State v. Cheeseman, No. 2007AP2951-CR (Wis. App. 10/15/2008)
| Decision Date | 15 October 2008 |
| Docket Number | No. 2007AP2951-CR.,2007AP2951-CR. |
| Parties | State of Wisconsin, Plaintiff-Respondent, v. Scott L. Cheeseman, Defendant-Appellant. |
| Court | Wisconsin Court of Appeals |
APPEAL from an order of the circuit court for Milwaukee County: M. JOSEPH DONALD, Judge. Affirmed.
Before Curley, P.J., Fine, J., and Daniel L. LaRocque, Reserve Judge.
Scott Cheeseman appeals from the order denying his sentence modification motion. He asserts constitutional, statutory, and common law bases for relief, but all of his arguments are grounded on the assertion that the circuit court unlawfully increased his sentences by amending a judgment of conviction three years after the sentencing proceeding. Because we conclude that the circuit court did no more than correct a scrivener's error in the written judgment, we reject Cheeseman's arguments and affirm.
¶ 2 Cheeseman pled guilty to six counts of burglary as a party to a crime. On February 26, 2004, the circuit court imposed six three-year sentences, each comprised of one year of initial confinement and two years of extended supervision. The court stated that the sentences were each to be served concurrently with an earlier-imposed reconfinement term.1
¶ 3 In its sentencing remarks, the court included its explanation of the effect of the sentences:
What I think it does is to give you [Cheeseman] six years to attempt to see whether the Prozac let's [sic] you go through drug treatment.... But there will be twelve years of extended supervision that you will have in order to be supervised, monitored, managed.
....
I don't think you're eligible for either boot camp or for earned release based upon the performance that you have given to this point in drug treatment programs. I also think it's important that you spend the time in custody. So it's going to be six years without parole or good time.
¶ 4 The clerk of circuit court entered a judgment of conviction providing that, as to counts one, two, three, five, and six, As to count four, however, the judgment provides: (emphasis added).
¶ 5 On January 4, 2007, the Offender Records Supervisor of Columbia Correctional Institution, Jill Greene, wrote to the circuit court expressing uncertainty as to the terms of Cheeseman's sentences pursuant to WIS. ADMIN. CODE § DOC 302.22 (Dec. 2006). Greene observed that, according to the sentencing transcript, Cheeseman was required to serve all six sentences concurrently with a previously-imposed reconfinement term but consecutively to each other. Greene requested clarification of the discrepancies in the written judgment suggesting otherwise.
¶ 6 The circuit court reviewed the sentencing transcript and concluded: "[i]t is clear ... that the court intended the defendant to serve these sentences consecutive to each other and concurrent with his revocation sentence."2 Accordingly, the court directed the clerk of circuit court to enter a modified judgment of conviction reflecting that Cheeseman's sentence as to count four is "concurrent to the revocation sentence but consecutive to any other sentence."
¶ 7 After unsuccessfully challenging entry of the amended judgment of conviction, Cheeseman filed the sentence modification motion underlying this appeal. He contended that the circuit court's entry of a modified judgment of conviction constituted a new factor, denied his constitutional rights to due process and freedom from double jeopardy, and imposed sentences in abstentia in violation of WIS. STAT. § 971.04 (2005-06).3 He asked that his sentences be modified to an aggregate three-year term of imprisonment, and he demanded a hearing.
¶ 8 The circuit court denied Cheeseman's motion in toto, holding that the amended judgment of conviction merely memorialized the original sentence as pronounced. Cheeseman appeals.
¶ 9 The test for ambiguity in sentencing pronouncements is the same as that employed in statutory construction disputes. State v. Oglesby, 2006 WI App 95, ¶19, 292 Wis. 2d 716, 715 N.W.2d 727. Therefore, "[w]hether a sentence is ambiguous is a question of law." See State v. Peterson, 2001 WI App 220, ¶13, 247 Wis. 2d 871, 634 N.W.2d 893. Whether the sentence portion of a written judgment of conviction should be corrected also presents a question of law. State v. Prihoda, 2000 WI 123, ¶8, 239 Wis. 2d 244, 618 N.W.2d 857. We review questions of law de novo. State v. Ploeckelman, 2007 WI App 31, ¶8, 299 Wis. 2d 251, 729 N.W.2d 784. We conclude that the sentencing transcript in this case contains no ambiguity and that the judgment of conviction was properly amended to reflect the circuit court's pronouncement.
¶ 10 The sentencing court explained that it was imposing six bifurcated sentences of one year of initial confinement and two years of extended supervision, to be served concurrently with an earlier-imposed reconfinement term. We acknowledge that the sentencing court did not expressly state that Cheeseman was to serve each of the six sentences consecutively. Rather, the court expressed the consecutive nature of the sentences by stating the total amount of time imposed: six years of initial confinement and twelve years of extended supervision. By stating these totals in its remarks, the court clearly conveyed the structure of the dispositions. Cf. State v. Coles, 208 Wis. 2d 328, 334-35, 559 N.W.2d 599 (Ct. App. 1997) (). Because the court's remarks can be reasonably understood only as imposing six consecutive terms, the sentencing pronouncement is unambiguous. See Oglesby, 292 Wis. 2d 716, ¶19.
¶ 11 "[A]n unambiguous oral pronouncement controls when a conflict exists between a court's oral pronouncement of sentence and a written judgment." Prihoda, 239 Wis. 2d 244, ¶24. Accordingly, the circuit court properly ordered the clerk of circuit court to enter an amended judgment of conviction that...
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