State v. Lipke

• Decision Date: 06 July 1994
• Docket Number: 94-0068-CR,Nos. 93-1984-C,s. 93-1984-C
• Citation: 521 N.W.2d 444,186 Wis.2d 358
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. Richard LIPKE, Defendant-Appellant.
• Court: Wisconsin Court of Appeals

Page 444

521 N.W.2d 444

186 Wis.2d 358

STATE of Wisconsin, Plaintiff-Respondent, v. Richard LIPKE, Defendant-Appellant.

Nos. 93-1984-CR, 94-0068-CR.

Court of Appeals of Wisconsin.

Submitted on Briefs May 16, 1994.

Opinion Released July 6, 1994.

Opinion Filed July 6, 1994.

Before ANDERSON, P.J., and BROWN and SNYDER, JJ.

ANDERSON, Presiding Judge.

Richard Lipke appeals from a judgment of conviction for operating after revocation and a postconviction order clarifying that the sentence imposed was consecutive to any other sentence Lipke was to serve. This court also granted leave to appeal the order setting cash bond as a condition of release pending appeal.

Lipke argues that the sentence imposed was to be concurrent rather than consecutive to any other sentence. We affirm the judgment and postconviction order because we hold that the sentence was not invalid and the consecutive sentence does not place Lipke in double jeopardy. Lipke also argues that because he is indigent, the court erred by setting cash bond as a condition of his release pending appeal. We agree and reverse that order.

FACTS

The material facts of this case are not disputed. Lipke was charged as a habitual traffic offender for operating a motor vehicle after revocation contrary to §§ 343.44 and 351.08, STATS. On June 3, 1993, Lipke pled no contest to the charge of operating after revocation pursuant to a plea agreement, whereby the State moved to dismiss the habitual traffic offender charge and agreed to recommend a $2000 fine and remain silent regarding any jail time.

The trial court accepted Lipke's plea on the operating after revocation charge and sentenced him to thirty days in jail. The trial court did not know that fifteen minutes earlier a different branch had sentenced Lipke to seventy-five days in jail on an unrelated charge. When asked by the court when he could begin serving the thirty-day sentence, Lipke stated that he could begin the next day at 4:00 p.m. The judgment of conviction, dated June 3, 1993, provided that "[a]ny sentence imposed by this order is imposed consecutive to any previously or simultaneously imposed sentence."

Approximately twenty days later, Lipke moved for an order that the thirty-day sentence be concurrent to any other sentence. Lipke argued that the court's oral statement at sentencing did not state that the sentence be served consecutively. The court found the oral pronouncement ambiguous and, examining the record as a whole, indicated that its intent was to make the sentence consecutive. The court held that the sentence was consecutive to any other sentence, reasoning that if it had known of the previous sentence, it would have explicitly stated that the imposed sentence be served consecutively.

Lipke then moved the court to set bond pending appeal. At the hearing, the State took no position on the motion except to state that Lipke had a history of failing to appear before the court. The State recited five dates on which it alleged Lipke failed to appear before the court. The court set a $500 cash bond for release pending appeal. Lipke then moved the court to determine whether cash bond could be imposed in light of his alleged indigency. The court found Lipke indigent, but held that cash bond was necessary and appropriate in this case because of Lipke's past appearance record. Lipke appeals.

CONSECUTIVE OR CONCURRENT SENTENCE

The first issue involves the determination of a court's statutory authority to impose a consecutive sentence, a determination presenting a question of law that we decide without deference to the trial court. State v. Woods, 173 Wis.2d 129, 136, 496 N.W.2d 144, 147 (Ct.App.1992). Lipke argues that the trial court erred when it stated in the judgment of conviction that his sentence was consecutive to any other sentence, where the court's oral statement at sentencing was silent on the issue.

In § 973.15(2)(a), STATS., the legislature has very clearly provided that sentences may be either consecutive or concurrent and that it is the sentencing court that makes the decision. State v. Paske, 163 Wis.2d 52, 62, 471 N.W.2d 55, 59 (1991). We conclude that Lipke "sandbagged" the court by not informing the court that he had been sentenced to seventy-five days in jail earlier that day. The court specifically asked Lipke when he could begin serving his sentence for the case at hand. Lipke made no mention of the sentence previously received, even though he had to have known that this information qualified the nature of his answer. Lipke cannot be allowed to take advantage of a situation which he caused by being less than candid with the court.

Even if we could say that Lipke was not obliged to inform the court of his other sentence, we would still affirm. Lipke cites State v. Perry, 136 Wis.2d 92, 113, 401 N.W.2d 748, 757 (1987), for the proposition that if there is a conflict between an unambiguous oral pronouncement and the judgment of conviction, the oral pronouncement controls. This is a correct statement of the law; however, this rule only applies where the pronouncement and the judgment are unambiguous and conflict.

We explained in State v. Brown, 150 Wis.2d 636, 443 N.W.2d 19 (Ct.App.1989), that the rationale of Perry hinged upon the lack of ambiguity and the conflict created--Perry did not automatically subordinate written judgments to oral pronouncements. "The intent of the sentencing judge controls the determination of the terms of a sentence, and we look to the record as a whole to determine that intent." Id. at 642, 443 N.W.2d at 22. Therefore, we agreed with the federal courts addressing the issue that where the oral pronouncement is ambiguous, it is proper to look at the written judgment to ascertain the court's intention. Id. at 641-42, 443 N.W.2d at 22. When applying this rationale to the facts of Brown, we noted that an omission in the oral pronouncement could create an ambiguity which would require the appellate court to determine the court's intent from other parts of the record, including the judgment of conviction. Id. at 642, 443 N.W.2d at 22.

That is precisely the situation we have in this case. Section 973.15(2)(a), STATS., gives the court the option of making a sentence consecutive or concurrent to sentences imposed at the same time or previously. Obviously, because the trial court was not alerted about the other condition and sentence it did not exercise this option and failed to mention whether the sentence was to be served concurrently or consecutively to other sentences. The court's understandable failure to specify at sentencing whether the sentence would therefore be concurrent or consecutive creates an ambiguity because the statute obliges the court to make a selection. On the other hand, the judgment of conviction, issued the same day as the oral ruling, is unambiguous. The judgment clearly expresses the court's intent that the sentence is to be consecutive to any previously or simultaneously imposed sentence.

Lipke also argues that the modification of his sentence after he began serving it placed him in double jeopardy. As our holding above indicates, Lipke was sentenced on June 3, 1993, to serve a thirty-day sentence consecutive to all other sentences. That sentence was imposed by the judgment of conviction on that day; it was not modified by the trial court's or our later interpretations. The judgment already imposed thirty days, and the clarification of the judgment did not increase Lipke's sentence. Accordingly, we reject Lipke's double jeopardy argument.

BOND AS A CONDITION OF APPEAL WHERE DEFENDANT IS INDIGENT

The next issue which Lipke raises on appeal is whether the court could require him to post a $500 cash bond as a condition of release pending appeal of his misdemeanor conviction where the court found him indigent. Although this opinion concludes his appeal and moots any argument for release while it was pending, his argument is "one of substantial importance that will surely recur"; thus, we choose to address his argument. See State v. Firkus, 119 Wis.2d 154, 157 n. 3, 350 N.W.2d 82, 84 (1984). We conclude that the court may not impose monetary conditions of release for convicted indigent misdemeanor defendants.

We review the trial court's discretionary determination of the setting of cash bail pending appeal to ascertain whether the trial court misused its discretion. See State v. Whitty, 86 Wis.2d 380, 388, 272 N.W.2d 842, 846 (1978). A trial court reasonably exercises its discretion where it examines relevant facts, applies proper standards of law, and, using a rational process, reaches a conclusion that a reasonable judge could reach. State v. Sinks, 168 Wis.2d 245, 255, 483 N.W.2d 286, 290 (Ct.App.1992).

Lipke argues that reading State v. Barnes, 127 Wis.2d 34, 377 N.W.2d 624 (Ct.App.1985), with State ex rel. Pedersen v. Blessinger, 56 Wis.2d 286, 201 N.W.2d 778 (1972), "shows that it is permissible to set a cash bail as a condition of release only if the court determines the defendant has the ability to pay. Otherwise, it would 'be discriminatory to imprison him to coerce a performance he is unable to give. Under such conditions he is imprisoned because of his poverty.' " (Quoting Pedersen, 56 Wis.2d at 295, 201 N.W.2d at 783.)

In Barnes, the defendant argued that cash bail ¹ could not be ordered as a condition for release in a...