State v. Prager

• Decision Date: 13 April 2005
• Docket Number: No. 2004AP843-CR.,2004AP843-CR.
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. Frederick W. PRAGER, Defendant-Appellant.
• Court: Wisconsin Court of Appeals

281 Wis.2d 811

2005 WI App 95

698 N.W.2d 837

STATE of Wisconsin, Plaintiff-Respondent, v. Frederick W. PRAGER, Defendant-Appellant.

No. 2004AP843-CR.

Court of Appeals of Wisconsin.

Oral argument February 22, 2005.

Decided April 13, 2005.

On behalf of the defendant-appellant, there were briefs and oral argument by Daniel P. Fay, Pewaukee.

On behalf of the plaintiff-respondent, there was a brief by William L. Gansner, assistant attorney general, and Peggy A. Lautenschlager, attorney general. There was oral argument by William L. Gansner.

Before Anderson, P.J., Nettesheim and Snyder, JJ.

¶ 1. SNYDER, J.

Frederick W. Prager appeals from an amended judgment of conviction, specifically challenging the sentence imposed by the circuit court. Prager argues that the circuit court improperly applied the new factor analysis to resentence him. We agree that there was no new factor upon which to base a modified sentence. Accordingly, the amended judgment of conviction and sentence of the circuit court are reversed. We remand with directions for the circuit court to reinstate the original judgment of conviction, sentence, and probation placement with conditions.

FACTS AND PROCEDURAL BACKGROUND

¶ 2. The facts are undisputed. On March 10, 2003, Prager pled guilty to one count of repeated sexual assault of the same child contrary to WIS. STAT. § 948.025(1) (2003-04).¹ Two additional counts were dismissed, with the provision they would be read in at sentencing. At the time of the conviction, Prager was seventy years old and faced a maximum of sixty years in prison. The State agreed to recommend a fourteen-year sentence: seven years of incarceration followed by seven years of extended supervision. Prager retained the right to argue at sentencing and the circuit court ordered a presentence investigation report (PSI).

¶ 3. Prager's attorney submitted a letter to the circuit court on April 21, 2003, which accompanied an independent treatment report, a letter from Prager's wife, and additional letters of support. In that letter, Prager's attorney recommended a stayed fourteen-year sentence, with equal prison and extended supervision time, and an initial twelve months in jail with Huber privileges, followed by fifteen years of probation with certain conditions. It was also noted that if Prager went to prison, the income from his small engine repair business as well as his social security income would cease and, as a result, his wife and other family members would suffer.

¶ 4. On May 1, 2003, the circuit court convicted Prager and imposed and stayed a fourteen-year sentence with four years of initial incarceration and ten years of extended supervision. The court then ordered a fourteen-year period of probation with numerous conditions attached. The court stated that the offer of probation during the term of the stayed sentence was a direct result of Prager's representations that his wife needed him "from a physical standpoint, from an emotional standpoint, and from an economic standpoint." The circuit court signed the judgment of conviction with the attending sentence on May 9, 2003.

¶ 5. On May 7, 2003, the State moved for reconsideration of Prager's sentence, contending that Prager had misrepresented his wife's economic circumstances and the hardship his imprisonment would cause her. Specifically, the State alleged that Prager's $300,000 farm had been transferred by quitclaim deed to Mrs. Prager fifty-five days after his initial appearance in court.²

¶ 6. At the reconsideration motion hearing on June 13, 2003, the circuit court rejected the State's argument and ruled that Prager had not made a fraudulent misrepresentation to the court, but that ownership of the farm was a new factor that "had it been known to the Court at the time of sentencing, would have been a significant factor in terms of the sentencing scheme." The court decided that the original sentence "must be set aside and ... declared void." The court directed that a new PSI be prepared and instructed that it "is to correct or add to, explain the prior information that was contained in the original report, but is not to duplicate it." The court directed the PSI author to "try to get detailed statements, impact statements, from ... the victim or victims [and their families] so that we really have somewhat of a comprehensive picture that is going to be supplied in terms of the [PSI]." The court indicated a particular interest in "knowing the [victims'] views ... because I believe that there was quite a divergence. Be nice to have that information plus the medical information plus the economic information."

¶ 7. On September 19, 2003, Prager was resentenced. The circuit court imposed a ten-year sentence, three years in prison followed by seven years of extended supervision. Prager appeals.

DISCUSSION

¶ 8. The State, rather than Prager, sought modification of Prager's sentence.³ After the original sentencing, the State sought resentencing under State v. Jones, 2002 WI App 208, 257 Wis. 2d 163, 650 N.W.2d 844, review denied, 2003 WI 126, 265 Wis. 2d 416, 668 N.W.2d 557 (WI Aug. 13, 2003) (No. 2001AP2969-CR), arguing that Prager "misinformed the Court as to the ownership of the farm" and that this misrepresentation influenced the circuit court's sentence. The circuit court rejected the State's contention, stating that Prager's "nondisclosure of the ownership interest does not rise to the level of information referred to in the Jones case and is not a fraudulent misrepresentation."

¶ 9. The circuit court then broadened the issue beyond the scope of the State's motion and embarked on a new factor analysis. See State v. Crochiere, 2004 WI 78, ¶ 13, 273 Wis. 2d 57, 681 N.W.2d 524 (a circuit court has the power to modify a sentence upon the showing of a new factor, if that new factor warrants sentence modification). In the end, the court reduced rather than increased Prager's sentence; however, the practical impact was harsher because the court neither stayed the sentence nor placed Prager on probation.

¶ 10. Prager presents two issues for our consideration. First, he contends that his Fifth Amendment right to be free from double jeopardy was violated when the circuit court imposed a second punishment for the original offense. Second, Prager argues that there was no new factor to justify resentencing. We take these issues in reverse order because the new factor analysis is dispositive. We need not reach the merits of Prager's double jeopardy argument because we reverse on other grounds. See State v. Castillo, 213 Wis. 2d 488, 492, 570 N.W.2d 44 (1997). ¶ 11. A new factor must be "highly relevant to the imposition of sentence, but not known to the trial judge at the time of original sentencing, either because it was not then in existence or because, even though it was then in existence, it was unknowingly overlooked by all of the parties." Rosado v. State, 70 Wis. 2d 280, 288, 234 N.W.2d 69 (1975). "The trial court cannot reduce or increase a sentence upon its reflection that the sentence imposed was harsh or inadequate." State v. Wuensch, 69 Wis. 2d 467, 479, 230 N.W.2d 665 (1975); see also State v. Johnson, 158 Wis. 2d 458, 467, 463 N.W.2d 352 (Ct. App. 1990).

¶ 12. We recognize the deference accorded a sentencing court and, as a general rule, we do not interfere with a sentencing court's exercise of discretion. See State v. Gallion, 2002 WI App 265, ¶ 26, 258 Wis. 2d 473, 654 N.W.2d 446, aff'd, 2004 WI 42, 270 Wis. 2d 535, 678 N.W.2d 197. Here, however, the threshold question is whether a new factor exists. In this we owe no deference to the circuit court as it presents a question of law and our standard of review is de novo. See State v. Michels, 150 Wis. 2d 94, 97, 441 N.W.2d 278 (Ct. App. 1989). A party must demonstrate the existence of a new factor by clear and convincing evidence. State v. Franklin, 148 Wis. 2d 1, 9-10, 434 N.W.2d 609 (1989). We have characterized a new factor as "an event or development which frustrates the purpose of the original sentence." State v. Champion, 2002 WI App 267, ¶ 4, 258 Wis. 2d 781, 654 N.W.2d 242 (citation omitted).

¶ 13. Here, the circuit court's express purpose for staying Prager's sentence and placing him on probation was to protect the existing victims without creating new victims: specifically, Prager's wife, daughter, and grandsons, who rely on him emotionally and financially. During arguments at sentencing, Prager raised the special financial circumstances of his case. He stated that if sent to prison his social security and medicare benefits would terminate, including those that flow through him to his wife. He also asked the court to keep him in the community so that he could care for his wife, who has epilepsy. Taking this into consideration, the court made its purpose clear, stating:

I have come to the conclusion after reading and then rereading that if I put you in prison, I will create more victims and I don't think that that's what the Court should do. So I am going to impose a sentence on you and I am going to stay it and then I'm going to give you the option of going on probation ....

....

I was persuaded and gave a lot of credence to the representations to the Court which indicate that your wife really needs you from a physical standpoint, from an emotional standpoint, and from an economic standpoint .... [T]he two guiding principles here for this Court in imposing a stayed sentence on you are, number one, and I don't want to create more victims than you have created and I am very concerned about your wife, and then, secondly, you yourself have represented that she is in need of you and so hopefully that's the way it will work out.

¶ 14. To support resentencing, the quitclaim deed — the only new factor alleged here — must be highly relevant to the sentence. See Rosado, 70 Wis. 2d at 288. The farm was a peripheral matter at the original sentencing, as the only discussion regarding the farm was in...