COURT OF APPEALS

DECISION

DATED AND FILED

December 22, 2022

Sheila T. Reiff

Clerk of Court of Appeals

NOTICE

This opinion is subject to further editing. If 

published, the official version will appear in 

the bound volume of the Official Reports. 

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. 

Appeal Nos. 2021AP1680-CR

2021AP1681-CR

Cir. Ct. Nos. 2017CF1068

2017CF2334

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). 
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2

¶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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4

“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 bailjumpings, 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).