|
COURT OF APPEALS DECISION DATED AND RELEASED December 21, 1995 |
NOTICE |
|
A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals. See § 808.10 and Rule 809.62(1), Stats. |
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports. |
No. 94-1692-CR
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT IV
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
MALCOLM J. CAMPBELL,
Defendant-Appellant.
APPEAL from a judgment
and an order of the circuit court for Jefferson County: JOHN M. ULLSVIK, Judge. Affirmed.
Before Eich, C.J.,
Gartzke, P.J., and Sundby, J.
PER
CURIAM. Malcolm J. Campbell appeals from a judgment[1]
and a postconviction order. He claims
that (1) he was convicted under a nonexistent statute; and (2) he is entitled
to resentencing because the trial court relied on information about events that
occurred after the original sentencing.[2] We conclude that: (1) the trial court's oral decision, which the court reporter
incorrectly transcribed is not so ambiguous that we must reverse the judgment;
and (2) Campbell has not proven, by clear and convincing evidence, that the
trial court relied on improper information when it resentenced him. We therefore affirm.
In a trial to the court,
the trial court found Campbell "guilty of four Counts of a violation of
942.25(1)(d)." However, there is
no § 942.25(1)(d), Stats. At the request of appellant's counsel, the
court reporter verified from her notes that the trial court found Campbell
guilty of violating section "nine, forty, two, twenty-five, sub-section
one, sub-section `d.'" However,
the court reporter had incorrectly transcribed the statutory section as
942.25(1)(d), rather than 940.225(1)(d), Stats.,
1987-88. Because of this transcription
error, Campbell claims that he was convicted under a nonexistent statute and
the judgment must be vacated.
The postconviction court
ruled that the oral decision was ambiguous.
It reviewed the record, including the complaint, information and
judgment, and determined that the trial court intended to convict Campbell of
violating the appropriate statute, § 940.225(1)(d), Stats., 1987-88. The court corrected the defective
reference. See Rule 809.15(3), Stats.
"`When there is an
ambiguity in the oral sentencing, as opposed to a conflict between the oral
pronouncement and the written judgment, it is proper to look to the written
judgment to ascertain the court's intention.'" State v. Brown, 150 Wis.2d 636, 641, 443 N.W.2d 19,
22 (Ct. App. 1989) (quoting United States v. Purcell, 715 F.2d
561, 563 (11th Cir. 1983)). "[A]n omission
[such as failing to specify placement of the decimal] in the oral pronouncement
could create an ambiguity which would require the appellate court to determine
the court's intent from other parts of the record, including the judgment of
conviction." State v. Lipke,
186 Wis. 2d 358, 364, 521 N.W.2d 444, 446 (Ct. App. 1994) (emphasis in
original) (citation omitted). We
conclude that this rule applies equally to the trial court's oral announcement
of its decision on the merits.
Campbell relies on State
v. Perry, 136 Wis.2d 92, 114, 401 N.W.2d 748, 758 (1987), which holds
that the trial court's oral announcement of its decision controls over the
written judgment. However, Perry
applies to unambiguous oral decisions. Id.;
State v. Brown, 150 Wis.2d 636, 641, 443 N.W.2d 19, 22 (Ct. App.
1989) (emphasizing the distinction between ambiguous and unambiguous oral
decisions).
Campbell
also contends he is entitled to resentencing because the court improperly
relied on his after-sentencing correspondence to the victims and their
families. Although a defendant must be
resentenced on the circumstances as they existed at the original sentencing,[3]
Campbell stipulated to the resentencing court's consideration of supplemental
information. After the resentencing
court became aware of Campbell's after-sentencing actions, Campbell reneged on
the stipulation. Although Campbell
objected to the supplemental information contained in the pre-sentence
investigation report, he did not specifically object to testimony about
Campbell's unwelcome communications, which occurred after the original
sentencing. The resentencing court
offered "to the best of its ability ... to exclude what it learned from
the Pre-Sentence Investigation Report which was supplemental, and the court
will not consider it."
The resentencing court
stated that it had not considered Campbell's unwelcome correspondence to the
victims and their families. Campbell
insists that the resentencing court could not have included a
"no-contact" provision in the judgment had it not considered his
unwelcome contacts. Campbell argues
that the no-contact provision shows that the resentencing court was aware of
his unwelcome communications, and he contends that the court punished him for
the communications by imposing a longer sentence.[4]
We reject Campbell's
argument. The State does not dispute
that the resentencing court was aware of Campbell's unwelcome
communications. However, we find
nothing in the record to allow the inference that the court imposed a more
severe sentence on him to punish him for communicating with the victims and
their families. It was, however,
appropriate for the resentencing court to prohibit Campbell from further
contacts with the victims and their families.
Such a prohibition is not, however, punishment.
Campbell must prove, by
clear and convincing evidence, that the court considered improper information
and that he was prejudiced by it. See
State v. Littrup, 164 Wis.2d 120, 132, 473 N.W.2d 164, 168 (Ct. App.
1991). The resentencing court
repeatedly stated that it did not consider this information. Our review of the record shows that the
resentencing court considered the proper factors in resentencing Campbell. See State v. Larsen,
141 Wis.2d 412, 426-27, 415 N.W.2d 535, 541 (Ct. App. 1987).
By the Court.—Judgment
and order affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)5, Stats.
[1] We review the judgment entered December 3, 1993 and the amended judgment entered May 26, 1994. The amended judgment increases Campbell's sentence credit.