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Need to make immediate correction to illegal sentence wasn’t a new factor

State v. Jimmie L. Blount, 2021AP1943-CR, District 2, 6/8/22 (one-judge decision; ineligible for publication); case activity (including briefs)

At one sentencing hearing on two different cases, the circuit court imposed on one case a 4-year bifurcated prison sentence—2 years’ confinement and 2 years’ extended supervision—and on the other ordered 3 years of probation. The court said the probation would be concurrent to the ES on the first case, which would’ve added another year onto the “global” disposition of 5 years. Both lawyers pointed out the probation has to be either concurrent with or consecutive to the total bifurcated sentence, so the judge ordered the probation to be consecutive, thus increasing the “global” disposition to 7 years. The judge’s need to correct its initial error didn’t amount to a new factor justifying sentence modification.

Blount doesn’t dispute that court may correct a legal error in sentencing when the error correction is done immediately and prior to the defendant starting to serve his or her sentence. See State v. Gruetzmacher, 2004 WI 55, ¶¶2, 36-38, 271 Wis. 2d 585, 679 N.W.2d 533 (error corrected within two weeks of sentencing where court changed the sentence in one of several cases from probation to incarceration); State v. Burt, 2000 WI App 126, ¶11, 237 Wis. 2d 610, 614 N.W.2d 42 (circuit court took immediate steps to correct error of speech in pronouncing Burt’s sentence before judgment of conviction was entered into the record). The problem, Blount says, is that the court’s correction of the error changed the initial “global” disposition from 5 years to 7 years when it could have achieved its original intent by simply ordering a one-year term of concurrent probation.

The court of appeals rejects the assumption that, in sentencing on the two cases, the circuit court was invoking a “global” sentencing scheme setting a maximum of five years under supervision, because “neither the circuit court nor any of the parties at the plea or sentencing hearings referred to the two sentences as ‘global’ or in any other way interrelated them. …. At no time did the court establish a firm expectation that Blount would be subject to a maximum of five-years’ supervision.” (¶14). Thus, the court to appeals concludes, the fact that the circuit court was just plain wrong that it could order probation to run concurrently with only one part of the bifurcated sentence, and then overlooked the simple fix to its error that would have achieved its original intent, isn’t a new factor justifying sentence modification:

¶19     …. First, as discussed above, the record does not support Blount’s assumption that the court intended to impose a “global” sentence with a maximum supervision of five years. Second, the court did not increase the sentence in this case. The sentence in this case was three-years’ probation. What the court did was make the sentence consecutive to the other sentence because the court could not accomplish the sentencing goals in the manner it had attempted. This is not a “new factor.” Correction of an error of law under these circumstances does not amount to a new factor.

The sentencing court said it was ordering 3 years of probation “concurrent” with the 2 years of ES to add some more time onto community supervision—”one more year,” to be exact. (¶¶6, 9). Looks like a 5-year “global” disposition, doesn’t it? True, in denying Blount’s postconviction motion the sentencing court also said that, in formulating its sentence, it was “trying to give this guy a lot of time on probation.” (¶6). But the court initially thought that total community supervision of 3 years (2 ES with an extra year from the 3 years’ “concurrent” probation) was appropriate. If 3 years of supervision was appropriate before the court was informed of its legal error in structuring the sentences, why wasn’t it still appropriate after the court learns that its first method of achieving that result isn’t legal, even though there’s another way to legally get the same result—namely, by ordering one year of consecutive probation? If there’s something that led the court to stick to its order of “3 years of probation,” no matter what, it’s not obvious to a reader, and the sentencing court didn’t really explain it, and that looks like an erroneous exercise of discretion.

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