Reconfinement Case Analysis

Listen to this article

Admittedly, when a defendant is reconfined after revocation of extended supervision, the need for review of the original sentence and presentence investigation (PSI) is not as great as when the court originally withheld sentence, and the defendant is subsequently sentenced after revocation of probation, which was the case in State v. Reynolds, 2002 WI App 15, 249 Wis.2d 798, 643 N.W.2d 165. Nevertheless, the court’s decision could result in injustice in some cases.

Usually, when sentence is withheld, the reason is that the defendant’s conduct is not that severe; this was the original sentencing court’s conclusion in Reynolds. If it was severe, the court presumably would have sentenced the defendant to prison, rather than withholding sentence.

Before Reynolds was decided, the scenario that played out in that case was all too familiar: a defendant commits a felony, but the conduct is not very severe; as a result, the court withholds sentence and places him on probation; the defendant violates probation; and on sentencing, a different judge looks only at the failure to comply with probation, without examining the severity of the underlying offense, and imposes a sentence that is excessive, both relative to the severity of the offense, and relative to what anyone present at the original sentencing (defense counsel, prosecutor, or judge) would have deemed appropriate if sentencing had been imposed then.

In an extended supervision context, such as the case at bar, the potential for an excessive reconfinement sentence is not as great. The original sentencing court has already imposed a prison sentence, so the conduct is, presumably, more serious than if sentence was withheld.

Furthermore, it can be argued that, there has already been a prior judicial determination that, should the defendant be revoked, a reconfinement sentence up to the length of the supervision term may be appropriate.

However, that may not always be the case. The court at the original sentencing may have imposed a very lengthy term of extended supervision out of a desire to keep the defendant on supervision as long as possible, not because of the severity of the offense.

For example, if the defendant’s criminal conduct is the result of a gambling problem, the court may have imposed a lengthy supervision term, because the court can then require that he stay out of casinos as a condition of that supervision; the longer the supervision, the longer the defendant can be legally barred from casinos.

Such a sentence may not reflect an implication that, if the defendant is revoked, reconfinement for the entire available period is appropriate. It is possible that the original sentencing court would consider reconfinement to the maximum to be excessive, even if the defendant does fail to comply with the terms.

As a result, defense attorneys should attempt to distinguish this case, if there is something in the original sentencing transcript that explicitly suggests that the reconfinement order is excessive.

Given the decision in the case at bar, counsel will get nowhere arguing that, as a matter of law, the court failed to consider all the appropriate factors by not considering the original sentence transcript or PSI. Nevertheless, if a defendant can show, on an individual basis, that the failure resulted in a reconfinement order that is contrary to an explicit finding by the original court as to the severity of the offense, perhaps this case could be distinguished.

In Reynolds, the court stated, in withholding sentence, that the offense was “on the lower end” regarding severity of the offense. Reynolds, 249 N.W.2d at 802. After revocation of probation, a different court stated that the offense was “extremely serious.” Id., at 804.

If a defendant can show a similar discrepancy in the assessment of the gravity of the offense, the court may have a principled basis to distinguish the case at bar, and find Reynolds more applicable.

Attorneys seeking to avoid the holding in this case should also be aware of a flawed paragraph, discussing State v. Wegner, 2000 WI App 231, 239 Wis.2d 96, 619 N.W.2d 289.

The court wrote, “In [Wegner], we considered this very issue. There the judge imposing a reconfinement sentence was the same judge who imposed the original sentence. As in [State v. Swiams, 2004 WI App 217, 277 Wis.2d 400, 690 N.W.2d 452], we held that the circuit court’s duty at sentencing after revocation and its duty at the original sentencing were the same. Nonetheless, we clarified the reconfinement court’s responsibilities. We held that when a person is being sentenced after revocation, ‘it is the obligation of the defendant to make the court aware of positive adjustments.’ We also delineated a global approach, stating that ‘[w]e will review the two sentencing proceedings on a global basis, treating the latter sentencing as a continuum of the first.’ Our stated goal in this regard was to prevent ‘mismanagement of judicial resources to require a court to go back to square one when sentencing after revocation.’ Finally, we held that proper sentencing discretion can exist without an explicit delineation of the McCleary sentencing factors at reconfinement. There must, however, be an indication that the circuit court considered those factors. Ultimately, we concluded that as long as the reconfinement court considered the proper factors and the sentence was within the statutory limits, ‘the sentence will not be reversed unless it is so excessive as to shock the public conscience’ (citations omitted).”

The first and most obvious flaw in the discussion is that Wegner was not a reconfinement case. Like Reynolds, it involved sentencing after revocation of probation, where the court had withheld sentence at the original sentencing.

	Related Links Wisconsin Court System Related Article Reconfinement need not review sentence

Second, the court fails to place any significance on the fact that, in Wegner, the judge imposing sentence after revocation was the same judge who withheld sentence originally, while, in the case at bar, it is a different judge. Where the judge is the same, it makes more sense to review the two hearings “on a global basis”; it can be presumed that the court has considered all the McCleary factors, including severity of the offense.

However, where the judges are different, as in the case at bar, and the only evidence considered at the reconfinement hearing is post-sentencing behavior, it cannot be assumed that the court has, in fact considered the severity of the underlying offense in ordering reconfinement.

The court in Wegner explicitly stated as much, “We conclude that when the same judge presides at the sentencing after revocation and the original sentencing, the judge does not have to restate the reasons supporting the original sentencing; we will consider the original sentencing reasons to be implicitly adopted (emphasis added).”

The reliance on Wegner in the case at bar is thus misplaced, or at least overstated, and attorneys seeking to distinguish it should be prepared to emphasize that.

– David Ziemer

Click here for Main Story.

David Ziemer can be reached by email.