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Resentencing – Increase in Original Sentence Upon Resentencing Ordered by Trial Court (to Correct Illegal Sentence)

State v. Lord L. Sturdivant, 2009 WI App 5, PFR filed 1/13/09
For Sturdivant: Steven D. Phillips, SPD, Madison Appellate

Issue/Holding: The initial sentence was “illegal” (because the court did not order sufficient time on extended supervision). The court granted defendant’s motion for resentencing (because of the illegality) and ordered an increase in supervision time (rather than reduction in confinement time, which would have accomplished the same purpose). The court of appeals upholds this increase, ruling that “there was no realistic motive for vindictive sentencing” (hence, no presumption of vindictiveness), largely because resentencing was prompted by the improper sentence: “The court, upon being made aware of the invalid sentence, recalculated and imposed a sentence that complied with the percentages required by Wis. Stat. § 973.01(2)(d),” ¶13. Moreover, even if a presumption of vindictiveness does apply, it is overcome by “objective information,” ¶14 (which, truth to tell, the court doesn’t spell out, except to say in effect that the trial “court took into consideration all of the factors from the first sentencing hearing,” a bit of a non-sequitur in this context. Possibly, the court of appeals meant that the amount of confinement time should not be reduced, and that therefore the amount of supervision time had to be increased to bring it into line with the statutory minimum). In addition, the fact that procedural relief (grant of resentencing by the trial court rather than an appellate court) eliminates the possibility of “self-vindication,” ¶15, citing Texas v. McCullough, 475 U.S. 134 (1986).

Nonetheless, due to apparent computational error by the trial court the court of appeals orders (slight) reduction in supervision time. When it resentenced Sturtivant, the trial court initially imposed 8 years of supervision time. However, at a second resentencing hearing, the court noted “that my intention was to give the minimum amount of time on extended supervision,” ¶6, and it reduced the length to 6 ½ years. Noting that the latter figure also exceeds the minimum, hence is contrary to the trial court’s express intent, the court of appeals orders further, if very slight, reduction:

¶17     As a final matter, we note that in order to comply with TIS-I, Sturdivant’s minimum term of extended supervision would be six and one-quarter years. Several times, on the record, the court indicated that it was setting the term of extended supervision at twenty-five percent of the confinement term in order to comply with the law. Sturdivant’s current sentence does not incorporate the minimum term of extended supervision required for twenty-five years of initial confinement. Where the record is clear as to the circuit court’s intent and the only sentence modification required rests on a mathematical calculation, an appellate court may modify a sentence rather than remanding the matter to the circuit court. See State v. Walker, 117 Wis. 2d 579, 584, 345 N.W.2d 413 (1984) (when it is clear what the trial court intended to do, appellate courts have modified a sentence to carry out that intent while bringing the sentence into accordance with the applicable law). We therefore modify the term of extended supervision on Count 1, the first-degree sexual assault, to six and one-quarter years. All other terms of the sentence remain unchanged.


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