State v. Randy Keith Scott

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.
May 7, 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. 2023AP968-CR Cir. Ct. No. 2021CF2150

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT I

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

RANDY KEITH SCOTT,

DEFENDANT-APPELLANT.

APPEAL from a judgment and an order of the circuit court for
Milwaukee County: J.D. WATTS, Judge. Affirmed.

Before Donald, P.J., Geenen and Colón, 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. 2023AP968-CR

¶1 PER CURIAM. Randy Keith Scott appeals from a judgment of
conviction for one count of second-degree sexual assault of a child and one count
of incest, and an order of the circuit court denying his postconviction motion for
resentencing without a hearing. For the reasons set forth below, we affirm.

BACKGROUND

¶2 Scott was charged with two counts of second-degree sexual assault
of a child, two counts of incest, and one count of felony intimidation of a victim
for conduct involving his twin daughters, Mindy and Mary.1

¶3 As alleged in the criminal complaint, Mindy and Mary came to live
with Scott in December 2019, when they were fourteen years old. Shortly
thereafter, Scott asked Mindy “‘weird questions’ about her virginity” and told
Mindy that “he was going to ‘test it out’ with his ‘tool.’” Scott subsequently
secured birth control for Mindy.

¶4 Mindy described that Scott had penis to vagina intercourse with her
on different occasions in his bedroom, on the couch in the living room, in the
dining room, and on a blanket in the back of a van. He also engaged in oral
intercourse with her on several occasions in his bedroom and in the dining room.
She further stated that Scott made her send him pictures of her breasts and vagina,

1
We adopt the pseudonyms used by the State. See WIS. STAT. RULE 809.86 (2021-22).
All references to the Wisconsin Statutes are to the 2021-22 version unless otherwise noted.

Additionally, we note that the criminal complaint contains factual allegations underlying
counts three and four related to Mary. However, we limit our discussion to the factual allegations
related to Mindy. The charges related to Scott’s activities with Mary were eventually dismissed
and read in for sentencing purposes, and the circuit court limited its discussion at the time of plea
and sentencing to the factual allegations related to Mindy that underlie counts one, two, and five.

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No. 2023AP968-CR

and Scott sent her pictures of his penis. Mindy stated that if she did not comply,
Scott would storm out or threaten to commit suicide. Scott also displayed
favoritism towards Mindy by making Mary do Mindy’s chores, and Scott also paid
Mindy $40 for “every time.” Eventually, Mindy moved out of Scott’s house to her
grandfather’s house, but the sexual activity continued.2

¶5 In April 2021, Scott’s wife found a text message exchange between
Scott and Mindy and pictures of Mindy on Scott’s phone. When she confronted
Scott, he prevented her from leaving the house, told her not to tell anyone, and
suggested that “they should just pack up and run away.” Scott also pointed a gun
at his head and threatened to kill himself unless his wife told him where she saved
a copy of the text messages and pictures.

¶6 After the confrontation, Scott took Mindy to a phone store where he
attempted to change Mindy’s phone number so she could not be found. Scott also
took Mindy to a motel, where Mindy said they had sex because Scott told her “that
he was stressed out and that they had to have sex in order to relieve stress.” Police
arrested Scott at the motel.

¶7 Following his arrest, Scott made several phone calls from the jail
and attempted to reach Mindy to convince her to change her statement. For
example, Scott made a phone call to an unidentified male subject and attempted to
add Mindy as a three-way call to find out what Mindy told the police. After
Mindy was not able to be added, Scott told the unidentified male subject, “[I]f she
told them anything, she gotta keep her age at [fifteen] … if it’s under fucking

2
Mary stated that Scott “kicked [Mindy] out of the house when [Mindy] got a
boyfriend.”

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No. 2023AP968-CR

[fifteen], it’s going to be a felony. You know what I’m saying?” On a different
phone call, Mindy told Scott that the police “know everything” and that she “told
the truth.” Scott became upset and stated, “Oh my fucking God,” and another
person on the phone call told Mindy that “[y]ou should have known better.”

¶8 Mindy’s grandfather eventually took Mindy to the police station, and
Mindy told police that she lied in her statement and “all the sexual contact
between her and the defendant” occurred after she turned sixteen years old and
“nothing happened between them” when she was fourteen years old. However,
Mindy also sent a Facebook message to her grandfather stating that she had been
“raped over and over for two years.”

¶9 Scott ultimately pled guilty to one count of second-degree sexual
assault of a child and one count of incest as to Mindy. The remaining charges
were dismissed and read in for sentencing purposes. Pursuant to the plea
agreement, the State and trial counsel jointly recommended a sentence of fifteen
years of initial confinement, with the length of extended supervision left to the
discretion of the circuit court. The circuit court accepted Scott’s pleas and
proceeded directly to sentencing. The circuit court sentenced Scott to a total of
forty-four years of imprisonment, composed of twenty-four years of initial
confinement and twenty years of extended supervision.

¶10 Scott filed a postconviction motion requesting resentencing as a
result of inaccurate information considered by the circuit court at the time of his
sentencing. As alleged in the motion, the State made several remarks at the time
of sentencing that Scott denied were true, and his employment record as
considered at the time of sentencing was not accurate. The circuit court denied his
motion without a hearing, and Scott now appeals.

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No. 2023AP968-CR

DISCUSSION

¶11 On appeal, Scott argues that the circuit court erroneously denied his
postconviction motion for resentencing as a result of inaccurate information
considered at the time of sentencing. He contends that the circuit court was
required to accept the factual allegations in his motion as true, and taking those
allegations as true, he has shown that the circuit court actually relied on inaccurate
information at the time of sentencing. Thus, he argues that he is entitled to a
hearing on his claim for resentencing as a result of inaccurate information
considered at the time of sentencing.

¶12 “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. “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 (citation omitted). We review
de novo whether a defendant has been denied his due process right to be sentenced
upon accurate information. Id., ¶9.

¶13 In his motion, Scott identified the following statements made by the
prosecutor at the time of sentencing: (1) “[T]here’s threats both to the victim and
threatening suicide, there’s grooming and giving them money.” (2) “The victim
[Mindy] indicated that she moved out of [Scott’s] house, that she was kicked out
after she got a boyfriend[.]” (3) “[W]hile they were missing, the defendant [Scott]
took her [Mindy] to a phone store and made her change her phone number so that,
quote, no one could find them.” (4) “[Mindy] said if she ever said no to him or
asked him not to do it, he would threaten to kill himself[.]” (5) “His wife

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No. 2023AP968-CR

indicated that he actually pulled out a firearm, pointed it at his head, threatened to
kill himself, and then left the residence with the firearm. And that was when he
and [Mindy] went missing, essentially.” Scott then denied that the prosecutor’s
statements were true and that he does not believe that anyone ever made such
statements. Scott further identified that he maintained continuous employment
from the time of his release from federal prison in May 2014, and the limited
employment record presented at the time of sentencing was inaccurate.

¶14 Importantly, we note that trial counsel never objected at the time of
sentencing to the prosecutor’s remarks or the employment record considered by
the circuit court. If the defendant fails to object at the time the right is violated,
the right may be forfeited. State v. Ndina, 2009 WI 21, ¶29, 315 Wis. 2d 653, 761
N.W.2d 612. We review de novo whether a claim is forfeited or adequately
preserved for appeal. State v. Corey J.G., 215 Wis. 2d 395, 405, 572 N.W.2d 845
(1998).

¶15 Forfeiture is failing to timely assert a right. Ndina, 315 Wis. 2d 653,
¶29. The forfeiture rule promotes fairness, efficiency, and the orderly
administration of justice. State v. Huebner, 2000 WI 59, ¶¶11-12, 235 Wis. 2d
486, 611 N.W.2d 727; see also Ndina, 315 Wis. 2d 653, ¶30. We conclude that,
as a result of trial counsel’s failure to object, the fair, efficient, and orderly
administration of justice requires application of the forfeiture rule here. Therefore,
we conclude that Scott has forfeited his argument that the circuit court actually
relied on inaccurate information at the time of sentencing.

¶16 Scott argues that “the forfeiture rule does not apply to previously
unknown, inaccurate information first raised by the State at sentencing.” State v.
Coffee, 2020 WI 1, ¶31, 389 Wis. 2d 627, 937 N.W.2d 579. However, a review of

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No. 2023AP968-CR

the criminal complaint and a review of the sentencing transcript plainly
demonstrates that the prosecutor’s remarks were taken directly from the factual
allegations found in the criminal complaint. At the time of his plea and
sentencing, Scott admitted to the contents of the criminal complaint and confirmed
his own personal awareness and understanding of its contents. To be clear, the
circuit court explicitly asked Scott if he read and understood the criminal
complaint, and Scott replied, “Yes, sir.” Similarly, Scott would have been
personally aware of his own employment history at the time of sentencing.
Therefore, the statements and employment history Scott identified in his motion
simply do not fit the description of previously unknown information that the State
raised for the first time at sentencing. Thus, we reject Scott’s argument that the
forfeiture rule cannot apply to his case.

¶17 Furthermore, we conclude that Scott’s guilty plea waived his current
challenge to the accuracy of the information considered at sentencing. “The
general rule is that a guilty, no contest, or Alford plea ‘waives all nonjurisdictional
defects, including constitutional claims[.]’” State v. Kelty, 2006 WI 101, ¶18, 294
Wis. 2d 62, 716 N.W.2d 886 (footnote omitted; citation omitted).

¶18 As previously described, the prosecutor’s remarks that Scott
identified in his motion were clearly taken directly from the factual allegations in
the criminal complaint. As part of his guilty plea, Scott specifically admitted to
the facts alleged in the criminal complaint,3 and he acknowledged that, as part of
his guilty plea, he “gave up” certain trial rights, including the right to confront

3
Indeed, trial counsel also stated during the plea and sentencing hearing that Scott
admitted “that he engaged in reprehensible conduct” with Mindy.

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No. 2023AP968-CR

“witnesses who would testify against him” and the right “to make the State prove
[him] guilty beyond a reasonable doubt.” Again, the circuit court specifically
asked Scott if he read and understood the criminal complaint, and Scott replied,
“Yes, sir.” The circuit court even confirmed that Scott understood that “the
[c]ourt can consider the facts and circumstances of Counts 3, 4, and 5 when doing
the sentence” as part of the function of a read-in offense.

¶19 Thus, at the time of his guilty plea, Scott waived any right he had to
challenge the accuracy of those facts alleged in the criminal complaint and test the
credibility of the statements made by the witnesses contained in the criminal
complaint. See State v. Bratrud, 204 Wis. 2d 445, 450, 555 N.W.2d 663 (Ct. App.
1996) (“In Wisconsin, appellate courts have concluded that various facts relevant
to a defendant’s conviction are admitted when a plea is taken.”).

¶20 Rather, as opposed to raising an argument that the circuit court
considered inaccurate information at the time of sentencing, we instead construe
Scott’s argument as a postconviction attempt to concoct a trial to dispute the
statements made by Mindy, Mary, Scott’s wife, and others that served as the basis
of the factual allegations for his guilty pleas. See State v. Merryfield, 229 Wis. 2d
52, 61, 598 N.W.2d 251 (Ct. App. 1999) (recognizing that “the function of a trial,”
as opposed to a guilty plea is “to resolve factual disputes”). We reject his attempt
to do so because, as a result of his guilty plea, Scott admitted to the facts contained
in the criminal complaint and explicitly waived his right to confront the witnesses
against him and test the credibility of the statements they made. Scott’s guilty
plea, therefore, precludes the particular argument he currently makes.

By the Court.—Judgment and order affirmed.

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No. 2023AP968-CR

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

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