On Point: 7. Resentencing

State v. Ernesto E. Lazo Villamil, 2016 WI App 61, petitions for review and cross-review granted 1/9/2017, affirmed 2017 WI 74, ; case activity (including briefs)

Lazo Villamil was convicted and sentenced for operating after revocation and causing death under § 343.44, one of the provisions of which says that the offense is both a misdemeanor and a felony. He claims that convicting and sentencing him for the felony rather the misdemeanor violated the rule of lenity and his rights to due process and equal protection. The court of appeals disagrees, but grants resentencing due to the circuit court’s failure to consider certain sentencing factors..

Review of a per curiam court of appeals decision; case activity

Issues (composed by SCOW). See order granting review.

1.  Where a defendant seeks to plead guilty or no contest to a charge of operating a motor vehicle while under the influence of an intoxicant (OWI), or with a prohibited alcohol concentration (PAC), do State v. Bangert, 131 Wis.2d 246, 389 N.W.2d 12 (1986) and due process principles require that the number of prior offenses that count for sentence enhancement be determined prior to entry of the defendant’s plea?

2.  Is a court of appeals’ decision ordering remand to the circuit court with instructions to: (1) issue an amended judgment of conviction reflecting a conviction for operating with a PAC, as a seventh offense, and (2) hold a resentencing hearing, and impose a sentence consistent with the penalty ranges for a seventh offense, constitutionally impermissible under Bangert and due process principles where the defendant specifically entered a plea of guilty to PAC as a sixth offense, where the circuit court sentenced the defendant in accordance to proper penalties for PAC as a sixth offense, and where the defendant has already served the confinement portion of such sentence?

State v. Craig C. Meier, 2013AP2863-CR, District 4, 7/17/14 (1-judge; ineligible for publication); case activity

The answer matters: If the pronouncement of sentence is ambiguous the court could “clarify[] and “reimpose[]” the sentences it originally intended, Krueger v. State, 86 Wis. 2d 435, 442-43, 272 N.W.2d 847 (1979); if the sentence is illegal, it must be commuted to the lawful maximum, § 973.13. In this case the court of appeals holds the circuit court’s initial pronouncement of sentences in this case was ambiguous, so it affirms the circuit court’s “correction” of the sentences to reflect the sentences the court intended to impose.

State v. Quincy Lashawn Baker, 2013AP242-CR, District 1, 1/28/14; court of appeals decision (not recommended for publication); case activity

Baker was given a resentencing hearing based on inaccurate information about the maximum periods of confinement and supervision for the crime of conviction (felony murder). (¶¶4-5). At the resentencing hearing before a different judge, the state argued Baker’s profane outburst at the conclusion of his original sentencing hearing showed a lack of remorse.

Pepper v. U.S., USSC No. 09-6822, 3/2/11

In light of the federal sentencing framework described above, we think it clear that when a defendant’s sentence has been set aside on appeal and his case remanded for resentencing, a district court may consider evidence of a defendant’s rehabilitation since his prior sentencing and that such evidence may, in appropriate cases, support a downward variance from the advisory Guidelines range.

The thrust of the opinion is statutory,

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).

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

Issue/Holding:

¶8        Due process “requires that vindictiveness against a defendant for having successfully attacked his first conviction must play no part in the sentence he receives after a new trial.” North Carolina v. Pearce, 395 U.S. 711, 725 (1969), 

State v. Lorenzo Wood, 2007 WI App 190, PFR filed 8/16/07
For Wood: Michael D. Kaiser

Issue/Holding:

¶6 “When a resentencing is required for any reason, the initial sentence is a nullity; it ceases to exist.” Carter, 208 Wis. 2d at 154. In resentencing “the court imposes a new sentence after the initial sentence has been held invalid.” Id. at 147.

State v. Lorenzo Wood, 2007 WI App 190, PFR filed 8/16/07
For Wood: Michael D. Kaiser

Issue/Holding:

¶7 Counsel for Wood points out that published opinions have been somewhat imprecise in distinguishing between the requirements for, and effect of, sentence modification as opposed to resentencing. We acknowledge that language has, on occasion, been imprecise. …

…

¶9 Similarly, in State v.

State v. Ronnie L. Thums, 2006 WI App 173
For Thums: Paul G. LaZotte, SPD, Madison Appellate

Issue/Holding: The remedy for a sentence imposed under an incorrect penalty scheme is resentencing:

¶14      Both parties agree that if the sentence the circuit court imposed was improper, Thums is entitled to be resentenced as to both components of the bifurcated sentence. We have held that the court did err when it applied TIS-I statutes during sentencing because those penalties were obsolete before Thums’ conduct became chargeable as stalking with a dangerous weapon.