PUBLISHED OPINION
Case No.: 95-2575-CR
†Petition for
Review Filed
Complete Title
of Case:
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
SUSAN HOLLOWAY,
Defendant-Appellant.†
Submitted on Briefs: January 29, 1996
COURT COURT OF APPEALS OF WISCONSIN
Opinion Released: June 5, 1996
Opinion Filed: June
5, 1996
Source of APPEAL Appeal from judgments
Full Name JUDGE COURT: Circuit
Lower Court. COUNTY: Racine
(If
"Special", JUDGE: STEPHEN A. SIMANEK
so indicate)
JUDGES: Anderson, P.J., Brown and Nettesheim, JJ.
Concurred:
Dissented:
Appellant
ATTORNEYSOn behalf of the defendant-appellant, the cause was
submitted on the briefs of Patrick Donnelly, assistant state public
defender.
Respondent
ATTORNEYSOn behalf of the plaintiff-respondent, the cause was
submitted on the brief of James E. Doyle, attorney general, and Diane
M. Nicks, assistant attorney general.
|
COURT OF
APPEALS DECISION DATED AND
RELEASED June
5, 1996 |
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, Stats. |
This opinion is subject to further editing. If published, the official version will appear in the bound
volume of the Official Reports. |
No. 95-2575-CR
STATE OF WISCONSIN IN
COURT OF APPEALS
STATE
OF WISCONSIN,
Plaintiff-Respondent,
v.
SUSAN
HOLLOWAY,
Defendant-Appellant.
APPEAL
from judgments of the circuit court for Racine County: STEPHEN A. SIMANEK, Judge. Affirmed.
Before
Anderson, P.J., Brown and Nettesheim, JJ.
NETTESHEIM,
J. Susan Holloway was originally sentenced as a
repeat offender for one count each of prostitution and obstructing an
officer. Pursuant to § 973.13, Stats., the trial court commuted the
sentences to the maximum permitted for the underlying offenses because the
repeater convictions had not been properly proven. However, the court altered the structure of the sentences from
concurrent to consecutive. On this
appeal, Holloway contends that the trial court lacked authority to restructure
the sentences. We reject Holloway's
argument and affirm the judgments.
Background
Holloway
was charged as a repeater, pursuant to § 939.62, Stats., with one count each of prostitution and resisting or
obstructing an officer, contrary to §§ 944.30(1) and 946.41(1), Stats.
She pled guilty to the charges.
Invoking the repeater penalties, the trial court sentenced Holloway to
maximum three-year terms in the state prison.
See § 939.62(1)(a). The
court, however, directed that the sentences be served concurrently.
Holloway
filed a postconviction motion challenging the repeater portions of the two
sentences. She alleged that the prior
convictions were not properly proven at the sentencing. See § 973.12, Stats.[1] She asked that her sentences be commuted to
the maximum permitted without the repeater enhancers pursuant to § 973.13, Stats.
The
trial court agreed with Holloway that the prior convictions had not been
properly proven, and that ruling is not before us on appeal. Thus, pursuant to § 973.13, Stats., the court commuted the
sentences to the maximum on each underlying count—nine months'
imprisonment. However, the trial court
altered the structure of the sentences from concurrent to consecutive. Holloway appeals.
Discussion
Section
973.13, Stats., provides:
Excessive
sentence, errors cured. In any case where the court imposes a
maximum penalty in excess of that authorized by law, such excess shall be void
and the sentence shall be valid only to the extent of the maximum term
authorized by statute and shall stand commuted without further proceedings.
Holloway argues that when the enhanced portion of a
repeater sentence is voided pursuant to the above statute, a sentencing court
is without authority to amend other aspects of the sentence. She bases this argument on the concluding
words of the statute which state that “[the sentence] shall stand commuted
without further proceedings.” The State
responds that restructuring of the sentences was proper because the trial
court's dispositional plan was frustrated when the excessive portion of the
sentence was voided.
Sentencing is a matter committed to the
trial court's discretion. State
v. Wagner, 191 Wis.2d 322, 332, 528 N.W.2d 85, 89 (Ct. App. 1995). However, the issue in this case is whether §
973.13, Stats., barred the
sentencing court from exercising its discretion. Thus, the question is whether the court correctly interpreted and
applied the statute. This presents a
question of law for our independent review.
See State v. Zimmerman, 185 Wis.2d 549, 554, 518
N.W.2d 303, 304 (Ct. App. 1994).
On
the issue before us, § 973.13, Stats.,
is more remarkable for what it does not say than what it does. The statute clearly invalidates the excess
portion of an enhanced repeater sentence which is not properly proven. See Zimmerman, 185
Wis.2d at 559, 518 N.W.2d at 306; see also State v. Theriault,
187 Wis.2d 125, 133, 522 N.W.2d 254, 258 (Ct. App. 1994); State v.
Goldstein, 182 Wis.2d 251, 260-62, 513 N.W.2d 631, 635-36 (Ct. App.
1994). As such, the statute serves to
correct and reduce the duration of an improperly imposed enhanced
repeater sentence. However, the statute
does not otherwise address other components or conditions of the sentence which
do not directly bear upon the duration of the term imposed.
Here,
Holloway was convicted of separate offenses for which she received separate,
discrete sentences. When the sentencing
court determined that a portion of each sentence was void, the court did
exactly what the statute commanded: it
commuted each sentence to the maximum permitted for the underlying
offense. However, we see nothing in the
statute which bars a sentencing court from addressing other aspects or
conditions of the sentence to which the statute does not speak.
At
the original sentencing hearing, Holloway's attorney and Holloway herself
addressed her history of drug addiction in arguing for probation. In response, the sentencing court
acknowledged Holloway's drug addiction problem but also noted that prior
probation attempts to address that problem had failed. The court also noted the high HIV risk, both
to herself and others, presented by Holloway's extensive prostitution
record. The court continued:
She's
a 30-year-old individual with multiple prior offenses. She's a repeater for both felonies and
misdemeanors including prior prostitutions, prior obstructings. We have tried everything with the lady to no
avail. ¼ She's playing russian roulette with her own life and
with the lives of anyone else she comes in contact with. And that must stop.
¼.
I want to emphasize that I am not staying
these sentences and placing her on probation because I firmly believe that's an
exercise in futility. ¼ I think she has to
be separated from the rest of society and get the treatment that she needs so
that we don't see her back in here again or see her down at the funeral home in
a casket.
These
remarks reveal that the sentencing court was focused on two principal
concerns: Holloway's demonstrated need
for treatment and the risk which she posed to herself and the public. The court concluded that these two concerns
would be adequately addressed by removing Holloway from society for a term of
three years. Thus, the court imposed
the maximum sentence permitted under the repeater statute, but directed that
the sentences be served concurrently.
From
this record, it is reasonable to conclude that if the sentencing court had
known of the defect in the original sentences, it would have structured the
sentences differently to address the court's concerns. The court confirmed this at the resentencing
hearing when it said, “The reason I gave [Holloway] time in the state
penitentiary was to get her, at the request of her counsel, ¼ an opportunity to
get treatment. This woman is going to kill herself ¼ or someone else.”
Sentences
are to be individualized to meet the facts of the particular case and the
characteristics of the individual defendant.
See State v. Thompson, 172 Wis.2d 257, 265, 493
N.W.2d 729, 733 (Ct. App. 1992). The
sentencing court's original sentences in this case served this purpose. The commuted sentences for which Holloway
argues, without more, do not serve this purpose. Instead, the sentences would be artificial, as if imposed in a
vacuum. We should not restrict the
discretionary authority of a court at resentencing when the underlying premise
for an original sentence no longer exists.
Resentencing is generally the proper method of correcting a sentencing
error. State v. Walker,
117 Wis.2d 579, 583-84, 345 N.W.2d 413, 415 (1984); Grobarchik v. State,
102 Wis.2d 461, 470, 307 N.W.2d 170, 175 (1981).
We
therefore hold that when a sentence is commuted pursuant to § 973.13, Stats., the sentencing court may, in
its discretion, resentence the defendant if the premise and goals of the prior
sentence have been frustrated.
Here,
at the resentencing, the sentencing court again addressed Holloway's need for
treatment and the protection of the public.
The court recognized that a county jail setting provided little or no
opportunity for treatment of Holloway's addiction. Faced with this dilemma, the court nonetheless determined that
the risks which Holloway posed to herself and the public required consecutive
sentences for the maximum permitted for the underlying offenses. The weight to be given each sentencing
factor is left to the sentencing court's broad discretion. Thompson, 172 Wis.2d at 264,
493 N.W.2d at 732. The sentencing court
also has discretion in determining whether sentences imposed in the case of
multiple convictions are to run concurrently or consecutively. Cunningham v. State, 76 Wis.2d
277, 284-85, 251 N.W.2d 65, 68-69 (1977); see § 973.15(2), Stats.
We
acknowledge that under the restructured sentences in this particular case,
Holloway may serve more actual confinement time in the county jail than under
the original state prison sentences which offered the prospect of parole. However, such is permitted, in the proper
exercise of discretion, when the sentencing court's dispositional plan is
frustrated. The court may alter the
sentence in order to bring it into conformity with the law and to effectuate
the court's intent. Grobarchik,
102 Wis.2d at 473, 307 N.W.2d at 177.
Moreover,
the resentencing authority which we accord to a sentencing court in this case
allows a court, in the appropriate case and in the proper exercise of
discretion, to further ease a sentence already commuted under § 973.13, Stats.
As we have noted, the statute requires that the original sentence be
commuted to the maximum permitted by law.
As such, it stands as a statutory cap on the new sentence. But, as we have already explained, it does
not bar the court from revisiting the sentence so long as the new sentence is
within that permitted by the law. Thus,
the statute is not a one-way street which will always operate to the
disadvantage of the defendant. In a
different case, it may produce a lighter sentence than the maximum for the
underlying offense.
We
also reject Holloway's contention that Theriault and other cases
stand for the proposition that a trial court cannot revisit an illegal sentence
because in those cases we ordered all other provisions of the commuted
sentences “confirmed.” See Theriault,
187 Wis.2d at 133, 522 N.W.2d at 258; Zimmerman, 185 Wis.2d at
559, 518 N.W.2d at 306; State v. Wilks, 165 Wis.2d 102, 112, 477
N.W.2d 632, 637 (Ct. App. 1991); see also Goldstein, 182
Wis.2d at 262, 513 N.W.2d at 636. None
of those cases presented the direct issue raised in this case.
In
Zimmerman and Wilks, each of the defendants had
committed only one offense and there were no multiple convictions. See Zimmerman, 185
Wis.2d at 552, 518 N.W.2d at 304 (armed robbery); Wilks, 165
Wis.2d at 104, 477 N.W.2d at 633 (party to retail theft). In Theriault and Goldstein,
the court had previously imposed consecutive sentences. See Theriault, 187
Wis.2d at 130, 522 N.W.2d at 256; Goldstein, 182 Wis.2d at 254,
513 N.W.2d at 633. Further, the state
in those cases never asked the court to resentence the defendant.
By
the Court.—Judgments affirmed.