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Circuit court properly corrected ambiguous oral pronouncement of sentence

State v. Charles A. McIntyre, 2014AP800-CR, District 3, 12/30/14 (1-judge decision; ineligible for publication); case activity

When pronouncing sentence in McIntyre’s case the circuit court repeatedly interchanged “consecutive” and “concurrent” when referring to Count One (of five). (¶¶2-5). Thus, despite the court’s several attempts at clarification during the sentencing hearing, the sentence imposed on that count was ambiguous because it was “undeniably confusing and capable of being understood by reasonably well-informed persons in two different ways.” (¶11). Nonetheless, the court’s intent was clear, so it properly amended the judgment post-sentencing to clarify that Count One was consecutive.

¶12    When an oral pronouncement of a sentence is ambiguous, the intent of the sentencing court “controls the determination of the terms of a sentence.” State v. Brown, 150 Wis. 2d 636, 641, 443 N.W.2d 19 (Ct. App. 1989). The search for the circuit court’s sentencing intent is fact specific. [State v.] Oglesby, [2006 WI App 95,] 292 Wis. 2d 716, ¶34[, 715 N.W.2d 727]. On review, we look to the written judgment, as well as the record as a whole, in order to determine the court’s intent. Id., ¶¶20-21.

¶13     …. [McIntyre] asserts the court’s intent cannot be adequately determined from the record, and that we should follow the presumption that a sentence is concurrent when the court’s sentencing intention cannot be ascertained. See id., ¶21.

¶14      …. The presumption McIntyre relies upon applies when there are no statutory or judicial statements to the contrary. Id. (citing State v. Rohl, 160 Wis. 2d 325, 330, 466 N.W.2d 208 (Ct. App. 1991))…. We conclude the record as a whole, including the written judgments of conviction, clearly evidences the circuit court’s intention that Count One be served consecutive to the sentences imposed on all other counts.

¶15     Despite the court’s transposition of terms at the sentencing hearing, it is clear from the sentencing hearing transcript that the circuit court intended to make Count One consecutive. The oral pronouncement is only ambiguous because the hearing ended after the court declared Count One was concurrent without correcting itself. A complete reading of the transcript shows on every other occasion the circuit court ordered Count One to be served “concurrent,” it corrected the order to be served “consecutive”—never the other way around. ….

¶16     After the [sentencing] hearing, three unambiguous judgments of conviction were filed, … Each designated Count One as consecutive.

¶17     Finally, the court issued a decision and order on February 7, 2014, affirming that Count One was consecutive in response to the Department of Corrections’ request for clarification. This was followed by a fourth judgment of conviction … reading, “Per 2/07/14 Court Order, count 1 is CONSECUTIVE to all other counts.”

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