DATED AND FILED
Acting Clerk of
Court of Appeals
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official
A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals. See Wis. Stat. §
808.10 and Rule 809.62.
STATE OF WISCONSIN
IN COURT OF
State of Wisconsin,
Jason C. Walker,
from a judgment of the circuit court for Pepin County: JAMES
J. DUVALL, Judge. Affirmed.
P.J., Peterson and Brunner, JJ.
¶1 PETERSON, J. Jason Walker was sentenced
after revocation of his probation. The
sentencing court considered probation violations that Walker denied committing. Walker
argues the court could not consider the violations because the State did not
prove he committed them. He contends the
sentencing court was obligated to resolve the factual dispute about whether the
violations occurred, but had no basis to do so without holding an evidentiary
¶2 We disagree. The
sentencing court had sufficient evidence to conclude that the probation
violations occurred, and Walker
did not present any evidence to the contrary.
On appeal, it is Walker’s
burden to show that the court relied on inaccurate information when it
sentenced him. Walker has not met this burden. We therefore affirm.
¶3 In December 2007, Walker
was convicted of felony bail jumping. The
circuit court withheld sentence and placed him on three years’ probation.
¶4 In August 2009, Walker’s
probation agent recommended Walker’s
probation be revoked. The agent’s
revocation summary alleged Walker had violated his rules of supervision
by: (1) having unapproved guests at his
residence after 11:00 p.m.; (2) having sexual intercourse with a minor female;
and (3) attempting to have sexual intercourse with an adult female against
her will. Walker denied having sexual contact with
either woman but admitted having both women at his apartment after 11:00
p.m. He waived a revocation hearing and
his probation was revoked.
¶5 At sentencing after revocation, Walker’s
counsel acknowledged Walker
had waived his revocation hearing.
Counsel repeated that Walker denied the
two sexual assault allegations and argued the court could only consider the
probation violation Walker
admitted—having two unapproved guests at his residence after 11:00 p.m. Counsel conceded the sexual assault
allegations in the revocation summary were the subject of pending criminal
charges in another county. However, he
argued the court could not consider those allegations because Walker denied the sexual conduct. The court disagreed, stating, “I think I’m
entitled to find for the purpose of this hearing all three violations
¶6 The court then imposed a four-and-one-half-year sentence,
consisting of eighteen months’ initial confinement and three years’ extended
supervision. It is undisputed that the
court’s sentencing decision was founded, in part, on the sexual assault
allegations in the revocation summary. Walker now appeals,
arguing the circuit court violated his right to due process by sentencing him
based on probation violations that the State never proved he committed.
¶7 A criminal defendant has a 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. As part of this guarantee, a defendant has
the right to rebut disputed factual information considered by the sentencing
court. State v. Spears, 227 Wis. 2d 495, 508,
596 N.W.2d 375 (1999). A defendant who
alleges the circuit court used inaccurate information at sentencing has the
burden to show both that the information was inaccurate and that the court
actually relied on the information in making its sentencing decision. Tiepelman, 291 Wis. 2d 179, ¶26. Whether a defendant has been denied due
process at sentencing is an issue of constitutional law that we review independently. Id.,
argues the sentencing court could not rely on the sexual assault allegations in
the revocation summary because the State did not prove them. Had the State presented bare allegations,
without any underlying facts, we would agree with Walker that the court’s reliance on the
sexual assault allegations was improper.
However, the trial court did receive evidence that the sexual assaults
occurred. Specifically, the revocation
summary contained a detailed description of the alleged assaults.
¶9 The revocation summary stated the names of the victims, the
date of the offenses, and the location where the assaults allegedly took
place. Furthermore, according to the
revocation summary, both victims were interviewed by police. The minor victim admitted having sexual
intercourse with Walker. She also told police she saw Walker trying to remove
the adult victim’s pants and heard the adult victim repeatedly tell Walker,
“No.” The adult victim told police
Walker forcefully tried to remove her pants in order to have sex with her. She further stated she saw Walker engaging in intercourse with the minor
¶10 Thus, the State did not rest on mere allegations. The revocation summary was evidence that the
sexual assaults occurred. The rules of
evidence do not apply at sentencing. Wis. Stat. § 911.01(4)(c)
(2007-08). Accordingly, both this court
and the sentencing court are entitled to consider the facts set forth in the
revocation summary as evidence supporting the sexual assault allegations.
¶11 Walker cites State
v. Anderson, 222 Wis.
2d 402, 412, 588 N.W.2d 75 (Ct. App. 1998), for the proposition that “the trial
court has an important factfinding role to perform if facts relevant to the
sentencing decision are in dispute. In
that setting, the sentencing court must resolve such disputes.” Walker
contends that, because he denied the sexual assault allegations during the
sentencing hearing, there was a factual dispute about the truth of those
allegations. He argues the circuit court
had no basis upon which to resolve the dispute without holding an evidentiary
hearing. He states that a sentencing
court may not assume the truth of disputed facts in the absence of supporting
¶12 We agree with Walker
that, when facts relevant to a sentencing decision are disputed, the sentencing
court must resolve the factual dispute.
We also agree that a sentencing court may not assume the truth of
disputed facts without supporting evidence.
However, we disagree with Walker’s
contention that the circuit court improperly resolved the factual dispute in
this case by assuming the truth of disputed facts. Here, the court relied on the revocation
summary, which contained a detailed description of the alleged sexual
assaults. Because Walker did not present any evidence
contradicting the revocation summary, the only relevant facts before the
sentencing court supported the allegations.
As a result, the sentencing court could reasonably conclude, based on
the evidence before it, that the allegations were true.
¶13 Furthermore, facts do not become disputed simply because the
defendant says they are disputed. To
dispute an allegation, the defendant must offer evidence that contradicts the
allegation. Here, Walker did not offer any evidence that the
sexual assault allegations were false.
He merely denied the allegations, without offering any factual support
for his denial.
argues he was entitled to an evidentiary hearing because he had a right to
rebut the disputed sexual assault allegations before the sentencing court
relied on them. See Spears, 227 Wis. 2d at 508. The problem with Walker’s argument is that he had an
opportunity to rebut the allegations during the sentencing hearing, but he did
not do so. Nor did he ask for an
evidentiary hearing to rebut the allegations.
He never presented any evidence in the circuit court that the
allegations were false. He merely
offered a bare denial. Walker was not deprived of the opportunity to
rebut disputed factual information at sentencing. Rather, he chose not to avail himself of that
¶15 We conclude Tiepelman places the burden on Walker to show that the
sentencing court relied on factually inaccurate information when it accepted
the sexual assault allegations as true. See id.,
¶26. Walker has not met this burden. His mere denial of the sexual assault
allegations during the sentencing hearing did not constitute evidence rebutting
them. On appeal, Walker has the burden to prove the
allegations were factually inaccurate, and he has not done so.
argues Tiepelman is inapplicable because it involved a motion for
resentencing rather than an appeal from a sentence imposed after
revocation. However, Walker does not explain why this procedural
difference affects the legal principle set forth in Tiepelman that it is the
defendant’s burden to demonstrate the sentencing court relied on inaccurate
information. We do not believe the
procedural differences between Tiepelman and this case merit
application of a different legal standard.
also contends the language we rely on in Tiepelman is dicta. However, the court of appeals may not dismiss
as dicta language from a supreme court opinion.
Zarder v. Humana Ins. Co., 2010 WI 35, ¶58, 324 Wis. 2d 325, 782 N.W.2d
By the Court.—Judgment affirmed.
Not recommended for
publication in the official reports.