State v. John Joseph Casper

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.
March 30, 2021
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.
2019AP1662-CR Cir. Ct. Nos. 2016CF743
2016CF4483
2019AP1663-CR
STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT I

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

JOHN JOSEPH CASPER,

DEFENDANT-APPELLANT.

APPEALS from judgments and an order of the circuit court for
Milwaukee County: JANET C. PROTASIEWICZ, Judge. Order affirmed in part;
reversed in part and cause remanded with directions.

Before Brash, P.J., Dugan and White, 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. 2019AP1662-CR
2019AP1663-CR

¶1 PER CURIAM. In these consolidated appeals, John Joseph Casper
appeals his convictions for three drug-related felonies and the denial of his
postconviction motion for resentencing. Casper argues that he is entitled to
resentencing because at the sentencing hearing: (1) the State breached the plea
agreement and trial counsel failed to object; and (2) the trial court considered
certain electronic court records without giving Casper “a meaningful opportunity
to respond” and without making them part of the record. We reject Casper’s first
argument, but we agree that he is entitled to resentencing because he did not have
an adequate opportunity to review or rebut electronic case information that the
trial court relied on at sentencing. Therefore, with respect to the order denying the
motion for resentencing, we affirm in part, reverse in part, and remand for
resentencing.1

BACKGROUND

¶2 Pursuant to a plea agreement with the State, Casper pled guilty to
three felonies: (1) delivering cocaine (15-40 grams), as a party to a crime;
(2) delivering heroin (3-10 grams), as a party to a crime; and (3) possession with
intent to deliver heroin (3-10 grams), as a second or subsequent offense. See WIS.
STAT. §§ 961.41(1)(cm)3., 961.41(1)(d)2., 939.05, 961.41(1m)(d)2., 961.48(1)(b)
(2015-16).2 Two other charges were dismissed and read in. The State agreed to
recommend a global sentence of ten years of initial confinement and ten years of
extended supervision, consecutive to Casper’s seven-year revocation sentence for

1
While the appellant appeals from judgments and an order, we address only the order for
the reasons set forth in the opinion.
2
All references to the Wisconsin Statutes are to the 2019-20 version unless otherwise
noted.

2
Nos. 2019AP1662-CR
2019AP1663-CR

a prior case. A presentence investigation report was not ordered, but the State
provided information about Casper’s criminal history at the sentencing hearing.

¶3 The trial court imposed three consecutive sentences of five years of
initial confinement and five years of extended supervision, and it ordered that
those sentences be served consecutive to Casper’s revocation sentence. Casper
filed a postconviction motion seeking resentencing on two separate grounds. The
trial court denied the motion without a hearing, for reasons discussed below.
These appeals follow.

DISCUSSION

I. Ineffective assistance of trial counsel.

¶4 The first basis upon which Casper sought resentencing was
ineffective assistance of trial counsel. Specifically, he asserted that the State’s
comments at the sentencing hearing breached the plea agreement and that his trial
counsel provided ineffective assistance by failing to object. See Strickland v.
Washington, 466 U.S. 668, 687 (1984) (holding that to demonstrate ineffective
assistance, the defendant must show that counsel’s performance was deficient and
that the deficiency prejudiced the defense).

¶5 On appeal, Casper renews those arguments. Because trial counsel
did not object to the State’s comments, Casper forfeited his right to directly
challenge the State’s comments on appeal. See State v. Howard, 2001 WI App
137, ¶12, 246 Wis. 2d 475, 630 N.W.2d 244. Casper’s challenge to that breach,
therefore, falls under the ineffective assistance of counsel rubric. See id. We must
first determine, however, whether there was, in fact, a material and substantial
breach of the plea agreement. See State v. Naydihor, 2004 WI 43, ¶9, 270 Wis. 2d

3
Nos. 2019AP1662-CR
2019AP1663-CR

585, 678 N.W.2d 220. If no such breach existed, then Casper’s trial attorney did
not perform deficiently by failing to object, and Casper’s ineffective assistance
claim fails. See id. (holding that “[i]f the State did not breach the plea agreement,
then the failure of [trial] counsel to object did not constitute deficient
performance”).

¶6 When reviewing a defendant’s claim for relief based on an alleged
breach of a plea agreement, we review the trial court’s “determination of historical
facts, such as the terms of the plea agreement and the State’s conduct that
allegedly constitutes a breach, under the clearly erroneous standard of review.”
State v. Williams, 2002 WI 1, ¶20, 249 Wis. 2d 492, 637 N.W.2d 733. However,
whether the State’s conduct constituted a material and substantial breach of the
plea agreement is a question of law that we review independently. Id.

¶7 Casper claims that the State breached the plea agreement when it
made the following statement:

So my recommendation here is for the time to run
consecutive. I don’t think it should be concurrent. That
was, in part, something that [Casper’s prior trial counsel]
negotiated with me. I had originally been asking for a
lengthier period of time. She convinced me to ask for less
time and I agreed to do so with the caveat that I make it
consecutive [to the revocation sentence] which means that
he will do approximately 16 and a half or 17 years of initial
confinement if the [c]ourt follows the State’s
recommendation. And I think that that’s what’s necessary,
frankly, because he has shown that when he is out in the
community, this is what he will do.

Casper argues that this statement breached the plea agreement because it implied
that the State had “reservations about the recommendation.” See State v. Poole,
131 Wis. 2d 359, 364, 394 N.W.2d 909 (Ct. App. 1986) (“A comment which

4
Nos. 2019AP1662-CR
2019AP1663-CR

implies reservations about the recommendation ‘taint[s] the sentencing process’
and breaches the agreement.”) (citation omitted; bracketing in original).

¶8 The trial court rejected Casper’s claim that those statements
breached the plea agreement. It explained:

The prosecutor’s comment about her sentencing
recommendation was made near the conclusion of her
sentencing argument and in the context of explaining the
plea negotiations in this case—it was not an expression of
regret or an attempt to convey to the court that a more
serious sentence was warranted than what she
recommended. Indeed, the prosecutor stated that she was
“convinced” by defense counsel to ask for less time. At no
point did she suggest that she considered her
recommendation to be inappropriate. Simply telling the
court that the State once considered a lengthier
recommendation but was convinced otherwise does not
qualify as a breach, particularly in this case when nothing
else in the prosecutor’s sentencing argument explicitly or
implicitly suggested that she had a change of heart and no
longer believed in the recommendation that was made.

We agree with the trial court’s analysis. The State commented on how it came to
recommend a specific sentence; it was not “covertly convey[ing] to the [circuit]
court that a more severe sentence is warranted than that recommended.” See
Williams, 249 Wis. 2d 492, ¶42.

¶9 We conclude that the State’s comments did not “constitute[] a
substantial and material breach of the plea agreement.” See id., ¶20. It follows
that trial counsel did not perform deficiently by failing to object. See Naydihor,
270 Wis. 2d 585, ¶9. Accordingly, Casper is not entitled to resentencing based on
his claim that the State breached the plea agreement.

5
Nos. 2019AP1662-CR
2019AP1663-CR

II. Due process claim.

¶10 The second basis for Casper’s motion for resentencing was his claim
that the trial court violated his due process rights at the sentencing hearing by
considering electronic records from Casper’s prior juvenile and criminal cases that
were not accessible to the parties and by not giving the parties an opportunity to
respond to the information the trial court relied upon.

¶11 Our supreme court recently addressed a sentencing due process
claim in State v. Counihan, 2020 WI 12, 390 Wis. 2d 172, 938 N.W.2d 530.
Discussing the legal standards, Counihan stated: “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.”
See id., ¶39. “Obviously, if sentencing information is kept from the defendant,
[the defendant] cannot exercise this right.” Id. (citation omitted; bracketing in
original). Counihan also recognized that trial courts must explain the reasons for
the sentence imposed and are “encouraged … to ‘refer to information provided by
others.’” See id., ¶¶40-41 (quoting State v. Gallion, 2004 WI 42, ¶47, 270 Wis. 2d
535, 678 N.W.2d 197). Whether a defendant’s due process rights were violated
presents an issue of law that this court reviews independently. See Counihan, 270
Wis. 2d 535, ¶23.

¶12 With those legal standards in mind, we turn to the facts in Casper’s
case. At the sentencing hearing, the State and trial counsel offered their
sentencing arguments, and Casper exercised his right of allocution. The trial court
took a five-minute break and then offered its sentencing remarks. It discussed
Casper’s juvenile record, providing additional details about a 1999 adjudication

6
Nos. 2019AP1662-CR
2019AP1663-CR

that the State previously identified as a juvenile referral with an unknown
disposition.3 The trial court had this exchange with Casper:

THE COURT: So let’s talk about your record. We have
the 1999 juvenile adjudication. That is for possession with
intent to deliver cocaine less than 5 grams. That offense
date was August 18th of 1999. You went to children’s
court for that and apparently didn’t do so well there. You
were adjudicated delinquent. Your order had to be
extended. And I think that you had to go to Lincoln Hills;
correct? Right?

[Casper:] Yes. Yes.

THE COURT: Right. So your first juvenile contact didn’t
turn out particularly well. So you had an order placing you
at Lincoln Hills.

¶13 The trial court then continued to talk through Casper’s record,
apparently referring to electronic records it was reviewing. For instance, it stated:
“Now it’s 2001. Now you’re an adult. You pick up a possession of THC. That
case is dismissed. I can’t tell why.” The trial court also noted that it did not have
documents related to Casper’s 2007 and 2009 convictions.

¶14 The trial court commented on a 2011 case against Casper that was
originally charged as first-degree reckless homicide and later amended to delivery
of cocaine, which the State had discussed in its sentencing argument. In doing so,
the trial court referred to the presentence investigation report from that 2011 case,
noting that Casper told the presentence investigation writer that he did not “have a
violent prior record” and “didn’t believe [he was] responsible for the victim’s

3
During its sentencing argument, the State said, “He has a 1999 juvenile referral for
possession with intent to deliver cocaine. There is no disposition listed in the juvenile records I
have access to, so I can’t say for sure if it was a delinquency or just a referral.”

7
Nos. 2019AP1662-CR
2019AP1663-CR

unfortunate death.” The trial court observed: “A lot of that sounds remarkably
similar to what I heard in here today.”

¶15 The trial court again referred to information from Casper’s juvenile
record and the 2011 presentence investigation report when it explained why it was
exceeding the State’s sentencing recommendation. The trial court stated:

I am exceeding what the State is recommending in this
case, and that is because I find you such an utter danger to
the community, quite frankly, Mr. Casper; that I have
access to information that the State doesn’t. I know about
your juvenile record. I know that that order had to be
extended. I was able to read that PSI in the other case,
though I think [the prosecutor] was the prosecuting attorney
on the case with the PSI from years ago that she probably
doesn’t remember, indicating very similar comments that
were made today. Mr. Casper, I just find you an incredible
danger to this community. Incredible.

(Emphasis added.)

¶16 In his postconviction motion, Casper argued that the trial court’s use
of the electronic records of his earlier cases violated his due process rights
because:

Casper did not have access to the information about his
juvenile record, his adult criminal record, nor the [2011]
presentence investigation report. He did not know, until
the judge made [its] sentencing remarks, that the court was
considering those materials. Thus, he was not given an
opportunity to rebut this information.

¶17 The trial court denied Casper’s request for resentencing, concluding
that Casper’s due process rights were not violated. The trial court said “that its
review of the electronic records was appropriate and relevant to its duty at
sentencing to acquire full knowledge of the character and behavior of the
defendant,” citing State v. Hubert, 181 Wis. 2d 333, 346, 510 N.W.2d 799 (Ct.

8
Nos. 2019AP1662-CR
2019AP1663-CR

App. 1993) (recognizing that a sentencing court has a “responsibility … to acquire
full knowledge of the character and behavior of the convicted defendant before
sentence is imposed”). The trial court said that Casper “was given an opportunity
to rebut the information,” noting that it asked Casper to confirm that he was sent to
Lincoln Hills as a juvenile.

¶18 The trial court also noted that Casper had not claimed that any of the
information the trial court cited was inaccurate, including information the trial
court read in the 2011 presentence investigation report. The trial court said: “The
defendant can hardly disavow having notice or knowledge of his own words to the
presentence writer. The defendant through his attorney did not object to the
accuracy of his comments in that case and he did not/does not offer any rebuttal
information in this case.” (Footnote omitted.) The trial court concluded:

[Casper] had notice or actual knowledge of the information
from the electronic records that the court considered at his
sentencing hearing and … had ample opportunity to rebut
the information. The defendant does not claim that any of
the information the court considered was inaccurate nor
does he explain what rebuttal information he would have
provided at sentencing if he had been given the
opportunity.

¶19 On appeal, Casper again asserts that his due process rights were
violated.4 He acknowledges that trial courts are “not prohibited from considering
evidence from third-party sources, such as the defendant’s juvenile record, his
criminal record, and a [presentence investigation report] from another case.”
However, he argues:

4
As in the trial court, Casper does not argue that he was sentenced based on inaccurate
information.

9
Nos. 2019AP1662-CR
2019AP1663-CR

The problem is that Casper was not made aware of
the fact that the court was going to consider this
information, and he was not given an opportunity to
prepare to rebut the information. Additionally, although
the judge orally summarized some of the information in the
records, the records themselves were not made a part of the
record of the sentencing hearing in this case. Therefore, we
do not know exactly what the judge was looking at, nor do
we know the full content of those records.

¶20 We conclude that Casper’s due process rights were violated and that
he is entitled to resentencing because he was not given an adequate opportunity to
review or rebut the information in the electronic records that the trial court relied
on as it pronounced sentence. See Counihan, 390 Wis. 2d 172, ¶53; see also
State v. Loomis, 2016 WI 68, ¶53, 371 Wis. 2d 235, 881 N.W.2d 749 (recognizing
that defendants must be given an “opportunity to refute, supplement or explain”
information at sentencing) (citing Gardner v. Florida, 430 U.S. 349, 362 (1977)
(holding that petitioner was denied due process when sentenced on information
that he had no opportunity to deny or explain)).

¶21 Our holding today is narrow. We assume without deciding that a
trial court is permitted to review electronic court files concerning the defendant’s
prior criminal cases that are not provided to the court by the parties. Here, the due
process violation stems from the fact that Casper was not given an adequate
opportunity to review or rebut the electronic court records that the trial court was
referencing at the sentencing hearing.

¶22 Having determined that Casper is entitled to resentencing based on
what occurred at the sentencing hearing, we do not address Casper’s claim that the
trial court was required to notify him before the sentencing hearing that it intended
to review electronic case records from Casper’s prior criminal cases. See State v.
Blalock, 150 Wis. 2d 688, 703, 442 N.W.2d 514 (Ct. App. 1989) (holding that

10
Nos. 2019AP1662-CR
2019AP1663-CR

“cases should be decided on the narrowest possible ground”). We also do not
address Casper’s related claim that he was denied due process because the trial
court did make the electronic records from Casper’s prior cases part of the trial
court record in this case. See id.

¶23 It is also important to note that the State has not asserted that Casper
forfeited his due process claim by failing to object during the trial court’s
pronouncement of sentence. Further, the State has not argued that the due process
violation was harmless. Accordingly, we have not addressed those issues.

CONCLUSION

¶24 For the foregoing reasons, we reject Casper’s argument that the State
breached the plea agreement at the sentencing hearing. However, we agree that
Casper is entitled to resentencing because he did not have an adequate opportunity
to review or rebut electronic case information that the trial court relied on at
sentencing. Therefore, we affirm in part, reverse in part, and remand for
resentencing.

By the Court.—Order affirmed in part; reversed in part and cause
remanded with directions.

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

11