Cresci v. State

• Decision Date: 30 May 1979
• Docket Number: No. 76-639-CR,76-639-CR
• Citation: 89 Wis.2d 495,278 N.W.2d 850
• Parties: James T. CRESCI, Plaintiff in Error, v. STATE of Wisconsin, Defendant in Error.
• Court: Wisconsin Supreme Court

Page 850

278 N.W.2d 850

89 Wis.2d 495

James T. CRESCI, Plaintiff in Error, v. STATE of Wisconsin, Defendant in Error.

No. 76-639-CR.

Supreme Court of Wisconsin.

Submitted on Briefs Jan. 31, 1979.

Decided May 30, 1979.

John I. Norsetter, Legal Assistance to Inmates Program, Madison, on briefs for plaintiff in error.

Bronson C. La Follette, Atty. Gen., and Edward S. Marion, Asst. Atty. Gen., on brief for defendant in error.

DAY, Justice.

The court is asked to review an order, entered December 21, 1976, the Honorable John L. Coffey, presiding, denying the plaintiff in error's motion to amend sentence.

The principal question on appeal is: Did the trial court err when it failed to give notice to the defendant or his attorney of the hearing on the motion?

We hold that it was error and that as a matter of law it was not harmless. The matter must be remanded for an evidentiary hearing on the trial court's intention at the time of sentencing on January 18, 1973.

The pertinent facts in this case are not in dispute. James T. Cresci, the plaintiff in error, (hereafter defendant) was found guilty of two counts of armed robbery on August 4, 1965. As a result of his conviction, he was sentenced to two ten-year terms to run concurrently with one another and with a previous five-year sentence for robbery imposed on March 6, 1962.

On December 22, 1970, the defendant reached his mandatory release date and was paroled from Wisconsin State Prison at Waupun. On June 25, 1971, the defendant violated his parole agreement and on August 18, 1971, his parole was revoked. ¹ He was received at Wisconsin State Prison at Waupun on January 1, 1972. Pursuant to sec. 57.072, Stats., (1971), his period of parole was tolled from June 25, 1971 until January 1, 1972. ²

On July 3, 1972, the defendant was again paroled from the State Prison at Waupun. On September 19, 1972, the defendant was deemed to have violated his parole agreement, when it was alleged that he had committed a robbery. On January 17, 1973, the defendant was found guilty of robbery contrary to sec. 943.32(1)(a), Stats. Following his conviction, the trial court sentenced the defendant to an indeterminate term of not more than ten years, consecutive to the sentences he had been serving when he violated his parole. At this time, the defendant's parole had not been revoked, nor was he returned to Wisconsin State Prison any time between the alleged parole violation and the January 17, 1973 sentencing.

The next day, January 18, 1973, the defendant was again brought before Judge Coffey. At this time, the court said:

". . . having, re-considered the said sentence in this case due to the fact that the defendant did not lie, chose not to testify rather than lie to the Court, this Court is going to give him consideration and for that reason will order the said sentence previously imposed as consecutive to run concurrent with his said parole violation."

The defendant was received at Wisconsin State Prison at Waupun on January 18, 1973. His parole was revoked on March 7, 1973.

On August 17, 1976, the defendant moved the trial court for an order modifying his sentence by reducing the ten-year term imposed January 18, 1973 in the amount of two years, ten months and fifteen days. On October 25, 1976, defendant's attorney John Norsetter, talked to Mr. Al Buggs, clerk for Judge Coffey. Mr. Buggs said that the judge would be hearing the defendant's motion soon. Mr. Norsetter told Mr. Buggs that if the district attorney was going to oppose the motion, the defense wanted an opportunity to respond orally or in writing. Neither the defendant nor his attorney was given notice of the hearing. On October 27, 1976, the judge held a hearing which was attended only by the assistant district attorney who spoke to the issue. ³ The court then denied the defendant's motion. A writ of error to review the order denying the motion was issued March 3, 1977.

The original sentence imposed by the trial court on January 17, 1973 was an indeterminate ten-year term to be served consecutive to the sentences the defendant was serving when he violated his parole. That sentence was illegal insofar as it was made consecutive under the rationale of Guyton v. State, 69 Wis.2d 663, 230 N.W.2d 726 (1975). In Guyton, the defendant was serving three concurrent sentences at the Wisconsin State Reformatory when he was released on parole on May 3, 1972. While on parole, he committed a burglary for which he was sentenced on September 7, 1973. The new sentence was for an indeterminate term of " 'not more than six years consecutive to any term that he owes the State as the result of any parole violation.' " It was not until November 26, 1973 that his parole was revoked. The court held that the law did not permit the imposition of a consecutive sentence under those circumstances because the defendant was not "then serving a sentence" under the terms of sec. 973.15(1), Stats. (1973). ⁴ Under sec. 57.072, Supra, the period of parole ceases upon the commission of a crime or some other violation of the terms of parole "which is sufficient in the opinion of the court or the department to warrant revocation" of parole. Since the defendant had not been returned to the institution from which he had been paroled prior to sentencing for the burglary conviction, he was not in a status in which he was accumulating time for the discharge of the earlier imposed sentences, and thus was not, under the statutes, "then serving a sentence."

Similarly, in the instant case, the defendant's period of parole ceased running with the commission of the robbery on September 19, 1972. Since he had not been returned to the state prison prior to his sentencing on January 17, 1973, the defendant was not during that time serving a sentence under the provisions of sec. 973.15(1), Stats. (1973). Thus, the trial court was without authority to impose a consecutive sentence for the new conviction on January 17, 1973.

On January 18, 1973, however, the trial court, Sua sponte, reduced the defendant's sentence and ordered the ten-year sentence imposed the previous day to run concurrently with the terms the defendant was serving when he violated his parole. Although the original sentence was improper under Guyton, that was not the reason the trial court chose to correct the sentence. Instead, the court indicated that earlier it had not given sufficient weight to the fact that the defendant had chosen not to testify in the case, and for that reason, modified the sentence.

At the time the defendant was sentenced on January 17, 1973, he had approximately three and one-half years left to serve on his earlier convictions. The defendant suggests that the court may have thought he had only three years remaining on his sentences since it failed to mention an earlier parole violation for which the defendant had about six months of tolled time. Thus, the defendant theorizes that when the court imposed the ten-year consecutive sentence on January 17, 1973, the court knew that the defendant would be serving sentences totalling about thirteen years. When the court changed the sentence to a ten-year concurrent sentence, the defendant argues that its intent was to reduce the total sentence from approximately thirteen to ten years, or by about three years. Since the trial court merely succeeded in converting an improper sentence into a proper one, the defendant argues that the resulting sentence did not reflect the trial court's intention to give him additional consideration for not testifying.

The state urges this court to affirm the order of the trial court for the reason that while the defendant's motion was denied on the merits, it could have been properly rejected as untimely. Hayes v. State, 46 Wis.2d 93, 102, 175 N.W.2d 625 (1970), recognized the inherent power of a trial court to "amend, modify, and correct a judgment of sentencing," and established a period of ninety days from sentencing to bring a motion for modification. As this court has stated repeatedly, the ninety day period is regulatory, not jurisdictional, and the trial court may entertain a motion made after ninety days in the exercise of its discretion. State v. Hungerford, 76 Wis.2d 171, 178, 251 N.W.2d 9 (1977); Krueger v. State, 86 Wis.2d 435, 272 N.W.2d 847 (1978). There were no "new factors" alleged by the defendant as justification for modification of sentence. ⁵ Given the ambiguity cast upon the trial court's intent by Guyton, supra, however, it cannot be said that the trial court abused its discretion in entertaining the defendant's motion on the merits.

The state also argues that the trial court was without authority when it modified the original sentence from consecutive to concurrent. Therefore, it urges that even if the trial court did intend to reduce the defendant's sentence by a flat number of years off the maximum, that intent should not be effectuated.

While the trial court may not revise a sentence merely upon "reflection," Scott v. State, 64 Wis.2d 54, 59, 218 N.W.2d 350 (1974), it may review its sentence for abuse of discretion based upon its conclusion that the sentence was unduly harsh or unconscionable. State v. Wuensch, 69 Wis.2d 467, 480, 230 N.W.2d 665 (1975). If the sentence is to be reduced upon those grounds, the trial court should set forth its reasons why it concludes the sentence originally imposed was unduly harsh or unconscionable. Id. In the instant case, the trial court stated that it was giving additional consideration to the fact that the defendant had been unwilling to lie to the court, that is, that the defendant had chosen not to testify rather than lie to the court. Without commenting on the trial court's assumption that the defendant would have committed perjury had he testified, the trial judge was entitled to take into account the defendant's "remorse, repentance and cooperativeness." State v. Tew, 54 Wis.2d 361, 368, 195 N.W.2d 615 (1972). While...