State v. Carter

• Decision Date: 19 March 1997
• Docket Number: No. 94-2001-CR,94-2001-CR
• Citation: 560 N.W.2d 256,208 Wis.2d 142
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. Jimmy A. CARTER, Defendant-Appellant-Petitioner.
• Court: Wisconsin Supreme Court

Page 256

560 N.W.2d 256

208 Wis.2d 142

STATE of Wisconsin, Plaintiff-Respondent, v. Jimmy A. CARTER, Defendant-Appellant-Petitioner.

No. 94-2001-CR.

Supreme Court of Wisconsin.

Argued Dec. 4, 1996.

Decided March 19, 1997.

For the defendant-appellant-petitioner there were briefs by John Allan Pray and Legal Assistance Program, University of Wisconsin Law School, Madison and oral argument by John Allan Pray.

For the plaintiff-respondent the cause was argued by Marguerite M. Moeller, Assistant Attorney General, with whom on the brief was James E. Doyle, Attorney General.

¶1 SHIRLEY S. ABRAHAMSON, Chief Justice

This is a review of an unpublished decision of the court of appeals, State v. Carter, No. 94-2001-CR, unpublished slip op., 1995 WL 625918 (Wis.Ct.App. Oct. 26, 1995), affirming a judgment of the Circuit Court for Rock County, J. Richard Long, Judge. In resentencing Jimmy Carter, the defendant, the circuit court refused to consider information about events and circumstances that occurred after the initial sentencing hearing.

¶2 The issue before this court is whether on resentencing a circuit court should consider information about events and circumstances either that the sentencing court was unaware of at the initial sentencing or that occurred after the initial sentencing. ¹ We conclude that a circuit court should have available to it all information relevant to determining the appropriate sentence. Accordingly, we hold that a circuit court should, in imposing a sentence at a resentencing proceeding, consider all information relevant about a defendant, including information about events and circumstances either that the sentencing court was unaware of at the initial sentencing or that occurred after the initial sentencing. ²

¶3 This case does not involve sentence modification. Sentence modification involves an entirely different line of authority than resentencing. The purpose of sentence modification is to allow a court to correct a sentence when new factors frustrate the purpose of the sentencing court. State v. Franklin, 148 Wis.2d 1, 14, 434 N.W.2d 609 (1989). To promote the policy of finality of judgments, strict rules govern the information that can be considered in a request for sentence modification. Id. at 9, 434 N.W.2d 609. There is no finality concern when the court imposes a new sentence after the initial sentence has been held invalid.

I.

¶4 The facts are not in dispute. The defendant pled guilty to one count of false imprisonment while armed. Relying on a presentence investigation report which included the results of a psychological test administered to the defendant, the circuit court sentenced the defendant to the maximum term of five years in prison. The defendant filed a postconviction motion under Wis. Stat. § 809.30, requesting a resentencing hearing on the ground that the psychological testing methodology was flawed. At the hearing on the motion, the prosecutor, while not conceding error, agreed to a resentencing "in the interests of judicial expediency." The circuit court granted a hearing for resentencing and vacated the initial sentence. ³

¶5 At the resentencing hearing, the defendant's attorney attempted to introduce information about the defendant that had not existed at the initial sentencing hearing. According to the new information: (1) the defendant had been offered employment to begin upon his release from prison; (2) the defendant had participated in an alcohol treatment program at the prison; (3) the defendant had established a positive record of behavior at the prison with no negative conduct reports; and (4) a previously pending charge against the defendant had been dismissed. Relying on State v. Solles, 169 Wis.2d 566, 485 N.W.2d 457 (Ct.App.1992), the circuit court refused to consider the information about events and circumstances that occurred after the initial sentencing. The circuit court concluded that at a resentencing proceeding, it could consider only the events and circumstances existing at the time of the initial sentencing.

¶6 The court of appeals adopted the analysis presented in Solles and affirmed the judgment of the circuit court.

II.

¶7 Our analysis begins with a review of the significant case law on resentencing. A leading case on the constitutional limits to a trial court's powers on resentencing is North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969). In Pearce, which involved a resentencing after an initial conviction was vacated, the Court recognized the power of a resentencing court to impose a greater sentence than the one imposed at the initial sentencing. To assure a defendant the protection against vindictiveness required by due process principles, the Pearce Court concluded that an increase in the sentence must be supported by reasons set forth on the record "based upon objective information concerning identifiable conduct on the part of the defendant occurring after the time of the original sentencing proceeding." Id. at 726, 89 S.Ct. at 2081. ⁴ The Wisconsin supreme court has read the Pearce rule as extending to information about events and circumstances either that the circuit court was unaware of at the initial sentencing or that occurred after the original sentencing. See State v. Stubbendick, 110 Wis.2d 693, 698-700, 329 N.W.2d 399 (1983) (initial guilty plea and sentence vacated; resentence after reconviction on jury trial; resentencing court properly considers amplified knowledge of defendant's crime and a new presentence report including conduct after initial sentencing); Denny v. State, 47 Wis.2d 541, 545-46, 178 N.W.2d 38 (1970) (initial conviction vacated; resentence after second trial; resentencing court erred by failing to state on the record reasons based on new information or newly known information warranting increased sentence).

¶8 The Wisconsin supreme court has affirmed increased resentences in circumstances distinct from those of Pearce. See Grobarchik v. State, 102 Wis.2d 461, 471-74, 307 N.W.2d 170 (1981), and State v. Martin, 121 Wis.2d 670, 686-88, 360 N.W.2d 43 (1985). In Grobarchik and Martin, unlike in Pearce, neither the resentencing court nor the supreme court was asked to consider the defendant's conduct after the original sentencing. The court in Grobarchik and Martin concluded that the Pearce rule requiring that a court state new information warranting an increased sentence was not applicable and distinguished Pearce as a case involving an invalid conviction rather than only an invalid sentence. The court held in Grobarchik and Martin that when an initial sentence cannot be carried out because it was not authorized by law, an increased sentence is permissible only when "based upon a desire to implement the original dispositional scheme as manifested by the record in the first sentencing proceeding." Grobarchik, 102 Wis.2d at 474, 307 N.W.2d 170; Martin, 121 Wis.2d at 687, 360 N.W.2d 43.

¶9 In Grobarchik and Martin, as in Pearce, the court was concerned that a resentencing court not penalize a defendant for exercising postconviction rights to challenge a sentence. The court concluded that compelling a resentencing court to implement the original dispositional scheme, rather than allowing it to re-examine the relevant information available at the initial sentencing and exercise its independent judgment, protected a defendant from a sentence tainted by vindictiveness. Grobarchik, 102 Wis.2d at 474, 307 N.W.2d 170; Martin, 121 Wis.2d at 687, 360 N.W.2d 43. Grobarchik and Martin thus extended protections similar to those in Pearce to a narrow class of cases apparently thought not to fall within the Pearce rule.

¶10 Grobarchik and Martin had no cause to, and did not, address the limits to a circuit court's consideration of new information at all resentencings which follow valid convictions but invalid sentences. Grobarchik and Martin were concerned with a resentencing court's authority to impose an increased sentence on a basis other than that of the defendant's conduct occurring after the original sentencing.

¶11 In State v. Pierce, 117 Wis.2d 83, 342 N.W.2d 776 (Ct.App.1983), the circuit court imposed an invalid sentence, a term of probation consecutive to an existing probation term. On resentencing, the circuit court vacated the invalid probationary term and sentenced Pierce to two years in prison. Id. at 85, 342 N.W.2d 776. The stated reason for the increased sentence was Pierce's arrest for two batteries committed after the initial sentencing. Citing Pearce and Stubbendick, the court of appeals held that the batteries were new information that provided adequate reason for the increased sentence and that the circuit court was not motivated by vindictiveness. The court of appeals did not refer to the requirement set forth in Grobarchik or Martin that the original dispositional scheme be followed in some resentencings.

¶12 In 1992, the court of appeals decided Solles, 169 Wis.2d 566, 485 N.W.2d 457, in which resentencing was required because the initial sentence was found invalid. Seeking to have the circuit court impose a lesser sentence, Solles wanted to introduce evidence at the resentencing hearing of his good conduct in prison during the previous 14 years, as well as character references and evidence of his achievements and employment prospects. The court of appeals concluded that this information could not be considered when resentencing resulted from an invalid sentence. According to the court of appeals, the requirement in Grobarchik and Martin that the resentencing court implement "the original dispositional scheme as manifested by the record in the first sentencing proceeding" meant that the resentencing court was limited to considering only the circumstances existing at the time of the initial sentence. Solles, 169 Wis.2d at 569, 485 N.W.2d 457.

¶13 In the Solles case the State argued, much as it does in the present case, that Pierce is...