State v. Donald W. Thexton, 2007 WI App 11, PFR filed 1/02/07
For Thexton: Kirk B. Obear
Issue/Holding:
¶6 Thexton next claims that the circuit court erred in considering the PSI from his prior conviction. On realizing that the PSI in this case had been prepared with extensive reference to the PSI from Thexton’s prior conviction, Thexton’s attorney objected to the circuit court that he could not adequately respond to it because he did not have access to the prior PSI. The court held a hearing on the issue, at which Thexton’s attorney proposed that the court order the prior PSI released to the parties, and the court did so. The State argues that Thexton’s trial counsel invited the error by specifically asking the circuit court to release the report. See Shawn B.N. v. State, 173 Wis. 2d 343, 372, 497 N.W.2d 141 (Ct. App. 1992) (appellate court will not review error invited by appealing party). We agree that the issue is waived; specifically, Thexton is judicially estopped from claiming that the court erred in doing precisely what he asked. See Rusk County Dept. of Health and Human Servs. v. Thorson, 2005 WI App 37, ¶5 n.4, 278 Wis. 2d 638, 693 N.W.2d 318 (“judicial estoppel bars litigant from argument directly contradictory to circuit court argument” (citation omitted)).
