State v. Robinson
| Decision Date | 10 June 2014 |
| Docket Number | No. 2011AP2833–CR.,2011AP2833–CR. |
| Citation | 354 Wis.2d 351,847 N.W.2d 352,2014 WI 35 |
| Parties | STATE of Wisconsin, Plaintiff–Respondent, v. Jacqueline R. ROBINSON, Defendant–Appellant–Petitioner. |
| Court | Wisconsin Supreme Court |
OPINION TEXT STARTS HERE
For the defendant-appellant-petitioner, there were briefs by Dustin C. Haskell, assistant state public defender, and oral argument by Dustin C. Haskell.
For the plaintiff-respondent, the cause was argued by Sara Lynn Larson, assistant attorney general, with whom on the brief was J.B. Van Hollen, attorney general.
An amicus curiae brief was filed by Ellen Henak and Henak Law Office. S.C., Milwaukee, on behalf of Wisconsin Association of Criminal Defense Lawyers.
¶ 1 This is a review of an unpublished decision of the court of appeals 1 affirming a decision and order of the Milwaukee County Circuit Court 2 denying defendant Jacqueline R. Robinson's (Robinson) post-conviction motion to reinstate her original sentence.
¶ 2 The question before us is whether Robinson's constitutional protection against double jeopardy was violated when the circuit court increased her sentence one day after initially imposing it. Robinson argues that the circuit court's decision to resentence her one day after her original sentence was imposed violated both state and federal constitutional protections against double jeopardy because she had a legitimate expectation of finality in her original sentence.3 The State contends that Robinson had no legitimate expectation of finality and, consequently, Robinson's constitutional protection against double jeopardy was not violated.
¶ 3 Under the reasoning of United States v. DiFrancesco, 449 U.S. 117, 101 S.Ct. 426, 66 L.Ed.2d 328 (1980) and the factors set forth in State v. Jones, 2002 WI App 208, 257 Wis.2d 163, 650 N.W.2d 844, we hold Robinson did not have a legitimate expectation of finality and the circuit court acted appropriately in resentencing Robinson. Accordingly, we affirm the court of appeals.
¶ 4 The facts relevant to this appeal are undisputed. On January 19, 2011, Robinson was arrested for operating a motor vehicle while her driving privileges were suspended, for loitering, and for violation of probation. Robinson was taken to the police station for processing. At the police station, a police officer conducted a search of Robinson and recovered a pill bottle containing Alprazolam pills.4 Due to suspicionRobinson might be hiding additional narcotics, Robinson was escorted to a bathroom and two police officers conducteda further search of Robinson's person. During this search, the police officers recovered a second pill bottle containing Oxycontin pills.5 At this point, a struggle ensued. Robinson struck one of the police officers on the officer's jaw and forehead, and kicked the second police officer twice on the officer's left knee.
¶ 5 On January 22, 2011, the State filed a criminal complaint charging Robinson with one count of possession of narcotic drugs, in violation of Wis. Stat. § 961.41(3g)(am)(2009–10) 6 (Count One), and two counts of battery to a law enforcement officer, in violation of Wis. Stat. § 940. 20(2) (Count Two and Count Three).
¶ 6 On April 12, 2011, Robinson and the State entered into a plea agreement. Pursuant to the plea agreement, Robinson pled guilty to all three counts.
¶ 7 Robinson's arrest on January 19, 2011, was not her first encounter with the law. At the time of her arrest, Robinson was on probation after pleading guilty to three criminal charges in Waukesha County in 2008.7 Those three criminal charges were comprised of two counts of receiving stolen property less than or equal to $2,500, in violation of Wis. Stat. § 943.34(1)(a) (Waukesha County cases 08–CM–2563 and 08–CM–1636) and one count of possession with intent to deliver narcotics, in violation of Wis. Stat. § 961.41(1m)(a) (Waukesha County case 08–CF–518). Sentence on the Waukesha County cases was withheld and Robinson was placed on three years of probation. No jail time was ordered as a condition of that probation.
¶ 8 As a result of her arrest in Milwaukee County on January 19, 2011, Robinson was revoked from probation on all three Waukesha County cases. On April 6, 2011, the Waukesha County Circuit Court, the Honorable William J. Domina, presiding, sentenced Robinson to two years initial confinement and four years extended supervision for case 08–CF–518. For Waukesha County cases 08–CM–2563 and 08–CM–1636, Robinson was sentenced to nine months initial confinement for each count, with each sentence to run concurrent with the sentence imposed for case 08–CF–518. In sum, the circuit court sentenced Robinson to two years of initial confinement and four years of probation as a consequence of the revocation of her probation (collectively, “Waukesha County sentences”).
¶ 9 On May 10, 2011, the Milwaukee County Circuit Court, the Honorable Judge Van Grunsven, presiding, held a sentencing hearing for Robinson for Counts One, Two, and Three. The hearing began with the State and Robinson making a joint recommendation that any sentence the circuit court imposed be concurrent with the Waukesha County sentences. The State recited Robinson's prior criminal record and the factual background that led to Robinson's most recent charges. The State explained that, in 2008, eleven charges had previously been dismissed and read-in for three other convictions in Waukesha County and Robinson had received only probation for those three offenses. The State further explained that Robinson's probation had been revoked and she had been sentenced to “two years in custody and four years extended supervision.” The State recommended that the circuit court not impose any additional incarceration time for Robinson's most recent plea agreement for Counts One, Two, and Three.
¶ 10 Prior to imposing sentence on those counts, Judge Van Grunsven noted that “much of what [he] read in the complaint [was] absolutely despicable behavior.” At one point during the sentencing hearing, he addressed the defendant directly:
Quite frankly, in relation to your character, this Court considers the litany of cases that were dismissed and read-in as part of the plea negotiations out in Waukesha and while everyone seems to say that Jacqueline has turned the corner, I think the history and violation of laws of the state give me great cause for concern, despite the fact she's been off of probation she's been revoked and I also see her as a threat to society.
She is continuing to commit crimes, despite the fact she has pending charges, leading to the bail jump charge and other cases and I just, while she indicates that she's now clean and sober and going to take the opportunities seriously, I'm not so certain.
I think she has a vicious addiction that is going to be a life-long struggle. I consider the fact Judge Domina ordered a sentence of two years in and four years out after she was revoked and returned to him for sentencing. I do need to consider that.
I also look at the fact she has pled guilty, accepted responsibility. I also look at the need to protect the public.
¶ 11 After his remarks, Judge Van Grunsven sentenced Robinson on Count One to 42 months in the Wisconsin State Prison System, consisting of 18 months initial confinement and 24 months extended supervision, concurrent with any other sentence. On Counts Two and Three, Judge Van Grunsven sentenced Robinson to 60 months in the Wisconsin State Prison System, consisting of 24 months initial confinement and 36 months extended supervision, concurrent with any other sentence. Because Judge Van Grunsven ordered that the sentences run concurrent with the Waukesha County sentences, Robinson effectively received no additional incarceration after being sentenced on Counts One, Two, and Three.
¶ 12 The next day, May 11, 2011, the circuit court sua sponte recalled the case. Judge Van Grunsven stated that after the hearing, he did some research on the Consolidated Court Automation Programs (CCAP) and realized he made a mistake.8 Specifically, the court remarked that it mistakenly believed the Waukesha County sentences Robinson was currently serving amounted to two years and nine months initial incarceration, when in fact she had only been sentenced to two years. Judge Van Grunsven explained:
At the conclusion of the hearing and subsequent thereto the Court did some research and I realized I made a mistake. The split sentence I proposed yesterday did not reflect this Court's intent as far as a fair sentence in this case.
... There was a lengthy record with regard to a number of cases in Waukesha County and I mis-heard and mis-noted some of the sentences that were handed down. Specifically 08CM1636, in which the Receiving Stolen Property case, Ms. Robinson was given nine months. It was my mistaken impression that she said the nine months was consecutive and tacked on to the 24 months that Judge Domina ordered in that case. Quite frankly a review of CCAP subsequent to yesterday's hearing revealed that in fact the nine months in that case was concurrent to 08CF518 and 08CM2563.
In fashioning a sentence in this case, the Court does look at the gravity of the offense, the defendant's character and need to protect the public and yesterday I started my sentencing arguments by talking about how despicable the behavior was by Ms. Robinson in this case in terms of her reactions and interactions with the police officers in this case.
In fashioning a sentence the Court does need to look at probation and probation is not appropriate. The court considers prior record of convictions and the court does look at a period of incarceration and believes it is necessary to accomplish the objectives of good sentencing, which is the gravity of the offense, the defendant's character and need to protect the public.
Given all of that and harkening back to the comments made yesterday, I asked this case be called...
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