COURT OF APPEALS DECISION DATED AND FILED May 12, 2010 David
R. Schanker 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. |
|
|||
STATE OF WISCONSIN |
IN COURT OF APPEALS |
|||
|
DISTRICT II |
|||
|
|
|||
|
|
|||
State of
Plaintiff-Respondent, v. Matthew J. Hildebrand,
Defendant-Appellant. |
||||
|
|
|||
APPEAL
from a judgment and order of the circuit court for
Before Brown, C.J., Anderson and Snyder, JJ.
¶1 PER CURIAM. Matthew Hildebrand appeals from a judgment of conviction of two counts of third-degree sexual assault of a child and from an order denying his postconviction motion for sentence modification and credit. We conclude that Hildebrand is entitled to sentence credit for the time in jail on Fond du Lac county charges that were, pursuant to the plea agreement, read-in, and that upon resentencing the circuit court properly exercised its discretion in giving Hildebrand a longer sentence. We affirm the judgment and order in part; reverse them in part, and remand with directions to give Hildebrand the sentence credit he is due.
¶2 The case has a complicated procedural history. On December 10, 2003 Hildebrand was charged
with multiple counts of sexual assault of children in
¶3 Hildebrand’s
¶4 Hildebrand entered an Alford plea and was sentenced on May 7,
2007. After the prosecutor recited the
joint sentencing recommendation under the plea agreement, Hildebrand added that
the recommendation included credit back to the initial date of incarceration,
December 5, 2003, and that the
¶5 Just four days after sentencing the parties appeared before
the circuit court because the court had been informed by the DOC that the
sentence imposed exceeded the maximum allowed by law at the time of the offense. It was determined that a mutual mistake had
been made as to the maximum penalty for third-degree sexual assault. The circuit court vacated the sentence
because both the prison term and probation term exceeded the allowable
five-year maximum. The court found that
it was not required to merely commute the excessive sentence because the
original objective of the sentence was frustrated.
¶6 Hildebrand was resentenced July 18, 2007 to two consecutive
five-year terms of imprisonment. The
court denied Hildebrand sentence credit dating back to December 5, 2003, on the
ground that Hildebrand was not confined for the course of conduct for which he
was being sentenced. The court observed
that the
¶7 Hildebrand’s postconviction motion argued that the excessive sentence should only have been commuted under Wis. Stat. § 973.13 (2007-08),[3] and that sentence credit dating back to December 5, 2003 should have been granted under Wis. Stat. § 973.155. The postconviction motion was denied. Hildebrand appeals.
¶8 The State defends the circuit court’s refusal to grant
sentence credit from the time of Hildebrand’s confinement on the
¶9 With respect to resentencing, we acknowledge that an
excessive portion of the sentence is void and may be commuted under Wis. Stat. § 973.13,[5]
without further proceedings. See
also Wis. Stat. § 973.09(2m) (employing the same language for
commuting a term of probation in excess of the maximum authorized by
statute). However, Holloway, 202
¶10 We turn to consider whether the longer sentence imposed on
resentencing was a proper exercise of discretion. A judge does not retain unlimited discretion
when resentencing a defendant in the face of a prior invalid sentence.
When a defendant is resentenced for the purpose of correcting a prior invalid sentence, and when, as compared with the original sentence, the liberty interests of the defendant are substantially and adversely affected, the trial court must state on the record the reasons for so modifying the first sentence. His reasons must be based upon a desire to implement the original dispositional scheme as manifested by the record in the first sentencing proceeding.
¶11 Although initially the sentencing court’s remarks read like an original sentencing proceeding,[7] the sentencing court did relate the longer sentence to the original sentencing objectives. It noted how its original sentencing objectives to punish Hildebrand by requiring additional incarceration and protect the public by a long period of supervision with a possible ten-year sentence hanging over Hildebrand were totally frustrated by the fact that the maximum was in fact only five years. It concluded that without taking into account the credit issue Hildebrand would serve very little time in prison, if any, over and above the time he already served if the court was limited to just a five-year maximum. Additionally, it found that because Hildebrand no longer faced the possibility of going back to prison for up to ten years if he failed on probation, its objective to protect the public was diminished by fifty percent. It also found the five-year maximum “lessened considerably” Hildebrand’s incentive not to violate probation. The sentencing court observed that anything less than the maximum would deprive the sentence of any value in sending a message of deterrence to others. The sentencing court exercised its discretion to increase Hildebrand’s sentence in a manner that was based upon a desire to implement the original dispositional scheme. The sentence is affirmed but we reiterate that on remand the sentencing court must enter a new judgment giving Hildebrand sentence credit from December 5, 2003.
By the Court.—Judgment and order affirmed in part, reversed in part, and cause remanded with directions.
This opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)5.
[1] An Alford plea is a guilty plea where a
defendant pleads guilty to a charge but either protests his or her innocence or
does not admit to having committed the crime.
[2] The letter memorandum reporting the agreement to the circuit court is not in the record. The plea questionnaire merely indicated that the plea agreement was “previously forwarded to the court.”
[3] All references to the Wisconsin Statutes are to the 2007-08 version unless otherwise noted.
[4] The State’s position is disingenuous because it was the prosecutors’ inattention to detail that caused confusion in the record and led to the dispute. Moreover, the plea agreement called for the very credit that the prosecutor later refused to advance. The prosecutors tried to short-change Hildebrand and did not own up to their own responsibility in creating the confusion. The result appears to be an unfortunate example of prosecutors being financially shortchanged by the legislature. It is not this court’s place to excuse unacceptable prosecution practice based upon agency budgets, trial court mistakes based on that faulty practice by prosecutors, or to visit the government’s shortcomings on a defendant.
[5] Wisconsin Stat. § 973.13 provides: “In any case where the court imposes a maximum penalty in excess of that authorized by law, such excess shall be void and the sentence shall be valid only to the extent of the maximum term authorized by statute and shall stand commuted without further proceedings.”
[6] Hildebrand
cites to State v. Flowers, 221
[7] The sentencing court gave closer examination at the resentencing to Hildebrand’s character, the gravity of the offenses, and Hildebrand’s failure to accept responsibility for his action than it did at the original sentencing. However, the court stuck to the original record and this is not a circumstance where a presumption of vindictive sentencing is triggered. See State v. Church, 2003 WI 74, ¶53, 262 Wis. 2d 678, 665 N.W.2d 141 (the North Carolina v. Pearce, 395 U.S. 711, 726 (1969), presumption of vindictive sentencing was triggered by the imposition of a longer sentence when the court treated the resentencing as an opportunity to revisit the original sentence based upon updated information and argument).