Longer sentence on remand violates due process.

Byline: David Ziemer

When a defendant is resentenced after a successful appeal, the court can only impose a longer sentence if affirmative reasons justifying the longer sentence appear in the record, and are based on objective information regarding events or identifiable conduct on the defendant's part subsequent to the original sentencing, the Wisconsin Supreme Court held on July 1.

In 1996, a jury found William Church guilty of five offenses: second-degree sexual assault, child sexual exploitation, delivery of a controlled substance, and two counts of child enticement. Prior to sentencing, Church moved to dismiss one of the two counts of child enticement as multiplicitous, but the circuit court denied the motion.

The court imposed a 13-year prison term on the sexual assault count and withheld sentence on the remaining counts, ordering probation terms of various lengths, consecutive to the prison sentence but concurrent to each other. Church appealed, again arguing that the two child enticement counts were multiplicitous.

The court of appeals agreed, and reversed one of the two child enticement counts. State v. Church, 223 Wis.2d 641, 589 N.W.2d 638 (Ct.App.1998). However, instead of simply vacating the conviction and the order of concurrent probation on one count of child enticement, the court of appeals vacated all the sentences in the case and remanded for resentencing on the four remaining counts, concluding it was bound to do so, pursuant to State v. Gordon, 111 Wis. 2d 133, 330 N.W.2d 564 (1983), and per Church's request.

On remand, the circuit court imposed 17 years on the sexual assault count, a four-year increase, and reimposed the terms of probation on the remaining three counts. As justification, the court noted that Church had received no sex offender treatment yet.

Church appealed, but the court of appeals affirmed in a published opinion, State v. Church, 2002 WI App 212, 257 Wis.2d 442, 650 N.W.2d 873. The Wisconsin Supreme Court accepted review, and reversed in a unanimous decision by Justice Diane S. Sykes.

Remand

The court first held that the court of appeals was not required, after the first appeal, to vacate all the sentences and remand for resentencing.

The court acknowledged that, in Gordon, it did not explain the circumstances under which a remand for resentencing is required when one or more counts in a multi-count case is vacated on appeal, leaving other counts intact.

Nevertheless, the court found, "It is clear, however, that the elimination on double jeopardy grounds of one of the four counts in Gordon disturbed the original sentence structure, which called for the defendant to serve a total of 30 years in prison. The two eight-year sentences for robbery and burglary were concurrent, but the two 15-year sentences for kidnapping and second-degree murder were consecutive. Vacating the kidnapping conviction and sentence upset the overall sentencing structure, frustrating the intent of the original sentence. Remand for resentencing was necessary and appropriate, to allow for a restructuring of the remaining sentences to carry out the intent of the original dispositional scheme."

The court added, "A double jeopardy bar to one conviction and sentence in a multi-count case does not operate to invalidate the sentences on all the remaining counts, nor does it necessarily invalidate the sentence on the specific surviving parallel count which gave rise to the double jeopardy challenge. ... Resentencing is unnecessary, and certainly not required, where, as here, the invalidation of one count on double jeopardy grounds has no affect at all on the overall sentence structure."

Vindictiveness/Due Process

The court then turned to whether it violated due process to impose a greater sentence on remand, and concluded that it did. The court began with a...