From the majority opinion, this looks like an open and shut case. When sentencing Robinson, the trial judge said he misunderstood the sentence she had received in another matter. One day later, he recalled the case and increased the sentence. No double jeopardy violation here, says the majority, Robinson could not yet have had a legitimate expectation of finality in her sentence. The 28-page concurrence and 20-page dissent suggest this case isn’t so simple.
In one Waukesha County case the court sentenced Robinson to 2 years of initial confinement and 4 years of extended supervision and in two others it imposed 9 months of confinement to run concurrent with the first sentence. Fast forward a few months to the Milwaukee County case giving rise to this appeal. At sentencing, the State and the defense jointly recommended a sentence that would run current to the Waukesha sentences, so that’s what the Milwaukee judge did. But the next day he sua sponte recalled the case, said that he had done some research on CCAP and realized that, despite what the parties accurately told him the day before, he thought the 9 month Waukesha sentence was consecutive, not concurrent, and thus increased Robinson’s Milwaukee County sentence by 9 months.
There’s no per se rule prohibiting a court from increasing a defendant’s sentence after he has begun to serve it. State v. Jones, 2002 WI App 208, ¶9. It’s o.k. for a court to change a sentence later the same day in order to correct “a slip of the tongue.” State v. Burt, 2000 WI App 126 ¶5, 237 Wis. 2d 610, 614 N.W.2d 42. It’s also o.k. to catch a mistake on the same day and formally modify the sentence 2 weeks later before the JOC has been entered. State v. Gruetzmacher, 2004 WI 55, 271 Wis. 2d 585, 679 N.W.2d 533. It’s not o.k. for the court to wait 4 months and then convert a concurrent sentence into a consecutive one. That violates the Double Jeopardy because by then the defendant has legitimate expectation in the finality of his sentence. See State v. Willet, 2000 WI App 212, 238 Wis. 2d 621, 618 N.W.2d 881 and United States v. DiFrancesco, 449 U.S. 117, 137-38 (1980).
In Burt and Gruetzmacher, there was evidence in the record indicating that the court had intended to impose a different sentence, and the court caught the error within hours of sentencing. In this case, the record revealed no mistakes of facts or law and the court didn’t announce that a mistake had occurred until the next day (before the JOC had been entered). By ruling against Robinson, it seems SCOW has stretched the “same day a few hours later” end of the continuum out to the next day. And there’s no more need for proof that the judge made a mistake rather than changed his mind. The majority writes:
[T]aking judges at their word is a fundamental assumption built into our legal system. In the absence of clear evidence to the contrary, we decline to assign improper motive on the part of the circuit court. Slip op. ¶48.
Chief Justice Abrahamson’s dissent points out Wisconsin courts are barred from modifying a valid sentence “upon reflection.” See Scott v. State, 64 Wis. 2d 54, 218 N.W.2d 350 (1974). She also contends that the “reflection doctrine” is separate from a Double Jeopardy analysis and that by refusing to address the “reflection doctrine” the majority has undermined if not overruled it. Slip op. ¶14. Meanwhile, the concurring opinion spends a tedious 29-pages tracing the “reflection doctrine” and distinguishing it from a new-factor based sentence modification. Whether the “reflection doctrine” is still alive and kicking in Wisconsin remains to be decided. Be on the look out for sua sponte sentence modifications to challenge so we can get answer to this question.