State v. Leonard

• Decision Date: 28 June 1968
• Citation: 159 N.W.2d 577,39 Wis.2d 461
• Parties: STATE of Wisconsin, Respondent, v. John F. LEONARD, Appellant.
• Court: Wisconsin Supreme Court

Page 577

159 N.W.2d 577

39 Wis.2d 461

STATE of Wisconsin, Respondent, v. John F. LEONARD, Appellant.

Supreme Court of Wisconsin.

June 28, 1968.

Upon an application to this court and a finding of indigency, Attorney Donald J. Tikalsky was appointed counsel to represent the defendant in a review of his post-conviction remedies. On September 12, 1967, counsel's motion (to the county court) to vacate the sentence was granted on the ground that the defendant had not been afforded his constitutional right to counsel at sentencing. ¹ The court then imposed a new sentence which was substantially the same as the one vacated except that two of the four forgery terms were to be served consecutively. The new sentence had the effect of increasing the original sentence by three years. Defendant appeals.

Lowry, Hunter & Tikalsky, Waukesha, Donald J. Tikalsky & James L. Steimel, Waukesha, of counsel, for appellant.

Bronson C. La Follette, Atty. Gen., William A. Platz and Betty R. Brown, Asst. Attys. Gen., Madison, Roger P. Murphy, Dist. Atty. Waukesha Co., Waukesha, for respondent.

Robert H. Friebert, State Public Defender, Madison, amicus curiae.

WILKIE, Justice.

Two issues are presented on this appeal:

1. On resentencing may a defendant be given a harsher sentence than the one originally imposed?

2. On resentencing was the defendant here given credit for time already served under the original sentence?

Increased Sentence on Resentencing.

The first issue raises a question of first impression in this court. Essentially, defendant's argument is that the imposition, or potential imposition, of a greater sentence upon one who successfully pursues a post-conviction remedy resulting in resentencing, or in redetermiantion of guilt followed by resentencing, unconstitutionally inhibits the seeking of post-conviction redress. Defendant argues that his right to challenge the proceedings that led to his conviction and sentence should not be conditioned upon his willingness to submit to the risk of an increased punishment over that which was previously imposed. The state public defender in his amicus curiae brief informs the court that it is the practice of his office to advise all clients on the possibility of an increased penalty if they are successful in their appeal. The defender believes that this possibility discourages many prisoners from challenging the legality of their convictions.

Recently, several courts have dealt with the issue before this court. While many of these cases involve situations in which the defendant has successfully appealed his original conviction, and upon reconviction has been resentenced, we see no good reason for distinguishing those cases from situations involving only resentencing.

A recent annotation at 12 A.L.R.3d 978 points out that a numerical majority of the decisions from other jurisdictions support the state's position in this case, i.e., upon reconviction and resentencing for the same crime the sentencing court may increase the sentence and in fact may assess any sentence it believes appropriate within the maximum set by statute and the previous sentence is no limitation upon that authority.

Most courts in the majority have primarily premised their holding on the theory that in obtaining a new trial a defendant assumes the risk of a more severe sentence. ² These courts reason that in asking for and receiving a new trial, a defendant must accept the hazards as well as the benefits that could result therefrom.

However, New Jersey and California and some other jurisdictions ³ have declined to follow the majority and have taken a minority position in opposition to allowing an increased penalty.

State v. Wolf ⁴ involved an appeal by the state from a trial court's order that the state could not seek the death penalty in the retrial of a defendant whose first conviction and sentence of life imprisonment had been reversed on appeal. The New Jersey Supreme Court, in affirming the trial court's order, found it unnecessary to decide the case under either the double-jeopardy or the due-process theories, and instead rested its decision on procedural policies, which it said are of the essence in the administration of crimianl justice. To set the risk of a man's life as the price of an appeal from an erroneous conviction, the court reasoned, is a hardship so acute and so shocking that public policy cannot tolerate it. To the state's argument that many automatic and frivolous appeals would result from the court's decision, it was said:

'* * * although the objective of deterring automatic and frivolous appeals may be a desirable one, accomplishment of the purpose by confronting the defendant with the possibility of a death sentence, if his appeal is successful, is inhumane since it does not take into account the merits of his claim of erroneous conviction of the homicide charged against him. In a choice between forcing the defendant either to surrender his right to an error free trial as well as his right of appeal, and to accept the life imprisonment sentence, or to put his life at stake again on retrial following a successful appeal, justice can follow only one course. That course is the one demanded by procedural fairness and principles of public policy, namely prohibition of such a fearsome election, and the restriction of available punishment at a new trial to life imprisonment, if a second conviction results.' ⁵

The California Supreme Court, ⁶ confronted with a fact situation substantially similar to that involved in Wolf, reached the same conclusion, though on grounds of double jeopardy, that no one should be faced with such a desperate choice.

Several 1967 decisions from courts of appeal from various federal circuits have sparked controversy over the question presently before this court. They present three alternative approaches:

1. Allow more severe sentencing without limitation. United States ex rel. Starner v. Russell. ⁷

2. Impose an absolute prohibition on increased sentences. Patton v. State of North Carolina. ⁸

3. Prohibit increased sentences unless events occur and come to the court's attention subsequent to the first sentence, which events warrant an increased penalty. Marano v. United States. ⁹

In United States ex rel. Starner v. Russell the defendant had been convicted on eight counts of forgery and two counts of burglary. His sentence was 'not less than two years or more than six.' ¹⁰ Defendant's conviction was set aside on Habeas corpus and a new trial was held. The burglary counts were withdrawn and, after a jury trial, defendant was found guilty on the forgery counts. Defendant's new sentence included imprisonment of 'not less than three and one-half nor more than seven years.' ¹¹ After remarking that the new sentence was within the legal limits, the court of appeals from the 3d circuit said:

'When he (the defendant) appeared and entered a plea of not guilty at the second trial, the slate had been wiped clean and it was an entirely new case and bore no relationship whatsoever to his previous plea of guilty which he had entered.

'* * * it would therefore seem to be the rule in the federal system that a trial judge, when a new trial is ordered, may impose a sentence greater than one he had earlier vacated, and that it is unnecessary to articulate the reason for any differentiation in the term of the sentence.' ¹²

In Patton v. State of North Carolina, the court of appeals from the 4th circuit laid down a blanket prohibition against any increase in a sentence on retrial following a successful appeal. Patton, without counsel, pleaded nolo contendere and was convicted of armed robbery. He was sentenced to prison for a term of twenty years. Later, he was awarded a new trial because he had had no counsel. On retrial he was again convicted and the trial judge increased his punishment by sentencing him to twenty-five years (against which the five years he had served were credited). The court of appeals held that the due-process and equal-protection clauses (and, though not necessary to the decision, the double-jeopardy prohibition of the Fifth amendment) require a uniform rule barring the subsequent imposition of a sentence in excess of one which has been invalidated. The court pointed out that:

'The risk of a * * * greater sentence * * * may prevent defendants who have been unconstitutionally convicted from attempting to seek redress.' ¹³

An intermediate position was taken by the court of appeals from the 1st circuit in the case of Marano v. United States. In Marano the defendant on reconviction was sentenced to five years rather than three as he had been originally sentenced. The court stated that a judge should not be permitted to change his mind by deciding that he had been too lenient the first time. However, the court held that it was proper in resentencing for the court 'to take subsequent events into consideration, both good and bad.' ¹⁴ At the second sentencing a presentence report had been received disclosing new circumstances. The court of appeal reversea dn remanded for resentencing, since (1) the new circumstances were not the sole ground for the increase in sentence, and (2) the presentence report may not have been enough, standing alone, to support the new sentence.

The court went on, in a footnote, to suggest that a trial court affirmatively state its grounds when it increases a sentence.

The court of appeals from the 7th circuit, in United States v. White, ¹⁵ recently considered all three of these approaches by sister circuits. The defendant's conviction and sentence had been set aside and a new trial ordered. The defendant had received concurrent sentences of six months' imprisonment plus thirty months' probation. Following the reversal, a new trial was held, the defendant was convicted and a longer prison term imposed. On appeal the defendant claimed that the longer prison term following the second trial violated the dueprocess clause and...