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Review — Reconfinement Sentence (After Revocation of Extended Supervision) – Exercise of Discretion

State v. John C. Brown, 2006 WI 131, affirming 2006 WI App 44
For Brown: Randall E. Paulson, SPD, Milwaukee Appellate
Amicus: Robert R. Henak and Amelia L. Bizzaro; Walter J. Dickey & David E. Schultz


¶22     We conclude that a reconfinement decision, like an initial sentencing decision, involves the circuit court’s discretion, and we review the circuit court’s decision to determine whether that discretion was erroneously exercised. See State v. Spears, 227 Wis. 2d 495, 506, 596 N.W.2d 375 (1999). An erroneous exercise of such discretion occurs “whenever it appears that no discretion was exercised in its imposition [of the sentence] or discretion was exercised without the underpinnings of an explained judicial reasoning process.” McCleary, 49 Wis. 2d at 278. As long as the reconfinement court considered the relevant factors, and not irrelevant or improper ones, and the decision was within the statutory limits, the sentence will not be reversed, unless it “‘is so excessive and unusual and so disproportionate to the offense committed as to shock public sentiment and violate the judgment of reasonable people concerning what is right and proper under the circumstances.'” Taylor, 289 Wis. 2d 34, ¶18 (citations omitted).

The court takes pains to say that “(a) reconfinement hearing is certainly akin to a sentencing hearing,” ¶20—strongly suggesting that the standards by which discretion is informed and reviewed ought to be pretty much the same. And that does seem to be the overall thrust of the opinion, although the court doesn’t quite say so explicitly. Note that the court of appeals very clearly held (¶17), “Moreover, we note that a reconfinement hearing is simply an extension of the original sentencing proceeding, and thus, the trial court need not address all relevant factors.” The supreme court now appears to have rejected that view, at least as an absolute proposition, albeit sub silentio:

¶21     In the present case, the court of appeals quoted Wegner, 239 Wis. 2d 96, ¶7, stating, “‘[W]e will review the two sentencing proceedings on a global basis, treating the latter sentencing as a continuum of the first.'” State v. Brown, 2006 WI App 44, ¶17, 289 Wis. 2d 691, 712 N.W.2d 899. See also State v. Jones, 2005 WI App 259, ¶8, 288 Wis. 2d 475, 707 N.W.2d 876. In Wegner, the judge imposing the reconfinement sentence was the same judge who imposed the original sentence. Treating the reconfinement hearing as a continuum of the sentencing hearing is logical when the same judge is presiding over both the original sentencing hearing and the reconfinement hearing. However, in many cases, one judge will preside over the original sentencing and a different judge will do the reconfinement hearing, as was the situation in Brown’s case. Under such circumstances, there is no continuum.

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