COURT OF
APPEALS DECISION DATED AND
RELEASED April
3, 1996 |
NOTICE |
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
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This opinion is subject to further editing. If published, the official version will appear in the bound
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No. 95-1758-CR
STATE OF WISCONSIN IN
COURT OF APPEALS
DISTRICT II
STATE
OF WISCONSIN,
Plaintiff-Respondent,
v.
CHERYL
L. WELSCH,
Defendant-Appellant.
APPEAL
from a judgment and an order of the circuit court for Sheboygan County: JAMES J. BOLGERT, Judge. Affirmed in part; reversed in part and
cause remanded with directions.
Before
Anderson, P.J., Brown and Snyder, JJ.
SNYDER,
J. Cheryl
L. Welsch appeals from a judgment of conviction for one count of felony welfare
fraud contrary to § 49.12(9), Stats.,[1]
and an order denying her motion for postconviction relief. Welsch contends that the sentence imposed
was illegal because she received a stayed sentence and a withheld sentence for
the same conviction. She also argues
that she was denied statutory due process when she was assessed the costs of
her public defender representation without a hearing.
We
conclude that the sentence orally expressed by the trial court was legal. However, because the written judgment of
conviction does not properly reflect the oral pronouncement of the imposed
sentence, we reverse and remand to allow the trial court to bring the written
judgment into conformance. The
procedure used by the trial court in imposing the costs of representation by a
public defender afforded Welsch due process, and on that issue, we affirm.
The
facts concerning Welsch's sentencing are undisputed. Welsch pled no contest to one count of felony welfare fraud. As part of a plea agreement, an additional
misdemeanor welfare fraud count was dismissed but read in for sentencing
purposes. The State then recommended
three years of probation, thirty days of “condition time” and payment of restitution. Welsch requested that the trial court
consider community service in lieu of jail time because her fourteen-year-old
daughter had an attention deficit disorder, was in outpatient therapy and
required constant supervision.
After
considering Welsch's request, the trial court imposed the following sentence:
I will
withhold sentence; place you on probation for three years. As conditions you will pay restitution of
$2373.32, and [by] your own representation you will pay that at $500 a month
starting March 1st and on the first of each month thereafter that.
As a further
condition of probation, you're going to spend ten days in jail. I will impose another twenty days but stay
that.
This oral sentence was transposed to the judgment of
conviction as follows:
Sentence
Withheld, Probation Ordered
....
IT IS ADJUDGED that the defendant is convicted as found guilty, and ... is placed on
probation for 36 MO ... is to be incarcerated in the County Jail
[for a] period of ......... 10 DAYS COM 1/26/95 7PM; 20 DAYS IMPOSED AND
STAYED ....
Sentence
Legality
Welsch
complains that the sentence is illegal on both statutory and constitutional
grounds. Statutorily, she contends that
(1) her probation was wrongly based upon both a withheld and an imposed but
stayed sentence,[2] (2) the
sentence imposed exceeded statutory limits, and (3) the sentence failed to set
a definite term of probation. Her
constitutional claim is premised on her belief that she received two sentences
(punishments) for the same conviction and was thereby subjected to double
jeopardy.
Section
973.09(1)(a), Stats., provides in
relevant part:
Probation. (1) (a) ... [T]he court, by order, may withhold sentence or impose
sentence under s. 973.15 and stay its execution, and in either case place
the person on probation to the department for a stated period, stating in the
order the reasons therefor. The court
may impose any conditions which appear to be reasonable and appropriate. [Emphasis added.]
A determination of whether Welsch's sentence violates
§ 973.09(1)(a) requires the application of a statute to the facts of the
case. When we are called upon to apply
a statute to a set of facts and the facts are undisputed, only questions of law
remain, which we review de novo. First
Nat'l Leasing Corp. v. City of Madison, 81 Wis.2d 205, 208, 260 N.W.2d
251, 253 (1977).
Where
a statute is unambiguous, the court must give effect to its ordinary and
accepted meaning. DNR v.
Wisconsin Power & Light Co., 108 Wis.2d 403, 407, 321 N.W.2d 286,
288 (1982). In this case, the language
of the statute unambiguously requires a sentencing court to either withhold
sentence or impose sentence and stay its execution, but not both.
Welsch
argues that the court erred and gave her two sentences for one conviction: a withheld sentence and an imposed but
stayed twenty-day jail sentence. The
State maintains that the trial court unambiguously withheld sentence, placed
Welsch on probation for three years, ordered restitution and required that
Welsch serve thirty days of condition time, with twenty days of that time
stayed. According to the State, this
was a single sentence, properly imposed.
The written judgment reads as Welsch represents, and the State's
position is supported by the oral sentence pronouncement. Therefore, we conclude that a conflict
exists between the oral pronouncement of sentence and the written judgment of
conviction.
The
trial court's oral pronouncement unambiguously withheld sentence and placed
Welsch on three years of probation, subject to conditions. The State requested thirty days of condition
time. In response to Welsch's concern
about the welfare of her daughter during her incarceration, the trial court
crafted a modified thirty-day order.
The trial court stated, “As a further condition of probation, you're
going to spend ten days in jail. I will
impose another twenty days but stay that.”
The court was within its authority to impose condition time in that
fashion. See § 973.09(1), (4), Stats.
The
sentence conflict centers upon the written judgment's failure to relate the
total condition time imposed (thirty days) prior to breaking the time down into
the manner in which the condition time was to be implemented. In order to comply with the clear
pronouncement of the trial court, the judgment should have read that Welsch was
to serve a “period of .......... 30 days, 10 days to be served
commencing 1/26/95, remaining 20 days stayed,” or words to that effect. In this case, the brevity of the language in
the judgment of conviction omitted essential sentence components and resulted
in an illegal sentence.
Where
a conflict exists between a sentencing court's oral pronouncement of sentence
and a written judgment, the oral pronouncement controls. State v. Perry, 136 Wis.2d 92,
114, 401 N.W.2d 748, 758 (1987). While
we agree with Welsch's claim that the written judgment unambiguously sentences
her twice for the same offense, we are satisfied that the trial court's oral
pronouncement unambiguously imposes only one sentence of probation for a time
certain with lawful conditions. Because
the written judgment should properly reflect the court's intended sentence and
because the written judgment would follow Welsch should she violate probation, see
§ 973.08, Stats., we reverse and
remand for the trial court to resolve the sentence conflict.[3]
Welsch
also argues that the sentence she received violates the double jeopardy
provisions of the United States and Wisconsin Constitutions. This argument is premised upon her belief
that two separate and distinct sentences were expressed in the written
judgment. Having determined that she
received only one sentence based on the trial court's oral pronouncement, we do
not address the double jeopardy argument.
An appellate court will not reach a constitutional issue if the
resolution of another issue disposes of an appeal. Grogan v. Public Serv. Comm'n, 109 Wis.2d 75, 77,
325 N.W.2d 82, 83 (Ct. App. 1982).
Imposition of
Costs of Representation
We
now turn to Welsch's argument that the trial court wrongly imposed costs for
her public defender representation. She
contends that she was denied statutory due process in violation of §
973.09(1g), Stats.[4] The relevant statutory requirements are as
follows:
If the court places the person on probation, the court
may require, upon consideration of the factors specified in s.
973.20(13)(a)2. to 5., that the probationer reimburse the county or the
state, as applicable, for any costs for legal representation to the county or
the state for the defense of the case.
In order to receive this reimbursement, the county or the state public
defender shall provide a statement of its costs of legal representation to the
defendant and court within the time period set by the court. [Emphasis added.]
Welsch maintains that because the trial court imposed
the costs of her public representation off the record, without any
consideration of the statutorily-mandated factors, the assessment was
improper. The State responds that the
trial court properly assessed the fees as mandatory ministerial costs.[5]
After
the sentencing hearing at which Welsch was ordered, inter alia, to pay
restitution, the court also included assessments of $52 in court costs, $49.40
in witness fees, a $50 mandatory victim/witness surcharge and an assessment for
public defender fee reimbursement.[6] At the postconviction hearing, defense
counsel argued that the assessment of the costs of Welsch's public defender was
improper because it failed to comport with the language of § 973.09(1g), Stats., in that the court failed to
consider factors affecting Welsch's ability to pay as outlined in the statute.
At
the postconviction hearing, the court clarified its inclusion of the fee
reimbursement as a condition of probation.
Prior to sentencing, Welsch had represented to the court that she was
prepared to pay restitution at the rate of $500 per month. The cost of public defender representation
was unknown at the time it was included in the conditions of probation.[7] However, when this assessment was challenged
at the postconviction hearing by defense counsel, the court stated, “When you
receive the number and the amount of attorney's fees that you're required to
pay as a condition of probation, in writing within 30 days of that date, if
you'd like a hearing to have those fees reviewed, I would be glad to do
that.”
We
conclude that the trial court's offer of a hearing comported with the
requirements of § 973.09(1g), Stats. The trial court may properly order
reimbursement for public defender representation as a condition of
probation. See id. By affording Welsch an opportunity to avail
herself of the protection of the § 973.09(1g) treatment, we conclude that her
statutory due process rights were adequately addressed and protected. We affirm the assessment of public defender
fees as a condition of probation.
Because
of the conflict between the oral pronouncement of sentence and the sentence
expressed in the written judgment, we reverse and remand for the trial court to
conform the written judgment to the oral pronouncement.
By
the Court.—Judgment and order
affirmed in part; reversed in part and cause remanded with directions.
Not
recommended for publication in the official reports.
[1] This section has
since been renumbered as § 49.95(9), Stats. See 1995 Wis. Act 27, §§ 2782,
9426(13).
[2] Specifically,
Welsch contends that the following two sentences were imposed in the written
judgment: (1) a withheld sentence,
three years of probation, restitution and ten days of probation condition time;
and (2) a twenty-day stayed jail sentence, an undetermined probation term and
restitution.
[3] Because we
conclude that this disposes of the statutory issues regarding the legality of
her sentence, it is unnecessary to address the remaining contentions regarding
the sentence. If a decision on one
point disposes of an appeal, an appellate court will not decide other issues
raised. See Sweet v.
Berge, 113 Wis.2d 61, 67, 334 N.W.2d 559, 562 (Ct. App. 1983).
[4] Welsch also
suggests that her constitutional due process rights were violated, but then
abandons that argument in favor of seeking statutory relief. We need not address constitutional issues
raised but not adequately briefed. See
Dumas v. State, 90 Wis.2d 518, 522‑23, 280 N.W.2d 310, 313
(Ct. App. 1979).
[5] The State also
argues that § 973.09(1g), Stats.,
does not apply because the trial court had authority to impose the public
defender fees as costs under § 973.06(1)(e), Stats. Because the trial court determined to treat
the attorney's fees as a condition of probation under the former, we do not
address that argument.
[6] The written
judgment contains the entry “94P53FC00206” after the words “is to
pay: attorney fees.” The State suggests that this reference is to
the case number. The trial court case
number is 94CF263. The case number in
this court is 95-1758-CR. We are unable
to determine what the entry represents.