State v. Justin T. Knutson

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
December 22, 2022
A party may file with the Supreme Court a
Sheila T. Reiff petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.

Appeal Nos.
2021AP1680-CR Cir. Ct. Nos. 2017CF1068
2017CF2334
2021AP1681-CR
STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT IV

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

JUSTIN T. KNUTSON,

DEFENDANT-APPELLANT.

APPEALS from a judgment and an order of the circuit court for
Dane County: WILLIAM E. HANRAHAN and MARIO D. WHITE, Judges.
Affirmed.

Before Blanchard, P.J., Kloppenburg, and Nashold, JJ.

Per curiam opinions may not be cited in any court of this state as precedent

or authority, except for the limited purposes specified in WIS. STAT. RULE 809.23(3).
Nos. 2021AP1680-CR
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¶1 PER CURIAM. Justin Knutson appeals a judgment of conviction
and an order that denied his motion for resentencing.1 Knutson argues that he is
entitled to resentencing because: (1) the sentencing court relied on inaccurate
information at sentencing; and (2) his trial counsel was ineffective by providing
the inaccurate information to the court during the sentencing hearing. For the
reasons set forth in this opinion, we reject those arguments. We affirm.

¶2 On June 22, 2018, Knutson pled guilty to operating while
intoxicated (OWI) as a fifth offense, and misdemeanor offenses of disorderly
conduct while using a dangerous weapon and intimidating a victim. The
disorderly conduct charge was based on Knutson’s actions, while armed with a
gun and drinking alcohol, at his ex-girlfriend’s house. The parties jointly
recommended that the sentencing court withhold adjudication for a week and
allow Knutson the opportunity to begin an in-patient alcohol treatment program.
The prosecutor stated that, if Knutson showed up for the rescheduled sentencing
hearing, the State would recommend eighteen months of initial confinement and
eighteen months of extended supervision on the OWI conviction, and a maximum
of four months of jail time or two years of probation on the misdemeanor
convictions. If Knutson failed to appear at the hearing, however, the State would
be free to argue.

¶3 The sentencing court followed the parties’ recommendation and
withheld adjudication. The court found that Knutson had “stepped up” and
“admitted responsibility for these crimes.” The court also addressed Knutson as

1
The Honorable William E. Hanrahan (the sentencing court) imposed Knutson’s
sentence. The Honorable Mario D. White (the postconviction court) denied Knutson’s
postconviction motion.

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follows: “This is a remarkable opportunity to avail yourself [of] the treatment
program that you’re getting into at the same time turning around the kind of
disastrous direction that you’ve been heading here and prove to the court and
yourself that you’re worthy of trust that’s been placed in you.”

¶4 Knutson failed to appear for the sentencing hearing on August 3,
2018. He was returned to court on warrants on August 29, 2018. Defense counsel
informed the court that Knutson had been in a serious motorcycle accident in
Champaign, Illinois, at the end of July 2018.

¶5 Knutson returned to the circuit court for sentencing on October 8,
2018. The parties jointly recommended twelve months in jail; a $600 fine; two
years of driver’s license revocation and ignition interlock; and two years of
probation. Defense counsel argued in support of the joint recommendation that
Knutson’s discovery that he “was expecting another child” had “really given him
pause”; that Knutson loved his children and wanted to do his best by them; and
that he intended to move forward with his family.

¶6 The sentencing court asked defense counsel to explain the facts
behind the disorderly conduct while armed charge. Defense counsel stated that the
“whole incident arises in the context of a party that had been going on some hours
with a lot of drinking of alcohol--hard alcohol is my recollection--and the taking
of a number of different drugs.” Counsel also made the following statements: “I
know where the house is. It’s … a place where a lot of people go to have parties
and things like that”; “When you go to this house, there are guns in the house ….
It is my understanding that there are guns in the house from people I’ve spoken
with who … have been in the house and have been to the parties and things, and
there are a lot of drugs, and then there’s other things for sale”; and that Knutson

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“went off his medicine, got involved with a really bad group of folks, … was with
them doing drugs and drinking and things like that.”

¶7 Knutson exercised his right of allocution, apologizing for his
conduct and asking the sentencing court to give him a chance to accomplish his
goals. The court reminded Knutson that he had already been given a chance, and
asked him why he did not appear for sentencing. Knutson stated that he had
travelled to Illinois to be with his son during an operation and that he had gotten
stranded there.

¶8 In explaining its rationale for the sentence imposed, the sentencing
court said to Knutson: “On one hand, I’m hearing that you’ve decided you want to
be a good family man, but there’s absolutely no evidence of that whatsoever here.
I’ve got you out at drug houses where people have guns and drugs and alcohol
….” The court said that the crimes were “outrageous” and “egregious,” and that
Knutson was “bumbling from one potential disaster into the next.” It found that
the joint sentencing motion was not “even close to hitting the mark.” The court
declined to follow the joint recommendation, and instead imposed two and a half
years of initial confinement and three years of extended supervision.

¶9 Knutson moved for resentencing. He argued that his trial counsel’s
description of the house where the disorderly conduct occurred was inaccurate,
and that the sentencing court relied on that inaccurate information when it made
the statement that Knutson was not trying to be “a good family man” but rather
was “out at drug houses where people have guns and drugs and alcohol.” He also
argued that his trial counsel was ineffective by providing that inaccurate
information to the court. The State took no position on the motion.

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¶10 The motion for resentencing was assigned to the postconviction
court, which held an evidentiary hearing for Knutson to testify in support of his
claim. Knutson testified that his trial counsel’s description of the house at
sentencing was inaccurate. The postconviction court assumed, without deciding,
that the information was inaccurate and that the sentencing court actually relied on
that information at sentencing.2 The court determined that, considering the
sentencing court’s sentencing remarks as a whole, the sentence would not have
been different had defense counsel not provided the inaccurate information at
sentencing. On that basis, the postconviction court determined that the reliance on
the inaccurate information was harmless. For the same reason, the postconviction
court determined that Knutson’s ineffective assistance of counsel claim failed on
the prejudice prong, because Knutson could not meet his burden to show “a
reasonable probability that but for counsel’s unprofessional errors, the result of the
proceeding would have been different.”

¶11 “A defendant has a constitutionally protected due process right to be
sentenced upon accurate information.” State v. Tiepelman, 2006 WI 66, ¶9, 291
Wis. 2d 179, 717 N.W.2d 1. Whether the defendant was denied that right is a
constitutional question that we review de novo. Id. “A defendant who requests
resentencing due to the circuit court’s use of inaccurate information at the
sentencing hearing must show both that the information was inaccurate and that
the court actually relied on the inaccurate information in the sentencing.” Id., ¶26
(quoted source omitted). If the defendant establishes actual reliance on inaccurate
information, the burden shifts to the State to prove that the error was harmless. Id.

2
We do the same, and assume for purposes of this opinion that the information was
inaccurate and that the sentencing court actually relied on that information at sentencing.

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“The State can meet its burden to prove harmless error by demonstrating that the
sentencing court would have imposed the same sentence absent the error.” See
State v. Travis, 2013 WI 38, ¶73, 347 Wis. 2d 142, 832 N.W.2d 491.

¶12 Knutson argues here that the sentencing court relied on inaccurate
information at sentencing and that the error was not harmless. He argues that the
State has not shown that the sentencing court would have imposed the same
sentence absent the error. He contrasts the court’s statements at the plea hearing,
when the court accepted the parties’ joint recommendation to withhold
adjudication and allow Knutson an opportunity to begin treatment, with the court’s
statements at sentencing, when the court characterized Knutson’s conduct as
“outrageous” and “egregious” and said that the joint recommendation was not
“even close to hitting the mark.” Knutson argues that the only new information
before the court that could have caused the court’s change in perspective was
defense counsel’s description of the house where Knutson committed the
disorderly conduct as a “drug house.” He asserts that the difference in the court’s
statements at the plea hearing versus the sentencing hearing indicates that the court
would not have imposed the same sentence absent his counsel’s inaccurate
statements at the sentencing hearing.

¶13 Knutson also argues that his trial counsel was ineffective at
sentencing by providing the inaccurate description of the house to the court. He
argues that he was prejudiced by his counsel’s deficient performance because
there is a reasonable probability that the circuit court would have imposed a lesser
sentence absent the inaccurate information. See Strickland v. Washington, 466
U.S. 668, 690, 694 (1984) (claim of ineffective assistance of counsel must show
that counsel’s performance was deficient and prejudiced the defendant, that is, that

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“there is a reasonable probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different”).

¶14 The State responds that if the sentencing court relied on the
inaccurate information, the error was harmless.3 It contends that the sentencing
transcript shows that the court’s reference to the allegedly inaccurate information
was in the context of discussing the seriousness of the offenses, and that the
seriousness of the offenses remains true regardless of the accuracy of defense
counsel’s description of the house. It also contends that the allegedly inaccurate
description of the house was not integral to the court’s sentence. Rather, the State
asserts, the court focused on the seriousness of the offenses, Knutson’s character
and rehabilitation and treatment needs, and the need to protect the public. The
State also contends that Knutson is wrong that there was no significant difference
in the circumstances between the plea and sentencing hearings; rather, the State
points out, at the time of sentencing, Knutson had failed to comply with the
opportunity to begin treatment between his plea and sentencing.

3
Knutson argues in his reply brief that the State is judicially estopped from arguing on
appeal that Knutson’s sentence should be upheld. He points out that, before the postconviction
court, the State took no position on whether Knutson was entitled to resentencing, and argues that
the State may not take a different position on appeal. We disagree. For judicial estoppel to
apply, “the party to be estopped must have convinced the first court to adopt its position,” and
must take a “clearly inconsistent” position on appeal. See State v. Johnson, 2001 WI App 105,
¶10, 244 Wis. 2d 164, 628 N.W.2d 431. Knutson does not explain in what way the State
convinced the court to adopt its position, when it took no position on the motion before the
postconviction court. To the extent Knutson is arguing that the State convinced the
postconviction court to deny the motion by taking no position, the State’s position on appeal that
the court properly denied the motion is not clearly inconsistent with that position. Moreover, the
State, as the respondent, may raise any argument on appeal that would permit us to affirm the
circuit court’s ruling, even if the argument was not raised in the circuit court. See State v.
Kiekhefer, 212 Wis. 2d 460, 475, 569 N.W.2d 316 (Ct. App. 1997).

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¶15 The State further argues that Knutson was not prejudiced by any
deficient performance by his trial counsel. It reiterates its argument that the result
of the sentencing hearing would have been the same absent trial counsel’s
inaccurate statements at sentencing.

¶16 When we consider the sentencing court’s remarks as a whole, we are
satisfied that the court would have imposed the same sentence regardless of the
inaccurate information presented to the court regarding the house where the
disorderly conduct occurred. We therefore conclude that any error by the court in
relying on that inaccurate information at sentencing was harmless.

¶17 In our review of the sentencing transcript, it is clear that defense
counsel’s description of the house where the disorderly conduct occurred was not
the sentencing court’s primary focus. Rather, the court explained that the basis of
its sentence was Knutson’s character and rehabilitative needs, the seriousness of
the offenses, and the need to protect the community. The court began its
sentencing comments by recounting Knutson’s bond violations, stating: “Every
time you’re out on bond, you violate conditions of your bond, you commit new
crimes, you don’t show up for court, and you’ve got excuses at every single turn.”
The court stated that there was “no question” Knutson had treatment needs and
“criminal thinking on top of it,” stating: “I don’t know how you continue to put
yourself in these situations and continue to thumb your nose at reasonable
restrictions that are placed upon your freedom of movement even after I gave you
a big break the last time you were in court.”

¶18 The sentencing court also considered the seriousness of the offenses.
The court found that the crimes were “outrageous” and “egregious.” The court
recounted the facts of the cases: that Knutson had been “drunk with a gun and

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pointing it at people”; “and then the intimidation charge”; “and then five counts
are dismissed, including false imprisonment and bail jumping, several bail-
jumpings, and a theft”; “[t]hen … this OWI that you’ve got weed in your
possession, a … second-plus offense, and the resisting/obstructing all involved
here.” The court described Knutson’s conduct as “a horrible crime spree.”

¶19 Finally, the sentencing court explained that the sentence it imposed
was necessary to allow Knutson to have an opportunity for “meaningful
treatment” and to protect the public.

¶20 Our review of the sentencing transcript reveals that the sentencing
court’s statements remain accurate absent any reliance on the inaccurate
description of the house where the disorderly conduct offense occurred, and that
the court would have imposed the same sentence without its reliance on that
inaccurate description. See State v. Coffee, 2020 WI 1, ¶¶39-51, 89 Wis. 2d 627,
937 N.W.2d 579. The court referenced defense counsel’s description of the house
in the context of: its comments as to Knutson’s failures to comply with bond; the
seriousness of the offenses; and the court’s understanding that, contrary to the
defense’s sentencing arguments, there was “no evidence” that Knutson made
sincere attempts to be a “good family man.” Absent the inaccurate description of
the house, the logic of the court’s sentencing comments remains exactly the same.
See id., ¶¶42-43. Regardless of defense counsel’s description of the house, the
facts before the court were that Knutson had repeatedly failed to comply with
bond; that he had engaged in dangerous behavior involving drugs, alcohol, and
weapons; and that his actions did not support a claim about attempting to be a
“good family man.”

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¶21 We are not persuaded by Knutson’s argument that the only
difference between the plea hearing and the sentencing hearing was defense
counsel’s description of the house, even putting aside the simple fact that a circuit
court is generally free to look at all relevant facts at the time of a sentencing
hearing with new or different perspective from the court’s perspective at the time
of a plea. Rather, the sentencing court explained a significant change that had
occurred between the plea hearing and the sentencing hearing: Knutson had failed
to comply with the opportunity to begin treatment and to return to court for
sentencing, an opportunity that was an explicit focus of the plea hearing. The
court explained why Knutson’s repeated failure to comply with reasonable
restrictions imposed by the court supported the court’s decision to disregard the
joint recommendation and impose a harsher sentence. We therefore “conclude
beyond a reasonable doubt that the sentencing court would have imposed the same
sentence absent the error.” See id., ¶51 (quoted source omitted).

¶22 Because we conclude that any error by the sentencing court in
relying on the inaccurate description of the house was harmless, we also conclude
that counsel’s deficient performance in providing the inaccurate description did
not prejudice Knutson. See State v. Dyess, 124 Wis. 2d 525, 544, 370 N.W.2d
222, (1985) (harmless error test same as test for lack of prejudice under claim of
ineffective assistance of counsel). We affirm.

By the Court.—Judgment and order affirmed.

This opinion will not be published. See WIS. STAT.
RULE 809.23(1)(b)5. (2019-20).

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