Resentencing Analysis

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The decision in this case is one that has been needed for a long time, for two reasons.

The first is the belated recognition that the Leonard and Pearce standards are not the same, and that previous statements that they are are incorrect: “The Leonard rule is substantially similar to the rule set forth by the U.S. Supreme Court in [Pearce].” State v. Martin, 121 Wis.2d 670, 360 N.W.2d 43, 50 (1985).

Under Pearce, however, a sentence can only be increased based on conduct by the defendant occurring after the original sentence. Leonard permitted it based on previous events that only come to the court’s attention at the second hearing, regardless of when they occurred. The decision in the case at bar is Wisconsin’s first to recognize that the standard set forth in Leonard does not comport with federal law in this respect.

The second is the court’s finally recognizing that it was also incorrect in Martin when it stated, “The Leonard rule, which applies to resentencings after retrial or to mere resentencing, is broader than the Pearce rule, which applies only to resentencing after retrial.” Martin, 121 Wis.2d at 686.

There is nothing in Pearce that would suggest it should have been limited in the way the Wisconsin Supreme Court did, nor is there any logical reason why it would be so limited.

If anything, the presumption of vindictiveness is stronger when there is not a retrial after reversal of the original sentence. A court is far more likely to learn of information that justifies a longer sentence than originally imposed and militates against a finding of vindictiveness, when there is both another trial and another sentencing, rather than just another sentencing.

So, while the court has not overruled either Leonard or Martin, the court has finally recognized two aspects of those decisions that are not consistent with federal due process requirements.

Having got its own house in order vis-à-vis federal law, the question now is what the court will do with the recent published court of appeals’ decision in State v. Naydihor, 2002 WI App 272, 258 Wis.2d 746, 654 N.W.2d 479.

In Naydihor, the defendant received three years in prison after driving drunk and injuring a woman. He then successfully argued at a postconviction hearing that the prosecutor breached the plea agreement.

At the subsequent resentencing, however, the court imposed a five-year prison sentence, citing two factors for the increase: it now appeared that the victim may never walk again; and the victim’s medical bills had gone from $30,000 to $75,000 in the interim.

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Upholding the longer sentence, the court of appeals wrote, “Pearce in-volved a resentencing following a retrial. This court recently addressed the application of Pearce to a resentencing that did not occur after a retrial. [citing the court of appeals’ holding in Church, overruled in the case at bar]. We determined that in such a case, we apply the broader rule set forth in [Leonard], a case decided one year prior to Pearce, which applies not only to resentencing after retrial but to any resentencing.”

Naydihor, 654 N.W.2d at 485.

Naydihor filed a petition for review in the Wisconsin Supreme Court in December, but the court has not yet acted on it.

The decision in Naydihor can no longer be considered valid precedent, even though the Supreme Court did not specifically overrule it, or even mention it. The court could either accept review, or order the court of appeals to reconsider it in light of its holding last week. But, inasmuch as the court of appeals’ reasoning is supported wholly by the decision reversed in Church, and Martin’s incorrect limitation of Pearce to cases involving retrials, the case has to be reconsidered by one of the two courts.

– David Ziemer

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David Ziemer can be reached by email.