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Sentencing Guidelines – Failure to Consider – Harmless, Where Sentence Concurrent to Other, Unchallenged Sentence

State v. Stephen C. Sherman, 2008 WI App 57, PFR filed 4/16/08
For Sherman: John J. Grau

Issue/Holding: Sentencing failure to consider applicable guidelines, § 973.017(2)(a), was harmless error, at least where the controlling sentence was untainted by the error:

¶9        We conclude that the circuit court’s failure to consider the sentencing guidelines for the two Wis. Stat. § 948.02(2) counts was harmless error. The sentences on all counts were concurrent, and the sentences for the two guidelines counts were less than the controlling sentence of fifteen years’ initial confinement and fifteen years’ extended supervision rendered for repeated sexual assault of a child. Because we uphold the controlling sentence by rejecting Sherman’s other claims below, Sherman ’s substantial rights were not affected by the court’s failure to consider the sentencing guidelines.

Sherman asserts a line of cases indicating that multiple counts represent a sentencing “package,” such that when one count is vacated the entire sentencing package is “unbundled” with resentencing required on all counts, even when they were unchallenged; that concept is fine in theory, the court says, but in practice applies only where consecutive sentences have been imposed:

¶11      Sherman relies upon cases holding that courts may reconsider sentences on other counts where one count has been reversed on appeal. SeeUnited States v. Shue, 825 F.2d 1111, 1113-14 (7th Cir. 1987); United States v. Mancari, 914 F.2d 1014, 1021-22 (7th Cir. 1990). In these cases, the justification for permitting resentencing was to allow the trial court to effectuate its original sentencing intent. Shue, 825 F.2d at 1113; Mancari, 914 F.2d at 1022. The original sentencing intent in these cases was disrupted because consecutive sentences were involved, the removal of which altered the overall sentencing structure. Shue, 825 F.2d at 1112, 1114; Mancari, 914 F.2d at 1015, 1021-22.

¶12      However, in cases involving reversed concurrent sentences, where the overall sentence structure remained intact after eliminating the reversed count, resentencing has been held to be unnecessary. See State v. Sinks, 168 Wis. 2d 245, 256, 483 N.W.2d 286 (Ct. App. 1992); State v. Church, 2003 WI 74, ¶¶19, 26, 262 Wis. 2d 678, 665 N.W.2d 141 (“Resentencing is unnecessary, and certainly not required, where, as here, the invalidation of one count on double jeopardy grounds has no affect at all on the overall sentence structure.”). Here, all of the sentences were concurrent, and the overall sentence structure was controlled by the longest sentence.\[1][4] Because the controlling sentence remains undisturbed, the overall sentence structure remains intact. Therefore, resentencing is unnecessary, and the circuit court did not err by declining to resentence Sherman. See Church, 262 Wis. 2d 678, ¶26.

If you’re thinking this means, Heads they win, tails I lose, you’d be right. If you get partial relief on consecutive sentences, the State can seek resentencing on the unaffected counts to make sure the status quo ante is restored; if you get partial relief on concurrent sentences, that’s the end of the line (or, as this case illustrates, you don’t even get that far but instead have a harmless error bar thrown in your face).


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