Gallion,

2004 WI 42, ¶14

).11        Further,      State    v.

Tiepelman is demonstrative of the general practice that challenges

to   information        at    sentencing   are    brought    via     postconviction

motion.

2006 WI 66, ¶7

291 Wis. 2d 179

717 N.W.2d 1

.                       The

alleged error in sentencing here is an issue that can likewise be

first raised in a postconviction motion.

       ¶37    Accordingly, we conclude that where previously unknown

information is raised by the circuit court at the sentencing
hearing, a defendant does not forfeit a direct challenge to the

use of the information by failing to object at the sentencing

hearing.       Under the facts of this case, Counihan appropriately

raised the alleged error in a postconviction motion.                     Because the



       Cases sometimes use the words "waiver" and "forfeiture"
       11

interchangeably. Ndina,

315 Wis. 2d 653, ¶29

. Indeed, the Grady
court did just this. When it spoke of "waiver," it was actually
referring to "forfeiture." See State v. Grady,

2007 WI 81

, ¶14
n.4,

302 Wis. 2d 80

734 N.W.2d 364

.

                                           14
                                                                  No.   2017AP2265-CR



court    of    appeals       determined    that   Counihan     forfeited       such   a

challenge, we modify the decision of the court of appeals.

                                           IV

       ¶38     Because Counihan did not forfeit her direct due process

challenge       to    the    use    of   previously     unknown   information         at

sentencing, we next address the merits of that claim.

       ¶39     As part of the constitutional due process guarantee that

a defendant be sentenced on reliable information, the defendant

has the right to rebut evidence that is admitted by a sentencing

court.        State v. Spears,

227 Wis. 2d 495, 508

596 N.W.2d 375


(1999).       "Obviously, if sentencing information is kept from the

defendant, [the defendant] cannot exercise this right."                       State v.

Lynch,

2006 WI App 231, ¶24

297 Wis. 2d 51

724 N.W.2d 656

.

       ¶40     Circuit courts are required to set forth on the record

the reasons for sentences they impose.                 Gallion,

270 Wis. 2d 535, ¶¶38-39

.        This includes explanation of the objectives of the

sentence, which may be, without limitation, the protection of the

community, punishment of the defendant, rehabilitation of the
defendant, and deterrence to others.                   Id., ¶¶40-41.         The facts

relevant      to     these    objectives    and   an   explanation      of    why    the

particular component parts of the sentence imposed advance the

specified objectives must also be set forth on the record.                          Id.,

¶42.

       ¶41     "Courts       must   also   identify     the   factors    that       were

considered in arriving at the sentence and indicate how those




                                           15
                                                     No.   2017AP2265-CR



factors fit the objectives and influence the decision."12          Id.,

¶43.        We have further encouraged circuit courts to "refer to

information provided by others[,]" such as recommendations of

counsel and any presentence investigation report, in fashioning a

sentence.      Id., ¶47.

       ¶42    Counihan contends that the circuit court's consideration

of the sentences given in similar cases without providing her with

notice that it would do so violates her due process right to rebut

information presented at sentencing.        She asserts that she is

entitled to resentencing because she was not given the opportunity




       12   Such factors include:

       (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.

State v. Gallion,

2004 WI 42

, ¶43 n.11,

 (quoting Harris v. State,

75 Wis. 2d 513, 519-20

250 N.W.2d 7

 (1977)).

     We have also recognized additional factors as appropriate
considerations, such as dismissed and read-in charges and the
effect of the crime on the victim.

371 Wis. 2d 235, ¶¶67-68, 74

 (citing Austin v. State,

49 Wis. 2d 727

183 N.W.2d 56

 (1971); State v. Jones,

151 Wis. 2d 488

444 N.W.2d 760

 (Ct. App. 1989)).

                                    16
                                                                  No.     2017AP2265-CR



to review the information in the other case files referenced and

on which the circuit court relied.13

       ¶43     We disagree with Counihan's argument.            "[I]n sentencing,

a trial judge may appropriately conduct an inquiry broad in scope

and   largely        unlimited   either   as    to   the   kind    of     information

considered or the source from which it comes."                    Handel v. State,

74 Wis. 2d 699, 703

247 N.W.2d 711

 (1976).                 Consistent with this

mandate in Handel, we expressly stated in Gallion that circuit

courts "may . . . consider information about the distribution of

sentences in cases similar to the case before it."                       Gallion,

270 Wis. 2d 535, ¶47

.

       ¶44     Such a practice is congruent with the general policy

that "consistency in criminal sentencing is desirable . . . ."                      In

re    Felony     Sentencing      Guidelines,

120 Wis. 2d 198, 203

353 N.W.2d 793

 (1984) (per curiam).             Indeed, the court's statement in

Gallion does not limit the circuit court to considering only "the

distribution of sentences in cases similar to the case before it"

that are within its unassisted recollection.                    See Gallion,

270 Wis. 2d 535, ¶47

.

       ¶45     The     circuit    court's      actions     in     this     case    are

fundamentally different from those in In re Judicial Disciplinary

Proceedings Against Piontek,

2019 WI 51

386 Wis. 2d 703

927 N.W.2d 552

, to which Counihan attempts to draw a parallel.                          As

relevant here, in Piontek, the circuit court conducted its own


       Notably, Counihan does not argue that the information
       13

contained within the other case files was inaccurate.

                                          17
                                                               No.     2017AP2265-CR



independent internet research regarding a criminal defendant's

nursing licenses and related matters.                 Id., ¶16.         From such

research, the circuit court discovered what it believed to be

incriminating information from the states of Texas and Illinois

and incorrectly deduced that the defendant had never been licensed

as a nurse in Illinois.        Id.

     ¶46   Without    providing      notice    to     the    parties     or     their

attorneys,   the     circuit     court      brought     up    its      independent

investigation at the sentencing hearing.                    Id.,     ¶¶17-18.      In

fashioning the sentence, the circuit court relied on the incorrect

information it had obtained from its internet research.                  Id., ¶18.

Imposing judicial discipline, this court stated that "it is clearly

improper for a judge to both conduct an independent investigation

and to fail to give a party a chance to respond to the judge's

misinformed allegations based on that investigation."                   Id., ¶37.

     ¶47   The circuit court's "investigation" in this case was of

a completely different nature.             Unlike in Piontek, the circuit

court here did not investigate facts or gather evidence related to
Counihan's case.     Instead, it merely conducted a file review to

"determine what the institutional memory of [the] Court was" due

to its relative inexperience.

     ¶48   We are loath to adopt a rule that would prevent a circuit

court from accessing its institutional memory, thereby requiring

it to view each exercise of its discretion in a vacuum.                       Such a

rule would run counter to the consistency in criminal sentencing

that we have previously stated is "desirable."               Felony Sentencing,


                                      18
                                                         No.     2017AP2265-CR

120 Wis. 2d at 203

.14    The circuit court's actions in this case are

no different from long-tenured judges reaching back into their

memories without the aid of hard-copy files.

     ¶49   Further, the failure to provide notice of the cases

considered likewise does not violate due process.          When a circuit

court accesses its institutional memory without the aid of written

material, it is not required to inform the parties of all past

cases that came to mind.          The use of hard copy files does not

occasion a different rule.

     ¶50   Nothing in this record indicates that Counihan did not

receive the individualized sentence to which she is entitled.             See

Gallion,

270 Wis. 2d 535, ¶48

 ("Individualized sentencing, after

all, has long been a cornerstone to Wisconsin's criminal justice

jurisprudence.");       Loomis,


(recognizing the due process implications of sentences based on

group data rather than individualized determinations).                On the


     14See also Bertrall L. Ross II, Reconciling the Booker
Conflict:    A Substantive Sixth Amendment in a Real Offense
Sentencing System, 4 Cardozo Pub. L. Pol'y & Ethics J. 725, 774
(2006) ("Judges have experience in sentencing such that they have
created an institutional memory that allows them to rank crime and
the culpability of criminals relevant to each other.");

id.

 at 774
n.227 ("The institutional memory does not necessarily apply to new
judges, but through training and collaboration with other judges,
even new judges will have a greater understanding of proportionate
ranking of crimes and other relevant characteristics."). A file
review such as that conducted by the judge in this case allows a
new judge to access the same information the judge would learn
through "collaboration with other judges," and can be a useful
option for judges in counties with a low number of judges (or even
a single judge) in striving for consistency in their exercises of
discretion.

                                     19
                                                                   No.   2017AP2265-CR



contrary, the circuit court referenced numerous facts specific to

Counihan's background on which it based its sentence, including

her educational background, the position of trust she held at the

Humane Society, and the fact that the thefts took place over a

period of many years.           It also appropriately focused on the nature

and gravity of the offense, and the effect of the offense on the

community's willingness to support nonprofit organizations.                          The

circuit court's remarks in this case taken as a whole reflect the

individualized sentence that Gallion and due process require.

     ¶51    Accordingly, we conclude that Counihan's due process

rights    were    not    violated    by   the     circuit      court's   use    of   the

previously       unknown    information          regarding     similarly       situated

defendants.15

                                            V

     ¶52    In    sum,     we    conclude       that   where    previously     unknown

information is raised by the circuit court at the sentencing

hearing, a defendant does not forfeit a direct challenge to the

use of the information by failing to object at the sentencing
hearing.     Under the facts of this case, Counihan appropriately

raised the alleged error in a postconviction motion.


     15Because the claim was not forfeited and we address the
merits of Counihan's argument directly, we need not address her
alternative argument regarding ineffective assistance of counsel.
Even if we did, we would conclude that because there was no due
process violation, any objection to the consideration of the
analogous Door County cases would have been meritless. The failure
to raise a meritless objection does not constitute deficient
performance.    See State v. Dalton,

2018 WI 85, ¶53

383 Wis. 2d 147

914 N.W.2d 120

20
No. 2017AP2265-CR

¶53 Further, we conclude that Counihan's due process rights

were not violated by the circuit court's use of the previously

unknown information regarding similarly situated defendants.

Because there was no due process violation, we need not address

Counihan's alternative argument that her counsel provided

ineffective assistance at sentencing.

¶54 Accordingly, we modify the decision of the court of

appeals, and as modified, affirm.

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

modified, and as modified, affirmed.

21
No. 2017AP2265-CR.rgb

¶55 REBECCA GRASSL BRADLEY, J. (concurring). I agree with

the majority that Counihan's due process claim fails. A circuit

court's consideration of sentences imposed in similar cases does

not offend a defendant's due process rights. I join ¶¶39-51 of

the majority opinion. However, I write separately because I

disagree with the majority's decision to address forfeiture and

the merits of Counihan's due process claim rather than disposing

of the case under an ineffective assistance of counsel analysis.

¶56 Because Counihan's counsel did not object during the

sentencing hearing, this case should have been resolved under the

rubric of ineffective assistance of counsel. See State v.

Erickson,

227 Wis. 2d 758, 766-68

596 N.W.2d 749

      (1999)

(explaining that when defense counsel fails to object in criminal

cases, appellate courts typically "analyze the waiver within the

ineffective      assistance        of    counsel     framework.").          During     the

Machner    hearing,1        Counihan's      counsel       expressed    a    reasonable,

strategic      basis       for   not    objecting    to    the   sentencing     court's
consideration         of     sentences     in    former      cases     in    fashioning

Counihan's sentence.             The assistance counsel provided to Counihan

was not ineffective.             That should suffice to end the analysis and

defeat Counihan's claims.               Instead, the majority disregards the

ineffective assistance of counsel rubric in order to address the

issues of forfeiture and due process.                    Because the majority's due

process analysis is correct, I join it.                    In choosing to reach the


    1    State v. Machner,

92 Wis. 2d 797

285 N.W.2d 905

 (Ct. App.
1979).

                                             1
                                                       No.   2017AP2265-CR.rgb


merits of forfeiture, however, the majority crafts an overly-broad

new rule of law that will allow defendants to avoid raising

ineffective assistance of counsel claims in hopes of successfully

persuading appellate courts to apply a discretionary forfeiture

exception.      Because I would not reach the merits of Counihan's

claims, but nevertheless reach the same result as the majority

under    an     ineffective   assistance    of     counsel    analysis,     I

respectfully concur.

                 I.   INEFFECTIVE ASSISTANCE OF COUNSEL

     ¶57      When a defendant bases her appeal on trial counsel's

failure to object, we review the case under the ineffective

assistance of counsel rubric.           "The absence of any objection

warrants that we follow 'the normal procedure in criminal cases,'"

which is to address the alleged forfeiture "within the rubric of

the ineffective assistance of counsel."          State v. Carprue,

2004 WI 111, ¶¶36-47

274 Wis. 2d 656

683 N.W.2d 31

 (quoted and cited

sources omitted); see also Kimmelman v. Morrison,

477 U.S. 365, 374-75

 (1986) (in absence of objection, error should be analyzed
under ineffective assistance of counsel standards, even when error

is of constitutional dimension).        Reviewing the Machner2 hearing


     2 The Machner court held: "[I]t 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."

92 Wis. 2d at 804

.   The Machner hearing affords trial counsel the
opportunity to explain the reasons for his choices and assists the
circuit court in deciding whether trial counsel provided
ineffective assistance.

                                    2
                                                             No.   2017AP2265-CR.rgb


transcript in this case shows that Counihan's lawyer gave her

effective assistance.

     ¶58     During the Machner hearing, Counihan's defense lawyer

repeatedly explained why he did not object to the sentencing

court's reference to similar cases in arriving at Counihan's

sentence:      "I    can't    say   it   was   so   out-of-the-box       as    to   be

concerning to -- concerning to me overall.             Judges do that all the

time about what -- what they think the going rate is for something

or what the guidelines are for a particular offense in the county."

In   fact,     defense       counsel     perceived     the     circuit        court's

consideration of this information as favorable for his client:                      "I

thought it was . . . kind of thoughtful that [the judge] was being

so measured."       Defense counsel believed examination of prior cases

would likely prevent the circuit court from imposing too high a

sentence in response to strong community anger over the defendant's

crime:     "[T]hat sort of research to figure out if there has been

a case like that in the past, I can see where the judge would be

interested to know -- to know to make sure that he's not punishing
-- overpunishing, despite the fact there's so many angry people

here."     When asked if he thought it would have been helpful for

him to review the prior cases the sentencing court referenced,

Counihan's trial lawyer said:            "If there was a benefit it would

have been tremendously minimal" because Counihan's actions were

more aggravated than the conduct of similarly-charged defendants

in other cases.        When asked whether his strategy was to avoid

repeatedly objecting during sentencing because he thought repeated
objections would "cause more harm" to his client's case, Counihan's

                                         3
                                                                    No.   2017AP2265-CR.rgb


defense lawyer answered in the affirmative, "Yeah[]" and "I didn't

want to buy my client an extra month."                  He also testified that he

did not object or seek an adjournment because the outgoing district

attorney had offered a favorable plea deal for Counihan, which

defense counsel feared the newly elected district attorney might

revoke.         In summary, Counihan's defense counsel declined to object

to what he recognized as a typical practice of circuit courts,

making          this   decision   in    consideration        of   his     client's    best

interests.

       ¶59        Because   there      was   nothing    objectionable         about    the

circuit court's consideration of sentences imposed in prior cases,

Counihan's counsel did not provide ineffective assistance.                            Even

if an argument could be made that defense counsel should have

objected, his testimony at the Machner hearing disclosed ample

strategic reasons why he chose not to.                   Instead of deciding the

case       on    these   well-established         grounds,    the    majority     allowed

Counihan to present a substantive issue, thereby opening the door

for defendants to dodge the previously prevailing ineffective
assistance of counsel rubric                 on appeal, a tougher hurdle to

overcome than a review on the merits.3 The majority's new procedure

allows defendants to do an end run around ineffective assistance


       3"A criminal defendant has the constitutional right to
effective assistance of counsel." State v. Sholar,

2018 WI 53, ¶32

381 Wis. 2d 560

912 N.W.2d 89

; see also Strickland v.
Washington,

466 U.S. 668, 686

 (1984). "To establish the assistance
a defendant received was ineffective, he must prove two elements:
(1) his counsel's performance was deficient, and (2) the deficient
performance prejudiced [him]. Sholar,

381 Wis. 2d 560, ¶32

.



                                              4
                                                          No.    2017AP2265-CR.rgb


claims, encouraging appellate counsel to instead argue the merits

of an issue in postconviction motions and obviating the need for

a Machner hearing at all.          The whole purpose of a Machner hearing

in this context is to explore the reason why an attorney did not

object at sentencing and if the attorney presents a reasonable

basis for not objecting, the defendant's claim fails, and the case

is over.      That is how the court should have decided this case.

Instead, this court's disposition will allow appellate counsel to

pursue a different strategy than trial counsel even if trial

counsel provided effective assistance, resulting in many more

appeals      on    the   merits    in   cases    that   should     end    at   the

postconviction motion stage.

                                  II.   FORFEITURE

       ¶60   Because the majority chose to focus on forfeiture in

deciding this case, an overview of the application of this doctrine

in   Wisconsin      merits   discussion.        Forfeiture      results    from   a

defendant's failure to timely assert her rights.                State v. Ndina,

       (citation
omitted); majority op., ¶25.            Forfeiture has long been engrained

in procedural law.         See Yakus v. United States,

321 U.S. 414, 444


(1944) ("No procedural principle is more familiar . . . than that

a constitutional right may be forfeited in criminal as well as

civil cases by the failure to make timely assertion of the right

before a tribunal having jurisdiction to determine it." (citations

omitted)); see also Clements v. Macheboeuf,

92 U.S. 418, 425

 (1875)

("Matters not assigned for error will not be examined[.]").                    "The
rule preventing an appellate court from considering an issue not

                                         5
                                                        No.   2017AP2265-CR.rgb


raised in the trial [court] is as old as the common law system of

appellate review."         Robert J. Martineau, Considering New Issues on

Appeal:      The General Rule and the Gorilla Rule,

40 Vand. L. Rev. 1023

, 1061 (1987).

       ¶61    "The purpose of the 'forfeiture' rule is to enable the

circuit court to avoid or correct any error with minimal disruption

of the judicial process, eliminating the need for appeal."             Ndina,

 (emphasis added; footnote omitted).                Other

"underlying justifications for the raise or lose rule are the

adversarial process, judicial efficiency and finality, and respect

for the differing roles of the trial and appellate courts."               Tory

A. Weigand, Raise or Lose:          Appellate Discretion and Principled

Decision-Making,

17 Suffolk J. Trial & App. Advoc. 179

, 183

(footnote omitted) (referring to forfeiture as the "raise or lose"

rule).       In State v. Huebner, this court expressed the "several

important objectives" of the rule:

            Raising issues at the trial court level allows the
       trial court to correct or avoid the alleged error in the
       first place, eliminating the need for appeal. It also
       gives both parties and the trial judge notice of the
       issue and a fair opportunity to address the objection.
       Furthermore, the . . . rule encourages attorneys to
       diligently prepare for and conduct trials. Finally, the
       rule prevents attorneys from "sandbagging" errors, or
       failing to object to an error for strategic reasons and
       later claiming that the error is grounds for reversal.
       For all of these reasons, the . . . rule is essential to
       the efficient and fair conduct of our adversary system
       of justice.

2000 WI 59, ¶12

611 N.W.2d 727

    (internal

citations omitted); see also Ndina,

.             Huebner
referenced these objectives while using the term "waiver," but the


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                                                  No.   2017AP2265-CR.rgb


court meant "forfeiture," as our later cases make clear.             See

Huebner,

2014 WI 74, ¶¶2, 57, 66, 68

, ¶11 n.2.4    "The need for the traditional

forfeiture rule . . . is obvious.     Without that incentive to raise

legal objections as soon as they are available, the time of lower

court judges and of juries would frequently be expended uselessly,

and appellate consideration of difficult questions would be less

informed and less complete."         Freytag v.   Comm'r of Internal

Revenue,

501 U.S. 868, 900

 (1991) (Scalia, J., concurring in part

and concurring in the judgment) (emphasis added). For all of these

reasons, forfeiture is "essential to the orderly administration of

justice."   9 C. Wright & A. Miller, Federal Practice and Procedure

§ 2472 (1971).

     ¶62    While the rationale underlying the forfeiture rule is

clearly established, the application of the rule by our courts has

been anything but discernable.        In some cases, we apply the

forfeiture rule when a party fails to timely object.        See, e.g.,

State v. Pinno,

356 Wis. 2d 106

850 N.W.2d 207

 (holding that two defendants who knew of a courtroom
closure and failed to object forfeited the right to a public

trial); Village of Trempealeau v. Mikrut,

2004 WI 79, ¶¶3, 6, 15

,


     4 In State v. Huebner, this court recognized that its use of
the term "waiver" was imprecise and really means "forfeiture."

2000 WI 59

, ¶11 n.2,

611 N.W.2d 727

. Regardless,
the court used the term to remain consistent with its past
practice.

   This court later clarified that "waiver" and
"forfeiture" are two distinct concepts. State v. Ndina,

.       "[W]aiver is the
intentional relinquishment or abandonment of a known right";
"forfeiture is the failure to make the timely assertion of a
right[.]"

235 Wis. 2d 486, ¶¶8, 10, 36

 (quoting United States v. Olano,

507 U.S. 725, 733

(1993)).

                                 7
                                                                 No.   2017AP2265-CR.rgb


27, 31,

273 Wis. 2d 76

681 N.W.2d 190

 (holding that the defendant

forfeited an objection to the circuit court's competency by failing

to object in the circuit court); Huebner,

 (concluding the defendant forfeited his right to a 12-

person jury because he failed to object to the use of a 6-person

jury at trial).          In other cases, we forego applying forfeiture

when a party fails to object, and instead reach the substantive

merits.      See, e.g., State v. Wilson,

2017 WI 63

, ¶51 n.7,

376 Wis. 2d 92

896 N.W.2d 682

 (not applying forfeiture even though

the defendant failed to object to a circuit court ruling, because

the "important" issue on appeal was already briefed and argued);

State   v.    McKellips,

2016 WI 51, ¶47

369 Wis. 2d 437

881 N.W.2d 258

 (reaching the merits of whether a jury instruction was

misleading even though the defendant forfeited the claim by failing

to object); Ndina,

315 Wis. 2d 653, ¶38

 (reaching the merits even

though the defendant did not assert his public trial right and

failed to object when the circuit court excluded family members

from the courtroom because the State also forfeited an issue and
the parties already briefed the underlying legal issues).

     ¶63     The    court   of     appeals    is   similarly          inconsistent    in

applying forfeiture.         In some cases, the court of appeals held a

failure to object in the circuit court results in forfeiture. See,

e.g., State v. Benson,

2012 WI App 101, ¶¶5, 7, 16-17

344 Wis. 2d 126

822 N.W.2d 484

      (holding        that    a    defendant     who

submitted    a     report   with    inaccurate      information         at   sentencing

forfeited a due process claim by failing to object to the report,
limiting the court of appeals' review to ineffective assistance of

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                                                     No.    2017AP2265-CR.rgb


counsel); State v. Saunders,

2011 WI App 156, ¶¶1, 28-32

338 Wis. 2d 160

807 N.W.2d 679

   (applying   forfeiture      because    the

defendant failed to bring a sleeping juror to the circuit court's

attention until after the trial).        Like this court, the court of

appeals has also reached the merits instead of applying forfeiture,

even when the defendant failed to object in the circuit court.

See, e.g., Dalka v. Am. Family Mut. Ins. Co.,

2011 WI App 90

, ¶¶5-

6,

334 Wis. 2d 686

799 N.W.2d 923

 (holding Dalka forfeited his

right to appellate review by not preserving the appealed issue in

the circuit court, but deciding the appeal anyway because it was

already briefed and involved a question of law); State v. Leitner,

2001 WI App 172, ¶¶41-42

247 Wis. 2d 195

633 N.W.2d 207

 (holding

that the defendant "waived" his claim by not objecting to the

court's   consideration   of   certain   behavior   at     sentencing,   but

ignoring the "waiver") aff'd,

2002 WI 77

253 Wis. 2d 449

646 N.W.2d 341

.5


     5 See also State v. Greenup, No. 2018AP709-CR, unpublished
slip op., ¶¶9-11, 15-17 (Wis. Ct. App. Apr. 4, 2019) (applying
forfeiture to the defendant's due process claim because objection
based on the audibility of video evidence was insufficient; court
addressed under ineffective assistance of counsel analysis); State
v. Murphy, No. 2017AP1559-CR, unpublished slip op., ¶¶2, 11, 14,
58-66 (Wis. Ct. App. Aug. 16, 2018) (applying forfeiture when the
defendant failed to object to the testimony of a witness); State
v. DeAngeles, No. 2015AP348-CR, unpublished order (Wis. Ct. App.
Apr. 26, 2016) (applying forfeiture when the defendant failed to
raise new grounds for plea withdrawal in the circuit court); State
v. Jackson, No. 2015AP934-CR, unpublished order (Wis. Ct. App.
Dec. 8, 2015) (applying forfeiture when the defendant failed to
raise objections to information included in the presentence
investigation report at the sentencing); State v. Wojczak, No.
2010AP3138-CR, unpublished slip op., ¶19 (Wis. Ct. App. Feb. 2,
2012) (not applying forfeiture when the defendant did not alert
the sentencing court to circumstances surrounding a material
pregnancy, because nothing indicated the defendant or his attorney
                                 9
                                                 No.   2017AP2265-CR.rgb


     ¶64    The bench and bar would benefit from a clear rule,

consistently applied, regarding what factors trigger forfeiture

versus what warrants application of an exception to the general

rule.    "[J]udicial   discretion . . . [leads   to]     a    loss    of

predictability and the ability of citizens and litigants to know

what the law proscribes.     It can be antithetical to the rule of

law and accountability particularly in the absence of a higher

review of the discretion."      Weigand, supra ¶61, at 245.          The

majority seemingly recognizes that the application of forfeiture

is subject to the will rather than the judgment of each appellate

court.     The majority says, "[t]he forfeiture rule is a rule of

judicial administration, and thus a reviewing court may disregard

a forfeiture and address the merits of an unpreserved issue in an

appropriate case."     Majority op., ¶27 (citation omitted).         Our

cases never identify what an "appropriate case" looks like, except

on an ad hoc basis.      Inconsistent exercise of this discretion

produces     adverse   consequences,   as   recognized       in   other

jurisdictions and by legal scholars:

          [An exception to the general rule of forfeiture]
     has never developed into a principled test, but has
     remained essentially a vehicle for reversal when the
     predilections of a majority of an appellate court are
     offended. . . . The other major weakness of [the
     exception] is its ad hoc nature. The [exception] has
     been formulated in terms of what a particular majority
     of an appellate court considers basic or fundamental.
     Such a test is unworkable when neither the [exception]



was aware of the pregnancy's significance at the time of
sentencing).   I cite these cases not in support of their legal
propositions, but instead as further illustrations of the
inconsistency in applying our forfeiture jurisprudence.

                                 10
                                                              No.    2017AP2265-CR.rgb

       itself nor the case law applying it                          develop    a
       predictable, neutrally-applied standard.
Dilliplaine v. Lehigh Valley Trust Co.,

322 A.2d 114, 116-17

 (1974)

(emphasis added; internal footnotes omitted).

       ¶65   While "no general principle [of law] can achieve a

perfect fit[,]" establishing general rules is preferable to the

sort    of   discretionary,       ad     hoc    approaches    reflected        in   our

forfeiture jurisprudence, which yield inequality of treatment and

unpredictability in the law.             See Antonin Scalia, The Rule of Law

as a Law of Rules, 56 Univ. Chi. L. Rev. 1175, 1177-80, 1183 (1989)

(emphasis omitted); see also Martineau, supra ¶60, at 1057-58

("Inconsistency is the hallmark of the various exceptions.                          For

every case that can be found in which an exception to the general

rule [of forfeiture] is allowed, another exists in which the court

refused      to   permit    the    exception      and   enforced       the     general

rule. . . . This      is    ad    hoc    decision   making    at     its     worst.");

Weigand, supra ¶61, at 181 (discussing discretion in applying

forfeiture        leading    to         "uncertainty    and         unevenness       in

application").       This court's forfeiture jurisprudence promotes

decision-making devoid of discernable principles, at the expense

of the rule of law:

            Making adherence to the general rule [of raising
       issues in the trial court] a matter of discretion in the
       appellate court has resulted in the effective abolition
       of the general rule. The general rule has been replaced
       by a system in which the question . . . is decided
       solely on the basis of whether a majority of the court
       considers the new issue necessary to decide the case in
       accordance with their view of the relative equities of
       the parties. The only consistent feature of the current
       system is inconsistency. If courts are free to disregard
       the general rule whenever they wish to do so, in effect
       there is no general rule.     The current situation is
                                           11
                                                             No.    2017AP2265-CR.rgb

     destructive of the adversary system, causes substantial
     harm to the interests that the general rule is designed
     to protect, and is an open invitation to the appellate
     judges to "do justice" on ad hoc rather than principled
     bases.
Martineau, supra ¶60, at 1061.

     ¶66    In arguing whether forfeiture should apply, neither

party in this case advocated for a fine tuning of our forfeiture

jurisprudence, much less suggested an alternative to our current

ad hoc approach to the doctrine.                It is a rule of judicial

administration      that   would    benefit    from       greater     clarity      and

predictability in its application.                  Because this court would

benefit from full adversarial briefing regarding the doctrine,

which is unnecessary to decide this case, the issue is better left

to be explored in a case that squarely presents it.

             III.   NEW FORFEITURE EXCEPTION IN SENTENCING

     ¶67    As   the   majority     points    out,    this      court    previously

decided that sentencing courts may consider the "distribution of

sentences in cases similar to the case before it."                   Majority op.,

¶¶43-44     (quoting   State   v.    Gallion,

2004 WI 42, ¶47

).          That    is     precisely       what   the

sentencing court did in this case.              Nevertheless, the majority

perceives a need to create a new rule:              "where previously unknown

information is raised by the circuit court at the sentencing

hearing, a defendant does not forfeit a direct challenge to the

use of the information by failing to object at the sentencing

hearing."    Majority Op., ¶¶4, 37, 52.

     ¶68    Adopting the majority's new rule is unnecessary because,
as   the    majority   recognizes,     accessing          the     circuit     court's


                                      12
                                                                 No.   2017AP2265-CR.rgb


institutional memory is entirely permissible during sentencing.

Furthermore, such information is not "unknown"; as defense counsel

testified during the Machner hearing, sentencing courts "do that

all the time."      If, as explained in Gallion, the sentencing court

"may . . . consider            information     about       the     distribution      of

sentences in cases similar to the case before it[,]"6 then the

sentencing court's consideration of such information in this case

could not be objectionable.            If there was no basis for Counihan to

object to this information, then why is the majority deciding

whether Counihan forfeited her challenge to the sentencing court's

consideration of information we have long recognized to be a

permissible factor in sentencing?               The legal issues in this case

are not novel at all, yet the majority nevertheless devises a new

rule.     Why?

      ¶69   If the majority's approach to this case constituted an

unnecessary,      but    harmless      vetting       of   the    substantive    issues

presented, I might have joined without writing separately.                      To the

contrary, the majority's new rule will only encourage meritless
postconviction      motions       based   on     allegedly       (but    not   really)

"previously unknown information raised by the circuit court at

sentencing."       A defendant's due process rights at sentencing

protect against the sentencing court's reliance on inaccurate

information.      State v. Tiepelman,

2006 WI 66, ¶9

291 Wis. 2d 179

717 N.W.2d 1

.         This    case   does    not    involve     an    allegation   of

inaccurate information; rather, it involves information being used


      6State v. Gallion,

2004 WI 42, ¶47