June 16, 2014 – A Wisconsin Supreme Court majority recently ruled that a defendant’s constitutional protection against double jeopardy was not violated when the circuit court extended her sentence the day following her sentencing hearing.
Jaqueline R. Robinson was arrested in Milwaukee County for operating a motor vehicle while her driving privileges were suspended, for loitering and for violation of probation.
During the arrest and subsequent search of her person and vehicle where narcotics were found, Robinson struck one of the police officers and kicked a second police officer. As a result, the State filed a criminal complaint charging Robinson with one count drug possession and two counts of battery to a law enforcement officer. Robinson entered a plea agreement with the state where she pled guilty to all three counts.
At the time of Robinson’s arrest in January 2011, she was on probation. The sentence on previous cases was withheld and Robinson was placed on three years of probation, which was then subsequently revoked as a result of her January 2011 arrest.
In April 2011, the Waukesha County Circuit Court then sentenced Robinson to two years of initial confinement and four years of probation as a consequence of the revocation. In May 2011, the Milwaukee County Circuit Court held a sentencing hearing for Robinson on the three counts resulting from her arrest in January 2011.
The state recommended that the court not impose any additional incarceration time beyond what was already being served from prior sentence for Robinson’s most recent plea agreement with Milwaukee County.
Prior to imposing sentence, the judge noted that much of what he read in the complaint was “despicable behavior.” On one count, he sentenced Robinson to 18 months initial confinement and 24 months extended supervision, concurrent with any other sentence. On the other counts, he sentenced Robinson to 24 months initial confinement and 36 months extended supervision, concurrent with any other sentence.
As a result, Robinson effectively received no additional incarceration other than what was already being served in Waukesha.
The next day, the circuit court recalled the case. The judge stated that after the hearing he did some research and realized he made a mistake. Specifically, he had believed that the Waukesha County sentences amounted to two years and nine months initial incarceration, when in fact it was only two years. The court then modified Robinson’s sentences, increasing the initial incarceration time by nine months.
Robinson filed a postconviction motion seeking the restoration of the initial sentence, asserting that the circuit court violated her state and federal constitutional protections against double jeopardy. The circuit court denied the postconviction notice, and the court of appeals affirmed the circuit court, holding that it did not violate Robinson’s double jeopardy protection when it increased her sentence.
In State v. Robinson, 2014 WI 35 (June 10, 2014), a Wisconsin Supreme Court majority (5-2) affirmed that Robinson’s constitutional rights were not violated.
Analysis and Holding
The issue before the court was whether Robinson’s protection against double jeopardy was violated by the circuit court’s decision to increase Robinson’s sentence the day after her original sentence was imposed.
The guarantee against double jeopardy encompasses three separate constitutional protections. It protects against a second prosecution for the same offense after acquittal, it protects against a second prosecution for the same offense after conviction, and it protects against multiple punishments for the same offense.
Justice Michael Gableman, writing for the majority, noted that the “appropriate inquiry under the third of these constitutional protections is whether the defendant has a legitimate expectation of finality in her sentence.”
It is permissible, in certain contexts, to review and modify a defendant’s sentence after the defendant has already begun serving the originally-imposed sentence. A per se rule no longer exists prohibiting a court from increasing a defendant’s sentence after the defendant has begun to serve the sentence, the majority noted.
However, if a defendant has a legitimate expectation of finality, then an increase in that sentence is prohibited by the double jeopardy clause. The corollary, however, is that if circumstances exist to undermine the legitimacy of that expectation, then a court may permissibly increase the sentence, the majority explained.
A number of factors are evaluated to determine whether a defendant has a legitimate expectation of finality, including the completion of the sentence, the passage of time, the pendency of an appeal, or the defendant’s misconduct in obtaining sentence.
Here, the sentencing judge realized hours after sentencing Robinson that he had misunderstood the Waukesha County sentences and because of that misunderstanding, erred in imposing the original sentence, causing him to recall Robinson the following day. As a result, the majority found that little time passed between the original imposition of Robinson’s sentence and her resentencing.
“A circuit court should not be tethered in every instance to a sentence that is based on a mistake of law, mistake of fact, or inconsistent with the court’s intent,” Justice Gableman noted. The majority therefore held that Robinson did not have a legitimate expectation of finality and the circuit court acted appropriately.
Chief Justice Shirley Abrahamson filed a lengthy dissent in the case, noting that the majority neglected to consider the doctrine of reflection in addition to the doctrine of double jeopardy as being relevant in a resentencing case.
The reflection doctrine prevents a circuit court from changing its imposed sentence to “conform the sentence to its unspoken intent,” in other words, without clear evidence on the record as to the circuit court’s actual intent.
Justice David Prosser concurred with the majority and addressed the concerns raised by the dissent regarding the reflection doctrine.