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Resentencing — after grant of partial relief

State v. William J. Church (II), 2003 WI 74, reversing 2002 WI App 212, 257 Wis. 2d 442, 650 N.W.2d 873; earlier history: State v. William J. Church, 223 Wis.2d 641, 589 N.W.2d 638 (Ct. App. 1998), petition for review dismissed as improvidently granted2000 WI 90
For Church: James L. Fullin, SPD, Madison Appellate

Issue: Whether resentencing is required on all remaining, valid counts after one multiplicitous count is vacated.


¶25. We have never held, however, that remand for resentencing is alwaysrequired, even where the vacated count in a multi-count case has no affect whatsoever on the overall sentence structure, as is the case here. …

¶26. A double jeopardy bar to one conviction and sentence in a multi-count case does not operate to invalidate the sentences on all the remaining counts, nor does it necessarily invalidate the sentence on the specific surviving parallel count which gave rise to the double jeopardy challenge. The court of appeals was entirely correct that “there is nothing invalid or illegal” about the sentences on the counts that remain after a successful double jeopardy challenge. Martin and the RonzaniGordon line of cases hold that resentencing is procedurally and constitutionally permissible if the invalidation of one sentence on double jeopardy grounds disturbs the overall sentence structure or frustrates the intent of the original dispositional scheme. Martin, 121 Wis. 2d at 682. Resentencing is unnecessary, and certainly not required, where, as here, the invalidation of one count on double jeopardy grounds has no affect at all on the overall sentence structure.

¶27. As we have noted, however, Church himself requested resentencing as a remedy for the multiplicity of the child enticement counts. He argued at resentencing for reimposition of the same overall sentence. Instead, he received four more years in prison. But for his successful appeal, Church would be serving a 13-year sentence. Because of his successful appeal, he is now serving a 17-year sentence.

A cautionary tale for appellate practitioners. Church, as the foregoing quote suggests, originally had a 13-year prison term and several concurrent terms of probation. He successfully asked that one of the probationary-term counts be vacated as multiplicitous; he also asked for resentencing – careful what you wish for – and got that too, along with an increased prison term of 17 years. The court now says that in such situations (i.e., “no affect at all on the overall sentence structure”) resentencing isn’t required. The holding, then, may be quite narrow: if there’s no effect to the relief, then the court shouldn’t resentence. But this leaves open the problem of whether the trial court does have the authority to resentence when partial relief is meaningful. Keep in mind the federal practice, U.S. v. Rivera, 7th Cir. 02-3165, 5/1/03:

But as we have explained before, where a defendant is sentenced on multiple counts, he has “no legitimate expectation of finality in any discrete portion of the sentencing package after a partially successful appeal.” United States v. Shue, 825 F.2d 1111, 1115 (7th Cir. 1987); see also United States v. Smith, 103 F.3d 531, 535 (7th Cir. 1996) (no expectation of finality “until action is taken with regard to the whole sentence”). It is therefore well-settled that the Double Jeopardy Clause does not bar the district court on remand from unbundling the package and resentencing on the remaining counts.

See also United States v. Binford, 108 F.3d 723 (7th Cir. 1997) (“sentencing package” becomes “unbundled” by partial relief, and may be “re-bundled” via resentencing). Note, too, that partial relief against plea-bargained counts also presents a distinct circumstance which may not be affected by Church. E.g., State v. Richard A. Lange, 2003 WI App 2, ¶¶32-37 (partial relief against a plea bargain-based guilty plea “constitutes a repudiation of the entire plea agreement,” including unchallenged convictions). But compare, State v. Theodore J. Krawczyk, 2003 WI App 6 (remedy fashioned by trial court of simply vacating multiplicitous count with concurrent sentence, and leaving other count untouched, proper remedy.) What about challenges outside this particular context (multiplicity), such as procedural challenges of one sort or another to a sentence on one count but not others? See, e.g., State v. Groth, 2002 WI App 299, ¶39 n. 1 (successful challenge to one sentence as based on inaccurate information requires resentencing on all counts, though they were unchallenged). The logic of Church would seem to apply to such situations.)

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