Court may correct sentencing errors

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“This was not a case where, upon mere reflection, the circuit court decided to increase Gruetzmacher’s sentence. Gruetzmacher’s sentence was not increased, and the circuit court merely corrected its mistake.” Hon. N. Patrick Crooks Wisconsin Supreme Court

The Wisconsin Supreme Court held on May 18 that a court may correct an obvious error in sentencing when the judge made a good faith mistake, promptly recognized the error, and, although he increased a sentence on one count and reduced punishment on another count, achieved what was originally intended.

Bart C. Gruetzmacher was charged with a total of 24 criminal counts. Pursuant to plea negotiation, all of the charges were dismissed except four: substantial battery, a Class E felony; possession of tetrahydrocannabinol (THC), as a repeater; victim intimidation, a Class D felony, as a repeater; and bail jumping, a Class D felony, as a repeater.

In February 2002, Waupaca County Circuit Court Judge Raymond S. Huber sentenced Gruetzmacher as follows: 40 months initial confinement and 20 months extended supervision for the felony substantial battery charge; four years of probation for the THC charge; a withheld sentence and 12 years probation for intimidation of a victim; and the same for felony bail jumping.

Later the same day, the circuit court realized that the maximum penalty for substantial battery was only 24 months, and attempted to contact counsel and schedule another hearing. The parties could not reconvene until two days later, when the sentences were stayed. The judge had also directed the sheriff to keep Gruetzmacher in the jail rather than ship him to Dodge.

In March, Gruetzmacher was resentenced to 24 months for the substantial battery; 40 months concurrent for the bail jumping; 12 years probation for victim intimidation; and 3 years probation for the THC charge.

Gruetzmacher then moved to vacate the modified sentence on the bail jumping charge, on double jeopardy grounds, and in September, Judge Huber granted the motion.

The state appealed, and the court of appeals certified the case to the Wisconsin Supreme Court. In a unanimous decision by Justice N. Patrick Crooks, the court reversed the September sentence, and ordered that the March sentence be reinstated. Justice Diane S. Sykes did not participate.

Precedent

The court began with a review of the precedents of Wisconsin courts and the U.S. Supreme Court.

In State v. North, 91 Wis.2d 507, 283 N.W.2d 457 (Ct.App.1979), the Wisconsin Court of Appeals held that a resentencing violated double jeopardy. In North, the defendant entered a plea of guilty to two offenses: misdemeanor theft and uttering. The maximum sentence for misdemeanor theft was six months, a $200 fine, or both.

The maximum sentence for uttering was 10 years, a $5,000 fine, or both.

However, the court sentenced North to two and one-half years on the theft charge and six months, concurrent, for uttering. The circuit court realized the error three and one-half months later, and, sua sponte, switched the sentences in keeping with the maximum penalty allowed for each charge.

The court of appeals held the switch violated double jeopardy, holding that, although, in certain circumstances, a court could validly modify or correct a defendant’s sentence even if he has already begun to serve the sentence, “Modification to correct sentencing flaws runs afoul of the double jeopardy provisions when the amending court seeks to increase sentences already being served.” Id. at 509-10.

One year later, the U.S. Supreme Court decided U.S. v. DiFrancesco, 449 U.S. 117 (1980), stating that the “Double Jeopardy Clause does not provide the defendant with the right to know at any specific moment in time what the exact limit of his punishment will turn out to be.” Id. at 137.

Since DiFrancesco, the Wisconsin Court of Appeals has considered resentencing several times.

In State v. Burt, 2000 WI App 126, 237 Wis.2d 610, 614 N.W.2d 42, the court upheld a sentence, where, at the original sentencing, the court “misspoke” by imposing concurrent, rather than consecutive, sentences. The error was corrected on the same day.

Conversely, in State v. Willett, 2000 WI App 212, 238 Wis.2d 621, 618 N.W.2d 881, the court held a resentencing unlawful. In Willett, the resentencing occurred four months later, and also involved changing concurrent sentences to consecutive ones.

Unlike Burt, however, the original sentence was not inadvertent, but was the result of the sentencing court believing that it lacked authority to impose co
nsecutive sentences under the circumstances.

Finally, in State v. Jones, 2002 WI App 208, 257 Wis.2d 163, 650 N.W.2d 844, the court upheld a resentencing that occurred after the sentencing judge discovered the defendant had perpetrated a fraud on the court by falsely claiming to have been a prisoner of war in Vietnam.

The court in Jones stated, “the analytical touchstone for double jeopardy is the defendant’s legitimate expectation of finality in the sentence, which may be influenced by many factors, such as the completion of the sentence, the passage of time, the pendency of an appeal, or the defendant’s misconduct in obtaining sentence.” Id., at par. 10.

Application

Applying DiFrancesco and the subsequent Wisconsin cases, the court held that the resentencing in this case was permissible.

The court reasoned, “Given the United States Supreme Court’s decision in DiFrancesco, and subsequent Wisconsin cases that relied on its holding, we conclude that the language in North stating that the due process clause acts as a bar to increasing sentences must be withdrawn. The Jones decision clearly recognizes that such a per se rule no longer exists in Wisconsin. Thus, we conclude that the per se rule language in North, which states that ‘(m)odification to correct sentencing flaws runs afoul of the double jeopardy provisions when the amending court seeks to increase sentences already being served,’ must be and it is withdrawn. Nevertheless, we leave the remainder of the North decision intact, to be read in light of the factors set forth in Jones (cites omitted).”

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The court noted that the circuit court clearly intended to sentence Gruetz-macher to 40 months initial confinement. In addition, the error was discovered on the same day. Furthermore, the judge purposely kept Gruetzmacher in jail, and kept him from being sent to Dodge for processing.

The court stated, “The circuit court clearly recognized that there had been a sentencing error that needed to be corrected, and it did not want the sheriff or the prison system acting on this erroneous sentence. The fact that the justice system as a whole had not yet begun to act upon the circuit court’s sentence is an important fact that bears emphasis. Moreover, this was not a case where, upon mere reflection, the circuit court decided to increase Gruetzmacher’s sentence. Gruetzmacher’s sentence was not increased, and the circuit court merely corrected its mistake, so that Gruetz-macher could serve the intended 40-month sentence. Given the abovementioned considerations, we conclude that Gruetzmacher did not have a legitimate expectation of finality when sentenced in February, 2002.”

Accordingly, the court held the March resentencing lawful, vacated the September resentencing, and reinstated the March sentence.

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David Ziemer can be reached by email.