State v. Oglesby

• Decision Date: 12 April 2006
• Docket Number: No. 2005AP1566-CR.,No. 2005AP1565-CR.,2005AP1565-CR.,2005AP1566-CR.
• Citation: 715 N.W.2d 727,2006 WI App 95
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. Carla L. OGLESBY, Defendant-Appellant.
• Court: Wisconsin Court of Appeals

715 N.W.2d 727

2006 WI App 95

STATE of Wisconsin, Plaintiff-Respondent, v. Carla L. OGLESBY, Defendant-Appellant.

No. 2005AP1565-CR.

No. 2005AP1566-CR.

Court of Appeals of Wisconsin.

Submitted on Briefs March 7, 2006.

Opinion Filed April 12, 2006.

On behalf of the defendant-appellant, the cause was submitted on the briefs of Timothy T. Kay, of Kay and Kay Law Firm, of Brookfield.

On behalf of the plaintiff-respondent, the cause was submitted on the brief of Peggy A. Lautenschlager, Attorney General, and Shunette T. Campbell, Assistant Attorney General.

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

¶ 1 NETTESHEIM, J

Carla L. Oglesby appeals from the sentencing provisions of two judgments of conviction and from a postconviction order denying her motion to amend or correct the judgments of conviction. In Kenosha county case number 2004CF225, Oglesby sought to amend the confinement portion of a truth-in-sentencing (TIS) judgment of conviction from a consecutive sentence to a concurrent sentence. In Kenosha county case number 2004CM401, also a TIS case, Oglesby sought to reduce the six-year period of probation recited in the judgment of conviction to the maximum term of two years pursuant to WIS. STAT. § 973.09(2) (2003-04).¹

¶ 2 The State concedes error as to Oglesby's challenge to the period of probation in 2004CM401, and we agree with the State's concession. As to the concurrent versus consecutive issue in 2004CF225, we hold that the record as a whole does not rebut the presumption of a concurrent sentence when, as here, the court did not expressly state whether the sentence is concurrent or consecutive. We reverse the order denying Oglesby's motion to amend the judgments of conviction. Accordingly, we also reverse the sentencing portion of the judgments and remand with directions that the trial court enter amended judgments of conviction stating that: (1) the period of Oglesby's probation in 2004CM401 is two years, and (2) Oglesby's period of confinement in case 2004CF225 is concurrent with the sentence imposed moments earlier in another case in the same sentencing proceeding.

FACTS AND PROCEDURAL HISTORY

¶ 3 The facts governing this appeal are not disputed. We begin with Kenosha county case number 1997CF239, a case that predated TIS.² In that case, Oglesby was convicted in 1997 of five counts of uttering a forged document and one count of operating a motor vehicle without the owner's consent (OMVWOC). She was placed on probation under a withheld sentence. However, Oglesby's probation was later revoked, and she appeared before the trial court for sentencing on March 24, 2004.

¶ 4 On that same date, Oglesby entered pleas of guilty to felony charges of burglary and two counts of uttering a forged writing in 2004CF225 and a misdemeanor charge of resisting an officer in 2004CM401.³ After conducting an appropriate plea colloquy with Oglesby, the trial court accepted her guilty pleas. Without objection from Oglesby, the trial court immediately proceeded to sentencing on all three cases.

¶ 5 The State opened this phase of the hearing with its sentencing recommendations. In 1997CF239, the probation revocation case, the State recommended concurrent six-year sentences on the five uttering charges and a consecutive three-year sentence on the OMVWOC charge. In 2004CF225, the burglary and uttering cases, the State recommended a sentence of ten years on the burglary charge, consisting of a three-year period of confinement consecutive to the sentences in the probation revocation case followed by seven years of extended supervision. As to the uttering charges, the State recommended concurrent periods of five years' probation consecutive to the confinement on the burglary sentence. In 2004CM401, the misdemeanor resisting case, the State did not make any sentencing recommendation.

¶ 6 Oglesby's counsel then made his recommendations to the trial court. Counsel recognized that confinement was appropriate in 1997CF239, the probation revocation case. However, counsel recommended three-year sentences, not the six-year sentences requested by the State. In the remaining cases, 2004CF225 and 2004CM401, counsel requested that the court place Oglesby on probation consecutive to the prison sentences in the probation revocation case.

¶ 7 The trial court then pronounced the sentences. The court first addressed 1997CF239, the probation revocation case. The court followed the State's recommendation and sentenced Oglesby to concurrent six-year terms on the five uttering charges and a consecutive three-year term on the OMVWOC charge.

¶ 8 Next, the trial court addressed the remaining two cases, 2004CF225 and 2004CM401, which are before us on appeal. In 2004CF225, the trial court partially followed the State's recommendation by sentencing Oglesby on the burglary charge to a bifurcated sentence of three years of confinement followed by seven years of extended supervision. However, the court did not state whether the confinement portion of this sentence was concurrent or consecutive to the sentences previously imposed in 1997CF239, the probation revocation case. Nonetheless, the judgment of conviction in 2004CF225 recited the confinement portion of the sentence as a consecutive sentence. The court also partially followed the State's recommendation on the two uttering charges by placing Oglesby on probation. However, the court imposed six-year periods of probation, not the five years recommended by the State.

¶ 9 Finally, in 2004CM401, the misdemeanor resisting case, the trial court placed Oglesby on two years' probation, concurrent with the six-year probation terms ordered in 2004CF225. However, the judgment of conviction in 2004CM401 recited a six-year term of probation, contrary to the court's oral pronouncement of a two-year term.

¶ 10 Postjudgment, Oglesby sought to amend the judgments of conviction in 2004CF225 and 2004CM401. As to 2004CF225, Oglesby argued that the trial court's sentencing remarks were unambiguous and should control over the conflicting recital in the written judgment of a consecutive sentence. In support, Oglesby cited to the established case law holding that a sentence should be deemed concurrent where, as here, the trial court had not expressly stated that the sentence was consecutive. The State contended that the court's sentencing remarks were ambiguous, but that the ambiguity was resolved by the recital in the judgment of conviction that the confinement portion of the sentence was consecutive.

¶ 11 As to 2004CM401, Oglesby argued that the six-year probationary term was not only contrary to the trial court's oral pronouncement of a two-year probation term, but also was in excess of the maximum permitted by the law pursuant to WIS. STAT. § 973.09(2). As noted, the State conceded this point and agreed with Ogles-by that the term of the probation should be reduced to the statutory maximum of two years.

¶ 12 The trial court denied Oglesby's motion to amend the judgment in 2004CF225 to recite that the confinement portion of the sentence is concurrent. In a terse written order the court said, "Without going into detail, but relying on the record to speak for itself, it is clear that the Court intended a consecutive sentence. The motion to amend the judgment of conviction is denied." However, this order was silent as to Oglesby's challenge to the term of the probation in 2004CM401, although the order addresses the case numbers of both cases. Oglesby appeals.

DISCUSSION

The Term of the Probation in Case No.2004CM401

¶ 13 Oglesby argues that the six-year term of probation in 2004CM401, the misdemeanor resisting an officer case, conflicts with the trial court's oral pronouncement of a two-year term of probation at the sentencing hearing. As we have noted, the trial court's written order did not address this portion of Oglesby's challenge.

¶ 14 Ordinarily, that would call for us to remand the issue back to the trial court for a decision on the issue. But we see no need for a remand. The facts regarding this issue are not disputed by the parties, rendering the question one of law. See State v. Miller, 2004 WI App 117, ¶ 20, 274 Wis.2d 471, 683 N.W.2d 485, review denied, 2004 WI 123, 275 Wis.2d 296, 687 N.W.2d 523. Moreover, the State conceded error in the trial court, and it renews that concession on appeal. Finally, the State's concession is well taken since the governing statutory law clearly reveals that the six-year probation term recited in the judgment of conviction is in excess of the permitted maximum. See WIS. STAT. § 973.09(2). Statutory interpretation and the application of statutes to specific facts are questions of law we review without deference to the trial court. O'Connell v. O'Connell, 2005 WI App 51, ¶ 6, 279 Wis.2d 406, 694 N.W.2d 429, review denied, 2005 WI 134, 282 Wis.2d at 721, 700 N.W.2d at 273. We therefore decide the issue on the merits despite the absence of a trial court ruling on the matter.

¶ 15 In 2004CM401, Oglesby was charged with resisting an officer, a Class A misdemeanor. See WIS. STAT. § 946.41. Subject to certain exceptions, the maximum term of probation for a misdemeanor conviction is two years. WIS. STAT. § 973.09(2).⁴ In keeping with this statute, the trial court's oral pronouncement imposed a two-year term of probation in 2004CM401. Despite this clear and unequivocal statement, the judgment of conviction recited a probation term of six years.

¶ 16 When an unambiguous oral pronouncement at sentencing conflicts with an equally unambiguous pronouncement in the judgment of conviction, the oral pronouncement controls. State v. Lipke, 186 Wis.2d 358, 364, 521 N.W.2d 444 (Ct.App. 1994). Thus, Oglesby's appeal, and the State's concession of error on this issue, are well taken. The trial court should have granted Oglesby's motion to amend the judgment to recite a probation term of two years. We therefore reverse the sentencing portion of the judgment of conviction in ...