State v. Church, 01-3100-CR.

• Decision Date: 01 July 2003
• Docket Number: No. 01-3100-CR.,01-3100-CR.
• Citation: 2003 WI 74,262 Wis.2d 678,665 N.W.2d 141
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. William J. CHURCH, Defendant-Appellant-Petitioner.
• Court: Wisconsin Supreme Court

262 Wis.2d 678

2003 WI 74

665 N.W.2d 141

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

No. 01-3100-CR.

Supreme Court of Wisconsin.

Oral argument February 13, 2003.

Decided July 1, 2003.

For the defendant-appellant-petitioner there were briefs and oral argument by James L. Fullin, assistant state public defender.

For the plaintiff-respondent the cause was argued by David J. Becker, assistant attorney general, with whom on the brief was James E. Doyle, attorney general.

¶ 1. DIANE S. SYKES, J.

The issue in this case is whether an increased sentence imposed upon the defendant following a successful appeal was presumptively vindictive, in violation of the defendant's right to due process, and, if so, whether the presumption was overcome by adequate, objective new factors in the record justifying the longer, post-appeal sentence. Under the circumstances here, we conclude that the longer sentence violated due process.

¶ 2. In 1996, a jury found William Church guilty of five offenses: second-degree sexual assault, child sexual exploitation, delivery of a controlled substance, and two counts of child enticement. Prior to sentencing, Church moved to dismiss one of the two counts of child enticement as multiplicitous, but the circuit court denied the motion. The court imposed a 13-year prison term on the sexual assault count and withheld sentence on the remaining counts, ordering probation terms of various lengths, consecutive to the prison sentence but concurrent to each other. Church appealed, again arguing that the two child enticement counts were multiplicitous.

¶ 3. The court of appeals agreed, and reversed one of the two child enticement counts. However, instead of simply vacating the conviction and the order of concurrent probation on one count of child enticement, the court of appeals vacated all the sentences in the case and remanded for resentencing on the four remaining counts, citing State v. Gordon, 111 Wis. 2d 133, 330 N.W.2d 564 (1983). On remand, the circuit court imposed 17 years on the sexual assault count, a four-year increase, and reimposed the terms of probation on the remaining three counts. The court of appeals affirmed.

¶ 4. We conclude that resentencing on convictions that remain intact after an appellate court reverses and vacates one or more counts in a multi-count case is not always required. Where, as here, the vacated count did not affect the overall dispositional scheme of the initial sentence, resentencing on the remaining counts is unnecessary and therefore not required. Here, however, Church himself requested resentencing as a remedy for the multiplicity of the child enticement counts. Upon resentencing, he received more than a reimposition of the original dispositional scheme. We conclude that the increased sentence was presumptively vindictive, in violation of Church's right to due process, and that the presumption was not overcome by adequate, objective new factors in the record justifying the increase.

I. FACTS AND PROCEDURAL HISTORY

¶ 5. William J. Church, age 39, from Cedar Rapids, Iowa, was charged in Dane County Circuit Court with five criminal counts: second-degree sexual assault contrary to Wis. Stat. § 940.225(2)(d), sexual exploitation of a child contrary to Wis. Stat. § 948.05(1)(a), delivery of a controlled substance (tetrahydrocannabinols-THC) to a minor contrary to Wis. Stat. § 961.41(h)(1), and two counts of child enticement contrary to Wis. Stat § 948.07 (1995-96).¹

¶ 6. All five counts stemmed from a calculated criminal episode in which Church arranged to take a 17-year-old boy from his church in Cedar Rapids to Wisconsin Dells, ostensibly for a brief vacation, but actually for purposes of sexual gratification. En route to the Dells, Church and the victim checked into a motel in Madison. There, Church gave the boy a marijuana cigarette and an alcoholic beverage laced with a prescription narcotic drug. When the boy fell asleep, Church sexually assaulted him and photographed his genitalia. The boy awoke during an act of sexual contact by Church, went to the lobby, called his pastor's house and then the police. A jury found Church guilty on all counts.

¶ 7. Before sentencing, Church moved to dismiss one of the two counts of child enticement on multiplicity grounds. The motion was denied.

¶ 8. At sentencing, the prosecution recommended a sentence totaling 33 years in prison. The circuit court, the Honorable Sarah B. O'Brien, noted Church's educational background (some college), "solid employment history," stable family background, "strong circle of friends centering around his church," and lack of any criminal record.

¶ 9. On the other hand, the circuit court expressed concern about Church's "deceitful" behavior and the premeditation of the offense, which the court characterized as "cold-blooded" and "pretty chilling." The circuit court noted that Church had failed to take any responsibility for the offenses, and expressed concern about the "ample reason to suspect that Mr. Church would reoffend" based on evidence of his "grooming behavior" with this victim and other boys. In this regard, the circuit court took note of a collection of photos of nude children and explicit notes in the defendant's handwriting that had been found at his home. The circuit court sentenced Church to 13 years in prison on the second-degree sexual assault count. Sentence was withheld on the other counts in favor of probation terms as follows: ten years on the sexual exploitation count, six years on the delivery of THC count, and 24 years each on the two counts of enticement, all consecutive to the prison term but concurrent to each other.

¶ 10. Church appealed on the multiplicity issue, and the court of appeals reversed one of the two counts of child enticement as multiplicitous. State v. Church, 223 Wis. 2d 641, 665, 589 N.W.2d 638 (Ct. App. 1998).² Noting that its "disposition would not, in itself, affect the duration of Church's prison sentence or of his subsequent term of supervision," the court of appeals nevertheless concluded that it "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." Church, 223 Wis. 2d at 665-66 (citing Gordon, 111 Wis. 2d at 146).

¶ 11. On remand, the circuit court ordered an updated presentence investigation report (PSI). The updated PSI indicated that Church had been incarcerated at Dodge Correctional Institution in Wisconsin from May to October of 1997 and in the county jail in Titus, Texas, from October 1997 through May 2000. In May of 2000, Church was transferred back to Dodge Correctional. ¶ 12. In July of 1998 and again in January of 1999, the Program Review Committee recommended that Church remain in Texas rather than transfer to another facility. The PRC reported that while in Texas, Church was assigned as a kitchen trustee, attended church services, and had an "excellent" record of conduct. During his four years of incarceration prior to resentencing, Church was not involved in any sex offender treatment programs.

¶ 13. At the resentencing hearing, Dr. Margaret Alexander, Clinical Director of the Sex Offender Treatment Program at the Oshkosh Correctional Institution, testified that sex offender treatment in prison typically lasts for four years and is implemented as an inmate approaches his date of release. Dr. Alexander explained the rationale for deferring sex offender treatment until the end of an inmate's sentence as follows:

The idea is that they finish the program and make a transition back to the community without spending further time in [criminal] populations where some of the new found skills and habits would stand a large possibility of getting erased.

¶ 14. Further testimony established that sex offender treatment is usually not appropriate until an offender is no longer in denial. There was no evidence that Church would have been admitted into sex offender treatment during the four years of incarceration prior to his resentencing. Sex offender treatment was not available at the Titus, Texas, facility.

¶ 15. Church argued for the same prison sentence and probation that was previously imposed on the four counts that remained after his successful appeal. For the first time, he expressed some remorse and a desire to seek treatment. The prosecution again asked for a prison sentence totaling 33 years. The circuit court imposed a prison sentence of 17 years on the sexual assault count, an increase of four years, followed by the same probationary terms as originally imposed on the remaining three counts. The circuit court justified the increase as follows:

I feel that we are in exactly the same position we were in when Mr. Church sat before me almost four years ago . . . 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 . . . [has today] 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.

¶ 16. Church moved for sentence modification, which was denied. He appealed, and the court of appeals affirmed the increased sentence. State v. Church, 2002 WI App 212, 257 Wis. 2d 442, 650 N.W.2d 873. We granted Church's petition for review, and now reverse.

II. STANDARD OF REVIEW

[1]

¶ 17. Whether an increased sentence imposed upon a defendant after a successful appeal violates a defendant's right to due process under the...