COURT OF APPEALS
DATED AND FILED
November 5, 2008
David R. Schanker
Clerk of Court of Appeals
This opinion is subject to further editing. If published, the official version will appear in the bound volume of the Official Reports.
A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals. See Wis. Stat. § 808.10 and Rule 809.62.
STATE OF WISCONSIN
IN COURT OF APPEALS
Carol Ann Crewz,
from an amended judgment and an order of the circuit court for
¶1 PER CURIAM. Carol Ann Crewz has appealed
from an amended judgment entered in the trial court on February 16, 2007,
convicting her of uttering a forgery as a repeat offender in violation of Wis. Stat. § 939.62(1)(b)
and § 943.38(2) (2005-06),
and sentencing her to six years in prison, consecutive to a sentence she was
then serving in Waukesha county circuit court case No. 2000CF853. Crewz has also appealed from an order denying
her postconviction motion for sentence modification. We reverse the order and the portion of the
amended judgment providing that the forgery sentence for count one is
consecutive to the sentence in
¶2 On February 14, 2007, Crewz entered pleas of no contest to two counts of uttering a forgery as a repeat offender (counts one and two), and one count of obstructing an officer as a repeat offender (count five). Sentencing immediately followed.
¶3 At the commencement of the February 14, 2007 hearing, the parties informed the trial court that Crewz’ extended supervision in the Waukesha case had been revoked and that she was serving ten months and twenty-five days at the prison in Taycheedah. In detailing the parties’ plea agreement, defense counsel related the terms as set forth in the guilty plea questionnaire and waiver of rights form, indicating that the State was recommending six years in prison on count one, consisting of two years of initial confinement and four years of extended supervision, plus three years of consecutive probation on counts two and five. The prosecutor then stated that, pursuant to the plea agreement, he would be recommending:
On Count 1, uttering, six years
On the balance of the charges, which is another felony forgery as a repeater and obstructing as a repeater, a withheld sentence, five years probation on the forgery charge, Count 2. Three years probation on the obstructing as a repeater charge, Count 5. Probation is concurrent to each other, but consecutive to the prison sentence.
¶4 Crewz then engaged in a plea colloquy with the trial court judge, entered her no contest pleas, and proceeded to sentencing. In his sentencing argument, Crewz’ attorney asked the trial court to impose and stay a sentence and place her on consecutive probation.
¶5 In sentencing Crewz, the trial court determined that she did not pose a good risk for probation. It stated:
What I am going to do is follow the recommendation. I’m going to sentence you to total sentence of six years, two years of initial confinement and four years of extended supervision after that.…
On Count 2 I’m going to withhold sentence and place you on probation for a period of five years, consecutive to the extended supervision on Count 1. And on Count 5 I’m going to withhold sentence and place you on probation for a period of three years, consecutive to the period of extended supervision, but concurrent to that imposed on Count 2.
¶6 At the conclusion of the trial court’s sentencing comments, Crewz’ trial counsel asked: “Judge, the Court’s sentence, does that start forthwith?” The trial court replied, “Right. Forthwith.” Crewz asked: “What does that mean?” Her attorney replied that he would talk to her about it.
¶7 A written judgment was entered in the office of the clerk of
the circuit court on February 14, 2007, stating: “On count 1 defendant is confined to prison
for 2 years followed by a period of 4 years extended supervision for a total
length of sentence of 6 years.” The
judgment contained no language indicating whether the sentence was concurrent
or consecutive to the
¶8 After sentencing, Crewz was returned to the county jail. Two days later, on February 16, 2007, a second hearing was held. The trial court judge stated that he had asked that the case be put back on the record. He indicated that his clerk had been preparing the judgment of conviction on February 15, 2007, the day after sentencing, and questioned him as to whether he was ordering a consecutive or concurrent sentence. The judge stated:
And the reason she was confused, she had gone over the record. I said at one point I adopted the State’s recommendation, which was consecutive. Then later on when she was trying to put the judgment together, I said the judgment would start forthwith, which would seem to indicate concurrent.
¶9 The trial court further stated:
My intention at the time was to make it consecutive. I think it was clear from the tenor.…
And I want to clarify this. This is not based upon any reflection or change of anything. I did not even know about it until late yesterday afternoon. It was just simply to clarify that this was to be consecutive to the time that she was currently serving.
¶10 In response to defense counsel’s reminder that he had asked if the sentence was to start immediately, the trial court stated:
You definitely did. You said is this starting immediately. And I just didn’t pick up on that going—that you were asking whether it was concurrent or consecutive. And obviously if it were concurrent, it would start forthwith. I said it did. I was in error. And my intent at the time was to sentence Ms. Crewz to consecutive time, and that’s what the judgment will read. I apologize for any error. That was my responsibility.
¶11 An amended judgment of conviction was entered in the office of
the clerk of the circuit court on February 16, 2007, stating that the sentence
on count one was consecutive to the sentence Crewz was serving in
¶12 Double jeopardy protections apply to some resentencings. State v. Burt, 2000 WI App 126, ¶11,
¶13 The Jones factors must be evaluated in light of the circumstances
of each particular case. State
v. Gruetzmacher, 2004 WI 55, ¶34, 271
¶14 We reverse the trial court’s order denying sentence
modification because, based on the facts of this case, Crewz had a legitimate
expectation of finality in the sentence as pronounced and entered on February
14, 2007. At the February 14, 2007
hearing, the trial court expressly stated that the prison sentence for forgery
would begin “forthwith.” As in Willett,
¶15 Under these circumstances, Crewz legitimately expected that her
sentence for count one was concurrent to the
¶16 Because the trial court had clearly expressed at sentencing that the forgery sentence for count one was to begin forthwith and was therefore concurrent, and because the trial court did not attempt to correct the sentence until the issue was raised by its clerk on February 15 and Crewz was returned to court on February 16, we conclude that Crewz had a legitimate expectation of finality in the sentence as pronounced on February 14, 2007. Double jeopardy provisions therefore precluded modifying Crewz’ sentence to make it consecutive.
¶17 The State contends that this case is analogous to Burt
where post-sentencing modifications were allowed. We disagree.
In Burt, the trial court realized while sentencing a co-defendant
that it had misspoken earlier in the day at the defendant’s sentencing when it
stated that the defendant’s sentence should be concurrent rather than
consecutive. Burt, 237
¶18 This case is clearly distinguishable from Burt. Unlike the defendant in Burt, Crewz was not notified on the day of sentencing that the trial court judge had misspoken. Instead, she commenced serving the concurrent sentence for count one, albeit in the county jail. Her counsel was not notified of the trial court’s concerns until the next day when the judge’s clerk questioned whether the trial court intended the sentence for count one to commence forthwith as stated at the February 14, 2007 hearing. Crewz was not returned to court until the following day, February 16, 2007. Because Crewz had served one day of the sentence for count one before being notified of the trial court’s concerns, and served two days before being returned to court, she had a legitimate expectation of finality concerning the concurrent sentence that the defendant in Burt lacked.
is also distinguishable. In that case,
the trial court expressly stated during sentencing on multiple charges that
forty months was the minimum period necessary for the defendant. Gruetzmacher, 271
¶20 The Gruetzmacher court held that the trial court was entitled to
correct an obvious error in sentencing when it made a good faith mistake at the
initial sentencing, promptly recognized the error and, although it increased
the sentence on one charge while reducing the sentence on another at
resentencing, achieved what the trial court originally intended.
¶21 This case is inapposite. At the original sentencing on February 14, 2007, the trial court expressly stated that Crewz’ sentence was to commence forthwith, meaning that it was concurrent. It did not express a clear intent to impose a consecutive sentence on Crewz. Consequently, unlike the situation in Gruetzmacher, this court cannot determine that the trial court made a good faith mistake and imposed a sentence contrary to what was clearly its original intent. Moreover, unlike the defendant in Gruetzmacher, who knew that he was expected to serve forty months of initial confinement under the sentencing structure imposed by the trial court, Crewz legitimately expected to serve a concurrent sentence after sentencing on February 14, 2007. Under these circumstances, resentencing was impermissible.
By the Court.—Amended judgment affirmed in part and reversed in part; order reversed and cause remanded with directions.
This opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)5.
 All references to the Wisconsin Statutes are to the 2005-06 version.
December 2006, while this case was pending in Ozaukee county, Crewz was ordered
reconfined for a period of ten months and twenty-five days following revocation
of extended supervision in
discussed in this decision, on February 14, 2007, a written judgment was
entered sentencing Crewz to six years for this offense, consisting of two years
of initial confinement and four years of extended supervision. On February 16, 2007, an amended judgment was
entered, sentencing Crewz to six years for this offense, consisting of two
years of initial confinement and four years of extended supervision,
consecutive to the sentence she was serving in
The record reveals that in response to a March 8, 2007 letter from the Wisconsin Department of Corrections indicating that the maximum period of extended supervision for this offense was three years, the trial court ordered that the judgment of conviction be further amended to state that Crewz was sentenced to two years of initial confinement followed by three years of extended supervision, for a total sentence of five years, consecutive to the sentence in Waukesha county circuit court case No. 2000CF853. This amended judgment was entered on March 23, 2007. Since this particular amendment is not challenged in this appeal, when an amended judgment is entered on remand, the new judgment must indicate that Crewz is sentenced to five years for count one, consisting of two years of initial confinement and three years of extended supervision, concurrent to the sentence in Waukesha county circuit court case No. 2000CF853.
plea questionnaire did not state if count one was to be consecutive or
concurrent to the
v. Cole, 208
reaching this conclusion, we acknowledge that at the February 14, 2007
sentencing, the trial court stated that it was going to “follow the
recommendation” and sentence Crewz to two years of initial confinement and four
years of extended supervision. However,
this did not demonstrate a clear intent to make the sentence consecutive. While the prosecutor stated at the February
14, 2007 hearing that the State’s recommendation under the plea agreement was
“two years incarceration and four years extended supervision, consecutive,”
neither the guilty plea questionnaire that was before the trial court nor
defense counsel’s description of the plea agreement indicated that the State’s
recommendation under the plea agreement was for a consecutive sentence on count
one to the Waukesha county judgment.
Moreover, after imposing sentence, the trial court responded to defense
counsel’s direct query by stating that the sentence would begin forthwith. The court had earlier been made aware that
Crewz was serving ten months and twenty-five days at Taycheedah. Finally, the judgment entered on February 14,
2007, contained no language indicating whether the sentence was concurrent or
consecutive to the
State relies upon the trial court’s statement that it took steps on February
15, 2007, to keep Crewz in the county jail so that she could be returned to
court for a new hearing. The State
contends that “the justice system as a whole” therefore had not yet begun to
act upon the trial court’s sentence. See State v. Gruetzmacher, 2004 WI 55, ¶38,
The Gruetzmacher court considered the
trial court’s retention of the defendant in jail as a factor in determining
that the defendant did not have a legitimate expectation of finality in the
sentence as originally imposed.