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Double Jeopardy – Remedy: Multiplicity – Felony Murder, § 940.05

State v. Theodore J. Krawczyk, 2003 WI App 6, PFR filed 1/21/03
For Krawczyk: John T. Wasielewski

Issue: Whether vacating plea-bargain based conviction and (concurrent) sentence for multiplicitous charge was adequate remedy, as opposed to reinstating the not guilty pleas.


¶34. We see no reason to disturb the remedy the trial court granted for the double jeopardy violation. First, when a multiplicitous count is reversed on appeal, that action may create uncertainty regarding what sentences the trial court would have imposed on the remaining counts had it known of the lesser number of valid convictions. See State v. Church, 2002 WI App 212, 13, __ Wis. 2d __, 650 N.W.2d 873, review granted, 2002 WI 121 (Wis. Oct. 21, 2002) (No. 01-3100) (noting that “the reason for vacating all sentences rather than just the one held invalid [is] to give the trial court the opportunity to resentence with a corrected understanding that there was only one valid conviction”). Here, however, relief from the multiplicitous conviction was granted by the sentencing court. The court expressed that it saw no reason to resentence Krawczyk because the remaining convictions and sentences satisfactorily achieved the court’s sentencing goals.

¶35. Second, we observe that setting aside the remaining convictions and sentences and restoring the parties to their pre-plea positions is not necessary to further the State’s interests. As we have noted, the State is not requesting such a disposition. It is apparently satisfied that leaving intact the seventy-one-year total sentence on the remaining charges does not substantially deprive it of the benefit of the plea agreement it made with Krawczyk. See Robinson, 2002 WI 9 at ¶¶47, 52. A restoration of the single dismissed charge would increase Krawczyk’s exposure to imprisonment by only eight years, which is not a significant period in relation to the 131 years he faced on the remaining, unreversed charges to which he pled guilty. Accordingly, unlike in Robinson, there appears to be no need to vacate all remaining sentences and convictions in order to remedy a breach of the plea agreement. See id.

The trial court didn’t formally resentence, but it might have done so in a functional sentence (i.e., look at the entire package closely), ¶33, which is one reasonable construction of the holding – i.e., a rule-based, predictable approach. Another possibility is that resentencing is required only when necessary to effectuate the original sentencing intent — a discretionary and therefore much more unpredictable approach. The court’s reference to Church is interesting, simply because of the supreme court’s subsequent reversal, State v. Church (II), 2003 WI 74, but not particularly problematic given that the reversal essentially butresses Krawczyk‘s conclusion that the trial court correctly refused to disturb the unchallenged count.

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