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Resentencing — Defendant’s Right to Presence

State v. Rodney K. Stenseth, 2003 WI App 198, PFR filed 9/2/03
For Stenseth: Robert A. Ferg

Issue: Whether violation of the defendant’s right to be present at resentencing (occasioned by the original sentence exceeding the maximum allowable period of confinement) is subject to harmless error analysis.


¶16. Wisconsin Stat. § 971.04(1)(g) provides that a defendant shall be present “[a]t the pronouncement of judgment and the imposition of sentence.” The State concedes that the modification amounted to a resentencing and that Stenseth had the right to be present. However, the State argues this was harmless error, and we agree.

¶17. Violation of the right to be present under Wis. Stat. § 971.04(1) is subject to a harmless error analysis. State v. Peterson, 220 Wis. 2d 474, 489, 584 N.W.2d 144 (Ct. App. 1998). An error is harmless if it does not affect the defendant’s substantial rights. State v. Harris, 229 Wis. 2d 832, 840, 601 N.W.2d 682 (Ct. App. 1999).

¶18. In Peterson, the court found the defendant’s absence during supplemental jury instructions was harmless because the defendant had failed to establish any prejudice resulting from the violation of his right to be present and also had failed to “advance on appeal any specific contribution he would have made had he been present.” Peterson, 220 Wis. 2d at 489.

¶19. Here, Stenseth already had a full sentencing hearing. He had the opportunity to present witnesses and did, in fact, present two witnesses. He exercised his right of allocution. His attorney made an argument on Stenseth’s behalf. At the end of the presentations, the court made detailed findings and extensive observations, explaining the reasons for its sentence. Stenseth does not indicate any additional witnesses he would have called at a resentencing hearing, any new information he would have provided the court or any further arguments he would have presented.

¶20. Further, we note that when the court recognized the original sentence had been illegal, the court stated that did not change the fact that it had “intended that [Stenseth] should be supervised for the full ten years.” Further, the court added, “I wanted the public protected in one way or another for a total of ten years.” Stenseth does not indicate anything he would have done to effect a different outcome. In short, Stenseth does not suggest any contribution he would have made at the resentencing or any way in which he was prejudiced. The error was harmless.

The court’s analysis leaves a bit to be desired. Start with the procedural posture, from which all else flows. The original sentence exceeded the maximum, at least as to confinement, which made the sentence “illegal.” A sentence in excess of the maximum is automatically commuted to the maximum, § 973.13 (excess portion of the sentence is void and the sentence is commuted without further proceedings), which is a merely clerical exercise. E.g., State v. Theriault, 187 Wis. 2d 125, 133, 522 N.W.2d 254 (Ct. App. 1994). Apparently, that remedy wouldn’t have satisfied the judge, who wanted to increase the length of supervision to offset the decrease in confinement. It so happens “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.” State v. Holloway, 202 Wis.2d 694, 700, 551 N.W.2d 841 (Ct. App. 1996). Typically, too, an illegal sentence leads to resentencing. And so it seems clear beyond any doubt that this particular event became a resentencing. But not a typical one, in that “resentencing” implies minimal formality; rather, this was one which was handled during a telephone conference between judge and attorneys to discuss the postconviction motions, ¶7. Consider, though, Holloway‘s insistence that the remedy of resentencing after a § 973.13 error “is not a one-way street which will always operate to the disadvantage of the defendant. In a different case, it may produce a lighter sentence than the maximum for the underlying offense.” See also State v. Carter, 208 Wis. 2d 142, 560 N.W.2d 256 (1997) (resentencing courts directed to consider all information, including that occurring after original sentencing and that which court was unaware of at time of original sentencing). In other words, resentencing (putting aside double jeopardy-type inhibitions) is supposed to allow the court to truly revisit the sentence — which would in turn seem to implicate the panoply of sentencing rights, including presence of the defendant. Unless the right to presence at sentencing is more plastic than previously thought. You can see, then, the potential this case has to create mischief, in that it essentially reduces resentencing to a mechanical exercise whereby the judge simply restates his or her original intent. Just how did the court reason its way to this highly questionable result?The right to presence at sentencing is inalienable, i.e., not waivable “even if the waiver is made knowingly and voluntarily.” State v. Koopmans, 210 Wis. 2d 671, ¶1, 563 N.W.2d 528 (1997). Once Stenseth’s postconviction proceeding became a resentencing, it became for all practical purposes a sentencing, as the court indeed acknowledges. See also, e.g., State v. Manke, 230 Wis.2d 421, 602 N.W.2d 139 (Ct. App. 1999) (after original sentence vacated and with defendant then facing resentencing, motion to withdraw guilty plea is governed by more lenient pre-sentencing test). You might think that Koopmanswould preclude harmless error analysis. But Peterson contains throw-away language about Koopmans that wasn’t discussed by the Stenseth court but apparently relied on by it: “No argument was made, however, that the trial court’s error in treating the defendant’s voluntary absence as a waiver was harmless, and the court explicitly did not consider the issue.” 220 Wis. 2d at 487. Peterson did not, however, itself rely on harmless error, and its gratuitous remark about Koopmans is therefore dicta. In any event, discussion of harmless error no doubt seemed entirely unnecessary to the Koopmans court. There is a well-developed body of case law, exemplified by Peterson, that a defendant need not be present during a purely legal phase of the proceeding. But sentencing is an entirely distinct stage. The analogy to presence at trial simply doesn’t fit. A sentencing court exercises discretion by weighing necessarily fact-bound considerations. Nor does it matter that the trial court imposed a previous sentence and merely sought at resentencing to implement its original intent — the proceeding, as noted, is tantamount to sentencing; the trial court’s intent to implement its original intent might be quite relevant to a subsequent challenge to its exercise of discretion, but that is something quite distinct from the procedure by which that discretion was exercised. Contrast, State v. Prihoda, 2000 WI 123 (correction of merely clerical sentencing error doesn’t require defendant’s presence). Then there is the matter of allocution, afforded both by § 972.14 and due process. Bottom line: doing away with the defendant’s right to presence at resentencing is but a short distance from doing away with that right at sentencing. But we’re still not quite done. Even if you assume applicability of the harmless error doctrine, the court applied it exactly backward, by requiring Stenseth to show how his presence would have made a difference. ¶19. It is axiomatic that the state, as beneficiary of the error has the burden of showing beyond reasonable doubt that the error did not contribute to the result. How that burden might be satisfied in this context is anyone’s guess – which only shows why this ought to be regarded as “structural” error not supporting harmless error analysis anyway – but the fact remains that the court assigned the burden to the wrong party.)

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