State v. Walker
| Decision Date | 30 June 2006 |
| Docket Number | No. 2004AP2820-CR.,2004AP2820-CR. |
| Parties | STATE of Wisconsin, Plaintiff-Respondent, v. Roger S. WALKER, Defendant-Appellant-Petitioner. |
| Court | Wisconsin Supreme Court |
For the defendant-appellant-petitioner, there were briefs by James Rebholz and Rebholz & Auberry, Wauwatosa, and oral argument by James Rebholz.
For the plaintiff-respondent, there was a brief and oral argument by Warren D. Weinstein, assistant attorney general, with whom on the brief was Peggy A. Lautenschlager, attorney general.
Roger Walker (Walker) was convicted of first-degree sexual assault of a child in violation of Wis. Stat. § 948.02(1) (1991-92) in Fond du Lac County. He was also convicted of first-degree sexual assault of the same child for a different offense in Green Lake County. This is a review of an unpublished court of appeals decision1 dismissing Walker's appeal from his Green Lake conviction.
¶ 2 Walker was convicted in Fond du Lac in 1999. He was given a sentence of 20 years. In 2000 he was convicted in Green Lake County after he entered an Alford plea.2 The Green Lake County Circuit Court, W.M. McMonigal, Judge, withheld sentence and imposed 20 years of probation consecutive to the 20-year prison sentence. In 2001 the court of appeals vacated Walker's Fond du Lac conviction because of ineffective assistance of counsel. State v. Walker, No.2000AP2576-CR, unpublished slip op. (Wis.Ct.App. Aug. 15, 2001). As a result, Walker was released on his Green Lake probation.
¶ 3 When he violated the terms of his probation, Walker was revoked and scheduled to appear in the Green Lake County Circuit Court for sentencing after revocation. Before he could make this appearance, however, he was retried in Fond du Lac, convicted, and again sentenced to 20 years imprisonment.
¶ 4 Thus, when Walker appeared for sentencing after revocation in Green Lake, he had been convicted of two serious felonies and had his probation revoked. In this second sentencing, the Green Lake County Circuit Court sentenced Walker to 12 years imprisonment consecutive to the 20-year Fond du Lac sentence. We refer to this 12-year sentence as the Revocation Sentence.
¶ 5 Walker filed a notice of intent to pursue postconviction relief, requested transcripts, and filed a postconviction motion for sentence modification. Walker's postconviction motion alleged ineffective assistance of counsel because his attorney failed to contradict inaccurate sentencing information provided to the Green Lake court.3 The parties stipulated to resentencing. The circuit court accepted the parties' stipulation, vacated the Revocation Sentence, and held a third sentencing hearing at which it considered the additional information.4 The circuit court resentenced Walker, again imposing 12 years imprisonment (the Resentence) consecutive to the Fond du Lac sentence.
¶ 6 Walker appealed the Resentence directly to the court of appeals, claiming the circuit court erroneously exercised its discretion by imposing the same sentence as the Revocation Sentence despite receiving new information. The court of appeals summarily dismissed Walker's appeal because he did not file a postconviction motion to give the circuit court an opportunity to reconsider the sentence imposed at resentencing, as required by Wis. Stat. (Rule) § 809.30 (2003-04).5
¶ 7 This case presents the question whether a defendant must file a postconviction motion with the circuit court before appealing a sentence imposed at resentencing, when the sentence turns out to be identical to the court's previous sentence. We conclude that when a defendant seeks modification of the sentence imposed at resentencing, Wis. Stat. (Rule) § 809.30 and Wis. Stat. § 973.19 require the defendant to file a postconviction motion with the circuit court before taking an appeal, even though the sentence is identical to a previous sentence.
¶ 8 Nonetheless, given the unusual procedural history of this case and Walker's good faith efforts to comply with Wis. Stat. (Rule) § 809.30, we determine there is good cause to enlarge the time within which Walker can file his intent to pursue postconviction relief and his postconviction motion with the circuit court. Accordingly, although we agree with the substance of the court of appeals' ruling, we modify the decision of the court of appeals to allow the defendant to move for sentence modification, and remand Walker's cause to the circuit court for further proceedings consistent with this opinion. In short, we modify and affirm.
¶ 9 Wisconsin Stat. (Rule) § 809.30 establishes a blueprint for appellate procedure in criminal cases.6 The appeals process begins when a defendant files a notice of intent to pursue postconviction relief with the circuit court within 20 days of sentencing or final judgment.7 Wis. Stat. § (Rule) § 809.30(2)(b). In this case, the circuit court imposed Walker's Revocation Sentence on March 24, 2004. On April 8 Walker complied with Rule § 809.30(2)(b) by filing his notice of intent to pursue postconviction relief from the Revocation Sentence.
¶ 10 After a defendant files a notice of intent to seek postconviction relief, the clerk of circuit court has five days to (1) forward the defendant's request for representation, the judgment or order from which relief is sought, and transcript-related information to the state public defender; or (2) send this information to the defendant or his attorney. Wis. Stat. (Rule) § 809.30(2)(c). In this case, the clerk of circuit court timely forwarded Walker's request to the state public defender on April 13, as required.
¶ 11 Upon receipt of Walker's request for representation, the state public defender appointed Attorney James Rebholz to represent Walker. On April 28 Rebholz filed a timely request for the circuit court record, including transcripts. See Wis. Stat. (Rule) § 809.30(2)(e). On May 3 the clerk of circuit court sent a copy of the circuit court record to Attorney Rebholz. See Wis. Stat. (Rule) § 809.30(2)(g).
¶ 12 Next, a defendant must file a notice of appeal or postconviction motion. Wis. Stat. (Rule) § 809.30(2)(h). In relevant part, Rule § 809.30(2)(h) states:
The person shall file in circuit court and serve on the prosecutor and any other party a notice of appeal or motion seeking postconviction or postdisposition relief within 60 days after the later of the service of the transcript or circuit court case record. The person shall file a motion for postconviction or postdisposition relief before a notice of appeal is filed unless the grounds for seeking relief are sufficiency of the evidence or issues previously raised.
(Emphasis added.) Walker timely filed a postconviction motion seeking modification of the Revocation Sentence on July 1, in compliance with § 809.30(2)(h).8
¶ 13 This motion for sentence modification resulted in a hearing before the circuit court. The court accepted the parties' stipulation for resentencing, and it vacated the Revocation Sentence.9
¶ 14 After vacation of his sentence, Walker had no sentence for his conviction in Green Lake County. The parties and court had converted his motion to modify an existing sentence into a successful motion to vacate an existing sentence.
¶ 15 On October 6, 2004, the circuit court held a resentencing hearing, and it again sentenced Walker to 12 years imprisonment (the Resentence), consecutive to the Fond du Lac sentence. The substance of the Resentence was identical to the substance of the Revocation Sentence.
¶ 16 At this point, Walker's attorney chose to follow Wis. Stat. (Rule) § 809.30(2)(j) (). Walker filed a notice of appeal with the circuit court on October 25. Rule § 809.30(2)(j) provides in part:
The person shall file in circuit court and serve on the prosecutor and any other party a notice of appeal from the judgment of conviction and sentence or final adjudication and, if necessary, from the order of the circuit court on the motion for postconviction or postdisposition relief within 20 days of the entry of the order on the postconviction or postdisposition motion.
Walker appealed from the judgment of conviction and attacked the Resentence.
¶ 17 In this appeal, Walker alleged the circuit court erroneously exercised its discretion by imposing the same sentence at his Resentence as it had imposed at the Revocation Sentence, in spite of mitigating information. State v. Walker, No.2004AP2820-CR, unpublished order (Wis. Ct.App. June 29, 2005). The court of appeals summarily dismissed Walker's appeal. Id. The court of appeals held Walker had not complied with a "necessary condition precedent to the appeal" because he did not first bring a motion for sentence modification, giving the circuit court an opportunity to reconsider the Resentence. Id. We granted Walker's petition for review to address whether Wis. Stat. (Rule) § 809.30(2) and Wis. Stat. § 973.19 require a defendant seeking modification of the sentence imposed at resentencing to file a postconviction motion with the court before taking an appeal.
¶ 18 To determine whether Walker was required to seek reconsideration of the sentence imposed at resentencing before pursuing an appeal, we must interpret Wis. Stat. (Rule) § 809.30 and Wis. Stat. § 973.19. Statutory interpretation presents a question of law we review de novo. State v. Tucker, 2005 WI 46, ¶ 11, 279 Wis.2d 697, 694 N.W.2d 926; State v. Sorenson, 2000 WI 43, ¶ 15, 234 Wis.2d 648, 611 N.W.2d 240.
¶ 19 The State contends the court of appeals properly dismissed Walker's appeal because he failed to follow the procedures in Wis. Stat. (Rule) § 809.30. Specifically, the State asserts that Walker (1) did not file a notice of intent to pursue postconviction relief from the Resentence under Rule § 809.30(2)(b); (2) did not file a request for transcripts under Rule § 809.30(2)(e); and (3) did not file a postconviction motion seeking...
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