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Resentencing — Correction of “Good Faith Mistake” by Sentencing Court

State v. Bart C. Gruetzmacher, 2004 WI 55, on certification
For Gruetzamacher: Jennelle London Joset


¶14. We now decide whether circuit courts should be allowed to correct obvious errors in sentencing where it is clear that a good faith mistake was made in an initial sentencing pronouncement, where the court promptly recognizes the error, and where the court, by reducing an erroneous original sentence on one count and increasing the original sentence on another, seeks to impose a lawfully structured sentence that achieves the overall disposition that the court originally intended.

¶35. Given the United States Supreme Court’s decision in DiFrancesco, and subsequent Wisconsin cases that relied on its holding, we conclude that the language in North stating that the due process clause acts as a bar to increasing sentences must be withdrawn. The Jones decision clearly recognizes that such a per se rule no longer exists in Wisconsin. Id., ¶9. Thus, we conclude that the per se rule language in North, which states that “(m)odification to correct sentencing flaws runs afoul of the double jeopardy provisions when the amending court seeks to increase sentences already being served,” must be and it is withdrawn. North, 91 Wis. 2d at 509-10 (citingBenz, 282 U.S. at 308). Nevertheless, we leave the remainder of the Northdecision intact, to be read in light of the factors set forth in Jones. 36. In the case at hand, we conclude that the circuit court clearly intended to sentence Gruetzmacher to 40 months initial confinement….

¶38. Moreover, the circuit court discovered the sentencing error the same day, and the parties would have reconvened that day if the circuit judge did not have assignments outside of the county. Instead, the court notified the parties and everyone was back in court two days later to address the matter. We also find it noteworthy that the circuit court purposely kept Gruetzmacher in jail, and did not send him to prison, pending the resentencing reset for March….

¶39. Nevertheless, we conclude that Gruetzmacher did, in fact, have a legitimate expectation of finality in the sentence imposed during resentencing in March, 2002. After the March resentencing, Gruetzmacher was sent to prison, and the justice system as a whole was acting on the sentence handed down by the court. However, when the circuit court again resentenced Gruetzmacher six months later in September, 2002, it made an error of law and, therefore, erroneously exercised its discretion. State v. Meeks, 2003 WI 104, 19, 263 Wis. 2d 794, 666 N.W.2d 859; State v. Hutnik, 39 Wis. 2d 754, 763, 159 N.W.2d 733 (1968). At the September resentencing, the court incorrectly accepted Gruetzmacher’s argument that the March sentence had been imposed in violation of his double jeopardy rights. This was an incorrect conclusion, as the sentence imposed in March was valid for the reasons noted earlier. Thus, the court made a mistake of law when it applied the wrong legal test. Because the circuit court erroneously exercised its discretion when it imposed the September sentence, we reverse and vacate that judgment and order of the circuit court, and we reinstate the sentences imposed at the March resentencing.

The factual background may not be clear from the recitation above, but the overarching principle is more important anyway, namely: double jeopardy doesn’t bar an increase in sentence when the sentencing court “promptly recognizes” that a “clear … good faith mistake was made in the initial sentencing pronouncement,” such that a re-jiggering of the disposition “achieves the overall disposition that the court originally intended.” That standard is loose enough to give pause, but might not be so bad if you focus on the key elements (“prompt” corrective action; “clear” good-faith mistake). That means looking at the facts, which are these: Gruetzmacher was sentenced on several consolidated cases; the judge clearly wanted to give him 40 months confinement and attempted to do so, but chose the wrong count in that the maximum for that one was 24 months. The judge caught the error later the same day, tried to rectify it right away but scheduling difficulties caused a delay of a couple weeks. He then reconfigured the sentence, so that the excessive count was reduced to the correct maximum, and a term of probation in another case was converted to the 40 months confinement he wanted to impose. Later, Gruetzmacher moved to reinstate the original sentence, arguing that the subsequent modification violatedState v. North, 91 Wis. 2d 507, 511, 283 N.W.2d 457 (Ct. App. 1979). The trial court agreed, and this State’s appeal followed.

As you can tell from the quoted excerpt, the supreme court now says that North is no longer binding, at least to the extent that it imposes a bright-line bar on any increase where a sentence is already being served. The court “emphasize(s) that the remainder of North remains intact, and is to be read with the factors set forth in State v. Jones, 2002 WI App 208, 257 Wis. 2d 163, 650 N.W.2d 844,” ¶3. Nonetheless, North is essentially gutted, given that it stood for little beyond its bright-line rule. But despite that, and despite the result in Gruetzmacher, increases should be exceptionally rare. It’s not quite clear just what the court means to preserve out of the ruins of North. Reference to viability of the “remainder” of that case isn’t especially helpful: North did indicate that, because a sentence can’t be decreased upon mere reflection, it can’t be increased “without some substantive reason” – if that is all that is left of that case, than the language is worrisomely broad. But Gruetzmacher also took pains to link North to Jones, and that last case says that a sentence based in some substantial way on the defendant’s misrepresentation can later be increased when the fraud is discovered. This holding is quite unremarkable, because has always been understood to be an exception to double jeopardy. E.g., McFarland v. State, 68 Wis. 400, 32 N.W. 226 (1887). If the compass in North points to fraud as a “substantive reason” for sentencing increase, then the double jeopardy landscape will be pretty easy to track.

And note, too, the cases that Gruetzmacher cites with seeming approval: State v. Willett, 2000 WI App 212, ¶4, 238 Wis. 2d 621, 618 N.W.2d 881 [sentencing court merely expressed desire for consecutive sentences but through mistaken view of law and not slip of tongue made them concurrent, therefore no cause existed for court to modify sentences months later to consecutive terms]; and State v. Burt, 2000 WI App 126, 237 Wis. 2d 610, 614 N.W.2d 42 [court misspoke in imposing concurrent rather than the consecutive terms it clearly intended; proper for court to correct that misstatement later that same day]. Thus, increases have been authorized only in narrow and therefore exceptional circumstances: defendant’s fraud and obvious judicial slips of the tongue. Gruetzmacher fits the latter pattern more or less, in that the judge clearly wanted to give 40 months and just happened to pick the wrong count. It was not, to be sure, a slip-up in the same sense as Burt, but an obvious mistake nonetheless – an extension, but not an extreme one, of the latter holding. For now, then, the line seems to be drawn at the inadvertent failure to impose a very clearly intended disposition.

Of greater concern, perhaps, is the idea that commencing service of the sentence doesn’t necessarily provide finality and therefore protection against an unwanted modification. Gruetzmacher hints very strongly that this is so, ¶¶28-30, but is much too glib. The judge caught his mistake the very day of sentencing; and the court seemingly didn’t need to discuss this factor at all. Finality of sentence turns on the defendant’s legitimate expectation of finality and that necessarily turns on what state law allows (not different, really, from the idea that multiplicity turns on the allowable unit of prosecution intended by the legislature). It’s one thing to say that the legislature can, consistent with double jeopardy, authorize post-sentencing increase [thereby eliminating any expectation of finality upon commencing the sentence], and quite another to say that the courts can simply wade into that thicket. The legislature has declared that “all sentences commence at noon on the day of sentence,” § 973.15(1). That’s it. There’s no provision for post-sentencing increases. At what point after beginning to serve the sentence does a defendant acquire a legitimate expectation in its finality? A week? A month? A year? Never? Willett disallowed an increase months after the event, but this wasn’t so much because of the passage of time but because the judge didn’t clearly intend to impose a different sentence. Just keep in mind that corrective action was begun almost immediately in Gruetzmacher. Appellate attorneys making risk-assessments in similar situations should keep in mind, too, that although § 973.13 provides that a sentence exceeding the maximum is void “and shall stand commuted without further proceedings,” requesting such relief opens a potential can of worms, State v. Holloway, 202 Wis.2d 694, 700, 551 N.W.2d 841(Ct. App. 1996) [“We therefore hold that when a sentence is commuted pursuant to § 973.13, STATS., the sentencing court may, in its discretion, resentence the defendant if the premise and goals of the prior sentence have been frustrated.”] Nothing in Gruetzmacher is likely to change that.

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