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Mistake about whether sentence would be served in jail or prison doesn’t require sentence modification or resentencing

State v. Bruce D. Johnson, 2017AP834-CR, District 3, 3/6/18 (one-judge decision; ineligible for publication); case activity (including briefs)

Even if the sentencing court erroneously thought the sentence he was imposing on Johnson would be served in the jail rather than prison, that mistake doesn’t provide grounds for a sentence modification or resentencing.

When Johnson was sentenced for misdemeanor possession of cocaine he was serving prison time on other unrelated cases. (¶3). The court imposed 12 months in jail, consecutive to Johnson’s other sentences. After the court imposed sentence Johnson asked for good time and Huber privileges, and the court granted both. (¶5). But Johnson had to serve the sentence in prison, not jail, under § 973.03(2) (“A defendant sentenced to the Wisconsin state prisons and to a county jail or house of correction for separate crimes shall serve all sentences whether concurrent or consecutive in the state prisons.”), so Huber was out of the question, and Johnson would be subject to MR parole under § 302.11(1), not good time reduction under § 302.43. (¶6).

So Johnson moved for a sentence modification, arguing that correcting the court’s mistaken belief that Johnson would be in jail is a new factor because it was unknown at the time of sentencing and was unknowingly overlooked by the parties, State v. Harbor, 2011 WI 28, ¶¶35, 38, 333 Wis. 2d 53, 797 N.W.2d 828. But the place of confinement and the availability of Huber and good time didn’t feature in the court’s sentencing rationale:

¶11     Instead, the record reflects that in imposing the sentence, the circuit court primarily considered Johnson’s character, the gravity of his offense, and the need to protect the public. …. The court emphasized the similarities between Johnson’s revocation and the underlying offense, as well as the public safety concerns implicated by his crime. Johnson does not allege that any of the information underlying these considerations was affected by his purported “new factor.” At the same time, nothing indicates that the court assigned importance to the place of Johnson’s one-year confinement, despite both parties acknowledging that Johnson was then serving other sentences. In short, the court placed great emphasis on Johnson’s punishment and the need to protect the community, both of which are valid sentencing objectives. ….

Thus, even if Johnson has established a new factor (and the court of appeals doesn’t decide the question), the circuit court properly exercised its discretion in declining to modify the sentence. (¶¶7, 10).

As an aside, § 973.03(2) should not be unknown to, or unknowingly overlooked by, anyone handling a criminal sentencing in Wisconsin.

Johnson also asked for resentencing. That claim fails for the same basic reason, as it requires he show the circuit court relied on inaccurate information in imposing sentence, State v. Tiepelman, 2006 WI 66, ¶26, 291 Wis. 2d 179, 717 N.W.2d 1:

¶16     A circuit court actually relies on inaccurate information when the court gives “‘explicit attention’ or ‘specific consideration’ to it, so that the misinformation ‘formed part of the basis for the sentence.’” Tiepelman, 291 Wis. 2d 179, ¶14 (citation omitted). This type of reliance is absent here. In imposing the sentence, the circuit court assigned no significance to whether Johnson would serve his sentence in jail or prison. The court may have summarily granted Huber privileges and good time eligibility upon request and after it pronounced the length of confinement, but Johnson cannot simply isolate this grant and work backward from it to prove reliance. See State v. Alexander, 2015 WI 6, ¶25, 360 Wis. 2d 292, 858 N.W.2d 662 (circuit court’s basis for sentencing must be reviewed in the context of the whole sentencing transcript). As already explained, the court ordered both privileges as an afterthought to its sentence, and it otherwise thoroughly discussed the relevant sentencing factors and placed emphasis on punishment over rehabilitation. ….

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