State v. Carla L. Oglesby, 2006 WI App 95
For Oglesby: Timothy T. Kay
Issue/Holding: The test for statutory construction – whether the language is capable of being understood by reasonably informed persons in different ways – applies to determination of a sentencing court’s intent; where the parties staked out different sentencing positions but the sentencing court was silent as to whether multiple terms were to be concurrent or consecutive, the court’s sentencing remarks could reasonably be construed as indicating either position, ¶19.
¶21 Thus, we look to the full record in this case, including the judgment of conviction, in determining the trial court’s sentencing intent. But in so doing, Oglesby comes to the debate with a threshold advantage. In State v. Rohl, 160 Wis. 2d 325, 330, 466 N.W.2d 208 (Ct. App. 1991), the court noted the supreme court’s holding in In re McDonald, 178 Wis. 167, 171, 189 N.W. 1029 (1922), that where an offender is actually or constructively serving a sentence for one offense and is then ordered to serve another sentence for a different offense, the second sentence will be deemed to run concurrently with the first sentence in the absence of a statutory or judicial declaration to the contrary. (Emphasis added.)  So the question becomes whether the record, including the judgment of conviction, rebuts this presumption.
 The continuing vitality of this rule has been questioned. See State v. Rohl , 160 Wis. 2d 325, 331, 466 N.W.2d 208 (Ct. App. 1991), State v. Brown, 150 Wis. 2d 636, 639, 443 N.W.2d 19 (Ct. App. 1989), and State v. Morrick, 147 Wis. 2d 185, 187, 432 N.W.2d 654 (Ct. App. 1988). However, we do not have the authority to overrule a standing decision of our supreme court. Cook v. Cook, 208 Wis. 2d 166, 189, 560 N.W.2d 246 (1997).
The court goes on to say that the presumption was not rebutted. Though the reasons are fact-specific, the court stresses that the sentencing disposition “was not in lockstep with the State on all aspects of this sentencing,” ¶23. In other words, the State’s having sought consecutive time did not fill the vacuum caused by the court’s failure to articulate concurrent or consecutive, given that the court did not adopt the State’s position in toto. Indeed, the court made merely “minor deviations … from the State’s recommendations,” but that was enough to preserve the presumption, ¶23. Lengthy discussions of Brown, McDonald and State v. Lipke, 186 Wis. 2d 358, 364, 521 N.W.2d 444 (Ct. App. 1994) follow, the larger message being that when confronted with sentencing-intent ambiguity the reviewing court must review the record as a whole, a necessarily fact-intensive inquiry.
¶33 In summary, in both Brown and Lipke, the court of appeals’ examination of the record as a whole revealed additional relevant information, beyond the mere recital in the judgment of conviction, on the question of the trial court’s intent as to whether the sentence was concurrent or consecutive. Here, our examination of the record as a whole reveals no such additional information. Instead, we are left with the bald statement in the judgment of conviction that the confinement portion of the sentence in 2004CF225 is consecutive. If the trial court had sent any kind of signal that a consecutive sentence was necessary or appropriate, we likely would rule for the State. But we do not have that signal in this case.  Without more, we do not deem the bald recital of a consecutive sentence in the judgment of conviction sufficient to overcome the presumption of a concurrent sentence.
 By way of example, the trial court could have indicated that a period of confinement beyond the sentences imposed in 1997CF239, the probation revocation case, was necessary or appropriate. Or, when rejecting Oglesby’s pitch for probation in 2004CF225, the court could have said that it instead was opting for the State’s recommendation.