State v. Samantha Tammy Olsen

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.
October 22, 2024
A party may file with the Supreme Court a
Samuel A. Christensen 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. 2023AP510-CR Cir. Ct. No. 2020CF305

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT III

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

SAMANTHA TAMMY OLSEN,

DEFENDANT-APPELLANT.

APPEAL from a judgment and an order of the circuit court for
Marinette County: JAMES A. MORRISON, Judge. Affirmed.

Before Stark, P.J., Hruz and Gill, 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).

¶1 PER CURIAM. Samantha Olsen appeals from a judgment
convicting her of the delivery of fentanyl and from an order denying her
No. 2023AP510-CR

postconviction motion for resentencing. Olsen contends that the circuit court, in
imposing her sentence, relied upon inaccurate information that she had “killed” the
man to whom she delivered the drug, despite questions as to the causation of the
man’s death that had led to a plea deal reducing the charge against Olsen from
first-degree reckless homicide by delivery of fentanyl (commonly known as a
Len Bias homicide) to delivery of fentanyl. We conclude that Olsen has failed to
satisfy her burden of showing that the information was inaccurate, and we
therefore affirm.

BACKGROUND

¶2 The initial Len Bias charge against Olsen was based upon
allegations that: (1) Olsen obtained a morphine pill containing fentanyl from a
third party; (2) Olsen should have been aware that the pill contained fentanyl
because she knew five people who had overdosed using morphine pills from the
same source; (3) Olsen gave the pill to Tyler because he was looking for
something to help him sleep after having taken methamphetamine; (4) Tyler died
of an overdose within hours after Olsen gave him the pill; (5) Tyler was
discovered in a locked bathroom with a hypodermic needle under his body, along
with a spoon and cotton ball on the counter that tested positive for fentanyl; (6) an
autopsy revealed 6.3 ng/mL of fentanyl and 4,300 ng/ml of methamphetamine
present in Tyler’s blood; and (7) the pathologist opined that fentanyl was a
“substantial factor” in causing Tyler’s death.

¶3 Shortly before the scheduled trial date, the State disclosed a
conversation that prosecutors had with the pathologist during trial preparation.
When asked whether Tyler would still be alive absent the fentanyl, the pathologist
responded that Tyler would not be alive due to the high levels of

2
No. 2023AP510-CR

methamphetamine in his blood, but the pathologist opined that the fentanyl was
still a “contributing factor” in Tyler’s death. According to the pathologist,
methamphetamine stresses the heart, requiring it to have more oxygen, while
fentanyl causes the body to lose oxygen. The pathologist further described the
fentanyl as the “straw that broke the camel’s back,” given that this was
“essentially a needle in arm” case.

¶4 The State then negotiated a deal in which Olsen agreed to plead
guilty or no contest to the reduced charge of delivery of fentanyl and to pay
restitution. The State in turn agreed to request a presentence investigation and to
recommend five years’ initial confinement followed by five years’ extended
supervision, without eligibility for early release programming. At the plea
hearing, the circuit court summarized the basis for the amended Information and
plea deal, stating that the State did not have a good faith belief that it could meet
its burden of proof on the Len Bias charge because the pathologist would have “a
very difficult time” tying the fentanyl Olsen had provided to Tyler to his death.
The court accepted Olsen’s plea to the amended charge.

¶5 At the sentencing hearing, the State offered its agreed-upon
recommendation and argued that it was an appropriate sentence, given evidence
that Olsen distributed drugs that had led to multiple overdoses in the community
and she had continued to deal drugs after Tyler’s death. Tyler’s mother suggested
that Olsen should not get out of prison in four or five years but she should instead
“sit for a very long time.” Olsen acknowledged that this was a “prison case”
without requesting a specific term of initial confinement, but she asked the circuit
court to consider that she had begun to take steps to address her own addictions
and make changes in her life.

3
No. 2023AP510-CR

¶6 Prior to imposing sentence, the circuit court commented extensively
on the severity of the crime. Among other remarks, the court stated that Olsen
“provided [Tyler with] deadly drugs and he died as a result”; that she “provide[d]
drugs which killed [Tyler]”; that she “provid[ed] drugs to a guy in the middle of
the night that ultimately killed him, there’s enough fentanyl in it to kill him and it
did”; that it was “clear” Olsen “provided drugs that caused a death”; that Olsen
was “one hundred percent responsible”; and that “[Tyler] is not with us today
because [Olsen] provided a drug to him in the middle of the night.” The court
acknowledged that Olsen was not ultimately convicted of homicide because the
State was not convinced it could carry its burden of proof, but it observed that “the
results of [Olsen’s fentanyl] delivery were the same as the results of other
deliveries where people had been convicted … of Len Bias homicides.” The court
then imposed a sentence consisting of seven years’ initial confinement followed
by five years’ extended supervision.

¶7 Olsen filed a postconviction motion, alleging that the circuit court
sentenced her based upon an inaccurate understanding that she had actually killed
Tyler or caused his death. The court denied the motion. It explained that it did
not operate under the assumption that the fentanyl “in and of itself caused
[Tyler]’s death.” Rather, the court’s understanding was that the pathologist would
have testified that giving fentanyl “on top of” the methamphetamine that Tyler had
already taken caused his death. The court based its understanding on the
pathologist’s comment that the fentanyl was the “straw that broke the camel’s
back.” Olsen now appeals.

4
No. 2023AP510-CR

DISCUSSION

¶8 “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. If a defendant can establish by clear and convincing
evidence both that inaccurate information was presented at sentencing and that the
court relied upon the misinformation in reaching its determination, the burden
shifts to the State to show that the error was harmless. Id., ¶26. A defendant who
has been sentenced on inaccurate information that cannot be shown to be harmless
is entitled to be resentenced. State v. Payette, 2008 WI App 106, ¶¶45-46, 313
Wis. 2d 39, 756 N.W.2d 423.

¶9 This court will independently review a due process claim that a
defendant has been sentenced based upon inaccurate information. Tiepelman,
291 Wis. 2d 179, ¶9. We will defer, however, to any credibility determinations or
factual findings underlying the circuit court’s decision on a constitutional issue.
See Johnson v. Merta, 95 Wis. 2d 141, 151-52, 289 N.W.2d 813 (1980) (circuit
court is the “ultimate arbiter” for credibility determinations); see also State v.
Tullberg, 2014 WI 134, ¶27, 359 Wis. 2d 421, 857 N.W.2d 120 (factual findings
will be upheld unless clearly erroneous).

¶10 In this case, there is no dispute that the circuit court relied at
sentencing upon its understanding that the fentanyl Olsen provided to Tyler caused
his death, in conjunction with the methamphetamine Tyler had already taken. The
question before us is whether that information was inaccurate.

¶11 We do not deem information to be inaccurate merely because it was
contested or incomplete. Rather, the defendant must demonstrate that the

5
No. 2023AP510-CR

information was “extensively and materially false.” State v. Travis, 2013 WI 38,
¶18, 347 Wis. 2d 142, 832 N.W.2d 491.

¶12 We conclude that Olsen failed to demonstrate, by clear and
convincing evidence, that the fentanyl-laced morphine pill she gave to Tyler was
not a factor in causing his death. The fact that the State was uncertain that it could
prove causation beyond a reasonable doubt did not preclude the circuit court from
finding such causation for the purposes of sentencing. Rather, the court could
reasonably form its understanding of causation based on the pathologist’s
comments that the fentanyl was a contributing factor in Tyler’s death and that it
was “the straw that broke the camel’s back.” Because the court’s understanding
was reasonably drawn from conflicting evidence, we do not deem it materially
false or inaccurate to the point of violating Olsen’s due process rights.

By the Court.—Judgment and order affirmed.

This opinion will not be published. See WIS. STAT.
RULE 809.23(1)(b)5. (2021-22).

6