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Resentencing — Increase in Original Sentence After Grant of Relief

State v. Victor Naydihor, 2004 WI 43, affirming 2002 WI App 272, 258 Wis. 2d 746, 654 N.W.2d 479
For Naydihor: Philip J. Brehm

Issue1: Whether an increase in sentence (from 3 to 5 years’ initial confinement), after resentencing before a different judge due to a plea bargain violation, was presumptively vindictive and therefore violated due process.

Holding1: Under the circumstances, the North Carolina v. Pearce, 395 U.S. 711 (1969) presumption of vindictiveness following an increased sentence doesn’t apply:

¶37. The Court has also explained that a reasonable likelihood of vindictiveness exists only if there is a realistic possibility that the sentencing court, after being reversed, may engage in self-vindication and retaliate against the defendant for having successfully pursued appellate relief. ……

¶47. Applying these principles in Church, 262 Wis. 2d 678, 54, we held that the Pearce presumption applied when the defendant received a longer sentence from the same court after successfully challenging the validity of multiple convictions. We reasoned: “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.”‘” Id. (quoting Smith, 490 U.S. at 801 (quoting Colten, 407 U.S. at 117)).

¶48. However, the facts of the present case stand in stark contrast to those in Church and Pearce. Here, Naydihor moved for resentencing due to prosecutorial error. The court before which he was sentenced granted his postconviction motion and ordered resentencing before a new judge. The State did not oppose the motion. Naydihor’s conviction was not reversed because of an error by the court. In addition, it was the court itself that granted his motion. In other words, this is not a case where an appellate court reversed a conviction due to a circuit court error and the same circuit court that erred resentenced the defendant. The judge that resentenced Naydihor was not the same judge that originally sentenced him; nor was the resentencing court the court in which the error that led to resentencing took place. We conclude that under the facts of this case, consistent with Chaffin, Colten, McCullough, and Smith, no presumption of vindictiveness is warranted because the reasons justifying the prophylactic Pearce presumption are not present.

¶56. Consistent with the approach taken by the United States Supreme Court, we hold that the Pearce presumption of vindictiveness does not apply here because the defendant was resentenced by a different judicial authority at his request due to a non-judicial defect at the original sentence hearing, and the resentencing was granted by the original court in which the defect occurred. In such circumstances there is “no realistic motive for vindictive sentencing,” McCullough, 475 U.S. at 139, such that it can be said there was a “reasonable likelihood of vindictiveness,” Goodwin, 457 U.S. at 373, much less a “possibility of vindictiveness.” Chaffin, 412 U.S. at 26. As there was no hazard that Naydihor was being penalized for seeking enforcement of the terms of his plea bargain, the Pearce presumption does not apply to this case.

The fact that the second judge was aware of the first sentence isn’t meaningful. ¶¶48-52.

Issue2: Whether the increased sentence was justified on the basis of “objective information,” namely, deterioration in the victim’s condition.


¶74. The Court has repeatedly stated that the Pearce presumption may be rebutted by “‘”objective information . . . justifying the increased sentence.”‘” Smith, 490 U.S. at 799 (quoting McCullough, 475 U.S. at 142 (quoting Goodwin, 457 U.S. at 374)). This may be an actual intervening event set in motion by prior conduct on the part of the defendant, as in Wasman, 468 U.S. at 569-70, or new information concerning prior conduct of the defendant that relates to the nature and extent of the defendant’s crime, as in McCullough, 475 U.S. at 143-44. While McCullough opened the door for increased sentences based on “new information” concerning the crime, it is clear under Church, 262 Wis. 2d 678, 56-57, that when the Pearce presumption applies, a resentencing court cannot use “old facts”–information that was available to the original sentencing authority–to justify an increase because presumably the first sentencer was aware of this information and took it into consideration in rendering the initial sentence.…

¶76 … However, nothing in Church precludes a court from increasing a sentence based on new objective information of an event such as the victim’s deteriorated condition, which occurs subsequent to the original sentencing.

¶77. We again reiterate that the United States Supreme Court in McCullough stated that Pearce “was never intended to describe exhaustively all of the possible circumstances in which a sentence increase could be justified.” McCullough, 475 U.S. at 141. None of the Court’s decisions subsequent to Pearce have construed the phrase “objective information . . . justifying a sentence increase” to refer only to new conduct on the part of the defendant. Indeed, the Court in McCullough stated that a sentence increase could be justified based on “pertinent new information” that “bore legitimately on the appropriate sentence to impose.” McCullough, 475 U.S. at 144. To summarize Wasman, McCullough, and Church, without using artificial labels or engaging in semantics, a sentence may be legitimately increased as a result of “any objective, identifiable factual data not known to the trial judge at the time of the original sentencing proceeding,” Pearce, 395 U.S. at 751 (White, J., concurring in part), so long as that data relates to legitimate sentencing factors and is set forth clearly in the record. See McCullough, 475 U.S. at 153-55 (Marshall, J., dissenting)(noting that the majority opinion permits a sentence increase to be based on new information about the crime charged and removes the restriction that led to Justice White’s concurrence in Pearce). Whether the basis for the sentence increase here is characterized as an event under Wasman14 or new information about the nature and extent of the crime under McCullough, the fact that the condition of the victim deteriorated since the original sentence proceeding clearly constitutes a change in the status quo, something that was not present in Church. As discussed below, this change was clearly relevant to the sentencing factors Judge Schroeder was required to consider at resentencing.

¶80. We hold that when a victim testifies at resentencing that her condition has deteriorated since the original sentencing proceeding as a result of the defendant’s underlying criminal act, this constitutes “‘objective information . . . justifying the increased sentence.'” McCullough, 475 U.S. at 143. As Judge Schroeder specifically stated that this was the basis for increasing Naydihor’s sentence, he provided “an on-the-record, wholly logical, nonvindictive reason for the sentence. We read Pearce to require no more, particularity since trial judges must be accorded broad discretion in sentencing.” Id. at 140.

A dilemma, certainly, for appellate counsel: in no small percentage of cases, at the time you’re providing a risk assessment the victim’s condition [or the consequences of the crime to victim’s family] will be unknown and unknowable. Revelation therefore will be the price of admission for the grant of relief.

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