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Sentence Case Analysis

The court’s decision seems to adopt all three of the Wisconsin Court of Appeals’ decisions since U.S. v. DiFrancesco, 449 U.S. 117 (1980), as well as the result, if not the reasoning, in State v. North, 91 Wis.2d 507, 283 N.W.2d 457 (Ct.App.1979).

Nevertheless, the holding in State v. Burt, 2000 WI App 126, 237 Wis.2d 610, 614 N.W.2d 42, and language in State v. Willett, 2000 WI App 212, 238 Wis.2d 621, 618 N.W.2d 881, discussing Burt, may not actually be consistent with the court’s holding.

In Burt, two defendants were sentenced on an assortment of crimes stemming from an armed robbery and homicide. Burt received concurrent sentences.

Later in the same day, the same judge gave Burt’s accomplice consecutive sentences. When the accomplice’s attorney objected, the court had Burt brought back into court, and changed his sentences to consecutive ones, stating that he misspoke, and labelling Burt “the more aggressive actor in the matter.” The court of appeals upheld the resentencing.

In Willett, the sentence was changed months later, after the sentencing court realized that it had incorrectly assumed that consecutive sentences were not permissible under the circumstances.

Distinguishing Burt, the court relied on several factors. One was the length of time between the sentences — four months as opposed to less than a day.

However, the court in Willett also said that the “perhaps most important” factor in Burt had been that the concurrent sentence was the result of a “slip of the tongue” on the part of the trial court.

In the wake of the decision in the case at bar, however, this may not be a relevant factor, at all, much less an important one.

The primary consideration is whether the defendant has a “legitimate expectation of finality” in the original sentence. That expectation is to be viewed in light of the factors listed in State v. Jones, 2002 WI App 208, 257 Wis.2d 163, 650 N.W.2d 844: “the completion of the sentence, the passage of time, the pendency of an appeal, or the defendant’s misconduct in obtaining sentence.”

However, the reason for the original sentence being incorrect is irrelevant to the defendant’s legitimate expectations, at least in some cases.

From the moment of sentencing, a defendant given concurrent sentences has wholly legitimate expectations that will be honored, and not be changed to consecutive ones.

As time passes, that expectation will be reinforced, but the fact that the judge misspoke will have no effect on the expectation. If anything, from the perspective of a defendant, a lengthy debate over the court’s authority in imposing sentence is far more likely to cause him to question the finality of his sentence than a “slip of the tongue” which engenders no questions at the original sentence.

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On the other hand, the factor that clearly is the most important is whether the error is obvious, rather than the length of time that passes.

Gruetzmacher received a 40-month sentence for a crime that carried a maximum of 24 months. Whatever expectations he may have had, they could not be deemed “legitimate.”

Even after passage of months, his expectations should be considered less legitimate than those of a defendant who received a lawful sentence earlier in the day.

Thus, it is arguable that the decision in the case at bar only applies to obvious errors and does not support the holding in Burt, at all, because the error was not “obvious.” It is noteworthy that, in framing the issue it was deciding, the court only referred to “obvious errors.”

Nevertheless, given the court’s discussion of, and apparent approval of, the decision in Burt, such an argument may be difficult to make successfully.

– David Ziemer

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David Ziemer can be reached by email.

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