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Sentencing Review – Conflict, Oral Pronouncement & Written Judgment – Correction of Clerical Error in Judgment

State v. Robert John Prihoda, 2000 WI 123, 239 Wis. 2d 244, 618 N.W.2d 857, affirming unpublished decision
For Prihoda: Timothy T. Kay

Issue1: “(W)hether the office of the clerk of circuit court may correct a clerical error in the sentence portion of a written judgment of conviction without prior court approval.” ¶3.

Holding1: ¶5:

(W)e conclude that the office of the clerk of circuit court does not have the authority to correct a clerical error in the sentence portion of a written judgment of conviction. We conclude that the circuit court, not the office of the clerk of circuit court, must determine the merits of a request for a change in the sentence portion of a written judgment of conviction because of an alleged clerical error. We further conclude that the circuit court may either correct the clerical error in the sentence portion of a written judgment of conviction or may direct the clerk’s office to make such a correction.

Prihoda was sentenced in 1976 on multiple counts. The trial court orally ordered count 5 consecutive to count 2, and count 2 consecutive to count 1. The written judgment of conviction, however, seemingly conflicted with the oral pronouncement, by failing to make count 5 expressly CS to count 1. The discrepancy wasn’t brought to light until 1997 when Prihoda sought to reduce his security classification. In response, the clerk of circuit court corrected the written judgment to correspond to the oral pronouncement. Prihoda sought to vacate this correction, and the trial court denied the motion. Everyone agrees that the original judgment was based on a clerical error. Nor is there any dispute that an unambiguous oral sentencing pronouncement controls a conflict with the written judgment. What, then, is to be done? The clerk can’t correct its own error independent of the court; instead, that power is reserved to the circuit court, and the power may be exercised at any time.

¶26 Accordingly, we adopt a bright-line rule to avoid disputes about a clerk’s powers: The office of a clerk of circuit court may not correct a clerical error in the sentence portion of a written judgment of conviction independent of the circuit court.

Indeed, compelling authority exists for the idea that an amendment to sentence must be accomplished by judicial order rather than administrative action: Earley v. Murray, 2nd Cir No. 04-4098-pr, 6/9/06.

Issue2: “(W)hether an offender should be given notice that a clerical correction of the sentence portion of the written judgment of conviction is being considered and should be present at a hearing to consider whether the written judgment is to be modified.”¶3

Holding2: “(W)e conclude that the circuit court has discretion to determine whether an offender is entitled to notice and a hearing before the correction of a clerical error in the sentence portion of a written judgment of conviction is made.” ¶6.

A defendant has, of course, a right to personal presence at pronouncement of judgment and sentence, § 971.04(1)(g). But that right simply doesn’t attach to mere correction of clerical error, which “by definition is minor and mechanical in nature.” (See also Trussell v. Bowersox, 8th Cir No. 05-2525, 5/9/06 (no right to presence at proceeding which was “simply the correction of a mistake” in sentence). The circuit court has discretion nonetheless to conduct an adversary hearing before correcting a clerical error, taking into account such factors as equity and transport. ¶31. No hearing appeared to be necessary in this case, because the facts and legal principles were so clear. ¶33. The court, though, carefully stresses that Prihoda did have the opportunity to join the issue:

¶51 In the present case, the circuit court, the court of appeals, and this court have considered the defendant’s challenges to the correction of a clerical error in his written judgment of conviction and have concluded that his arguments are without merit. The defendant has had his day in court, and his challenges to the correction have been fully considered.

Issue3: “(W)hether the doctrine of laches or Wis. Stat. § 893.40 (1997-98) proscribes a correction of a clerical error in the written judgment of conviction more than twenty years after the judgment is entered.” ¶3.

Holding3: “(W)e conclude that neither the doctrine of laches nor Wis. Stat. § 893.40 bars a correction of a clerical error in the sentence portion of a written judgment of conviction in the present case.” ¶7.

Laches has three elements: unreasonable delay; lack of knowledge the opposing party would assert its rights; prejudice. ¶37. Prihoda is hoist by his own petard, because over the years before the judgment was corrected he filed pro se motions asserting in effect that count 5 was indeed consecutive to count 1. ¶40. “Under these circumstances, the defendant’s claim that he expected the lower sentence cannot be given credence,” and he can’t show prejudice. ¶¶42-43. Nor does the § 893.40 20-year statute of limitations for action upon judgment apply. ¶¶46-49.

Unresolved Issue (?): Whether the sentences were illegal. Prihoda was sentenced on four armed robberies, concealing identity. Each sentence was for “30 years as to Armed Robbery [consecutive or concurrent to Count 1] plus five years for concealing, to run consecutive to first portion of this count (30 years).” These sentences would seem to be plainly illegal, under State v. Robinson, 102 Wis. 2d 343, 354-56, 306 N.W.2d (1981) (concealing identity not separate, substantive crime, but aggravates underlying offense; therefore, separate term for concealing identity consecutive to term for armed robbery is unauthorized disposition, requiring resentencing for imposition of single sentence). Prihoda had prior appeals, and it’s simply not clear whether he raised this particular defect (if so, then he must not have been successful, but that’s hard to imagine, because the issue seems so clear-cut). Can he raise it now, or will he run into an Escalona-Naranjo bar, not to say his own laches problem?

 

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