State v. Jacob D. Zwiefelhofer

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.
September 8, 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 No. 2020AP843-CR Cir. Ct. No. 2015CF157

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT III

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

JACOB D. ZWIEFELHOFER,

DEFENDANT-APPELLANT.

APPEAL from a judgment and an order of the circuit court for
Pierce County: JOSEPH D. BOLES, Judge. Reversed and cause remanded with
directions.

Before Stark, P.J., Hruz 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).
No. 2020AP843-CR

¶1 PER CURIAM. Jacob Zwiefelhofer appeals from an amended
judgment of conviction that removed his eligibility for expungement. He also
appeals from an order denying his motion for postconviction relief. The circuit
court initially granted expungement eligibility at sentencing. The State, however,
later moved the court to reconsider. The court subsequently granted the State’s
motion and amended the original judgment to remove expungement eligibility.
The court concluded that its expungement decision was based, in part, on an
inaccurate argument Zwiefelhofer made at sentencing that a felony conviction
would make him ineligible for federal farming subsidies and loans.

¶2 On appeal, Zwiefelhofer argues, among other things, that the State
forfeited its claim for reconsideration of the circuit court’s expungement order
when it failed to raise any issue during the sentencing hearing regarding the
inaccurate information he provided. We agree that the State forfeited its claim in
this regard because at the sentencing hearing, it did not object to or otherwise
challenge a legal statement made by Zwiefelhofer’s attorney. Accordingly, we
reverse and remand for the circuit court to vacate the May 31, 2019 amended
judgment of conviction and to reinstate the January 15, 2019 original judgment of
conviction.

BACKGROUND

¶3 The State charged Zwiefelhofer with one felony count of reckless
driving causing great bodily harm and one misdemeanor count of reckless driving
causing injury after Zwiefelhofer struck two pedestrians with his vehicle.
Zwiefelhofer agreed to plead no contest to both counts. As part of the plea
agreement, the parties agreed to recommend a deferred judgment on the felony
count. The circuit court accepted Zwiefelhofer’s plea on the misdemeanor count

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and approved the deferred judgment for the felony count. On the misdemeanor
count, the court withheld sentence and placed Zwiefelhofer on probation for one
year with ninety days’ conditional jail time. Several months later, the State moved
to revoke the deferred judgment because Zwiefelhofer failed to comply with the
terms of the agreement. The court ultimately agreed with the State, and it revoked
the deferred judgment and entered a judgment on the felony count.

¶4 At sentencing, the State recommended that the circuit court withhold
sentence and place Zwiefelhofer on probation for three years with ten months’
conditional jail time. The State also opposed expungement, explaining that “[t]he
State is objecting to expungement” because “that ship has already sailed with the
offering of the deferred [judgment].” Zwiefelhofer’s attorney, on the other hand,
recommended that the court place Zwiefelhofer on probation for two to three years
with no conditional jail time and with the opportunity for expungement. In
support of expungement, Zwiefelhofer’s attorney argued that “[a] felony
remaining on [Zwiefelhofer’s] record would affect both his and his [business]
partners’ eligibility for federal farming subsidies.” He continued,

What he’s asking Your Honor is for the opportunity to keep
on being a business owner, to keep on being a member of
that business partnership, not to be automatically
disqualified from federal subsidies and beginning farmer
loans. I think those are the sorts of prosocial activities that
should be encouraged rather than discouraged.

The State did not object to or inquire about counsel’s statements regarding
Zwiefelhofer’s eligibility for federal farming subsidies.

¶5 At the conclusion of the sentencing hearing, the circuit court
withheld sentence and placed Zwiefelhofer on three years’ probation with six
months’ conditional jail time. The court also made Zwiefelhofer eligible for

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expungement if he successfully completed his probation. In doing so, the court
noted that Zwiefelhofer was “very close” to completing the deferred judgment and
“avoiding conviction at all.” The court also stated,

I understand the effects of going through life with a felony
on your record, and I don’t think that, given what we were
willing to do earlier and where—what you’ve done and
where we are now, that it would be appropriate for you to
go through life with a felony on your record unless you
can’t successfully complete probation.

The judgment incorporated the court’s sentencing decision, including
Zwiefelhofer’s right to expungement.

¶6 Nearly one month after sentencing, the State filed a motion
requesting that the circuit court reconsider its expungement decision. The State
argued that Zwiefelhofer’s assertion that a felony conviction would make him
ineligible for federal farming benefits was incorrect because only controlled
substance convictions served as a basis to deny federal farming benefits under
7 C.F.R. § 718.6 (2018). In response, Zwiefelhofer’s attorney argued, among
other things, that he made “good-faith representations, on information and belief
supplied by [Zwiefelhofer].” Zwiefelhofer also argued that the State forfeited its
right to challenge his argument regarding eligibility for federal farming benefits by
failing to raise any such challenge at sentencing.

¶7 After additional briefing and oral argument, the circuit court issued a
written decision granting the State’s motion and amended the judgment to remove
Zwiefelhofer’s eligibility for expungement. The court found that Zwiefelhofer
provided false information to his attorney and that the court granted expungement
eligibility, in part, because of this information. The court then discussed the
importance of relying on accurate information at sentencing and stated that it must

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correct sentences based on false information. It further noted that the State could
not possibly know “at the time of sentencing what facts the defendant would
present to support [his] sentencing argument” and the State’s failure to object to
the false information at issue was “reasonable.”

¶8 Without further discussion, the circuit court subsequently denied
Zwiefelhofer’s motion to reconsider and his motion for postconviction relief.
Zwiefelhofer now appeals.

DISCUSSION

¶9 This appeal requires us to determine whether the State forfeited its
claim regarding inaccurate information by failing to object at sentencing. A party
may forfeit a right or claim if the party fails to object at the time the right is
violated. See State v. Coffee, 2020 WI 1, ¶19, 389 Wis. 2d 627, 937 N.W.2d 579.
“The forfeiture rule is supposed to promote the fair, efficient, and orderly
administration of justice.” Id., ¶31. The rule enables circuit courts “to avoid or
correct any error with minimal disruption of the judicial process, eliminating the
need for appeal.” See State v. Ndina, 2009 WI 21, ¶30, 315 Wis. 2d 653, 761
N.W.2d 612. It also encourages attorneys to diligently prepare for and conduct
court proceedings, and it “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.” Id. Whether a claim is forfeited or adequately
preserved for appeal is a question of law that we review de novo. Coffee, 389
Wis. 2d 627, ¶17.

¶10 On appeal, Zwiefelhofer argues, among other things, that the State
forfeited its claim that the circuit court relied on inaccurate information when
granting expungement eligibility because the State failed to object to his

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No. 2020AP843-CR

expungement argument at sentencing.1 Zwiefelhofer acknowledges that, under
Coffee, the forfeiture rule cannot bar a defendant’s claim if the defendant failed to
object to previously unknown, inaccurate information first raised by the State at
sentencing. See id., ¶31. Zwiefelhofer argues, however, that the forfeiture rule
nevertheless bars the State’s claim if a defendant introduces inaccurate
information at sentencing and the State fails to object at that time. Zwiefelhofer
therefore argues that the forfeiture rule precludes the State’s claim of inaccurate
information at sentencing because he introduced the inaccurate information, not
the State.

¶11 In response, the State asserts that the forfeiture rule does not bar its
claim because the State did not know until after sentencing that Zwiefelhofer
would still be eligible for federal farming benefits with the felony conviction at
issue. The State argues that this case is essentially the same as Coffee but “with
the roles reversed.” The State also contends that Zwiefelhofer’s argument would
produce absurd results because it would “allow defendants to blatantly lie at
sentencing and give the State no recourse if it later determined that the defendant
lied.”

¶12 We agree with Zwiefelhofer that the State forfeited its claim that the
circuit court relied on inaccurate information at sentencing, but we do so for

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Zwiefelhofer also argues that: (1) the State failed to set forth the applicable legal
grounds for relief in its “motion to reconsider expungement”; (2) the circuit court violated his
constitutional right to be present at sentencing when it amended the judgment in his absence;
(3) the court lacked the authority to revisit his expungement eligibility after sentencing; and
(4) the court violated his right to be free from double jeopardy by reconsidering his expungement
eligibility. Because the forfeiture issue is dispositive, we need not address Zwiefelhofer’s other
arguments. See Turner v. Taylor, 2003 WI App 256, ¶1 n.1, 268 Wis. 2d 628, 673 N.W.2d 716
(court of appeals need not address all issues raised by the parties if one is dispositive).

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No. 2020AP843-CR

different reasons. Under the unique facts of this case, we conclude that the State
forfeited its claim because Zwiefelhofer’s expungement argument involved a
question of law—not of fact—and no clear evidence existed that Zwiefelhofer
made any intentional misrepresentations. The State was thus obligated to object
to, or at least contest in some fashion, Zwiefelhofer’s legal argument at sentencing
to avoid forfeiting any argument on the issue.

¶13 Although the circuit court noted that it “relies on facts presented by
attorneys if uncontroverted” and that “[t]here is no possible way that the State
would know at the time of sentencing what facts the defendant would present,”
Zwiefelhofer did not present any inaccurate facts at sentencing. Rather, he
presented, and the court relied on, an inaccurate statement regarding existing
law—i.e., that a felony conviction would preclude Zwiefelhofer from obtaining
federal farming benefits. The nature of this inaccuracy is clear from the State’s
reconsideration argument to the circuit court, in which the State cited 7 C.F.R.
§ 718.6 (2018), and applied it to the undisputed facts of this case. We have long
recognized that the application of a statute to undisputed facts is a question of law.
See State v. Puchacz, 2010 WI App 30, ¶9, 323 Wis. 2d 741, 780 N.W.2d 536.
Zwiefelhofer’s argument at sentencing was therefore inaccurate as a matter of law,
not as a matter of fact.

¶14 Because the nature of the inaccuracy was legal rather than factual,
the State had an opportunity at sentencing to test the accuracy of this portion of
Zwiefelhofer’s expungement argument, but it did not. Unlike a factual inaccuracy
where the State has no method of testing the truth of the factual information first
introduced at sentencing, the State could have easily tested the accuracy of
Zwiefelhofer’s legal statement by asking for Zwiefelhofer’s supporting legal
authority or by arguing that he lacked a legal basis for the proffered statement.

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No. 2020AP843-CR

Over two weeks after the sentencing hearing, the State asked Zwiefelhofer’s
attorney to “share the source of law” that affects Zwiefelhofer’s eligibility for
obtaining federal farming benefits due to a felony conviction. Nothing prevented
the State from making this simple request for legal authority at sentencing. In its
motion for reconsideration, the State argued that Zwiefelhofer’s attorney “did not
provide any legal basis for his statement to the Court that Mr. Zwiefelhofer’s
eligibility for federal farming benefits would be affected by a felony conviction.”
Again, nothing prevented the State from arguing at sentencing that Zwiefelhofer’s
statement lacked a legal basis. In short, the State was able at sentencing to test the
accuracy of Zwiefelhofer’s expungement argument regarding eligibility for federal
farming subsidies, but it failed to do so.

¶15 There is also no clear evidence that Zwiefelhofer intentionally
deceived his attorney or sought to deceive the circuit court in order to obtain
expungement eligibility. In a letter to the court, Zwiefelhofer’s attorney explained
that he based his representations regarding federal farming benefits on
“information and belief supplied by [Zwiefelhofer].” Although Zwiefelhofer may
have told his attorney that a felony conviction would affect his ability to obtain
federal farming benefits, no evidence in the record supports the conclusion that he
knew this statement regarding the law was inaccurate. Without any evidence of
Zwiefelhofer’s prior knowledge of what convictions would affect his ability to
obtain federal farming benefits, we cannot, nor could the circuit court, conclude
that Zwiefelhofer intentionally misrepresented his ability to obtain federal farming

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No. 2020AP843-CR

benefits after a felony conviction.2 Indeed, had the State challenged the legal
assertion at sentencing, the court could have fully vetted the basis for it, which
further supports our conclusion regarding forfeiture here.

¶16 Without any inaccurate factual information and without any clear
evidence of an intentional misrepresentation, application of the forfeiture rule in
this case would “promote the fair, efficient, and orderly administration of justice.”
See Coffee, 389 Wis. 2d 627, ¶31. Forfeiture in this case would protect the
finality of a sentence. It would encourage the State to address legal arguments or
statements when they are raised at sentencing and not to wait, as the State did
here, until after the circuit court’s unfavorable decision to ask for Zwiefelhofer’s
supporting legal authority or argue that Zwiefelhofer did not have a legal basis for
a particular statement. The State waited over two weeks to request Zwiefelhofer’s
legal support and then waited two more weeks before filing a motion to
reconsider. Before the State took any of these actions, Zwiefelhofer had already
begun serving his probation and conditional jail time. If the State wished to

2
Although we cannot reach any conclusion regarding whether Zwiefelhofer intentionally
misrepresented the consequences of a felony conviction, we note that his statements were not
entirely mistaken and could reasonably result from his misunderstanding of the substantive law.
Certain convictions involving controlled substances do indeed serve as a basis for denying federal
farming benefits. See 7 C.F.R. § 718.6 (2018). Thus, an anecdote of one person’s felony
controlled substance conviction adversely affecting federal farming benefits could cause other
laypersons to believe, without knowledge of the substantive law, that all felony convictions could
adversely affect federal farming benefits. It would not be unreasonable for a defendant to then
express concern to his or her attorney regarding how a felony conviction might affect the
defendant.

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No. 2020AP843-CR

contest this particular basis for Zwiefelhofer’s expungement argument, it was
required to do so at sentencing.3

¶17 Applying the forfeiture rule in this case would not, as the State
argues, allow defendants to “blatantly lie at sentencing” without giving the State
any recourse. As we already explained, there is no clear evidence that
Zwiefelhofer made any intentional misrepresentations to his attorney or to the
circuit court—much less one of historical fact—because nothing in the record
suggests that Zwiefelhofer knew that his felony conviction would not affect his
eligibility for federal farming benefits. The State also had an opportunity at
sentencing to test the accuracy of Zwiefelhofer’s statements of law regarding
federal farming benefits, but it failed to do so. In other words, the State had
recourse at sentencing by objecting to or otherwise challenging Zwiefelhofer’s
legal statement. For those reasons, and because our decision here is limited to the
unique facts and circumstances of this case, our application of the forfeiture rule
does not allow a defendant to “blatantly lie” at sentencing without giving the State
recourse.

3
Our decision here also protects the finality of an expungement decision. Our supreme
court has previously considered several cases involving expungement decisions after a sentencing
hearing. See State v. Arberry, 2018 WI 7, 379 Wis. 2d 254, 905 N.W.2d 832; State v. Matasek,
2014 WI 27, 353 Wis. 2d 601, 846 N.W.2d 811; State v. Hemp, 2014 WI 129, 359 Wis. 2d 320,
856 N.W.2d 811. In Matasek, the court interpreted the expungement statute, WIS. STAT.
§ 973.015, and concluded that “the phrase ‘at the time of sentencing’ … mean[s] that if a circuit
court is going to exercise its discretion to expunge a record, the discretion must be exercised at
the time of the sentencing proceeding.” Matasek, 353 Wis. 2d 601, ¶6. Similarly, in Arberry, the
court held that “a defendant may not seek expunction after sentence is imposed because both the
language of … § 973.015 and Matasek require that the determination regarding expunction be
made at the sentencing hearing.” Arberry, 379 Wis. 2d 254, ¶5. Finally, in Hemp, the court held
that “the circuit court improperly exercised its discretion when it reversed the decision it made at
sentencing to find [the defendant] eligible for expungement.” Hemp, 359 Wis. 2d 320, ¶4.
Although we do not conclude that these cases are dispositive of this appeal, they do lend further
support for our conclusion that the State forfeited its inaccurate information claim.

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No. 2020AP843-CR

¶18 Finally, we reject the State’s argument that this case is essentially
the same as Coffee but “with the roles reversed.” In Coffee, the circuit court
relied on inaccurate information at sentencing after the State told the court that the
defendant was previously arrested for armed robbery—a historical fact that was
inaccurate. Coffee, 389 Wis. 2d 627, ¶¶9-11. The defendant subsequently moved
for postconviction relief and sought to be resentenced. Id., ¶13. On appeal, the
State argued that the defendant forfeited his resentencing claim because he failed
to object to the inaccurate information at the sentencing hearing. Id., ¶24. Our
supreme court rejected the State’s forfeiture argument and concluded that the
forfeiture rule “does not preclude the ability to later challenge the State’s
spontaneous presentation at sentencing of previously unknown, inaccurate
information.” Id., ¶26.

¶19 Unlike in Coffee, no inaccurate historical facts were introduced at
the sentencing hearing in this case. Although the State may not have known how
some or all felony convictions would affect eligibility for federal farming benefits,
the State could have simply asked for Zwiefelhofer’s legal authority or argued that
he lacked a legal basis—just as the State did weeks after the sentencing hearing.
The State had an obligation to dispute Zwiefelhofer’s statements regarding the
law, lest it forfeit any claim regarding the same.

¶20 In conclusion, by failing to object to, or otherwise test the accuracy
of, Zwiefelhofer’s statements regarding the effect of his felony conviction on his
eligibility for federal farming subsidies at sentencing, the State forfeited its
inaccurate information claim. We therefore reverse the circuit court’s decision to
amend Zwiefelhofer’s judgment and remand for the court to vacate the May 31,
2019 amended judgment and to reinstate the January 15, 2019 original judgment.

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No. 2020AP843-CR

By the Court.—Judgment and order reversed and cause remanded
with directions.

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

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