The decision in this case finally brings Wisconsin law into accord with federal law on this issue, after decades of misapplication.
It was only last term, in State v. Church, 2003 WI 74, 262 Wis.2d 678, 702-704, 665 N.W.2d 141, that the Wisconsin Supreme Court finally held in no uncertain terms that North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072 (1969), was the governing law in these cases, rather than State v. Leonard, 39 Wis.2d 461, 159 N.W.2d 577 (1968).
It should be noted that, although the court here has affirmed the court of appeals, the rationale is different, and the reasoning of the court of appeals decision was effectively overruled with the decision in Church.
The court of appeals holding that the presumption that a longer sentence on resentencing is vindictive is limited to resentencings occurring after retrial, and does not apply in the absence of a retrial was rejected by the Supreme Court in Church.
With the decision in the case at bar, the court again embraces Pearce, but finds grounds to distinguish it, consistent with U.S. Supreme Court precedent that did so long ago.
A key question that the courts decision raises, however, is whether, in Wisconsin, there will ever be a presumption of vindictiveness found.
The court found in the case at bar that it did not arise, based on two factors: the subsequent sentencing was performed by a different judge; and the original conviction or sentence was not reversed because of an error by the original circuit court, but by the prosecutor.
For all practical purposes, however, the subsequent sentencing will always be by a different judge. As happened in this case, when a judge vacates a sentence because of prosecutorial misconduct, reassignment to a different judge is always done, to insulate the sentencing judge from the impropriety.
When a case is reversed on appeal and remanded to the circuit court, the case is likewise assigned to a different judge unless nothing remains for judgment or discretion. State ex rel. J.H. Findorff & Son, Inc., v. Circuit Court for Milwaukee County, 2000 WI 30, 233 Wis.2d , 608 N.W.2d 679.
Only in those cases in which the defendant wants the same judge to resentence him will the subsequent sentencing not be conducted by a different judge. Assuming he does so, it is then arguable that waiver should apply, and he should not be able to benefit from the presumption, when he could easily have been resentenced by a different judge.
When a different judge performs the resentencing, the second factor becomes irrelevant as well. Even if the defendants conviction was reversed because of error by the circuit court, rather than the prosecutor, the resentencing will not be by the same circuit court that erred.
The court expressly rejected an argument that the presumption should still apply because the different judges may stick together.
The court stated, We decline to adopt the view that the judicial temperament of our states trial judges will suddenly change upon the filing of a successful post-trial motion (cites omitted).
So, for all intents and purposes, the analysis of whether the presumption of vindictiveness is present will generally be a pro forma finding in the negative, and only the only issue will be whether an on-the-record, logical, and nonvindictive basis is given for an increased sentence or whether actual vindictiveness is shown.
– David Ziemer
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David Ziemer can be reached by email.