State v. Lord L. Sturdivant, 2009 WI App 5, PFR filed 1/13/09
For Sturdivant: Steven D. Phillips, SPD, Madison Appellate
¶8 Due process “requires that vindictiveness against a defendant for having successfully attacked his first conviction must play no part in the sentence he receives after a new trial.” North Carolina v. Pearce, 395 U.S. 711, 725 (1969), overruled on other grounds, Alabama v. Smith, 490 U.S. 794 (1989). “[W]henever a judge imposes a more severe sentence upon a defendant after a new trial,” the reasons for doing so must be free from a retaliatory motive. See Pearce, 395 U.S. at 726. Because retaliatory motives can be complex and difficult to prove, the Supreme Court has found it necessary to “presume” an improper vindictive motive. See United States v. Goodwin, 457 U.S. 368, 373 (1982). This presumption also applies when a defendant is resentenced following a successful attack on an invalid sentence. See State v. Carter, 208 Wis. 2d 142, 154-55, 560 N.W.2d 256 (1997).
¶9 The underlying concern of all vindictiveness case law is that a defendant could be punished by a resentencing court for exercising postconviction rights to challenge a conviction or a sentence. See State v. Martin, 121 Wis. 2d 670, 687-88, 360 N.W.2d 43 (1985); Grobarchik v. State, 102 Wis. 2d 461, 474, 307 N.W.2d 170 (1981). Vindictiveness is not presumed in all cases where a defendant’s sentence is increased at resentencing. The presumption stands only where “a reasonable likelihood of vindictiveness exists.” See Goodwin, 457 U.S. at 373.