State v. Reynolds

2002 WI App 15, 643 N.W.2d 165, 249 Wis. 2d 798, 2001 Wisc. App. LEXIS 1236

• Court: Court of Appeals of Wisconsin
• Decided: December 4, 2001
• Docket: 01-0498-CR
• Status: Published

Opinions

SCHUDSON, J.

¶ 1. Danny A. Reynolds appeals from the judgment of conviction for second-degree sexual assault of a child, entered after revocation of probation,¹ and from the circuit court order denying his subsequent motion for resentencing or sentence modification. He argues that he is entitled to resentencing because the judge who sentenced him after revocation, who was not the judge who presided over the trial and ordered his probation, erred in imposing a "severe" ten-year sentence without reviewing the trial testimony, the presentence investigation report, or the sentencing judge's "findings" from the original sentencing proceeding.² Reynolds requests that this court reverse the order denying his motion; vacate the postrevocation judgment of conviction, and grant him resentencing.

¶ 2. We conclude that because the sentencing-after-revocation record does not reflect the sentencing judge's awareness of the information in the presentence investigation report, and of the factors the trial judge found significant in deciding that Reynolds' case was an exceptional one justifying the withholding of sentence, resentencing is appropriate. Accordingly, we reverse and remand for resentencing.³

I. BACKGROUND

¶ 3. Reynolds was the executive director of the Open Door Community Center, a government-funded family services agency. In 1996, in a trial before Judge David A. Hansher, a jury found Reynolds guilty of second-degree sexual assault of a child, for his fondling of a thirteen-year-old boy who, following his mother's death, had been living with Reynolds.

¶ 4. At the sentencing on November 8,1996, after considering a presentence investigation report, the recommendations of counsel, letters and statements from various persons on behalf of Reynolds, and Reynolds' remarks, Judge Hansher placed Reynolds on probation for five years with various conditions, including that he perform two hundred hours of community service and serve six months in the House of Correction with work-release privileges.⁴ Judge Hansher noted that he was taking the unusual step of withholding sentence, rather than imposing and staying a sentence. Judge Hansher explained that the offense was "on the lower end of considering how outrageous it is," and further observed:

So even though it's a second!-] degree sexual assault, I will consider the circumstances, and I did hear the testimony during the trial, so I'm well aware of all the facts and circumstances.

... I think because of his lack of prior record and his involvement in the community, instead of having an imposed and stayed sentence, the Court is going to withhold sentence. I agree with [defense counsel] that if there's a violation here, I think a court would like to look at it, to view it rather than having him go off to prison. I think it should come back to court. I try to avoid withholding sentences because most likely if there's a problem, it's going to be in front of another judge who takes over this calendar and they say, ["]I know nothing about this case,["] and the argument is always made to me at felony judges' meetings, ["W]e impose and stay[ sentences.] We shouldn't withhold. ["] But I think there are exceptions and this is one of them. So I'm going to withhold sentence.

¶ 5. Reynolds appealed. During the pendency of his appeal, Reynolds' incarceration at the House of Correction was stayed and his probation was. held in abeyance. Reynolds then moved to Indiana where, according to his affidavit, he worked with community programs and was employed as a nurse in a nursing home and as a "home health care provider." However, following this court's affirmance of his conviction, see State v. Reynolds, No. 97-1129-CR, unpublished slip op. at 4 (Wis. Ct. App. Oct. 5, 1998), Reynolds did not report to his probation agent. Almost one year later, he was arrested in Indiana after being stopped for driving with an expired license plate. Reynolds then was returned to Wisconsin and his probation was revoked.

¶ 6. On March 9, 2000, sentencing after revocation took place before Judge Daniel L. Konkol. Judge Konkol had received the November 9,1999 court memo prepared by Reynolds' probation agent, recommending that Reynolds receive "the maximum term of incarceration consecutive to any sentence."⁵ Judge Konkol also heard from the prosecutor and defense counsel, both of whom commented on Reynolds, the victim, and the circumstances of the crime. The prosecutor recommended ten years in prison; defense counsel requested significantly less confinement — one year in the House of Correction, with credit for time already served, and one year of house arrest. Reynolds declined to address the court.

¶ 7. Sentencing Reynolds, Judge Konkol noted that he had listened to the comments of counsel and had reviewed the criminal complaint, the information, and the November 9, 1999 memo. Judge Konkol then recited the required sentencing criteria and commented: "First of all, in looking at the gravity of the offense, this is an extremely serious offense." (Emphasis added.) He added that "it's particularly aggravated because the victim was a vulnerable victim at age thirteen" whose mother had died and who had been "placed to live with the defendant and almost cut off from his family." (Emphasis added.) Rejecting the probation agent's recommendation for the maximum incarceration, twenty years, and accepting the State's recommendation for ten years in prison, Judge Konkol commented:

In looking at the character of the defendant, he has no prior record, and I think it's also important to note that while this matter was pending to today's date he still has not accumulated any new convictions since the time of the . .. original hearing where he was placed on probation.

The defendant apparently is someone who has done good works in the community. He is someone who has been attending college, so he's an educated person. He will be turning 49 next month. He's someone who apparently has a good work history.

In this circumstance, however, he was given quite a break by the sentencing judge to have probation with House of Correction time. He did not take advantage of that opportunity, and not only does it seem that[, according to the defendant,] the victim was to blame for ... this, but now also the Probation Department is to blame because they didn't go and seek him out in scouring the country to see where he may be.

Apparently . . . the appeals court must be at fault too because they didn't go and seek him out to tap him on the shoulder and tell him that his conviction was affirmed, so that... he better start reporting to the Probation Department.

My point is everybody else is responsible for Mr. Reynolds except Mr. Reynolds. That's not something this court is willing to entertain.. ..

... I think that he has to learn that society does not look favorably upon people that are not individually responsible, especially when he wants to be in work that would be assisting other people.

In looking at the need to protect the public, this is the type of situation where the defendant in effect gets convicted of this very serious offense and simply for the most part just walks away thinking there would be no consequence. That's very scary because that may encourage him to get involved in further criminal activity and do further attempts to make sure that victims feel that it's their fault so there might not even be any type of coming forward by victims to report what has been going on.

In looking at the gravity of the offense, the character of the defendant, the need to protect the public, I feel that confinement is necessary to protect the public from further criminal activity of the defendant. I feel he does need correctional treatment that's available only in confinement. I haven't heard one thing about any ... type of sexual offender treatment that he's undergone while he has been out of confinement. Looks like he really did not address those types of issues.

II. DISCUSSION

¶ 8. When considering a challenge to a sentence after revocation, we review both the original sentencing and the sentencing after revocation "on a global basis, treating the latter sentencing as a continuum [sic] of the first." State v. Wegner, 2000 WI App 231, ¶ 7, 239 Wis. 2d 96, 619 N.W.2d 289, review denied, 2001 WI 43, 242 Wis. 2d 545, 629 N.W.2d 784. Where the same judge presides at both proceedings, the judge "should reference the prior sentence" at the sentencing after revocation, id. at ¶ 9 n.3, but need not "restate the reasons supporting the original sentencing" because "we will consider the original sentencing reasons to be implicitly adopted," id. at ¶ 9. Where, however, a different judge sentences after revocation, we have no basis for assuming that the second judge has acknowledged or adopted the reasoning of the first, absent either an explicit statement to that effect or a record otherwise demonstrating that that is so.

¶ 9. In sentencing' after revocation, therefore, when the judge is not the one who presided at the original sentencing, it is particularly important that the judge, "[l]ike the appellate court,... be able to rely upon the entire record, including the previous comments at the first sentencing." Id. (emphasis added). And, in some cases, this may become all the more important where a trial has given the original sentencing judge a close view of the evidence.

¶ 10. As the supreme court observed many years ago, in a case where .the sentencing judge had not presided over the trial, when sentencing discretion is required; "there might be some reason for saying that the judge who pronounced the sentence should be acquainted with the circumstances of the case as disclosed at the trial, in order to award the proper degree of punishment." Pegalow v. State, 20 Wis. 61, 62 (1865). Here, particularly given Judge Hansher’s and Judge Konkol's significantly different comments on the severity of the offense, we are not satisfied that the sentencing after revocation was based on "accurate, complete and current information," see State v. Carter, 208 Wis. 2d 142, 157, 560 N.W.2d 256 (1997), and a full understanding of "the entire record, including the previous comments at the first sentencing," see Wegner, 2000 WI App 231 at ¶ 9.

¶ 11. While Judge Konkol's comments were well-considered in many respects, they reflected no recognition of the trial testimony, the presentence investigation report, or Judge Hansher's sentencing comments on the severity of the offense. That information was essential to a fair sentencing after revocation. After all, the criminal complaint and information could not convey the evidence subsequently presented at trial. And the probation agent's memo, prepared for the sentencing after revocation, did little more than summarize the case history; it did not provide the comprehensive study typically offered in a presentence report.

¶ 12. Judge Konkol, in a lengthy written decision denying Reynolds' motion for resentencing or sentence modification, carefully traced Reynolds' arguments and, with implicit reference to Judge Hansher's reasoning, attempted to reconcile the two proceedings. In part, he wrote:

[T]he defendant presented a different picture to the court at the post[]revocation sentencing hearing based upon his failure to maintain contact with the probation department and what the court perceived was an attempt to simply walk away from any responsibility for this offense. The court, therefore, was not bound to rely on the sentencing findings made by Judge Hansher, and its basis for departing from those findings is sufficiently set forth in the record.

While these comments have some merit, they still fail to allay our concerns in this case.

¶ 13. The supreme court has explained that "a circuit court should, in imposing a sentence at a resen-tencing proceeding, consider all information relevant about a defendant, including information about events and circumstances either that the sentencing court was unaware of at the initial sentencing or that occurred after the initial sentencing." Carter, 208 Wis. 2d at 146. It certainly is clear, therefore, that in sentencing after revocation, a court may determine that conduct following the first sentencing hearing casts a defendant in a very different light. See North Carolina v. Pearce, 395 U.S. 711, 723 (1969) ("[E]vents subsequent to the first trial. . . may have thrown new light upon the defendant's 'life, health, habits, conduct, and mental and moral propensities.'"); Denny v. State, 47 Wis. 2d 541, 545, 178 N.W.2d 38 (1970). Indeed, in some circumstances, such subsequent conduct could substantially alter a court's view of a defendant's character or danger to the community. Rarely, however, could subsequent conduct, resulting in revocation, allow for a reassessment of the severity of the specific criminal conduct for which a defendant was convicted and is being sentenced.

¶ 14. Therefore, while Judge Konkol was not "bound to rely" on all Judge Hansher's "sentencing findings" (and indeed, while Judge Hansher, in explaining why he decided to withhold Reynolds' sentence, anticipated the need for a subsequent court to evaluate Reynolds in light of whatever might have led to revocation), Judge Konkol was required to be informed of the trial record and Judge Hansher's assessment, based on the evidence, of the severity of Reynolds' crime. See Wegner, 2000 WI App 231 at ¶ 9; see also Denny, 47 Wis. 2d at 543 ("Reasons for sentencing are not findings."). Here, the record does not establish that Judge Konkol, at the sentencing after revocation, was aware of critical information conveyed by the trial testimony, the presentence report, and Judge Hansher's sentencing comments. See Denny, 47 Wis. 2d at 546 (holding that a court, when resentencing, "should have before it the transcript of the original sentencing and the reasons for the sentencing should appear therein," and noting "the importance of a copy of the presentence investigation, when used by the trial judge").

¶ 15. Accordingly, we reverse the postrevocation judgment of conviction and the circuit court order denying Reynolds' motion for resentencing or sentence modification. We remand for resentencing and, given the unusual circumstances of this case, we order that the resentencing be before Judge Hansher.⁶

By the Court. — Judgment and order reversed and cause remanded with instructions.

1 A judgment of conviction previously had been entered for this offense on November 8, 1996, following the initial sentencing hearing. That judgment is not at issue in this appeal.

2 Reynolds also argues that the judge who sentenced him after revocation erred in basing the sentence on the "impermissible factor that he attacked his accuser's credibility at trial," and erroneously exercised discretion by: (1) ignoring the trial judge's "findings" regarding the severity of the offense; (2) basing the ten-year sentence on "unsupported and misleading representations that [he] was a serious re-offense risk"; and (3) placing undue emphasis on his failure to communicate with probation authorities, as an indicator of bad character. And Reynolds also argues that he received ineffective assistance of counsel who failed to raise some of these issues and confront some of these alleged misrepresentations at the sentencing after revocation.

3 Resolving the appeal on this basis obviates the need to address Reynolds' other arguments, some of which may come to be considered at his resentencing. See Gross v. Hoffman, 227 Wis. 296, 300, 277 N.W. 663 (1938) (only dispositive issue need be addressed).

4 The judgment roll states, "Defendant is to serve 1 year less 8 days in the House of Correction," but, as reflected in the transcript of the November 8, 1996 sentencing hearing, Judge Hansher actually stated:

The Court initially considered up to a year at the House of Correction.

What the Court is going to do is still impose some House of Correction time with work-release. The Court is going to make it six months House of Correction with work-release instead of a year.

The judgment roll error, repeated in the November 9, 1999 court memo prepared by Reynolds' probation agent for the sentencing after revocation, was noted by defense counsel; the memo's error was corrected by the sentencing-after-revocation court.

5 The State does not dispute Reynolds' characterization of the probation agent's memo as: (1) "merely a report on his monitoring Mr. Reynolds' file and his unfounded judgment that Mr. Reynolds should be punished severely for not complying with probation rules"; (2) "mak[ing] no reference to familiarity with the facts of trial or the earlier sentencing proceedings or documents"; and (3) "no substitute for a [presentence investigation report]."

6 We acknowledge, however, that because we are remanding for resentencing, Reynolds has the right to request judicial substitution. See Wis. Stat. § 971.20(7) (1999-2000) ("If an appellate court orders a new ... sentencing proceeding, a request [for substitution of judge] may he filed within 20 days after the filing of the remittitur by the appellate court, whether or not a request for substitution was made prior to the time the appeal was taken.").