State v. Stubbendick

329 N.W.2d 399, 110 Wis. 2d 693, 1983 Wisc. LEXIS 2605

• Court: Wisconsin Supreme Court
• Decided: February 3, 1983
• Docket: 81-908-CR
• Status: Published

Opinions

STEINMETZ, J.

The defendant was sentenced for six years as a result of a plea bargained no contest plea to second degree sexual assault. The issue is whether upon vacating that plea and sentence, the judge properly increased the sentence for a second conviction on the same charge. Also at issue is whether the judge is limited as to the sentence that may be imposed for a conviction of burglary which was a related offense to the sexual assault charge, but which had been dismissed as a result of the same plea bargain and then reinstated.

Larry Stubbendick was originally charged with burglary and second degree sexual assault arising from an incident in which the defendant entered the victim’s premises without consent through a second-story patio door and sexually assaulted her. By the terms of a plea bargain agreement reached April 18, 1979, the defendant originally pled no contest to the charge of second degree sexual assault. In return the state made no recommendation as to sentence and dismissed the additional pending charge of burglary. A judgment of conviction was rendered on July 12, 1979, by the Honorable Mark J. Farnum, circuit court of Rock county, and entered on July 16, 1979. The court imposed a six year sentence, based solely on the sexual assault charge.

In a decision entered June 26, 1980, the trial court granted the defendant’s motion to withdraw his plea. The motion was granted on the grounds that at the time the defendant entered his plea, he was unaware of the mental state requirement of second degree sexual assault. The court vacated the conviction and sentence, and also the previously dismissed burglary charge was reinstated.

The defendant was tried by a jury on both counts, burglary and second degree sexual assault, on October 28-31, 1980, again in Rock county circuit court before Judge Farnum. The jury found the defendant guilty of burglary but was unable to reach a verdict on second degree sexual assault. Sentencing on the conviction for the burglary charge was withheld pending another trial on the sexual assault charge. On December 15-17, 1980, the defendant was tried before a second jury on the sexual assault charge and the jury returned a guilty verdict.

The defendant was sentenced once again on January 8, 1981, by Judge Farnum. The judge sentenced the defendant to concurrent terms of ten years on the burglary and sexual assault charges, less credit for time previously served.

On March 24, 1981, the defendant filed a motion before Judge Farnum requesting modification of his sentence. That motion was denied. The defendant appealed.

The court of appeals held, in an unpublished opinion filed March 26, 1982, that the increase of sentence from six to ten years for the second degree sexual assault charge was not based upon objective facts which were unknown to the trial court at the time of the first sentencing, and reduced the defendant’s sentence for sexual assault to six years. However, the court of appeals affirmed the ten year sentence for burglary since that was an original sentence and not a resentence. The court of appeals did not find actual vindictiveness on the part of the trial court in either sentence.

We accepted the defendant’s petition for review and also the state’s petition for cross-review on June 1, 1982.

In State v. Leonard, 39 Wis. 2d 461, 159 N.W.2d 577 (1968), this court first addressed the problem of re-sentencing after the successful pursuit of postconviction remedies. The rule adopted by the court was as follows:

“Hereafter, on resentencing following a second conviction after retrial, or mere resentencing, the trial court shall be barred from imposing an increased sentence unless (1) events occur or come to the sentencing court’s attention subsequent to the first imposition of sentence which warrant an increased penalty; and (2) the court affirmatively states its grounds in the record for increasing the sentence.” Id. at 473.

One year later, the United States Supreme Court in North Carolina v. Pearce, 395 U.S. 711 (1969), delineated the scope of judicial discretion in resentencing. The court stated:

“We hold, therefore, that neither the double jeopardy provision nor the Equal Protection Clause imposes an absolute bar to a more severe sentence upon reconviction. A trial judge is not constitutionally precluded, in other words, from imposing a new sentence, whether greater or less than the original sentence, in the light of events subsequent to the first trial that may have thrown new light upon the defendant’s ‘life, health, habits, conduct, and mental and moral propensities.’ Williams v. New York, 337 U.S. 241, 245. Such information may come to the judge’s attention from evidence adduced at the second trial itself, from a new presentence investigation, from the defendant’s prison record, or possibly from other sources. The freedom of a sentencing j udge to consider the defendant’s conduct subsequent to the first conviction in imposing a new sentence is no more than consonant with the principle, fully approved in Williams v. New York, supra, that a State may adopt the ‘prevalent modern philosophy of penology that the punishment should fit the offender and not merely the crime.’ ” Id. at 723.

The Pearce majority then considered the impact of the due process clause of the Fourteenth Amendment on re-sentencing. The court stated:

“It can hardly be doubted that it would be a flagrant violation of the Fourteenth Amendment for a state trial court to follow an announced practice of imposing a heavier sentence upon every reconvicted defendant for the explicit purpose of punishing the defendant for his having succeeded in getting his original conviction set aside.” Id. at 723-24.

The court continued:

“Due process of law, then, requires that vindictiveness against a defendant for having successfully attacked his first conviction must play no part in the sentence he receives after a new trial. And since the fear of such vindictiveness may unconstitutionally deter a defendant’s exercise of the right to appeal or collaterally attack his first conviction, due process also requires that a defendant be freed of apprehension of such a retaliatory motivation on the part of the sentencing judge.” Id. at 725.

The rule of North Carolina v. Pearce appears at 395 U.S.726:

“In order to assure the absence of such a motivation, we have concluded that whenever a judge imposes a more severe sentence upon a defendant after a new trial, the reasons for his doing so must affirmatively appear. Those reasons must be based upon objective information concerning identifiable conduct on the part of the defendant occurring after the time of the original sentencing proceeding. And the factual data upon which the increased sentence is based must be made part of the record, so that the constitutional legitimacy of the increased sentence may be fully reviewed on appeal.”

This court considered North Carolina v. Pearce in Denny v. State, 47 Wis. 2d 541, 544, 178 N.W.2d 38 (1970) and recognized that Pearce contained an ambiguity regarding what constituted a proper objective factor. One portion of Pearce states that the reasons for imposing a harsher sentence must be based on “identifiable conduct . . . occurring after the time of the original sentencing proceeding.” 395 U.S. at 726. Yet another section of the opinion says that a judge may increase the sentence “in the light of events subsequent to the first trial that may have thrown new light upon the defendant’s ‘life, health, habits, conduct, and mental and moral propensities.’ ” 395 U.S. at 723.

We adopted Justice White’s concurrence to resolve this ambiguity. Justice White stated a trial judge could consider “any objective, identifiable factual data not known to the trial judge at the time of the original sentencing proceeding.” 395 U.S. at 751 (J. White, concurring in part), quoted in Denny v. State, 47 Wis. 2d at 545-46. Other courts have resolved the Pearce ambiguity similarly. See e.g., United States v. Hayes, 676 F.2d 1359 (11th Cir. 1982), petition for cert. filed on other issue, 51 U.S.L.W. 3341 (U.S. Sept. 29, 1982) (No. 82-684).

In summary, the Pearce-Denny rule is designed to prevent a trial judge from being vindictive against a defendant for exercising his rights. The possibility of vindictiveness is eliminated since a trial judge can increase a sentence only if new objective factors can justify a more severe sentence. A trial judge is allowed to consider all events occurring subsequent to the first sentence or not known by the court at the time of the initial sentence.

Subsequent United States Supreme Court cases have developed the principles set forth in Pearce.1 Most recently in United States v. Goodwin, - U.S. -, 102 S. Ct. 2485 (1982), the court for the first time labeled the rule in Pearce as a presumption of vindictiveness. This characterization in Pearce is consistent with this state’s doctrine of abuse of sentencing discretion. This state has long required that reasons be stated on the record for imposing a particular sentence, whether it be an original sentence or a resentence. McCleary v. State, 49 Wis. 2d 263, 282, 182 N.W.2d 512 (1971). For a trial judge not to state sufficient reasons for any sentence constitutes an abuse of discretion. This requirement eliminates the possibility of a judge being vindictive. Furthermore, the Leonard and Denny decisions limit the scope of that discretion when resentencing by requiring that the reasons stated be objective and identifiable. Where a sentencing or resentencing record exhibits actual vindictiveness, that too would constitute an abuse of discretion.

In this case, when sentenced after trial, the defendant received an additional four years on the sexual assault charge and an original ten year sentence on the burglary charge. We will consider the propriety of each sentence separately.

Regarding the enhanced sexual assault sentence, there are essentially three newly known objective factors that justify the four year increase. They include: (1) leniency based on a plea agreement is not necessarily applicable at a resentencing after trial; (2) defendant’s poor prospects for rehabilitation; and (3) amplified knowledge of the defendant’s criminal activity obtained from the trial. Each factor will be discussed.

One consideration stated by the judge was that he extended leniency at the initial sentencing as a result of the plea agreement. The United States Supreme Court has accepted the practice of extending leniency in plea negotiations as a legitimate process. In Corbitt v. New Jersey, 439 U.S. 212, 223 (1978), the court stated: “[I]t is not forbidden to extend a proper degree of leniency in return for guilty pleas.”

The judge at the initial sentencing described the crime as extreme and vicious in its nature. The defendant argues that since the judge gave a six year sentence for a “vicious-extreme” crime on the plea bargain, no leniency was in fact extended. Moreover, the defendant notes that at the first sentencing, the judge made no statement concerning leniency. Nonetheless, we believe that leniency was extended at the initial sentencing. Before the plea bargain, the defendant faced an exposure of 20 years, ten years for the burglary count and ten years for the sexual assault count. Receiving only a six year sentence for such a “vicious-extreme” crime can certainly be partially attributable to an extension of leniency.²

Related to the factor of leniency granted on the plea bargain sentence is the judge’s finding that the defendant lacked penitence and remorse for having committed the offenses. At resentencing, the judge commented:

“I feel that you obtained your new trial almost fraudulently, Mr. Stubbendick. Now, you can blame it on counsel, counsel can take the blame if they want to, maybe, but you are accountable for what’s done and that reflects, then, on my belief in your penitence and remorse because the motion for new trial was predicated on your intoxication, if I recall correctly, or at least on your total lack of memory. And when we tried the case, both times, there wasn’t an iota of testimony that had any bearing whatsoever on your mental capacity to commit the crime. . . .

“So under those circumstances, the Court feels that there was some misleading. While I can’t hold you responsible for the total trial tactics employed, but to me it indicates a degree of lack of good faith in withdrawal of a plea, because if your mental state was not sufficiently material to be presented as a defense, then it certainly was not sufficiently material as a premise for withdrawal of plea under the circumstances. And I feel it reflects directly on the question of your penitence.”

Defendant argues this statement evidences vindictiveness on the trial judge’s part for punishing the defendant for withdrawing his plea based on his unawareness of the mental state requirement of the crime, and subsequently not presenting any evidence concerning his mental state at trial. However, this position ignores the fact that the statement relates only to the defendant’s lack of penitence.

At the first sentencing, the defendant expressed remorse and penitence about his activities. After the judge had the opportunity to observe the defendant during two trials, he became convinced that any remorse expressed by the defendant was feigned. Any leniency based on remorse was therefore no longer appropriate at the re-sentencing.

Since the defendant withdrew his plea, any leniency based on the plea need not be extended at resentencing. To hold otherwise, would permit defendants to make tentative pleas of guilty to obtain a ceiling for sentencing upon subsequent trials or pleas. In addition, defendants would be encouraged to set aside plea agreements because they would have everything to gain and nothing to lose by going to trial. The judge was correct to consider the factor of leniency present in a plea agreement at the resentencing.

A second factor was that at resentencing, the judge did not believe the defendant to be a good candidate for rehabilitation. In the presentence report for the second sentencing, the judge was informed:

“Since being received at the institution Larry had received no condition reports and has had excellent adjustment. In June, 1980, Larry was granted medium-out custody at the request of his job supervisor in the electrical maintenance and carpentry department. Such custody classification calls for retention in WCI, but does allow special privileges for work detail assignments off the grounds of the institution proper. The June, 1980, Institution Program Review indicates that Larry had been involved in a counseling program, but dropped out after one month because he disagreed with the particular counseling philosophy.”

While the first two items are favorable to the defendant, the last item is not. The probation and parole agent working for the Bureau of Corrections in Rock county testified in regard to this last item as follows:

“Q. Would you tell the Court what reasons Larry gave you for dropping out of that program?

“A. Larry indicated to me in a contact down at the County Jail that he dropped out of that counseling program due to the fact that they only wanted him to talk about a second-degree sexual assault charge and no other problems he may be encountering or may have encountered. He felt that was inappropriate and wanted to deal with total emotional difficulties as opposed to just a second-degree sexual assault charge.”

Regarding this information, the court stated:

“You are not the person to judge the validity of a program that an expert in the field is putting you through directed toward your rehabilitation. And the fact that you will second guess these people rather than cooperate and accept has a very definite bearing on your ability to be appropriately rehabilitated.”

The judge could properly base the increased sentence partially on this factor. The information demonstrated that the defendant was not cooperating with counseling efforts, and was therefore a poor candidate for rehabilitation.

A final reason justifying the longer sentence was the amplified knowledge of the crime gleaned from the trial by the judge. He stated at the resentencing:

“Now, I have heard the evidence for the first time, I have seen the victim. I have heard the witnesses. It’s a lot different than a cold report that I get from the District Attorney or from what’s embodied in the pre-sentence report.”

Other courts have held that Pearce allows an increased sentence based on enhanced knowledge obtained from trial of the defendant’s criminal activity. United States v. Kienlen, 415 F.2d 557 (10th Cir. 1969); State v. Taylor, 22 Wash. App. 308, 589 P.2d 1250 (1979); United States v. Cunningham, 529 F.2d 884 (6th Cir. 1976). The Sixth Circuit in Cunningham noted:

“Another factor which we see as almost inevitably influencing the decision of a trial judge is that in a plea of guilty, the crime pleaded is understood only as related in somewhat sterile fashion through the plea taking process or through a printed narration in the presentence report. The sentencing following a trial upon the merits, on the other hand, sees the trial judge in possession not only of more of the detailed facts of the offense itself, but of the flavor of the event and the impact upon any victims. It is for that reason a more real and accurate appraisal of the circumstances which brought the defendant to the bar of justice, and almost inevitably this added knowledge will affect the judge’s consideration of what penalty appears most appropriate. This can, of course, work to the benefit or the detriment of the defendant according to the degree of culpability shown by the proofs.” Id. at 889.

The court of appeals, relying on United States v. Tucker, 581 F.2d 602 (7th Cir. 1978), rejected this distinction between live testimony and a cold report as justification for a harsher sentence. Tucker is distinguishable on the basis that in that case the increased sentence was based on additional knowledge obtained at a second trial, and not from an initial trial after a vacated plea. We find this distinction significant. In a retrial situation, the judge has already been afforded a full-scale trial on the facts. The same is not true at a first trial subsequent to a withdrawn plea. United States v. Cunningham, 529 F.2d at 888-89.

In summary, we conclude that the defendant’s increased sentence on the sexual assault charge was properly based on three objective factors. First, leniency in sentencing extended pursuant to a plea agreement need not carry over to sentencing after trial. Second, the record demonstrated the defendant’s reduced chances for rehabilitation. Finally, the judge enhanced his knowledge of the circumstances surrounding the crime at trial.

As for the original ten year burglary sentence, the defendant contends that the court of appeals erred by only applying the prophylactic rules of Pearce and Denny to the sexual assault sentence and not to the burglary sentence. The court of appeals held that since the burglary sentence was an original one, the protections of Pearce and Denny do not apply.³ The defendant asserts that since the burglary arose out of the same course of conduct as the sexual assault, the protections of Pearce and Denny are applicable. Defendant finds support for his argument in 3 ABA Standards for Criminal Justice, Sentencing Alternatives and Procedures Standard 18-4.9 at 18.323 (1980), relating to resentencing, which provides as follows:

“(a) Except as authorized in paragraph (b), the new sentence imposed at a resentencing should not be more severe than the original sentence less time already served. Because the appearance of justice is maximized by imposing such a ceiling, this limitation should be observed regardless of whether

“(ii) the offense involved is the same offense or a different offense based on the same conduct . . . .” (Emphasis added.)

It is impossible to apply the rule of Pearce-Denny to the burglary conviction since there never was a previous sentence imposed for the burglary. In fact, pursuant to the original plea bargain agreement, the burglary charge was dismissed. Literally, Pearce refers only to the re-sentencing setting and the relevancy of new objective information learned by the judge since the first sentence was imposed. Pearce cannot be applied because there are no new factors to consider at an original sentencing. While such reasoning may initially appear unreasonably formalistic, combined sentences are not to be viewed as package deals. Each sentence is for a separate and distinct criminal offense.

Nonetheless, we recognize that judicial vindictiveness could easily be concealed by handing down a heavy or maximum sentence on the reinstated charge (burglary), while leaving the original sentence of the related offense (sexual assault) intact. This is possible irrespective of whether the charges are related to a single episode of criminal conduct. In order to eliminate the vindictiveness concerns of Pearce-Denny, the judge must therefore state on the record: (1) new objective information learned since sentencing the defendant on the other charges, related or not, and, (2) give sufficient reasons for the length of the original sentence imposed for the reinstated charge as required by McCleary. The fulfillment of these requirements will act as a guide on a judge’s sentencing discretion.

In this case, the new objective factors considered for increasing the sexual assault sentence are equally relevant to the burglary sentence. We recognize that although these factors are not new as they relate to the burglary charge, they are persuasive evidence of the lack of vindictiveness in the burglary sentence.

In addition to these objective factors, the judge also properly considered the severe nature of the burglary. When imposing the sentence, the judge remarked:

“I think that the two incidents, the two crimes are distinct in their nature in that there was not only a violation of the victim’s property rights and invasion of her home, there was also a separate invasion of her body. This is not the case where the victim might have been walking down the street in a certain neighborhood or part of town and have been sexually assaulted. This is a case where the victim is now in a situation where it took place in her own home and it was a grievous invasion of her right to privacy.”

This statement is devoid of vindictiveness and accurately portrays the judge’s reasoning for the ten year sentence. This defendant lived in the same residence complex as the victim. He obviously, with his demonstrated modus operandi, deliberately chose to attack her in the privacy of her living quarters. She will now no longer feel completely secure in her own home. The law respects the sanctity of a person’s dwelling. No longer will this victim be able to relax and feel secure in the one area where all citizens should be able to feel safe, that is, in her home. She has been attacked in that “safe” area and will always have doubts concerning her security. This was not a burglary resulting in the loss of physical property, but a burglary perpetrated to violate a person’s physical security. The sentence for burglary carried no indication of vindictiveness but was rather the judge’s attitude that society needs the greatest protection from acts of this nature.

Even where a trial judge states new objective factors on the record when resentencing a defendant, the possibility of an abuse of discretion still exists if the record itself demonstrates vindictiveness. This court has examined the resentencing transcript. We admit that some of the judge’s words, taken out of context, could arguably support allegations of vindictiveness. However, taken as a whole, we find no actual vindictiveness present in the record.

Since we find that the increased sentence for sexual assault and original sentence for burglary were based on objective information that was proper to consider at a resentencing following a vacated plea agreement and no evidence in the record to demonstrate actual vindictiveness, we hold that the defendant’s increased ten year sentence for sexual assault and the original ten year sentence for burglary do not violate Pearce and Denny.

By the Court. — The decision of the court of appeals is reversed in part and affirmed in part.

1 In Colten v. Kentucky, 407 U.S. 104 (1972), the court held that the Pearce rule does not apply to harsher sentences imposed after a trial de novo in states having a two-tier trial court system. The court noted that the possibility of vindictiveness was not inherent in Kentucky’s two-tier system since the second sentence was imposed by a different court that was not asked to correct itself. Id. at 117. In Chaffin v. Stynchcombe, 412 U.S. 17 (1973), the court held that the Pearce resentencing restraints are inapplicable when the second sentence is imposed on retrial by a jury. The court found the likelihood of vindictiveness de minimis when resentencing was performed by a jury since the jury had no motive to engage in self-vindication, had no knowledge of the prior sentence, and was unlikely to be sensitive to institutional interests that may cause more severe resentences by a judge desirous of discouraging what he regards as meritless appeals. Id. at 26-27.

2 Since this factor of leniency does not concern any new information concerning the defendant’s conduct, technically speaking it is not a factor as contemplated by the Pearce and Benny decisions. Nonetheless, a statement in the record regarding this consideration negates the possibility of judicial vindictiveness, which is the paramount concern of Pearce and Benny.

3 There is no issue in this case that the reissuance of the burglary charge was invalid due to prosecutorial vindictiveness. See Blackledge v. Perry, 417 U.S. 21 (1974), United States v. Anderson, 514 F.2d 583 (7th Cir. 1975).