State v. Church, 01-3100-CR.

• Decision Date: 25 July 2002
• Docket Number: No. 01-3100-CR.,01-3100-CR.
• Citation: 2002 WI App 212,650 N.W.2d 873,257 Wis.2d 442
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. William J. CHURCH, Defendant-Appellant.
• Court: Wisconsin Court of Appeals

257 Wis.2d 442

2002 WI App 212

650 N.W.2d 873

STATE of Wisconsin, Plaintiff-Respondent, v. William J. CHURCH, Defendant-Appellant.¹

No. 01-3100-CR.

Court of Appeals of Wisconsin.

Submitted on briefs May 13, 2002.

Decided July 25, 2002.

On behalf of the defendant-appellant, the cause was submitted on the briefs of James L. Fullin, assistant state public defender.

On behalf of the plaintiff-respondent, the cause was submitted on the brief of David J. Becker, assistant attorney general, and James E. Doyle, attorney general.

Before Vergeront, P.J., Roggensack and Deininger, JJ.

¶ 1. VERGERONT, P.J.

William Church appeals the amended judgment of conviction in which his sentence for second-degree sexual assault was increased on resentencing from thirteen to seventeen years, and from the order denying his motion to reduce the increased sentence to the original term of thirteen years. Church contends the increase in his sentence for second-degree sexual assault violated his right to due process in sentencing. We conclude the trial court affirmatively stated on the record the grounds for increasing the sentence on the sexual assault conviction, and that the grounds were based on objective, identifiable factual information deriving from events occurring after the original sentencing that warranted an increase in sentence. We therefore conclude that Church's right to due process was not violated by the increase in sentence. Accordingly, we affirm.

BACKGROUND

¶ 2. Church was convicted of several offenses stemming from an incident in which he drugged and sexually assaulted a seventeen-year-old boy. A jury found Church guilty of five offenses: second-degree sexual assault, contrary to WIS. STAT. § 940.225(2)(d) (1995-96);² child sexual exploitation, contrary to WIS. STAT. § 948.05(1)(a); delivering a controlled substance, contrary to WIS. STAT. § 961.41(1)(h)1; and two counts of child enticement, one for enticement with intent to cause a child to expose a sex organ, contrary to WIS. STAT. § 948.07(3), and a second for enticement with intent to give a controlled substance to a child, contrary to § 948.07(6).

¶ 3. Neither during the preparation of the original presentencing investigation (PSI) report nor at the original sentencing did Church acknowledge responsibility for the crimes for which he had been convicted. On May 8, 1997, the trial court sentenced Church to thirteen years in prison for the sexual assault. It withheld sentence on the remaining convictions and ordered probation on each: ten years on the child sexual exploitation offense, six years on the delivery offense, and twenty-four years on each of the enticement offenses. All probation terms were concurrent with each other, but consecutive to the prison term on the sexual assault.

¶ 4. Church appealed the two convictions for child enticement on double jeopardy grounds. In State v. Church, 223 Wis. 2d 641, 665, 589 N.W.2d 638 (Ct. App. 1998) (Church I),³ we concluded that the two convictions on the enticement counts were multiplicitous because they were the same in law and in fact. We therefore reversed one of those two convictions and stated:

We note that the sentences for both counts of child enticement were withheld and that concurrent twenty-four-year terms of probation, consecutive to the prison term for sexual assault, were ordered. Thus, our disposition would not, in itself, affect the duration of Church's prison sentence or of his subsequent term of supervision. Nevertheless, we conclude that we must vacate all sentences imposed for each of Church's four remaining convictions, and remand for re-sentencing on one count each of second-degree sexual assault, child enticement, sexual exploitation of a child, and delivery of THC to a minor. See State v. Gordon, 111 Wis. 2d 133, 146, 330 N.W.2d 564, 570 (1983)

.

Church, 223 Wis. 2d at 665-66.

¶ 5. Upon remand, the trial court discussed with counsel the proper scope of the resentencing proceedings and concluded that, under State v. Carter, 208 Wis. 2d 142, 560 N.W.2d 256 (1997), it was required to consider all relevant information, including events occurring subsequent to the original sentencing. The court ordered an updated PSI. That report stated that Church's adjustment in prison was good and that Church had no incidents of misconduct. However, the report stated Church still had not accepted responsibility for his criminal behavior, had made no effort to obtain sex offender treatment, and had not cooperated with the preparation of the updated PSI.⁴

¶ 6. At resentencing, Church addressed the court, acknowledged responsibility for the crimes, stated that he was sorry, and said he wanted to get into treatment. Church's counsel disputed that Church had not requested treatment previously, pointing out that he had requested a transfer to Oshkosh State Correctional Institute (OSCI), and that is the location of the sex offender treatment program (SOTP) that was recommended for Church in his 1997 assessment. Church called as a witness the clinical director of that program. She testified that the program is a four-year program, the most intensive in the system; generally, when inmates are recommended for this program they are placed in it when they are getting closer to their mandatory release date.⁵ ¶ 7. The prosecutor recommended consecutive terms of imprisonment on all the offenses for a total sentence of thirty-three years: ten years each on the sexual assault, the one remaining enticement, and the sexual exploitation convictions, and three years on the THC delivery conviction. In support of this recommendation, the prosecutor discussed the aggravated nature of the crime, the continued impact on the victim since the original sentence, and Church's denial of his responsibility and failure to seek treatment. Church's counsel argued that all those factors had been taken into account at the original sentencing, including the fact that he was not taking responsibility for his criminal conduct, and now, in fact, he had acknowledged responsibility. Counsel asked the court to leave all the sentences the same, except the sentence on the one enticement conviction that had been reversed on double jeopardy grounds.

¶ 8. The trial court reviewed the transcript from the original sentencing hearing and compared it to the information presented on resentencing. The court referred to the evidence before it that in prison Church had a strong circle of friends centering around his church and a solid employment record, and observed that this was true when he was originally sentenced. As for taking responsibility for his criminal conduct, the court stated that, except for his statement to the court on that day, everything it had said at the original sentencing about Church's failure to take responsibility remained true. The court referred to the letters from church leaders who noted that they were unaware of the reason Church was convicted;⁶ his failure to acknowledge responsibility to the writer of the updated PSI; and his failure to seek treatment in prison. The court then explained its reason for increasing the sentence on the sexual assault conviction:⁷

I do note that Mr. Church has been an exemplary prisoner in most respects other than treatment needs as he was in the community a fairly exemplary citizen, but for the fact that he sexually assaulted a child. I feel that we are in exactly the same position we were in when Mr. Church sat before me almost four years ago on May 8, 1997. The offense remains just as serious, the character of the defendant has not changed in any way, the protection of the public remains a very serious concern. The only thing that has changed is nearly four years have passed and Mr. Church, as I said about 10 minutes ago, made his first step towards admitting responsibility and seeking help for his very significant problems. I feel that those four years have been wasted and that to impose the same sentence today would in effect give Mr. Church credit for spending the last four years without acknowledging his offense and without doing anything to obtain treatment either for himself or for the public.

[In imposing seventeen years] . . . [m]y intent . . . is to say . . . we are here four years later, four years have passed, we need to start at square one again and hopefully within the time that he is incarcerated, Mr. Church can make the progress I hoped he would make four years ago and has not.

¶ 9. The court imposed the same periods and conditions of probation on the other three convictions as it had earlier, including the same twenty-four-year term of probation on the remaining enticement conviction.

¶ 10. Church filed a motion for modification of the increased sentence on the sexual assault conviction, asking that it be reduced to the original sentence of thirteen years. He argued that his right to due process in sentencing had been violated because no new objective, identifiable factual information had been presented to the court that would support the four-year increase in his sentence. The court denied the motion, explaining:

[T]he purpose of a prison sentence for a sex offender like Mr. Church is twofold at least. I suppose there is a punishment aspect of it, but more importantly I think are the opportunity for the rehabilitation and the protection of the public. The public is protected obviously so long as he is behind bars. The opportunity for rehabilitation takes place because there [are] programs available in the institution. So, in measuring what was different from sentence one to sentence two, what it's clear I measured from the record is the fact that Mr. Church would remain a danger to the public into the future as I sat there — at least as long as he would have remained a danger [to] the public into the future when I sat there the first time, because nothing had changed other than it was four years later. So whatever sentence protected the public in 1997 would have to

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