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Review — Reconfinement Sentence (After Revocation of Extended Supervision), Imposed by Different Judge – Review of Original Sentencing Transcript not Absolute Necessity

State v. Clayborn L. Walker2008 WI 34, reversing 2007 WI App 142
For Walker: Amelia L. Bizzaro

Issue: Whether the judge is required, at a TIS reconfinement hearing, to have read the original sentencing transcript.


¶3        We agree with the State and conclude that State v. Gee [3] misinterpreted our decision in Brown. We conclude that a circuit court is not required to read the original sentencing transcript in every reconfinement hearing. Rather, the circuit court should be familiar with the particulars of the case at issue. That can be accomplished in any number of ways, and we acknowledge that this may differ from case to case. As articulated in Brown, the circuit court must decide which factors are relevant for consideration in any given case, and the circuit court must use its discretion as to how it ascertains the information needed to consider the relevant factors. Accordingly, we reverse the court of appeals’ decision in this case and overrule Gee.

¶19      As stated in Brown, the original sentencing transcript can be an important source of information regarding these factors and is generally readily available. … The parties are, therefore, encouraged to identify relevant information from the sentencing transcript or any other document and bring it to the circuit court’s attention, so the judge may then specifically review that information.

¶20      While the circuit court may ascertain relevant information from a number of sources, we do not require that any one source or list of sources be utilized in every case. Rather, we merely require that the circuit court be familiar with the case before it. Ultimately, it is for the circuit court to determine the appropriate manner in which to accomplish this, and it may vary based upon the particular case.

¶23      While we did emphasize the likely usefulness of the sentencing transcript in our Brown decision, we did not intend for that to be construed as a per se rule that circuit courts must read the original sentencing transcript before every reconfinement hearing. Rather, we leave it to the circuit court’s discretion to determine which factors articulated in Brown are relevant, and we leave it to the circuit court to determine how best to ascertain information pertaining to the relevant factors. While it certainly may be good practice for the circuit court to review the sentencing transcript, it may not always be necessary, and therefore, we do not create a per se rule, but instead leave it to the trial court’s discretion.

What about sentencing after revocation (of probation)? Good question indeed. In that context, the court of appeals has separately held, a successor judge must have read the original sentencing transcript before proceeding to disposition, State v. Reynolds, 2002 WI App 15. Or so the holding may have been construed … but no longer. This is how the court of appeals, by way of distinguishing reconfinement from SAR, read its own holding in Reynolds:

   Jones also contends that the circuit court failed to review the original sentencing transcript and presentence investigation report prior to ordering reconfinement in violation of ReynoldsReynolds holds that where the “record does not reflect the sentencing judge’s awareness of the information in the presentence investigation report, and of the factors the trial judge found significant in … the withholding of sentence, resentencing is appropriate.”Reynolds, 249 Wis. 2d 798, ¶2. We conclude that Reynolds is not applicable here because of a significant and meaningful difference in the procedural background. In eynolds, the circuit court withheld sentence and placed Reynolds on probation; a different judge imposed sentence for the first timeafter revocation of Reynolds’s probation. Id., ¶4. We conclude that Reynolds is not sufficiently analogous to the case at hand and reject Jones’s arguments to the contrary.

State v. Brandon E. Jones, 2005 WI App 259, ¶13. Has that result now been overturned along with Gee? Not quite, but it’s certainly been limited:

¶26      Walker, relying primarily on State v. Reynolds, argues that even pre-Brown court of appeals’ decisions established that a circuit court must review the original sentencing transcript prior to a reconfinement hearing. We reject this argument. Reynolds was a sentencing after revocation of probation case and not a reconfinement hearing case. State v. Reynolds, 2002 WI App 15, 249 Wis.  2d 798, 643 N.W.2d 165. Moreover, Reynolds did not establish such a bright-line rule. Id., ¶¶9-11, 13-15. Rather, Reynolds supports the conclusion that reviewing the original sentencing transcript may be necessary in some cases. Id. For example, in Reynolds, a review of the original sentencing transcript, in order to ascertain the severity of the original offense, was “essential to a fair sentencing after revocation.” Id., ¶11. To the extent that Reynolds even supports Walker’s argument, the court of appeals seemingly had conflicting published decisions prior to Brown and GeeCompare Reynolds with State v. Jones, 2005 WI App 259, ¶13, 288 Wis. 2d 475, 707 N.W.2d 876 (rejecting the defendant’s argument that underReynolds, a judge must review the original sentencing transcript prior to a reconfinement hearing). Our decision today resolves any potential conflicts that existed at the court of appeals——no per se rule exists.

This analysis is potentially jarring – the court of appeals simply lacks authority to ignore its own precedent; indeed, arguably lacks authority to withdraw any language from its own published caselaw. E.g., State v. William L. Morford, 2004 WI 5, ¶40, nn. 39-40, citing, Cook v. Cook, 208 Wis. 2d 166, 189, 560 N.W.2d 246, 256 (1997); American Family Mut. Ins. Co. v. Pleasant Co., 2002 WI App 229, ¶18, 257 Wis. 2d 771, 783, 652 N.W.2d 123, 129 (“This court does not have the authority to overrule, modify, or withdraw language from our prior decisions; only the supreme court may do so”). What this necessarily means, then, is that a conflict in court of appeals’ caselaw is theoretically impossible. Either the earlier holding must be construed as having been overruled or modified by subsequent authority from a higher court, or else the later, supposedly conflicting court of appeals’ holding must be given no effect because it represented an unauthorized exercise of judicial authority. Nugatory, in a word. See State v. Esteban Martinez, 2007 WI App 225, ¶23 (““Where two court of appeals decisions conflict, the first decision governs. State v. Swiams, 2004 WI App 217, ¶23, 277 Wis.  2d 400, 690 N.W.2d 452”). These observations don’t undermine the result in Walker, but are made simply to clarify that you shouldn’t read too much into the court’s idea about dueling court of appeals decisions.


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