State v. Paul S. Schraven

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.
June 20, 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. 2023AP1870-CR Cir. Ct. No. 2022CF17

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT IV

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

PAUL S. SCHRAVEN,

DEFENDANT-APPELLANT.

APPEAL from a judgment and an order of the circuit court for
Waushara County: CHAD A. HENDEE, Judge. Affirmed.

Before Blanchard, Nashold, and Taylor, 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. Paul Schraven appeals the sentence imposed
following his conviction for repeated sexual assault of a child and the circuit
No. 2023AP1870-CR

court’s denial of his postconviction motion for resentencing. Schraven argues that
the court at sentencing relied on inaccurate information concerning the maximum
permitted period of confinement in prison. We conclude that Schraven fails to
show by clear and convincing evidence that the court relied on the inaccurate
information and accordingly we affirm.1

BACKGROUND

¶2 Schraven was charged with repeated sexual assault of a child,
exposing genitals to a child, and tampering with a global positioning system
tracking device, in each instance as a repeat offender. He entered a no contest plea
to the sexual assault charge (without the repeater penalty enhancer), and the other
two charges were read in for sentencing purposes. At the plea hearing, the court
told Schraven that the maximum period of confinement that the court could
impose would be 40 years, and this was an accurate statement. See WIS. STAT.
§ 948.025(1)(d) (2021-22) (the Class B felony of committing at least three
violations of WIS. STAT. § 948.02(1), which defines various categories of first
degree sexual assault of a child); WIS. STAT. § 939.50(3)(b) (Class B felonies have
maximum periods of imprisonment of 60 years); WIS. STAT. § 973.01(2)(b)1.
(Class B felonies have maximum periods of confinement in prison of 40 years). 2

¶3 The court did not order a presentencing investigation report. The
prosecutor and defense counsel each filed with the court a letter addressing

1
Given this conclusion, we need not and do not address the State’s alternative arguments
that Schraven forfeited appellate review of his inaccurate information argument by failing to
object at the time of sentencing and that, if the circuit court committed error, it was harmless.
2
All references to the Wisconsin Statutes are to the 2021-22 version unless otherwise
noted.

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No. 2023AP1870-CR

sentencing topics. Now on appeal, neither side questions the accuracy of any
factual assertion in the other side’s sentencing letter.

Prosecutor’s Sentencing Letter

¶4 The prosecutor’s sentencing letter included the following assertions.
At the time of the sexual assaults, the victim was six. The victim’s mother, who
was dating Schraven at the time of the assaults, was convicted of three offenses
related to Schraven’s criminal conduct in this case: failure to act to prevent sexual
assault of a child (the assaults committed by Schraven); neglecting a child with the
consequence of sexual assault (again, the assaults committed by Schraven); and
harboring a felon (Schraven).

¶5 The victim reported that Schraven had touched her “pee area,” and
made her place her mouth on his penis. At the time, the victim viewed Schraven
as a father figure.

¶6 Schraven’s criminal history included convictions on six counts of
possession of child pornography in two 2014 cases, for which he received a
sentence of seven years initial confinement and ten years extended supervision. In
addition, offenses read in for purposes of sentencing in the 2014 cases included
charges that Schraven had sexual contact with two different girls.

¶7 Schraven had only recently been released on extended supervision
from the 2014 cases when he committed the sexual assaults at issue here, and he
was prohibited from having contact with the victim in this case as a condition of
his supervision in the 2014 cases. As a result of his sentence on the child
pornography convictions, Schraven was required by the Department of
Corrections to wear a bracelet that tracked his whereabouts.

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No. 2023AP1870-CR

¶8 After the victim’s mother learned that the victim had told authorities
that Schraven had sexually assaulted her, Schraven cut off the tracking bracelet.
Following the filing of charges against Schraven in this case, he and the victim’s
mother were arrested in Mississippi following a high-speed chase, during which
they tossed cellular phones out of their vehicle.

¶9 Based on all of these facts, the prosecutor wrote:

The defendant is a dangerous person who is a threat to
young children, and the public needs to be protected from
him for a long time to come. Accordingly, the State
recommends that the court sentence the defendant to 32
years of initial confinement and 18 years of extended
supervision [concurrent to the sentence after revocation he
was then serving].

Defense Counsel’s Sentencing Letter

¶10 The defense sentencing letter contained the following assertions.
“Throughout his adult life Mr. Schraven has maintained employment and when
available to do so has contributed financial support towards his children.”
Schraven furthered his education during his prior prison term and “has maintained
familial bonds with his mother, father, and brother.”

¶11 When released from prison in March 2021, Schraven tested as “low”
(level 3) for the general risk of recidivism and “low” (level 1) for the specific risk
of violent recidivism, and his “driver” for risk was identified as deviant sexual
interests. He “has a rehabilitative need,” namely, deviant sexual interests, which
“can be met through institutional programming to reduce [the] risk of
reoffending.”

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No. 2023AP1870-CR

Sentencing Hearing

¶12 The prosecutor repeated the statements made in the letter
summarized above, all of which the prosecutor said demonstrates that Schraven “is
a danger and a threat to other young children.” The prosecutor described the
sexual assaults here as being among “the worst acts that could be committed” and
“very, very aggravated.” The prosecutor emphasized that, at the time of the sexual
assaults, Schraven was on Department of Corrections supervision following
multiple convictions for possession of child pornography. “I think he needs to be
in [prison] until he is an old man in order to make sure that he is not going to be a
threat to another young child.” The prosecutor noted that the victim’s mother, in
her related cases, had just received a sentence of 14 years of initial confinement,
10 years of extended supervision, and consecutive probation—and unlike
Schraven, she did not sexually assault the victim, nor did she have a criminal
record.

¶13 Defense counsel also echoed points made in the defense sentencing
letter and made arguments that included the following, all in support of a request
for a sentence of 15 to 20 years of initial incarceration and a maximum term of
extended supervision of 20 years, concurrent with his sentence after revocation.
Schraven’s criminal conduct was “inextricably intertwined” with the related
criminal conduct of the victim’s mother, including their flight together to
Mississippi, and therefore their sentences should be comparable. Schraven entered
a plea in part to “avoid the need for the victim to testify or to put anyone involved
through the experience of a trial.” Schraven needed sex offender treatment and
programming, which he had previously begun in prison and could continue on his
return to prison. The fact that he would be placed on the lifetime sex offender

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No. 2023AP1870-CR

registry and lifetime GPS monitoring reduces the potential risk to others once he is
released from prison.

¶14 In his allocution, Schraven apologized for his criminal conduct. He
also said that he has cardiac issues that will shorten his life, and therefore a long
prison sentence would likely result in his death in prison. He further said that he
wanted a chance to finish the sex offender treatment that he had started during his
previous prison stint, which would help him “show that I can rise above this past
and be a better person.”

¶15 The circuit court made comments that included the following.
Schraven’s offense is “one of the most heinous crimes” that anyone can commit.
As a father figure to the victim, Schraven violated her trust “in the most despicable
way possible,” and “she is going to live with” memories of the assaults for “the
rest of her life.” “After getting released from a substantial prison term, [Schraven]
made a choice over and over and over again to do this, and not only have …
contact [with the victim,] but then violate and abuse this child.” The court rejected
the defense argument that Schraven’s conduct was comparable to the related
conduct of the victim’s mother that resulted in her convictions, because it was
Schraven alone who acted as a “predator” in actually committing the sexual
assaults.

¶16 Regarding mitigating factors, the circuit court said that it
“appreciate[d]” Schraven’s allocution and his entry of the plea of no contest to
avoid the need for a trial. It also acknowledged his “heart problems and health
issues.” The court also conceded that Schraven had low recidivism risk scores
from March 2021, but said that the court’s own assessment was that there
“absolutely” is a risk of recidivism.

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No. 2023AP1870-CR

¶17 The circuit court said that Schraven’s crimes “are something that
cannot go unpunished,” and further observed that sentencing was also “very
much” about “protecting the public and giving this victim at least solace that
[Schraven is] not going to be [outside prison] for a good period of time.” “[T]he
fact is there is a possibility that” Schraven, if not in prison, would victimize a child
“again.”

¶18 The elements of the sentence imposed by the circuit court pertinent
to this appeal were 30 years of initial confinement and 20 years of extended
supervision, concurrent to his current sentence. The court said that this would
mean Schraven would be confined until he is “74 years old or so,” which is
“something I don’t take lightly.”

¶19 The court explained its decision to Schraven in part as follows:
“Quite frankly, sir, I was going to go higher. At the same [time], the reason that I
didn’t is that you are taking responsibility. You did not put that little girl through
a trial.”

¶20 Turning to the focus of this appeal, the court made the following
specific references to the maximum period of initial confinement, which was in
fact 40 years and not 46 years, given that the repeater enhancer was dropped at the
time of the plea:

 “Honestly, this could have been a maximum sentence, in the Court’s
view, but I am giving you some credit in the sense that you didn’t put
her through that, and there is a value to that.”

 “As far as seriousness [of the offense], the legislature says that the
maximum penalty, maximum time in prison is 40 years in prison. Now,
because of the enhancer, an extra six years even, so to say that it is
serious is just an understatement.”

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No. 2023AP1870-CR

 “Now, what is the right number? There is no magic formula here that
says what it is. The legislature says that it could be up to 46 years. The
State is arguing for 32 years of initial confinement and 18 years of
extended supervision. Your attorney is arguing for 15 to 20 years.”

Postconviction Hearing

¶21 Through counsel, Schraven filed a postconviction motion for
resentencing, making the same argument that he now advances on appeal. The
State opposed the motion.

¶22 At a hearing on the motion, defense counsel argued that the
transcript from the sentencing hearing reflects that the circuit court credited
Schraven with 16 years (i.e., the court reduced by 16 years what would otherwise
have been the sentence) for accepting responsibility for his crimes—arriving at 30
years for the initial confinement period by subtracting 16 from the (false)
maximum of 46.

¶23 The prosecutor pointed out that the State had not asked for an initial
confinement period beyond 40 years and contended that, in arguing that the
sentencing court subtracted 16 from 46 to reach 30, defense counsel was
“oversimplifying” the court’s “very lengthy analysis” at sentencing.

¶24 The circuit court acknowledged that it had inaccurately treated the
repeater allegation at sentencing as if Schraven had entered a plea to that
allegation, and that as a result the court had misstated the maximum period of
confinement. The court attributed the mistake to its having looked at the criminal
information without recalling that Schraven had not entered a plea to the repeater
allegation. But the court rejected the defense position that it had used the
“formula” of starting from the maximum period of initial confinement and

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No. 2023AP1870-CR

reducing that by 16 years. Instead, the court said, it settled on 30 years as “the
appropriate sentence based on the factors that I had to look at,” and that this
included giving Schraven “credit for accepting responsibility” by coming down to
30 years of initial confinement from the State’s recommendation of 32 years. The
court specifically found that it had not relied “in any way” on the concept that the
initial confinement maximum was 46 years in determining an appropriate
sentence.

¶25 Schraven appeals.

DISCUSSION

A. Legal Standards

¶26 Defendants in criminal cases have constitutionally protected due
process rights to be sentenced based on accurate information. State v. Travis,
2013 WI 38, ¶17, 347 Wis. 2d 142, 832 N.W.2d 491; see also id., ¶¶9-10, 26, 32-
33, 49 (circuit court improperly based sentence on explicit and repeated references
to inaccurate information that defendant was subject to a mandatory minimum
five-year term of initial confinement). “A criminal sentence based upon materially
untrue information, whether caused by carelessness or design, is inconsistent with
due process of law and cannot stand.” Id., ¶17.

¶27 A sentencing court is required to articulate the basis for imposition
of a sentence. State v. Alexander, 2015 WI 6, ¶25, 360 Wis. 2d 292, 858 N.W.2d
662. “This articulation plays an important role in determining whether the circuit
court actually relied on an improper factor.” Id. “We review the circuit court’s
articulation of its basis for sentencing in the context of the entire sentencing
transcript to determine whether the court gave ‘explicit attention’ to an improper

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No. 2023AP1870-CR

factor, and whether the improper factor ‘formed part of the basis for the
sentence.’” Id. (quoting State v. Tiepelman, 2006 WI 66, ¶14, 291 Wis. 2d 179,
717 N.W.2d 1; Travis, 347 Wis. 2d 142, ¶¶ 28, 31).

¶28 It is the defendant’s burden to establish that there was inaccurate
information before the sentencing court and that the court actually relied on that
information in arriving at an aspect of the sentence. Tiepelman, 291 Wis. 2d 179,
¶31. The showing of actual reliance must be established “by clear and convincing
evidence.” Travis, 347 Wis. 2d 142, ¶22. If those showings are made, the burden
shifts to the State to show that the error of relying on inaccurate information was
harmless. Tiepelman, 291 Wis. 2d 179, ¶31.

¶29 Our review is de novo. Travis, 347 Wis. 2d 142, ¶9 n.9. “A
reviewing court must independently review the record of the sentencing hearing to
determine the existence of any actual reliance on inaccurate information. A circuit
court’s after-the-fact assertion of non-reliance on allegedly inaccurate information
is not dispositive of the issue of actual reliance.” Id., ¶48.

B. Analysis

¶30 When viewed in isolation, the circuit court’s multiple references at
sentencing to the inaccurate maximum confinement period could suggest that the
court gave the inaccurate maximum “‘specific consideration’” in a way that
caused it to “‘form[] part of the basis for the sentence.’” See id., ¶¶22, 28
(“Whether the circuit court ‘actually relied’ on the incorrect information at
sentencing, according to the case law, turns on whether the circuit court gave
‘explicit attention’ or ‘specific consideration’ to the inaccurate information, so that
the inaccurate information ‘formed part of the basis for the sentence.’” (quoting
Tiepelman, 291 Wis. 2d 179, ¶14, in turn quoting United States ex rel. Welch v.

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No. 2023AP1870-CR

Lane, 738 F.2d 863, 866 (7th Cir. 1984))). But based on our review of the
relevant aspects of the record as a whole, we conclude that Schraven fails to meet
his burden by clear and convincing evidence. This is because aspects of the record
lend support to the court’s own opinion, reached after the court refreshed its
memory with the record, that the court relied entirely on multiple other factors.
This included focusing on the recommendations of the parties in arriving at the 30-
year period, but not focusing on the statutory maximum.

¶31 The following aspects of the record support our conclusion that
Schraven has not produced clear and convincing evidence that the circuit court
relied on the inaccurate maximum confinement period. It is true that at sentencing
the circuit court observed that “this could have been a maximum sentence,” and
that “there is value to” the fact that Schraven decided to plead no contest.
However, in specifically addressing “the right number,” the court explained that it
was not depending on any “formula.” This undermines Schraven’s position that
the court, wholly or in part, subtracted 16 from 46 to reach 30. Further, in
addressing “the right number” at sentencing, the court referred to the
recommendations of the parties and not to the erroneous maximum confinement
period.

¶32 One reasonable interpretation of the circuit court’s sentencing
statement that, “[a]s far as seriousness [of the offense], the legislature says that the
maximum penalty” is 46 years, “so to say that it is serious is just an
understatement,” is that the court was merely using the concept of a long
maximum confinement period as a proxy for the seriousness of the sexual assaults.
Understood in that context, the difference between the very long maximum of 40
years and somewhat longer maximum of 46 is not meaningful.

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No. 2023AP1870-CR

¶33 Schraven argues on appeal that the statutory maximum penalty
“must always inform the court’s discretionary determination of the appropriate
sentence.” It is of course true that a sentencing court may not impose a sentence
in excess of a statutory maximum, and in that sense every sentence must at least
implicitly take into account these ceilings. But Schraven cites no authority for the
proposition that a sentencing court is required to start with a statutory maximum
and then apply reductions and additions based on various factors, and he fails to
show by clear and convincing evidence that the court did so here.

¶34 Schraven suggests that the circuit court’s after-the-fact assessment
was to the following effect: the court could now justify the initial confinement
period of 30 years, even if it had relied to some degree at sentencing on the
inaccurate statutory maximum. See Travis, 347 Wis. 2d 142, ¶47 (“‘The fact that
other information might have justified the sentence, independent of the inaccurate
information, is irrelevant when the court has relied on inaccurate information as
part of the basis of the sentence.’” (emphasis in original) (quoting Welch, 738
F.2d at 867)). We disagree with this interpretation of the court’s statements.

¶35 We agree with Schraven that our primary focus must be on the
sentencing transcript and that the circuit court’s after-the-fact assessment is
entitled to lesser weight. See State v. Coffee, 2020 WI 1, ¶38, 389 Wis. 2d 627,
937 N.W.2d 579 (characterizing the sentencing transcript as the “most important
piece of evidence”). We disagree with Schraven, however, that the court’s
assessment in response to the postconviction motion is “irrelevant.” The court’s
assessment is “not dispositive,” see Travis, 347 Wis. 2d 142, ¶48, but it
contributes to Schraven’s inability to make a showing of reliance by clear and
convincing evidence.

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No. 2023AP1870-CR

¶36 For all of these reasons, we affirm the judgment of conviction and
the order denying the postconviction motion.

By the Court.—Judgment and order affirmed.

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

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