District II
December 4, 2013
To:
Hon. Patrick C. Haughney
Circuit Court Judge
Waukesha County Courthouse
515 W. Moreland Blvd.
Waukesha, WI 53188
Kathleen A. Madden
Clerk of Circuit Court
Waukesha County Courthouse
515 W. Moreland Blvd.
Waukesha, WI 53188
Gerard F. Kuchler
Attorney at Law
P.O. Box 527
Waukesha, WI 53187-0527
Nancy A. Noet
Assistant Attorney General
P.O. Box 7857
Madison, WI 53707-7857
Brad Schimel
District Attorney
515 W. Moreland Blvd.
Waukesha, WI 53188-0527
Augustus E. Dillon 319144
Fox Lake Corr. Inst.
P.O. Box 200
Fox Lake, WI 53933-0200
You are hereby notified that the Court has entered the following opinion and order:
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2012AP1081 |
State of Wisconsin v. Augustus E. Dillon (L.C. # 1997CF19) State of Wisconsin v. Augustus E. Dillon (L.C. # 1999CF251) |
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Before Brown, C.J., Neubauer, P.J., and Reilly, J.
In these consolidated cases, Augustus
E. Dillon appeals from a circuit court order denying his motion for
resentencing. Based upon our review of the briefs and record, we
conclude at conference that this case is appropriate for summary
disposition. See Wis. Stat. Rule
809.21 (2011-12).[1] We reverse the order of the circuit court and
remand with directions.
In June 1999, Dillon was sentenced on seven
drug-related felonies in two different criminal cases, Waukesha county case nos.
1997CF19 and 1999CF251. The circuit court
sentenced Dillon to a total of ten years in prison on three of the four counts
in Waukesha county case no. 1997CF19. It
then withheld sentence on the remaining count in that case, as well as all
three counts in Waukesha county case no. 1999CF251. As to those four counts, the court placed
Dillon on probation for ten years following the completion of his prison sentence.
Dillon’s postconviction attorney filed a motion for
resentencing in both cases, alleging that the State had breached its plea
agreement at sentencing and that Dillon’s trial counsel had been ineffective in
failing to object to the breach. Ultimately,
the State acknowledged that it had breached the plea agreement at sentencing and
that the appropriate remedy was resentencing.
In an effort to resolve the matter, the State and
Dillon’s attorney negotiated an agreement which called for Dillon’s ten-year
prison term to be reduced to seven years.
Because Dillon was in custody out of state, his attorney had him sign a
written stipulation regarding the proposed agreement, which he submitted to the
court in lieu of Dillon’s appearance.
The stipulation did not address the probationary dispositions that Dillon
had received on four of his seven convictions.
Following a hearing on the matter, the circuit court
accepted the parties’ written stipulation and amended the judgment of
conviction in Waukesha county case No. 1997CF19 to reflect a total prison term
of seven years. For unknown reasons, the
ten-year probation term for the remaining count in that case also was amended
to seven years. The court did not change
the length of Dillon’s probationary dispositions in Waukesha County case No.
1999CF251.
Sometime after Dillon completed his prison sentence,
the department of corrections revoked his probation for both Waukesha County
case Nos. 1997CF19 and 1999CF251. Prior
to his sentencing in those cases, Dillon asserted that his postconviction
attorney had advised him that his written stipulation would result in the
dismissal of the counts for which he remained on probation. Despite his claim, Dillon received a total of
eight years in prison in both cases.
Dillon subsequently filed a motion for resentencing, arguing
that the hearing at which the circuit court approved the written stipulation
was in violation of his right to be present for sentencing. The circuit court denied Dillon’s motion,
concluding that the stipulation was essentially a motion for sentence
modification that did not require Dillon’s presence. This appeal follows.
As noted by the State, the validity of the circuit
court’s decision to deny Dillon’s motion for resentencing depends upon how this
court construes the written stipulation and related court hearing at which
Dillon did not appear or participate.
If, as Dillon asserts, the court resentenced him back when it accepted
the stipulation, then he was entitled to be present under the law. See,
e.g., Wis. Stat. §
971.04(1)(g) (providing that a defendant shall be present at the imposition of
sentence); Williams v. State, 40 Wis. 2d 154, 160, 161 N.W.2d 218
(1968) (an accused has a right to be present whenever any substantive step is
taken in his or her case). However, if,
as the circuit court concluded, the stipulation was a motion for sentence
modification, then Dillon did not have the right to appear at the hearing where
the court approved it. We review the circuit
court’s conclusion of law de novo. State
v. Wood, 2007 WI App 190, ¶4, 305 Wis. 2d 133, 738 N.W.2d 81. Whether a motion states a request for
resentencing or sentence modification is a legal determination. Id.
Upon review of the record, we are satisfied that the
written stipulation and related court hearing was for resentencing and not
sentence modification. Because Dillon
was not present at the hearing and could not waive his right to be present via his
stipulation, see State v. Koopmans, 210
Wis. 2d 670, 673, 563 N.W.2d 528 (1997), the next question becomes whether
his nonappearance was nonetheless harmless.
See State v. Carter, 2010 WI
App 37, ¶22, 324 Wis. 2d 208, 781 N.W.2d 527 (“When a violation of a
defendant’s constitutional or statutory right to be present at any portion of
his trial proceedings is alleged, the State, as beneficiary of any error, has
the burden of proving that the error was harmless.”).
The question of harmless error depends largely upon
whether Dillon’s allegations about his postconviction counsel are true (i.e., his allegations that counsel
misinformed him of the terms of the written stipulation and misled him to
believe that the charges underlying his probationary dispositions would be
dismissed). If they are, then Dillon
presumably would have been able to address the misunderstandings had he
participated in the resentencing hearing.
If they are not, then a finding of harmless error might be
possible. The record is currently insufficient
to permit a proper determination either way.
Accordingly, we reverse and remand the cause with directions that the
circuit court hold a Machner[2] hearing
on Dillon’s allegations.
Upon the foregoing reasons,
IT IS ORDERED that the order of the circuit court is summarily reversed and the cause remanded with directions, pursuant to Wis. Stat. Rule 809.21.
Diane M. Fremgen
Clerk of Court of Appeals