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Stiffer sentence after appeal upheld

Wilcox

Hon. Jon P. Wilcox

The imposition of a longer sentence after a defendant’s successful challenge to the original sentence did not violate due process, the Wisconsin Supreme Court held on April 15, where the victim’s condition had worsened since the original sentencing.

On Feb. 25, 2000, Victor Nay-dihor 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 he pleaded guilty to the first count, 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.

Prior to sentence, Naydihor failed to appear for the presentence investigation and tested positive for marijuana. As a result, he was also charged with bail jumping.

On July 6, 2000, Naydihor pleaded guilty to that charge, and was sentenced on both charges. Kenosha County Circuit Court Judge Barbara A. Kluka sentenced Naydihor to three years’ initial confinement followed by five years of extended supervision on the great bodily harm offense and 10 years of consecutive probation on the bail jumping offense.

Naydihor moved for postconviction relief, requesting resentencing, and contending that the State had repudiated the plea 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 deterioration in her financial and physical condition since the time of the initial sentencing. 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 $75,000 from $30,000 at the original sentencing, and that the money from her uninsured motorist coverage had not covered her expenses.

Judge Schroeder then sentenced Nay-dihor 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, arguing that the stiffer sentence violated due process, but Judge Schroeder denied the motion. Naydihor appealed, but the court of appeals affirmed in a published decision, State v. Naydihor, 2002 WI App 272, 258 Wis.2d 746, 654 N.W.2d 479.

The Supreme Court accepted review, but also affirmed, in a unanimous decision by Justice Jon P. Wilcox.

No Presumption

The court first held that there was no presumption of judicial vindictiveness, even though Naydihor received a longer sentence the second time around.

The presumption in such cases was announced by the U.S. Supreme Court in North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072 (1969).

What the court held

Case: State of Wisconsin v. Victor Naydihor, 01-3093-CR & 01-3094-CR.

Issue: When a defendant receives a harsher sentence after prevailing on a postconviction motion, does the presumption of vindictiveness always apply?

Is the deterioration of the victim’s health and financial situation since the original sentence an acceptable reason for imposing a harsher sentence than the original?

Holding: No. Where the subsequent sentencing is performed by a different judge, and the original sentence was vacated because of prosecutorial error, rather than judicial error, the presumption does not arise.

Yes. Even though it is not an action by the defendant, it is a logical, non-vindictive basis for a harsher sentence.

Counsel: Philip J. Brehm, Janesville, for appellant; Warren D. Weinstein, Peggy A. Lautenschlager, Madison, for respondent.

However, the presumption was limited in Texas v. McCullough, 475 U.S. 134, 106 S.Ct. 976 (1986). In McCullough, the defendant received a 20-year sentence, successfully appealed, and then was given a 50- year sentence after a second trial.

Nevertheless, the Supreme Court found no presumption of vindictiveness attached, because of significant damaging evidence that was presented only at the second trial, but not in the first.

Relying on McCullough, the court in the case at bar also found no presumption of vindictiveness, citing two factors: a different judge imposed the second sentence; and the first sentence was vacated by the very judge who imposed it, rather than by an appellate court.

The court reasoned, “Consistent with the approach taken by the United States Supreme Court, we hold that the Pearce presumption of vindictiveness does not apply here because the defendant was resentenced by a different judicial authority at his request due to a non-judicial defect
at the original sentence hearing, and the resentencing was granted by the original court in which the defect occurred. … As there was no hazard that Naydihor was being penalized for seeking enforcement of the terms of his plea bargain, the Pearce presumption does not apply to this case.”

No Vindictiveness

The court continued, holding that, even if the Pearce presumption were to apply, “the presumption was overcome because the new information regarding the deteriorated condition of the crime victim constituted objective evidence of an event occurring after the initial sentence that provided a nonvindictive justification for the circuit court’s imposition of a more severe sentence.”

Naydihor maintained that such information could not be used to impose a harsher sentence, arguing, “while a defendant may anticipate being given a harsher sentence because of some conduct on his part or an existing fact about him that has recently come to light, he has no way of anticipating that the condition of the crime victim may deteriorate after his original sentence. Therefore, … allowing an increased sentence based on this information would discourage defendants from challenging their pleas.”

The court acknowledged that no prior decision holds that the deteriorated condition of a crime victim constitutes objective information of an event that would overcome the Pearce presumption. Nevertheless, the court found that the reasoning of decisions applying Pearce allow a sentence to be increased on this basis without violating due process.

The court found, “These decisions reveal that the focus of Pearce was not on the underlying behavior of the defendant; rather, the Pearce presumption was created to remedy the situation where a sentencing court did not explicitly set forth objective information justifying a sentence increase on the record. Thus, the Pearce presumption exists to force courts to provide on-the-record justification for sentence increases, so as to remove fear that courts will, out of vindictiveness, punish defendants for exercising their appellate rights.”

Quoting Wasman v. U.S., 468 U.S. 559, 568 (1984), the court iterated, “If it was not clear from the Court’s holding in Pearce, it is clear from our subsequent cases applying Pearce that due process does not in any sense forbid enhanced sentences or charges, but only enhancement motivated by actual vindictiveness toward the defendant for having exercised guaranteed rights.”

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Case Analysis

The court also rejected Naydihor’s argument based on the “chilling effect” that upholding his sentence could have on defendant’s exercising their appellate rights, citing Chaffin v. Stynchcombe, 412 U.S. 17, 29 (1973): “Pearce … provides no foundation for this claim. To the contrary, the Court there intimated no doubt about the constitutional validity of higher sentences in the absence of vindictiveness despite whatever incidental deterrent effect they might have on the right to appeal.”

The court added, “Pearce and its progeny clearly require that any sentence increase must be based on objective information not known to the court at the initial sentencing that relates to legitimate sentencing factors and is explained on the record.”

The court acknowledged that in its recent decision in State v. Church, 2003 WI 74, par. 55, 262 Wis.2d 678, 665 N.W.2d 141, it suggested that a sentence could only be increased based on “events … subsequent to the original sentencing proceeding,” and did not elaborate on what constituted an “event.”

Nevertheless, the court found, “nothing in Church precludes a court from increasing a sentence based on new objective information of an event such as the victim’s deteriorated condition, which occurs subsequent to the original sentencing.”

Applying Pearce and its progeny, the court then found that the deterioration in the victim’s health and financial situation because of the crime constituted an objective and nonvindictive reason that justified an increased sentence. Accordingly, the court affirmed.

Click here for Case Analysis.

David Ziemer can be reached by email.

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