State v. Frederick W. Prager, 2005 WI App 95
For Prager: Daniel P. Fay
Issue: Whether, six days after original sentencing and imposition of probation, the State’s proffered new factor (that defendant had quitclaimed the jointly owned farm to his wife) supported a modification to an active prison term.
Holding: Although the term of probation was premised in part on the economic hardship that defendant’s wife would suffer if he were sentenced to prison (¶¶4, 13), the farm was mentioned only peripherally at sentencing, and the circuit court failed to explain how the quitclaim deed (which would not in any event have expanded the spouse’s marital interest, see ¶15 n. 4) “was new or highly relevant to the original sentencing scheme or to the resentencing,” ¶15. Thus, the sentence modification is reversed, ¶19: “Given the circuit court’s extensive commentary and express interest in factors other than the quitclaim deed and its impact on the economic well-being of Prager’s family, we conclude that there was only a minimal connection between the factor and the court’s resentencing. For this reason, we are convinced that no new highly relevant factor exists.”
A very odd decision, in the sense that there is seemingly nothing of precedential value. The only thing the court ultimately concludes is that you can’t modify a sentence on the basis of some thoroughly inconsequential “new” fact. Really? Who knew? Indeed, a few days after the release of this opinion, the supreme court issued State v. Jose A. Trujillo, 2005 WI 45, reaffirming just how narrowly the court construes the existence of a new factor (see, esp., ¶14, nn. 9 and 10, which recite the cases on both sides of the ledger); and State v. James Hubert Tucker, Jr.. 2005 WI 46 (like effect). And so, a spelunking exercise is required, to explore the real meaning, found only in the subtext.
You might think that, once Prager was placed on probation, he had a legitimate expectation in its finality, and thus earned double jeopardy protection against its increase to active imprisonment, see e.g., State v. Guy R. Willett, 2000 WI App 212. But double jeopardy protection with respect to sentence isn’t necessarily that well-defined. It is clear, for example, that fraud by the defendant eliminates a double jeopardy barrier to sentence increase, State v. Jones, 2002 WI App 208; and, there’s no impediment to “prompt” corrections of “obvious errors” based on “good faith” mistake, State v. Bart C. Gruetzmacher, 2004 WI 55. But the court explicitly rejected the idea of fraud by Prager (¶8), and there is no suggestion of any illegality or other obvious error in the original sentence. The supreme court has also held that probation is a nullity, and may therefore be supplanted with an active prison term, if premised upon a condition that turns out to be unfulfillable. State v. Sepulveda, 119 Wis. 2d 546, as clarified on reconsideration, 120 Wis. 2d 231 (1984) (“As stated in the concurring opinion, the imposition of probation was a nullity upon the impossibility for the condition of probation to be satisfied. The trial court, given the impossibility of fulfillment, was then free to modify its original sentence by imposing a new sentence of three years imprisonment.”). See also Trujillo, ¶14 n. 10 (“[T]he untreatable nature of an inmate’s mental condition is such that it ‘frustrated’ a primary condition of his sentence” – a somewhat slippery characterization, more of which later). But that principle has no applicability to Prager, either. You might surmise (but no more than that) that the court of appeals was concerned about giving blanket authority to the State to seek new-factor-based reconsideration of sentence, but realized that bright-line prohibition would be a virtual invitation to review and possible reversal. And so the court expressly declined to reach the double jeopardy impediment, thus leaving the question open (¶¶10, 20) – only to do the next best thing, which was to dress up its limiting dicta as binding precedent:
¶20 As stated earlier, we do not reach the merits of Prager’s double jeopardy argument because our new factor analysis disposes of the appeal. See Castillo, 213 Wis. 2d at 492. Nonetheless, we observe that Prager was subject to a final judgment of conviction and sentence imposed on May 1, 2003, and signed on May 9, 2003. The circuit court subsequently set aside the conviction and declared the sentence void, raising concerns about whether the court’s resentencing was in fact the modification of an existing sentence or the imposition of a second conviction and sentence for the original offense. The Fifth Amendment’s Double Jeopardy Clause protects against multiple punishments for the same offense. United States v. DiFrancesco, 449 U.S. 117, 120, 129 (1980). 
 A similar concern may be raised regarding Prager’s probation placement. In State v. Sepulveda, 119 Wis. 2d 546, 560, 350 N.W.2d 96 (1984), our supreme court held that a circuit court may use a new factor to invoke its power to modify the terms of probation under Wis. Stat. § 973.09(3)(a). Here, Prager’s probation was not modified; rather, it was abandoned upon resentencing. This was done despite the undisputed fact that Prager had not violated any of the conditions of probation. Prager’s resentencing served to revoke his probation without any finding of probable cause. Revocation of probation is an administrative, not judicial, procedure pursuant to Wis. Stat. § 973.10(1) and (2).
It’s possible, when you’re not the one on the receiving end, to appreciate just how clever these guys can be. The opinion applies mundane law to non-recurrent facts, derives an irresistible conclusion and by all rights therefore should resist review, if sought. And yet the language quoted is as close to favorable as you might want. That said, is it greedy to expect a yet-stronger statement? Fraud has always been regarded as an exception to double jeopardy. (The notion, of course, is that because of the fraud you were not actually placed in jeopardy in the first place.) And an “illegal” sentence works an exception for similar reasons (jeopardy can’t attach to an illegality; or, to put it otherwise, it’s hard to establish a legitimate expectation of finality in something that’s illegitimate). Why, though, should the State, in the absence of these narrow exceptions and the still further absence of any enabling legislation, be entitled to seek sentence modification? The court of appeals seems to have merely assumed the existence of such authority, but it is by no means clear that it exists, and it ought to be fiercely resisted. Sepulveda has to be dealt with, but it is certainly an outlier. Go back to the very holding of that case: “the imposition of probation was a nullity upon the impossibility for the condition of probation to be satisfied. The trial court, given the impossibility of fulfillment, was then free to modify its original sentence[.]” Keep in mind the facts, namely admission to Mendota was a condition of probation, but Mendota refused admission given Sepulveda’s unamenability to treatment, 119 Wis. 2d 549. (We’ve come a long way; now, Sepulveda would have no trouble gaining life-long admission to Mendota despite [because of?] his very untreatability.) Would’ve been nice to iron out this little detail prior to Sepulveda’s sentencing, but the fact remains that probation was premised on something that couldn’t be fulfilled, as the opinion makes clear. Recall the language of the opinion: probation was a nullity, then note the court’s gloss in later cases, that Sepulveda’s “untreatable … mental condition … ‘frustrated’ a primary condition of his sentence.” The characterization waters down the holding, to the point of mischaracterization. Sepulveda’s condition didn’t “frustrate” a “primary” condition of sentence; rather, his condition made the sentenceimpossible to fulfill. Again: probation became a “nullity”; akin, in that limited sense to an “illegal” sentence.