The answer matters: If the pronouncement of sentence is ambiguous the court could “clarify and “reimpose” the sentences it originally intended, Krueger v. State, 86 Wis. 2d 435, 442-43, 272 N.W.2d 847 (1979); if the sentence is illegal, it must be commuted to the lawful maximum, § 973.13. In this case the court of appeals holds the circuit court’s initial pronouncement of sentences in this case was ambiguous, so it affirms the circuit court’s “correction” of the sentences to reflect the sentences the court intended to impose.
Meier was convicted of two misdemeanors as a repeater, so under § 939.62(1)(a) he faced a maximum prison sentence of two years on each count. (¶¶2-3). A prison sentence for a misdemeanor repeater must be bifurcated into a term of confinement and a term of extended supervision, § 973.01(2)(intro.). Of course, a court doesn’t have to impose prison time; it could instead give a jail sentence of up to 12 months, § 973.02, but that wouldn’t be bifurcated because the bifurcation requirement applies only to sentences of at least one year of confinement in prison, § 973.01(2)(b)(intro.).
Contrary to these basic sentencing rules, the circuit court sentenced Meier to “two years in jail” for one conviction and “18 months incarceration” for the other. (¶6). The court also imposed “nine months in jail” for a conviction in another case that is not at issue in this appeal. (¶5 n.2). The sentences were consecutive to each other and then stayed while Meier was on probation. (¶6).
Meier challenged the two repeater sentences as illegal because each one exceeded the maximum allowable jail sentence of 12 months. He asked for the sentences to be commuted to that 12-month maximum. (¶8). The circuit court responded by amending the judgments to say the sentences were to be served in prison. The amended judgments also bifurcated the sentences (18 months in, 6 months out for one, 13.5 months in and 4.5 months out on the other). The court issued an explanatory order saying its intent at the time of sentencing was to give Meier “the maximum incentive to rehabilitate himself [on probation] and face the maximum penalty if unsuccessful.” (¶9).
Finding “strong record evidence of the court’s intent” in the response to Meier’s commutation motion (¶18) and concluding “the record as a whole demonstrates a clear intent to impose stayed sentences in state prison” (¶22), the court of appeals affirms the circuit court’s “clarification” of the sentences.
It’s odd for the circuit court to say it intended to give Meier “maximum incentive” by imposing the “maximum penalty,” for it didn’t impose the maximum penalty (two years on each count, consecutive). But then, the court also expressly said two of the three consecutive sentences were to “jail” even though, it said later, it meant “prison.” (¶¶5 n.2, 6). And the judgments of conviction said “local jail” when the court supposedly intended “prison.” (¶7). And it gave the sentence only one number when, if it intended to impose a prison sentence, it would give two numbers, one setting confinement and the other supervision. (Not to mention that when imposing a prison sentence the court has to file a written Explanation of Determinate Sentence form, § 973.01(8)(a), but according to the CCAP entries for the case, that doesn’t seem to have happened.)
To get around these unambiguous indications that the circuit court unwittingly imposed illegal jail sentences, the court of appeals relies on the court’s response to Meier’s motion, citing State v. Brown, 150 Wis. 2d 636, 641-42, 443 N.W.2d 19 (Ct. App. 1989), and State v. Oglesby, 2006 WI App 95, ¶¶21-33, 292 Wis. 2d 716, 715 N.W.2d 727, for the proposition that it can examine the “record as a whole” to determine the circuit court’s sentencing intent. But the only other part of the record Brown and Oglesby considered beyond the court’s oral pronouncement of sentence were the remarks of counsel at the sentencing hearing and the judgment of conviction. The same is true for Krueger, 86 Wis. 2d at 439, 442-43. Thus, using the court’s response to Meier’s motion isn’t obviously sanctioned by these cases.
Compare, however, State v. Lipke, 186 Wis. 2d 358, 364, 521 N.W.2d 444 (Ct. App. 1994), where the court said nothing about the sentence being consecutive or concurrent, but the judgment said “consecutive” because the court learned after sentencing that the defendant was serving another sentence. Based in part on the circuit court’s postconviction ruling, the court deemed the oral pronouncement to be ambiguous because the sentencing court wasn’t told about the other sentence (imposed minutes earlier in a different branch) and thus didn’t know about the need to address whether its sentence should be concurrent or consecutive. But Lipke was “less than candid” with the sentencing court, 186 Wis. 2d at 363, while here the error was due to the sentencing court’s mistaken understanding of the applicable sentencing law.
If a court’s clear intent to impose a particular sentence is rendered ambiguous whenever it turns out the intended sentence is illegal, then a court can ignore § 973.13 and instead amend a sentence to conform to what it later claims was its “unspoken intent”—a procedure disapproved of in Scott v. State, 64 Wis. 2d 54, 59-60, 218 N.W.2d 350 (1974). True, Scott involved the court’s sua sponte “reflection” about the sentence it imposed, but its reasons for not allowing a change to the sentence—a lack of clairvoyance to say for certain what the judge intended—apply with equal force here. At the very least, if the illegality of the originally intended sentence is a basis for correcting rather than commuting the sentence, that correction should come at a new sentencing hearing, not, as it was here, by written order and amended judgment.