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Resentencing — Increase in Original Sentence After Appellate 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 an increase in sentence on re-sentencing violated due process, where the resentencing judge deviated from the original sentencing scheme by increasing the term of imprisonment.

Holding: Due process precludes an increase in sentence which is meant to punish a successful appeal; a more severe sentence imposed after re-trial is presumptively vindictive and must be overcome by objective information in the record. ¶¶29-34, citingNorth Carolina v. Pearce, 395 U.S. 711, 725 (1969). This presumption does not apply whenever a harsher result follows relief, but only where there is a realistic likelihood of vindictiveness. ¶38. Pearce is not applicable to a resentencing based on an originally invalid sentence “as long as the circuit court does not deviate from the original sentencing record and dispositional scheme.” ¶48.  Here, the judge increased the sentence by four years because Church had spent four years in prison “without acknowledging his offense and without doing anything to obtain treatment,” ¶15, and by this manifest intent to deviate from the original sentencing scheme triggered Pearce’s protection:

¶53. … The circuit court evidently treated this resentencing as an opportunity to revisit the original sentence based upon updated information and argument. Under these circumstances, we conclude that the Pearce presumption is triggered. Although Church was not resentenced after retrial, as in Pearce, the circumstances of this case created the same sort of likelihood of vindictiveness as to require application of the presumption.¶54. In this case, as in Pearce, the defendant received a longer sentence upon resentencing after successful post-conviction proceedings. The appeal in this case posed a direct challenge to a decision of the circuit court. The circuit court’s decision on multiplicity was reversed, the entire case was remanded, and the circuit court was essentially “‘do[ing] over what it thought it had already done correctly.'” Smith, 490 U.S. at 801 (quoting Colten, 407 U.S. at 117); Goodwin, 457 U.S. at 374, 383 nn. 5, 16 (quoting Colten). Inherent in these circumstances is the “reasonable likelihood of vindictiveness” that thePearce presumption is intended to protect against. Goodwin, 457 U.S. at 373.

¶55. The Pearce presumption of vindictiveness can be overcome if “affirmative reasons” justifying the longer sentence appear in the record and if those reasons are “based upon objective information” regarding events or “identifiable conduct on the part of the defendant” subsequent to the original sentencing proceeding. Pearce, 395 U.S. at 726.

¶56. The longer sentence in this case was premised on the passage of time: four years of incarceration had gone by, and Church was still (mostly) in denial and had not sought or received treatment. This does not constitute “objective information” of “identifiable conduct on the part of the defendant” subsequent to the original sentencing. It constitutes a subjective evaluation of the status of Church’s rehabilitation at the time of resentencing, based not on any new facts but on the mere continued existence of the original facts.

¶57. Church was in denial and untreated at the time of the original sentencing. That he remained so four years later is not a new factor justifying a longer sentence after a successful appeal; it is merely a continuation of the status quo ante. Defendants who exercise their right to appeal often maintain their innocence. To premise an increased sentence after a successful appeal on a defendant’s continued denial of responsibility, without more, comes far too close to punishing the defendant for exercising his right to appeal.

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