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COURT OF APPEALS DECISION DATED AND RELEASED September
6, 1995 |
NOTICE |
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A party may file with the Supreme Court a petition to review an
adverse decision by the Court of Appeals.
See § 808.10 and Rule
809.62, Stats. |
This opinion is subject to further editing. If published, the official version will appear in the bound
volume of the Official Reports. |
No. 95-0882-CR
STATE OF WISCONSIN IN
COURT OF APPEALS
DISTRICT II
STATE
OF WISCONSIN,
Plaintiff-Respondent,
v.
DONALD
J. JOHNSON,
Defendant-Appellant.
APPEAL
from a judgment of the circuit court for Kenosha County: MICHAEL S. FISHER,
Judge. Reversed and cause remanded.
SNYDER,
J. Donald
J. Johnson appeals from the increased penalties imposed on his resentencing for
two convictions of disorderly conduct (repeater), contrary to §§ 947.01 and
939.62, Stats. Johnson contends that the three-year
sentence increase after he began to serve the original sentences violates his
double jeopardy rights. We agree and
reverse.
The
facts are undisputed. On March 7, 1992,
Johnson committed two counts of disorderly conduct while an inmate at the
Kenosha county jail awaiting trial on charges of felony battery and
second-degree reckless endangerment. A
jury convicted Johnson of the battery and reckless endangerment charges, and he
received an eleven-year prison sentence on July 31, 1992.[1] He appealed those convictions.
On
January 23, 1993, Johnson entered pleas of no contest to the March 7, 1992,
disorderly conduct charges and received concurrent sentences of two years,
consecutive to the existing eleven-year sentence. On April 27, 1994, his
battery and reckless endangerment convictions were reversed on appeal
and the matters remanded for a new trial.[2] The remitted matters were scheduled for
trial on November 7, 1994.
A
hearing to address the impact of the vacation of the eleven-year sentence on
the disorderly conduct charges occurred on August 16, 1994.[3] At that hearing, Johnson was resentenced to
consecutive prison terms of two and three years, an increase of three years
over the original sentence.[4]
Whether
Johnson's second, harsher sentence violates due process protections presents a
question of constitutional fact. We
review such questions independently of the trial court's determination. State v. Turner, 136 Wis.2d
333, 344, 401 N.W.2d 827, 832 (1987).
Moreover, the historical facts are not in dispute, permitting us to
engage in an independent review. Id.
We
begin by addressing whether Johnson's double jeopardy argument is cognizable
under these facts. The issue of double
jeopardy arises in multiple punishments for the same offense. State v. Martin, 121 Wis.2d
670, 675, 360 N.W.2d 43, 46 (1985). In
Wisconsin, the double jeopardy guarantee prevents a trial court from increasing
a sentence after the defendant has commenced serving the sentence. Id. at 677, 360 N.W.2d at 47.
This
rule is subject to exceptions that depend upon the reason for the increased
penalty at resentencing. Double
jeopardy does not apply where a correction to an original invalid sentence
results in a sentence increase, id. at 677-78, 360 N.W.2d at 47
(citing Bozza v. United States, 330 U.S. 160, 167 (1947)), or
where an increased sentence occurs after a retrial. Id. at 678, 360 N.W.2d at 47 (citing North
Carolina v. Pearce, 395 U.S. 711, 723 (1969), overruled on other
grounds, 490 U.S. 794 (1989)).
These exceptions do not apply to Johnson; the validity of his original
sentences is not disputed, and he was not retried.
Johnson
was originally sentenced to a total of two years in prison for the disorderly
conduct convictions. The addition of
three years to that sentence clearly represents additional punishment for the
same two offenses. We are satisfied
that Johnson's double jeopardy argument is cognizable.
We
now address whether the original disorderly conduct sentences commenced prior
to the imposition of the additional three years at resentencing. A modification to amend sentencing would run
afoul of the double jeopardy guarantee when the court seeks to increase
sentences already being served. State
v. North, 91 Wis.2d 507, 509-10, 283 N.W.2d 457, 458-59 (Ct. App. 1979)
(citing United States v. Benz, 282 U.S. 304, 308-09 (1931)).
Johnson
was in custody at the August 16, 1994, resentencing hearing. At that hearing, the prosecutor conceded
that “[t]his [disorderly conduct] sentencing would begin on the date of
remittitur” of the battery and reckless endangerment case, and further conceded
that “[t]hat case was remitted on April 27, 1994.”
In
addition, the trial court's findings support a sentence commencement date prior
to resentencing:
The
Court does believe under the circumstances I guess [that Johnson] should
receive credit from on or about March 7th.
You have been in custody. You
have been serving time, and there is no other crime for which you have been
convicted that you were serving that time on. [Emphasis added.]
We conclude that Johnson's concurrent disorderly conduct
sentences commenced prior to the trial court's imposition of the increased
sentences.
Having
determined that Johnson's original sentence was valid, that Johnson's increased
sentence is subject to double jeopardy analysis and that his disorderly conduct
sentences commenced prior to the imposition of the additional three years at
resentencing, we are compelled to agree with Johnson that his due process
rights were violated.
While
Johnson's postconviction success in overturning the prior criminal sentence of
eleven years may have frustrated the trial court's intentions that Johnson
serve more than two years in prison, that frustration arises solely from a
“sentencing flaw” in the otherwise valid disorderly conduct sentences. We are satisfied that a sentencing flaw in
an otherwise valid and legal sentence must be addressed prior to the
commencement of the original sentence in order to avoid double jeopardy
protections.
The
State argues that Johnson enjoys an undeserved windfall here due to his
successful appeal of the prior conviction and the vacation of the attending
sentence. This court previously
addressed the defendant windfall concern when we acknowledged that “[t]he
potential for abuse in broad judicial power to increase sentences outweighs the
possibility of giving a few defendants the benefits resulting from a judicial
mistake.” North, 91
Wis.2d at 511, 283 N.W.2d at 459 (quoting United States v. Turner,
518 F.2d 14, 17 (7th Cir. 1975)).
We
hold that the trial court erred by increasing
the otherwise valid disorderly conduct sentences by three years after
Johnson had commenced the sentences.
The three-year sentence increase subjected Johnson to double punishment
for the same charges. We therefore
reverse the resentencing judgment of conviction and remand this case with
directions to reinstate the original sentence.
By
the Court.—Judgment reversed
and cause remanded.
This
opinion will not be published. See
Rule 809.23(1)(b)4, Stats.
[1] Johnson was
sentenced to three years on the felony battery charge and eight years
consecutive on the reckless endangerment charge.
[3] Normally, a
sentence review occurs in response to a defendant's motion to modify a sentence
pursuant to § 973.19, Stats., or
a defendant's motion for postconviction relief pursuant to § 974.06, Stats.
Here we have neither. We note
that defense counsel told the trial court that the prosecutor “was wise in
bringing [the sentence status] before the Court” and conclude that the matter
was brought as a State motion for resentencing. Johnson did not object to the hearing, contending that the
concurrent sentences had been retroactively served with two years and 162 days
credit.
[4] At the original
sentencing, the State had recommended “two years on each count, consecutive to
each other and consecutive to the time that the defendant is presently
serving.” At the resentencing hearing, the State recommended “the maximum
amount of time, which would be six years on the sentence retroactive to the
original sentencing date.”