Stiffer sentence after appeal upheld

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The imposition of a longer sentence after a successful appeal of the original sentence by the defendant did not violate due process, the Wisconsin Court of Appeals held on Oct. 30, where the victim’s condition had worsened since the original sentencing.
Drunken Driving

On Feb. 25, 2000, Victor Naydihor was involved in an accident with another vehicle causing injuries to its two occupants.

Naydihor was at fault and was intoxicated at the time of the accident.

As a result, the State charged Naydihor with three counts: causing great bodily harm by intoxicated use of a motor vehicle; operating while intoxicated causing injury; and operating with a prohibited alcohol concentration.

Naydihor entered into a plea agreement with the State, under which Naydihor pleaded guilty to causing great bodily harm by the intoxicated use of a motor vehicle, and the State dismissed the remaining charges. The State further agreed to recommend a period of probation, but retained the right to recommend any conditions of probation.

At sentencing, the State notified Kenosha County Circuit Court Judge Barbara A. Kluka that Naydihor had not cooperated in completing the presentence investigation and had not complied with the conditions of bond. Bond was revoked, the sentencing was adjourned, and Naydihor was subsequently charged with felony bail jumping.

Naydihor pleaded no contest to that charge, and was sentenced on the two counts. At sentencing, the State made its probation recommendation as agreed, but stated that it had entered the agreement before learning the extent of Naydihor’s prior record.

Kluka sentenced Naydihor to three years’ initial confinement followed by five years of extended supervision on the great bodily harm offense and ten years of consecutive probation on the bail jumping offense.

Naydihor moved for postconviction relief, requesting resentencing, and contending that the State had repudiated the agreement. The State did not contest the motion, and Kluka granted it, directing that the case be assigned to a new judge.

Judge Bruce E. Schroeder conducted the resentencing. The victim appeared, and described the changes in her financial and physical condition since the time of her victim impact statement. The victim stated that she continued to be unable to walk or work.

She indicated that she is “confined to a wheelchair” and “probably will be in it forever.” She also noted that her medical expenses had increased to approximately $70,000 and that the money from her uninsured motorist coverage had not covered her expenses.
Judge Schroeder then sentenced Naydihor to five years of initial confinement followed by five years of extended supervision on the great bodily harm offense and ten years of consecutive probation on the bail jumping offense.

Naydihor again moved for postconviction relief, challenging his sentence, but Schroeder denied the motion. Naydihor appealed, but the court of appeals affirmed in a decision by Judge Neal P. Nettesheim.

Breach of Plea Agreement

The court first rejected Naydihor’s claim that the prosecutor again breached the terms of the plea agreement, although the prosecutor twice informed the sentencing court that Naydihor was a danger to the community, and emphasized the impact on the victim by stressing the victim’s worsened financial and physical condition since the initial sentencing.

The court noted that, while the State agreed to recommend probation, it retained a “free hand” as to the conditions of probation, a caveat the court called “critical to the resolution of the issue.”

To support the lengthy jail time that the State recommended as a condition of probation, and the lengthy period of probation, the court held that the prosecutor properly argued that Naydihor’s driving conduct, which had caused serious and disabling injuries to the victim, represented a danger to the community.

The court concluded, “the prosecutor’s recitation of the State’s recommendation was fairly and properly targeted at the State’s request for maximum confinement as a condition of probation. Therefore, the statements were not a breach of the plea agreement, much less a material and substantial breach.”

Increased Sentence

The court then upheld the longer sentence imposed at the resentencing hearing.

The court acknowledged that, in North Carolina v. Pearce, 395 U.S. 711 (1969), the U.S. Supreme Court limited the power of a resentencing court to impose a greater sentence than the one imposed initially, holding that an increase in the sentence must be supported by
reasons set forth on the record and must be “based upon objective information concerning identifiable conduct on the part of the defendant occurring after the time of the original sentencing proceeding.” Pearce, 395 U.S. at 726.

Nevertheless, the court held Pearce inapplicable because it involved a resentencing following a retrial, citing State v. Church, 2002 WI App 212, 650 N.W.2d 873, as precedent.

The court determined that resentencings that occur after proceedings other than a retrial are governed not by Pearce, but by State v. Leonard, 39 Wis. 2d 461, 473, 159 N.W.2d 577 (1968), a case decided one year prior to Pearce.

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In Leonard, the Wisconsin Supreme Court held, “on resentencing following a second conviction after retrial, or mere resentencing, the trial court shall be barred from imposing an increased sentence unless (1) events occur or come to the sentencing court’s attention subsequent to the first imposition of sentence which warrant an increased penalty; and (2) the court affirmatively states its grounds in the record for increasing the sentence.”

Interpreting Leonard, the court of appeals stated, “there is no indication in Leonard that a trial court’s consideration is limited to the defendant’s conduct. Rather, we read Leonard to permit a resentencing court to consider any relevant information that developed, or events that have occurred, after the original sentence (emphasis in original).”

Applying that standard to the facts, the court held the increase was appropriate, because of the new information that pertained to the victim. Specifically, the court noted that, when Judge Kluka imposed sentence, the medical expenses were only $30,000; now, they were $75,000, had exhausted her insurance, and were still ongoing.

In addition, rather than expecting to be confined to a wheelchair for six months, as at the original sentence, confinement was expected to be permanent at the time of the resentencing. Accordingly, the court held that new information justified a longer sentence, and affirmed.

David Ziemer can be reached by email.