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Supreme Court considers presumption of vindictiveness

The state Supreme Court is considering whether it was appropriate for a judge to issue a harsher sentence to a drunken driver at a resentencing when the initial sentence was vacated due to a prosecutor’s error.

Counsel for Victor Naydihor, who is appealing his longer sentence, says the court should consider a presumption of vindictiveness on the part of the judge. That recommendation comes despite the fact that the judge who handled the resentencing was not the original trial judge in the case.

The State maintains that it is not appropriate to presume that a judge who was not involved in the original sentence was acting in a vindictive manner.

OWI Accident

According to the court, the case involves Naydihor, who was involved in an accident with another vehicle on Feb. 25, 2000. Two people were injured. The State charged Naydihor with causing great bodily injury by the intoxicated use of a motor vehicle, operating a motor vehicle and causing injury, and operating a motor vehicle with a prohibited alcohol concentration.

They reached an agreement where Naydihor agreed to plead guilty to causing great bodily harm and the State agreed to drop the two other charges and recommend probation. Between the plea agreement and sentencing, the State contacted Kenosha County Judge Barbara A. Kluka to inform her that Naydihor had not cooperated with the presentencing investigation and he had not complied with conditions of his bond. Naydihor entered a no contest plea to felony bail jumping.

During sentencing, the prosecutor argued for probation with one year of confinement at a county jail as one of the conditions of probation. However, the prosecutor indicated that the State had entered into the plea agreement without realizing Naydihor had previous OWI incidents on his record.

Kluka pointed to the injuries of one victim who was still in a wheelchair and her inability to work for six months as factors in her decision to sentence Naydihor to three years in prison followed by five years probation.

Naydihor filed a post-conviction motion asking for resentencing, given that the State had breached the plea agreement when the prosecutor brought in the additional information. Kluka granted the motion and had the resentencing assigned to another judge.

At resentencing, Judge Bruce E. Schroeder noted that the victim remained unable to walk and had undergone additional surgeries and incurred approximately $70,000 in medical expenses. Expenses at the time of the initial sentencing were between $20,000 and $30,000. Schroeder sentenced Naydihor to five years in prison and five years of probation.

Challenge of Longer Sentence

Naydihor appealed that decision, but the District II Court of Appeals determined that Schroeder’s increase of Kluka’s original sentence was justified given the new information regarding the extent of the victim’s injuries and hardships resulting from the accident.

During oral arguments before the state Supreme Court on Dec. 17, Philip J. Brehm, a sole practitioner in Janesville, told the justices that upholding the sentence would reward the prosecutor for breaching the plea agreement. It also would make defendants hesitant to challenge unfair practices.

“The result of this case is not fair, just, or equitable,” Brehm said. “I believe that it encourages the State to make end-runs around plea agreements. Ultimately, it serves to have a massive chilling effect on a defendant’s right to appeal questionable conduct by the state.”

Brehm pointed to the U.S. Supreme Court’s decision in North Carolina v. Pearce, 395 U.S. 711 (1969), in support of his contention that Schroeder’s increased sentence violated Naydihor’s constitutional rights. In an effort to protect defendants from the potential of vindictiveness, the Supreme Court held that increased sentences had to be “based upon objective information concerning identifiable conduct on the part of the defendant occuring after the time of the original sentencing proceeding.”

At oral arguments, Brehm told the state Supreme Court justices that Schoeder’s reference to the changes in victim’s condition did not constitute new actions on the part of his client. He also noted that the additional surgeries and costs did not represent a significant change in the victim’s status — it still represented serious injuries to the victim.

“The focus should be on what the defendant has done between sentencing and resentencing,” Brehm said.

Brehm indicated that Schroeder’s increased sentence was one of a number of factors supporting the Pearce presumption of vidictiveness. He also indicated that Schroeder might have been attempting to keep defendants from creating more work by challenging their original
sentences. He also noted that the judge’s comments showed he was aware of the prior outcome and may have used that as a baseline from which to work. Brehm also noted that Naydihor unsuccessfully attempted to have a substitution of Schroeder, which has the potential to create ill will.

“The number of factors are all relevant as to whether or not the presumption of vindictiveness should apply,” Brehm told the court. “When you add them all up, it’s a factor in this case.”

Schroeder’s Sentence Was Appropriate

Assistant Attorney General Warren D. Weinstein told the justices that given the additional information about the victim’s injuries, Schroeder’s sentence was appropriate. Weinstein also maintained that the fact that a different judge handled the resentencing eliminated the presumption of vindictiveness.

“It seems to me, the fact that this was not the same judge who granted the motion for new trial cuts in favor of no presumption,” Weinstein told the court.

He noted that if Kluka thought there was an error at trial, there probably was an error. The fact that the error was prosecutorial rather than judicial also supports the notion that there should not be a presumption, since the judge has nothing to lose in the matter. There is no personal element that would make the judge vindictive.

Weinstein agreed that the reasonable standard in this case involved resolving whether there was a reasonable likelihood of vindictiveness. Responding to Chief Justice Shirley S. Abrahamson’s question about how he would write the opinion, Weinstein said he would find that a new judge was sufficient to eliminate the presumption of vindictiveness.

Justice Patience D. Roggensack asked Weinstein to respond to the idea that Schroeder used the first sentence as a minimum. He responded by referring to the U.S. Supreme Court’s decision in Texas v. McCullough, 475 U.S. 134 (1986). In that case, the judge was aware of what the jury had given McCullough at the first trial and the judge indicated that he would have given McCullough a longer sentence than the jury did.

“Mere knowledge of a previous sentence does not rise to the level of presumption,” Weinstein said.

Justice Ann Walsh Bradley followed up on that line of questioning a bit later, observing that the judge at resentencing should be starting with a “clean slate.” Given Schroeder’s comments which made comparative statements to the earlier sentencing, that did not seem to be the situation here.

Weinstein observed that resentencing judges would always have some amount of prior knowledge about what had taken place when there was a resentencing. That led Bradley to observe that the court might be engaging in a “legal fiction” by saying there was a clean slate at resentencing.


Wisconsin Supreme Court

Following that idea to its conclusion would mean double jeopardy would not allow resentencing, Weinstein said, an idea that the U.S. Supreme Court has firmly rejected.

Prior Sentence

During rebuttal, Brehm maintained that it would be best to keep information about the prior sentence from the resentencing judge. In this case, it was clear that Schroeder was aware, he said.

In the end, Brehm said, the Supreme Court needs to hold that the State cannot do an end-run around a plea agreement, which happened here. The State has an obligation to provide some argument in support of the plea agreement, he said.

Justice Diane S. Sykes noted that it would be a stretch for the court to tell prosecutors they had to say something nice about the defendant when a plea agreement was involved.

Brehm noted that if the State did not want to support the plea agreement, it should have given Naydihor the ability to withdraw from the plea before the original sentencing.

The justices will issue a decision in the matter next year.

Tony Anderson can
be reached by email.

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