COURT OF APPEALS DECISION DATED AND FILED June 10, 2015 Diane M. Fremgen Clerk of Court of Appeals |
|
NOTICE |
|
|
This opinion is subject to further editing. If published, the official version will appear in the bound volume of the Official Reports. A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals. See Wis. Stat. § 808.10 and Rule 809.62. |
|
Appeal No. |
Cir. Ct. No. 2005CF189 |
|||
STATE OF WISCONSIN |
IN COURT OF APPEALS |
|||
|
DISTRICT II |
|||
|
|
|||
|
|
|||
State of Wisconsin, Plaintiff-Respondent, v. Rogelio R. Rodriguez, Defendant-Appellant. |
||||
|
|
|||
APPEAL from a judgment of the circuit court for Walworth County: David m. reddy, Judge. Affirmed.
Before Neubauer, P.J., Reilly and Gundrum, JJ.
¶1 PER CURIAM. Rogelio R. Rodriguez successfully moved, pursuant to Wis. Stat. § 971.08(2) (2013-14)[1] and State v. Douangmala, 2002 WI 62, 253 Wis. 2d 173, 646 N.W.2d 1, to vacate his conviction and withdraw his guilty plea on grounds that the trial court failed to personally advise him of deportation consequences as § 971.08(1)(c) requires. He asserts that his lengthier new sentence violates his right to be free of double jeopardy. We affirm.
¶2 Rodriguez, a Mexican citizen, has resided in the United States since 1996. In 2005 he pleaded guilty to operating a vehicle while under the influence of an intoxicant (OWI), fifth or greater offense. The sentence imposed by Judge John Race comprised two years’ initial confinement (IC) and three years’ extended supervision (ES). His sentence was stayed in favor of three years’ probation. Rodriguez was discharged from probation in 2008.
¶3 In 2013, Rodriguez successfully sought vacatur and leave to
withdraw his 2005 plea based on the defective plea colloquy. He then entered a new guilty plea to the 2005
OWI violation. Judge David Reddy
sentenced him to eighteen months each of IC and ES. His 400 days of sentence
credit included the 360 days he had served in jail as a condition of his 2005
probation.
¶4 Rodriguez
appeals. He argues that Judge Reddy’s harsher
sentence violates the prohibition against double jeopardy because it is a
second punishment for the same OWI offense.
¶5 The
fifth amendment to the United States Constitution and art. I, sec. 8 of the
Wisconsin Constitution protect criminal defendants from being subjected to
double jeopardy. The protection germane here is the safeguard against multiple
punishments for the same offense. “Whether
an individual has been placed in jeopardy twice for the same offense is a
question of law that this court reviews de novo.” State v. Clark, 2000 WI App 245, ¶4,
239 Wis. 2d 417, 620 N.W.2d 435.
¶6 The double jeopardy guarantee does not preclude resentencing if the conviction is vacated. State v. Martin, 121 Wis. 2d 670, 682, 360 N.W.2d 43 (1985). A court may impose a more severe sentence on resentencing, but its reasons for doing so must “affirmatively appear” and cannot be the result of vindictiveness. North Carolina v. Pearce, 395 U.S. 711, 725-26 (1969), overruled in part on other grounds, Alabama v. Smith, 490 U.S. 794 (1989). Pearce has been interpreted as applying “a presumption of vindictiveness, which may be overcome only by objective information in the record justifying the increased sentence.” United States v. Goodwin, 457 U.S. 368, 374 (1982). “‘[T]he evil the [Pearce] Court sought to prevent’ was not the imposition of ‘enlarged sentences after a new trial’ but ‘vindictiveness of a sentencing judge.’” Smith, 490 U.S. at 799 (second alteration in original; citation omitted).
¶7 Here there is objective information in the record justifying the increased sentence. Unlike Judge Race, Judge Reddy had the benefit of a PSI and COMPAS risk assessment tool. Also, the parties at the 2005 sentencing had stipulated to a joint recommendation, the rationale for which does not appear in the first sentencing transcript. At the 2014 hearing, however, they presented sentencing arguments that fleshed out aggravating and mitigating factors.
¶8 Judge Reddy found the most applicable sentencing objectives to be the protection of the community, punishment and rehabilitation of the defendant, and deterrence of others. He explained that probation would depreciate the severity of fifth-offense OWI, that progressive punishment dictates a prison sentence,[2] and that treatment could best be provided through confinement.
¶9 No reasonable likelihood of vindictiveness exists when a different judge undertakes the resentencing. See State v. Naydihor, 2004 WI 43, ¶¶34-35, 270 Wis. 2d 585, 678 N.W.2d 220. Beyond that, nothing in Judge Reddy’s actual remarks suggests that he had a motive to retaliate against Rodriguez for successfully challenging the previous sentence. See id., 270 Wis. 2d 585, ¶55. The Pearce presumption therefore does not apply. Naydihor, 270 Wis. 2d 585, ¶¶35, 55. Even if it did, the objective information in the record justifying the increased sentence would have overcome it. See id., ¶33.
¶10 “[W]here the presumption does not apply, the defendant must
affirmatively prove actual vindictiveness.”
Wasman v. United States, 468 U.S. 559, 569 (1984); Naydihor,
270 Wis. 2d 585, ¶33. Rodriguez does not
address vindictiveness at all, however. He argues instead that the analytical framework for double jeopardy is the defendant’s
legitimate expectation of finality in the sentence, which may be influenced by
factors such as the completion of the sentence and the passage of time. See
State
v. Jones, 2002 WI App 208, ¶10, 257 Wis. 2d 163, 650 N.W.2d 844. He contends his resentencing unsettled the expectation of finality he had
once he completed the sentence Judge Race imposed and almost six years passed
since his discharge from probation.
¶11 The
record does not bear out his expectation-of-finality claim. Upon successfully withdrawing his plea and
having his conviction vacated, Rodriguez requested a jury trial. When he decided to plead guilty, the plea
questionnaire and waiver of rights form informed him that the court was not
bound by the parties’ negotiations or recommendations but could sentence him to
the maximum penalty. As he did not
supply a transcript of the plea hearing, we presume it would show that the
trial court confirmed his understanding on the record. See Austin
v. Ford Motor Co., 86 Wis. 2d 628, 641, 273 N.W.2d 233 (1979).
¶12 Finally,
Rodriguez asserts that, as the legislature enacted Wis. Stat. § 971.08(2) to be curative, it did not
intend the statute to allow increased penalties when a defendant exercises the
remedy provided. Besides raising the
argument for the first time on appeal, he points to nothing in the language of
the statute or in the legislative history demonstrating that intent. Rather, he cites Douangmala, 253 Wis. 2d
173, ¶31, where the supreme court observed that the legislative history persuaded
it that “the legislature intended what the statute explicitly states.” The statute does not state, explicitly or
implicitly, that an increased penalty is forbidden on resentencing.
By the Court.—Judgment affirmed.
This opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)5.