Consecutive sentences following partial plea withdrawal and reconviction
Click here for court of appeals decision, petition for review granted 10/27/10
Defense counsel: Donna L. Hintze, SPD, Madison Appellate
Issue/Holding: After sentencing on 3 separate counts, the trial court granted Lamar’s motion to withdraw his guilty pleas to 2 of the counts. He continued to serve the sentence on the unchallenged count. Upon subsequent reconviction on the 2 counts, the court ordered that these sentences run concurrent to each other but consecutive to the first, undisturbed count. Lamar now argues that he is entitled to sentence credit on the later convictions for time spent on the first count, under the § 973.04 mandate to award credit for “confinement previously served” on a vacated sentence. The court of appeals holds otherwise:
¶9 We first observe that Wis. Stat. § 973.04 directs the Department of Corrections, not the trial court, to give credit for time served. We will assume, without deciding, that the statute applies to sentencing courts. If in fact it applies, it applies only if a defendant is serving one sentence and that particular sentence is vacated.  Here, when Lamar was sentenced for the aggravated battery as a habitual offender charge, he was also sentenced for bail jumping as a habitual offender. Consequently, when Lamar’s plea to the aggravated battery as a habitual offender charge was vacated, he was still serving a sentence handed down at the same time as his aggravated battery as a habitual offender sentence. At the resentencing, the trial court specifically stated that the aggravated battery sentence and the new misdemeanor bail jumping sentence were to be consecutive to the underlying bail jumping as a habitual offender sentence. Refusing to credit Lamar for the time he spent on the original charge of aggravated battery as a habitual criminal also comports with the holding in State v. Beets, 124 Wis. 2d 372, 369 N.W.2d 382 (1985). …
“From that time on [after sentencing on an earlier charge], Beets was in prison serving an imposed and unchallenged sentence; and whether he was also awaiting trial on the burglary charge was irrelevant, because his freedom from confinement—his right to be at liberty—was not in any way related to the viability of the burglary charge.”
Id. at 379. The trial court was empowered to impose a consecutive sentence pursuant to Wis. Stat. § 973.15(2).  Under these circumstances, Wis. Stat. § 973.04 does not obligate the trial court to credit Lamar with the time he already served.
That analysis seems to suggest that the imposition of a prison sentence severs any right to credit as to pending charges. Nonetheless, the court goes on to say that the operative principle is found in State v. Boettcher, 144 Wis. 2d 86, 423 N.W.2d 533 (1988), namely that credited is awarded only against one of the consecutive sentences, ¶11.
¶12 To embrace Lamar’s claim that when a person is serving two or more sentences, and one is vacated and a new sentence is imposed, the trial court is always obligated to credit his sentence for time spent serving the original sentence, would effectively prohibit the later sentencing court from imposing a consecutive sentence. We do not believe this conclusion is consistent with current law. We are satisfied that under these unique circumstances Lamar received all the sentence credit to which he was entitled.
Issue/Holding: No presumption of vindictiveness applied to resentencing by a different judge upon guilty pleas re-entered after the original trial court granted Lamar’s postconviction motion to withdraw the initial guilty pleas.
¶17 In Naydihor, our supreme court found that the Pearce presumption did not apply. Id., ¶35. Nor does it apply here. As noted, case law has evolved since Pearce was handed down. Double jeopardy does not apply where a correction to an original invalid sentence results in a sentence increase, State v. Martin, 121 Wis. 2d 670, 677-78, 360 N.W.2d 43 (1985) (citing Bozza v. United States, 330 U.S. 160 (1947)), or where an increased sentence occurs after a retrial, id. at 678 (citing Pearce, 395 U.S. 711). We see no distinction which requires a different result between a new sentencing that takes place after a sentence is vacated and a new guilty plea entered and a sentencing that takes place after a retrial. Consequently, Lamar’s sentence given after his second guilty plea did not violate the prohibition against double jeopardy.
Naydihor resentencing was, as here, accomplished by a different judge. Broadly speaking for that matter, where the trial court itself grants relief, a presumption of vindictiveness probably isn’t going to apply to resentencing, State v. Lord L. Sturdivant, 2009 WI App 5, ¶15. Contrast the grant of relief by appellate court: e.g., State v. William J. Church, 2003 WI 74, ¶¶53-57.
¶20 Although we do not believe Lamar is “worse off” for having one of his convictions overturned, he is not entitled to additional sentence credit. Finally, it is well to remember that Lamar brought this upon himself by seeking to withdraw his plea after receiving a combined sentence of seventeen years because the trial court told him he faced a nineteen-year sentence, when in fact the maximum possible sentence was twenty-one years. For the reasons stated, the judgment and order are affirmed.
File this under, “Risk-assessment Counseling.” If you don’t inform your client that a motion to vacate a conviction runs the risk of a greater sentence (assuming, of course, an initial sentence under the maximum), then you’re probably asking for trouble.