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Double Jeopardy – Resentencing – No Presumption of Vindictiveness

State v. Charles Lamar, 2009 WI App 133, PFR filed 9/10/09
For Lamar: Donna L. Hintze, SPD, Madison Appellate

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.

Keep in mind that the 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 grant of relief by appellate court: e.g., State v. William J. Church, 2003 WI 74, ¶¶53-57. In other words, Lamar’s argument was probably doomed at the outset.The court also notes that “the sentence meted out by the second judge was not more severe than that of the original judge,” ¶18. That observation is a bit jarring, because you’d think it the basis of a narrower decision (one that avoids the question of presumptive vindictiveness, that is, in favor of the idea that Lamar ended up no worse anyway). But the court has a broader message to impart:

¶18      Finally, we are not persuaded that Lamar’s circumstances fall within the double jeopardy penumbra for another reason. Here, the sentence meted out by the second judge was not more severe than that of the original judge. Originally, Lamar was sentenced to twelve years of initial confinement, to be followed by five years of extended supervision. Lamar’s second sentence, occurring one year and approximately three-and-one-half months later, consisted of ten years of incarceration, to be followed by five years of extended supervision. The original combined sentence was seventeen years. The second combined sentence is fifteen years. Although the second sentence was to be served consecutively to the original bail jumping charge, this second sentence was not greater than that given at the first sentencing—a seventeen-year sentence. Further, at his initial sentencing, Lamar got sentence credit on the misdemeanor bail jumping as a habitual criminal charge of 177 days.…

¶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.

What the court doesn’t say is just how Lamar found himself in this predicament. He was charged with 3 counts and pleaded to 2 with the 3rd dismissed pursuant to plea bargain. CCAP reflects that, when he withdrew one of these counts, “The court further ordered Count 3 REINSTATED in its entirety as the dismissal was pursuant to a plea negotiation. The court further advised all parties that it will take no action as to Count 2 at this time but will take under advisement whether the plea and sentencing in Count 2 should also be vacated.” Not clear why no further action was taken on 2, maybe that was Lamar’s own choice, very possibly vacating 2 would have been counter to his interests, but for whatever reason 2 remained intact. The point is that the potential remedy for “partial” plea withdrawal lies at the heart of the case—and as to which, extraction of overarching principles has become difficult, with recent cases collected here (scroll down to State v. Mark J. Roou, 2007 WI App 193).Final word: file Lamar under, “Risk-assessment Counseling.” Indeed, the court pointedly quotes its prior warning in State v. Daniel C. Tuescher, 226 Wis.2d 465, 595 N.W.2d 443 (Ct. App. 1999) that, with respect to sentence credit, “a defendant could actually be worse off for having one of several convictions reversed.” For that matter, if you don’t inform your client that a motion to vacateany conviction runs the risk of a greater sentence (assuming, of course, an initial sentence under the maximum), then you’re probably asking for trouble.


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