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After Sentence Has Been Set Aside, Resentencing Court May Consider Defendant’s Postsentencing Rehabilitation

Pepper v. U.S., USSC No. 09-6822, 3/2/11

In light of the federal sentencing framework described above, we think it clear that when a defendant’s sentence has been set aside on appeal and his case remanded for resentencing, a district court may consider evidence of a defendant’s rehabilitation since his prior sentencing and that such evidence may, in appropriate cases, support a downward variance from the advisory Guidelines range.

The thrust of the opinion is statutory, not constitutional. Plus, Wisconsin caselaw has already reached this conclusion (lessening the potential impact still more), State v. Carter, 208 Wis. 2d 142, 560 N.W.2d 256 (1997):

¶2     The issue before this court is whether on resentencing a circuit court should consider information about events and circumstances either that the sentencing court was unaware of at the initial sentencing or that occurred after the initial sentencing.[1] We conclude that a circuit court should have available to it all information relevant to determining the appropriate sentence. Accordingly, we hold that a circuit court should, in imposing a sentence at a resentencing proceeding, consider all information relevant about a defendant, including information about events and circumstances either that the sentencing court was unaware of at the initial sentencing or that occurred after the initial sentencing.[2]

And, State v. Lorenzo Wood, 2007 WI App 190:

¶6 “When a resentencing is required for any reason, the initial sentence is a nullity; it ceases to exist.” Carter, 208 Wis. 2d at 154. In resentencing “the court imposes a new sentence after the initial sentence has been held invalid.” Id. at 147. At resentencing not only may a court consider a defendant’s conduct after the imposition of the invalid sentence, id. at 146, but the court is not required to defer to the original sentencing objectives, State v. Naydihor, 2004 WI 43, ¶¶78-79, 270 Wis. 2d 585, 678 N.W.2d 220. In effect, the resentencing court is starting over. See Carter, 208 Wis. 2d at 157 (“The circuit court’s role in determining an appropriate sentence is the same whether the proceeding is an initial sentencing or a resentencing.”). …

Still, the opinion in Pepper contains language that bears repeating, even if it breaks no new ground, indeed precisely because it is instantly recognizable to our individualized sentencing regime:

“It has been uniform and constant in the federal judicial tradition for the sentencing judge to consider every convicted person as an individual and every case as a unique study in the human failings that sometimes mitigate, sometimes magnify, the crime and the punishment to ensue.” Koon v. United States , 518 U. S. 81, 113 (1996) . Underlying this tradition is the principle that “the punishment should fit the offender and not merely the crime.” Williams, 337 U. S., at 247; see also Pennsylvania ex rel. Sullivan v. Ashe, 302 U. S. 51, 55 (1937) (“For the determination of sentences, justice generally requires consideration of more than the particular acts by which the crime was committed and that there be taken into account the circumstances of the offense together with the character and propensities of the offender”).

Consistent with this principle, we have observed that “both before and since the American colonies became a nation, courts in this country and in England practiced a policy under which a sentencing judge could exercise a wide discretion in the sources and types of evidence used to assist him in determining the kind and extent of punishment to be imposed within limits fixed by law.” Williams, 337 U. S., at 246. In particular, we have emphasized that “[h]ighly relevant—if not essential—to [the] selection of an appropriate sentence is the possession of the fullest information possible concerning the defendant’s life and characteristics.” Id., at 247. Permitting sentencing courts to consider the widest possible breadth of information about a defendant “ensures that the punishment will suit not merely the offense but the individual defendant.” Wasman v. United States, 468 U. S. 559, 564 (1984) .

Detailed analysis by Michael O’Hear may be found: here.

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