State v. Jacqueline R. Robinson

2014 WI 35

SUPREME COURT OF WISCONSIN
CASE NO.: 2011AP2833-CR
COMPLETE TITLE: State of Wisconsin,
Plaintiff-Respondent,
v.
Jacqueline R. Robinson,
Defendant-Appellant-Petitioner.

REVIEW OF A DECISION BY THE COURT OF APPEALS
Reported at 345 Wis. 2d 62, 823 N.W.2d 840
(Ct. App. 2012 – Unpublished)

OPINION FILED: June 10, 2014
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: September 3, 2013

SOURCE OF APPEAL:
COURT: Circuit
COUNTY: Milwaukee
JUDGE: Paul Van Grunsven

JUSTICES:
CONCURRED: PROSSER, J., concurs. (Opinion filed.)
DISSENTED: ABRAHAMSON, C.J., BRADLEY, J., dissent. (Opinion
filed.)
NOT PARTICIPATING:

ATTORNEYS:
For the defendant-appellant-petitioner, there were briefs
by Dustin C. Haskell, assistant state public defender, and oral
argument by Dustin C. Haskell.

For the plaintiff-respondent, the cause was argued by Sara
Lynn Larson, assistant attorney general, with whom on the brief
was J.B. Van Hollen, attorney general.

An amicus curiae brief was filed by Ellen Henak and Henak
Law Office. S.C., Milwaukee, on behalf of Wisconsin Association
of Criminal Defense Lawyers.
 2014 WI 35
NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2011AP2833-CR
(L.C. No. 2011CF288)

STATE OF WISCONSIN : IN SUPREME COURT

State of Wisconsin,

Plaintiff-Respondent,
FILED
v. JUN 10, 2014

Jacqueline R. Robinson Diane M. Fremgen
Clerk of Supreme Court

Defendant-Appellant-Petitioner.

Review of a decision of the Court of Appeals. Affirmed.

¶1 MICHAEL J. GABLEMAN, J. This is a review of an

unpublished decision of the court of appeals1 affirming a

decision and order of the Milwaukee County Circuit Court2 denying
defendant Jacqueline R. Robinson's (Robinson) post-conviction

motion to reinstate her original sentence.

¶2 The question before us is whether Robinson's

constitutional protection against double jeopardy was violated

when the circuit court increased her sentence one day after

1
State v. Robinson, No. 2011AP2833-CR, unpublished slip op.
(Wis. Ct. App. Oct. 23, 2012).
2
The Honorable Paul R. Van Grunsven presiding.
 No. 2011AP2833-CR

initially imposing it. Robinson argues that the circuit court's

decision to resentence her one day after her original sentence

was imposed violated both state and federal constitutional

protections against double jeopardy because she had a legitimate

expectation of finality in her original sentence.3 The State

contends that Robinson had no legitimate expectation of finality

and, consequently, Robinson's constitutional protection against

double jeopardy was not violated.

¶3 Under the reasoning of United States v. DiFrancesco,

449 U.S. 117, 101 S. Ct. 426, 66 L. Ed. 2d 328 (1980) and the

factors set forth in State v. Jones, 2002 WI App 208, 257

Wis. 2d 163, 650 N.W.2d 844, we hold Robinson did not have a

legitimate expectation of finality and the circuit court acted

appropriately in resentencing Robinson. Accordingly, we affirm

the court of appeals.

I. BACKGROUND AND PROCEDURAL HISTORY

¶4 The facts relevant to this appeal are undisputed. On

January 19, 2011, Robinson was arrested for operating a motor
vehicle while her driving privileges were suspended, for

loitering, and for violation of probation. Robinson was taken

to the police station for processing. At the police station, a

police officer conducted a search of Robinson and recovered a

3
In United States v. DiFrancesco, 449 U.S. 117, 101 S. Ct.
426, 66 L. Ed. 2d 328 (1980), the United States Supreme Court
held that if a defendant has a legitimate expectation in the
finality of her sentence, then an increase in that sentence
violates double jeopardy.

2
 No. 2011AP2833-CR

pill bottle containing Alprazolam pills.4 Due to suspicion

Robinson might be hiding additional narcotics, Robinson was

escorted to a bathroom and two police officers conducted a

further search of Robinson's person. During this search, the

police officers recovered a second pill bottle containing

Oxycontin pills.5 At this point, a struggle ensued. Robinson

struck one of the police officers on the officer's jaw and

forehead, and kicked the second police officer twice on the

officer's left knee.

¶5 On January 22, 2011, the State filed a criminal

complaint charging Robinson with one count of possession of

narcotic drugs, in violation of Wis. Stat.

§ 961.41(3g)(am)(2009-10)6 (Count One), and two counts of battery

to a law enforcement officer, in violation of Wis. Stat.

§ 940.20(2) (Count Two and Count Three).

¶6 On April 12, 2011, Robinson and the State entered into

a plea agreement. Pursuant to the plea agreement, Robinson pled

guilty to all three counts.
¶7 Robinson's arrest on January 19, 2011, was not her

first encounter with the law. At the time of her arrest,

4
Alprazolam is the generic ingredient in Xanax, a
prescription anxiety medication, which is a Schedule IV
controlled substance. See Wis. Stat. § 961.20(2)(a)(2009-10).
5
Oxycontin (Oxycondine) is a Schedule II controlled
substance. See Wis. Stat. § 961.16(2)(a)11 (2009-10).
6
All subsequent references to the Wisconsin Statutes are to
the 2009-10 version unless otherwise indicated.

3
 No. 2011AP2833-CR

Robinson was on probation after pleading guilty to three

criminal charges in Waukesha County in 2008.7 Those three

criminal charges were comprised of two counts of receiving

stolen property less than or equal to $2,500, in violation of

Wis. Stat. § 943.34(1)(a) (Waukesha County cases 08-CM-2563 and

08-CM-1636) and one count of possession with intent to deliver

narcotics, in violation of Wis. Stat. § 961.41(1m)(a) (Waukesha

County case 08-CF-518). Sentence on the Waukesha County cases

was withheld and Robinson was placed on three years of

probation. No jail time was ordered as a condition of that

probation.

¶8 As a result of her arrest in Milwaukee County on

January 19, 2011, Robinson was revoked from probation on all

three Waukesha County cases. On April 6, 2011, the Waukesha

County Circuit Court, the Honorable William J. Domina,

presiding, sentenced Robinson to two years initial confinement

and four years extended supervision for case 08-CF-518. For

Waukesha County cases 08-CM-2563 and 08-CM-1636, Robinson was
sentenced to nine months initial confinement for each count,

with each sentence to run concurrent with the sentence imposed

for case 08-CF-518. In sum, the circuit court sentenced

Robinson to two years of initial confinement and four years of

probation as a consequence of the revocation of her probation

(collectively, "Waukesha County sentences").

7
As part of the plea agreement for the 2008 charges, eleven
charges were dismissed and read-in to a global sentence for the
three other criminal convictions.

4
 No. 2011AP2833-CR

¶9 On May 10, 2011, the Milwaukee County Circuit Court,

the Honorable Judge Van Grunsven, presiding, held a sentencing

hearing for Robinson for Counts One, Two, and Three. The

hearing began with the State and Robinson making a joint

recommendation that any sentence the circuit court imposed be

concurrent with the Waukesha County sentences. The State

recited Robinson's prior criminal record and the factual

background that led to Robinson's most recent charges. The

State explained that, in 2008, eleven charges had previously

been dismissed and read-in for three other convictions in

Waukesha County and Robinson had received only probation for

those three offenses. The State further explained that

Robinson's probation had been revoked and she had been sentenced

to "two years in custody and four years extended supervision."

The State recommended that the circuit court not impose any

additional incarceration time for Robinson's most recent plea

agreement for Counts One, Two, and Three.

¶10 Prior to imposing sentence on those counts, Judge Van
Grunsven noted that "much of what [he] read in the complaint

[was] absolutely despicable behavior." At one point during the

sentencing hearing, he addressed the defendant directly:

Quite frankly, in relation to your character, this
Court considers the litany of cases that were
dismissed and read-in as part of the plea negotiations
out in Waukesha and while everyone seems to say that
Jacqueline has turned the corner, I think the history
and violation of laws of the state give me great cause
for concern, despite the fact she's been off of
probation she's been revoked and I also see her as a
threat to society.

5
 No. 2011AP2833-CR

She is continuing to commit crimes, despite the fact
she has pending charges, leading to the bail jump
charge and other cases and I just, while she indicates
that she's now clean and sober and going to take the
opportunities seriously, I'm not so certain.

I think she has a vicious addiction that is going to
be a life-long struggle. I consider the fact Judge
Domina ordered a sentence of two years in and four
years out after she was revoked and returned to him
for sentencing. I do need to consider that.

I also look at the fact she has pled guilty, accepted
responsibility. I also look at the need to protect the
public.
¶11 After his remarks, Judge Van Grunsven sentenced

Robinson on Count One to 42 months in the Wisconsin State Prison

System, consisting of 18 months initial confinement and 24

months extended supervision, concurrent with any other sentence.

On Counts Two and Three, Judge Van Grunsven sentenced Robinson

to 60 months in the Wisconsin State Prison System, consisting of

24 months initial confinement and 36 months extended

supervision, concurrent with any other sentence. Because Judge

Van Grunsven ordered that the sentences run concurrent with the

Waukesha County sentences, Robinson effectively received no
additional incarceration after being sentenced on Counts One,

Two, and Three.

¶12 The next day, May 11, 2011, the circuit court sua

sponte recalled the case. Judge Van Grunsven stated that after

the hearing, he did some research on the Consolidated Court

6
 No. 2011AP2833-CR

Automation Programs (CCAP) and realized he made a mistake.8

Specifically, the court remarked that it mistakenly believed the

Waukesha County sentences Robinson was currently serving

amounted to two years and nine months initial incarceration,

when in fact she had only been sentenced to two years. Judge

Van Grunsven explained:

At the conclusion of the hearing and subsequent
thereto the Court did some research and I realized I
made a mistake. The split sentence I proposed
yesterday did not reflect this Court’s intent as far
as a fair sentence in this case.

. . .

There was a lengthy record with regard to a number of
cases in Waukesha County and I mis-heard and mis-noted
some of the sentences that were handed down.
Specifically 08CM1636, in which the Receiving Stolen
Property case, Ms. Robinson was given nine months. It
was my mistaken impression that she said the nine
months was consecutive and tacked on to the 24 months
that Judge Domina ordered in that case. Quite frankly
a review of CCAP subsequent to yesterday’s hearing
revealed that in fact the nine months in that case was
concurrent to 08CF518 and 08CM2563.

In fashioning a sentence in this case, the Court does
look at the gravity of the offense, the defendant’s
character and need to protect the public and yesterday
I started my sentencing arguments by talking about how
despicable the behavior was by Ms. Robinson in this
case in terms of her reactions and interactions with
the police officers in this case.

8
CCAP is a case management system provided by the Wisconsin
Circuit Court Access program. Its purpose is to provide public
access online to reports of activity in Wisconsin circuit
courts. See, e.g., State v. Bonds, 2006 WI 83, ¶6, 292 Wis. 2d
344, 717 N.W.2d 133.

7
 No. 2011AP2833-CR

In fashioning a sentence the Court does need to look
at probation and probation is not appropriate. The
court considers prior record of convictions and the
court does look at a period of incarceration and
believes it is necessary to accomplish the objectives
of good sentencing, which is the gravity of the
offense, the defendant’s character and need to protect
the public.

Given all of that and harkening back to the comments
made yesterday, I asked this case be called back so I
can re-state and announce the sentence I wanted to
achieve yesterday . . . .
¶13 Judge Van Grunsven then modified Robinson's sentences

for Counts Two and Three. For both Counts Two and Three, Judge

Van Grunsven increased Robinson's sentence from 60 months,

consisting of 24 months initial confinement and 36 months

extended supervision, to 69 months, consisting of 33 months

initial confinement and 36 months extended supervision, to run

concurrently with any other sentence. The effect of Judge Van

Grunsven's modification of Robinson's sentences for Counts Two

and Three was a nine-month increase in Robinson's time of

incarceration.

¶14 On November 14, 2011, Robinson filed a postconviction
motion seeking restoration of the sentence imposed on May 10,

2011. Robinson's postconviction motion asserted that the

circuit court violated both her state and federal constitutional

protections against double jeopardy when it resentenced her on

May 11, 2011. In her postconviction motion, Robinson noted that

the May 10, 2011, sentence was neither illegal nor incorrect and

the record clearly established the court understood Robinson's
existing sentences. Instead, Robinson argued the circuit court

8
 No. 2011AP2833-CR

"increased the sentence based upon mere second guessing of its

original decision" and therefore violated Robinson's right to be

free from double jeopardy.

¶15 The circuit court denied the postconviction motion,

finding no violation of the double jeopardy clause. Relying on

State v. Burt, 2000 WI App 126, 237 Wis. 2d 610, 614 N.W.2d 42,

the circuit court found that it had "not increase[d] defendant

Robinson's sentence upon reflection but instead because the

court was under a mistaken impression about her Waukesha County

sentence."

¶16 The court of appeals issued a per curiam decision

affirming the circuit court, holding the circuit court did not

violate Robinson's double jeopardy protection when it increased

her sentence. The court of appeals recognized that "[a]

sentencing court violates double jeopardy when it increases a

previously imposed sentence if the defendant had a legitimate

expectation of finality in the original sentence." Robinson, No.

2011AP2833-CR, unpublished slip op., ¶3. The court of appeals
noted that in Burt the court had held the sentencing court did

not violate an individual's right to be free from double

jeopardy when it changed a sentence later the same day in order

to correct a "'slip of the tongue.'" Id. at ¶5 (quoting Burt,

237 Wis. 2d 610, ¶12). In comparing the facts of Burt to the

facts of Robinson's case, the court of appeals noted that

"Robinson served only one day of her sentence when the circuit

court realized its mistake . . . and recalled Robinson to
increase her sentence." Id. The court of appeals reasoned that
9
 No. 2011AP2833-CR

"[t]he difference in time between the circuit court's action in

Burt and the circuit court's action here is a matter of hours,

not days." Id. at ¶11. The court of appeals acknowledged that

"Robinson's expectation in the finality of her sentence was not

illegitimate," but concluded "the sentence did not yet have a

degree of finality that prohibited the circuit court from

correcting its own mistake the day after the initial

sentencing." Id.

¶17 Robinson petitioned this court for review of the

decision of the court of appeals. We accepted the petition on

February 12, 2013.

II. STANDARD OF REVIEW

¶18 The sole issue in this case is 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. "Whether an individual's

constitutional right to be free from double jeopardy has been

violated is a question of law that this court reviews de novo."
State v. Anderson, 219 Wis. 2d 739, 746, 580 N.W.2d 329 (1998).

III. DISCUSSION

¶19 The question before us is whether Robinson's

constitutional protection against double jeopardy was violated

when the circuit court increased her sentence one day after

initially imposing it. Robinson argues that the circuit court's

decision to resentence her one day after her original sentence

was imposed violated her state and federal constitutional
protections against double jeopardy because she had a legitimate
10
 No. 2011AP2833-CR

expectation of finality in her original sentence. The State

contends that Robinson had no legitimate expectation of finality

and, consequently, Robinson's constitutional protection against

double jeopardy was not violated.

¶20 In order to fully understand the arguments put forth

by the parties, we briefly review the case law upon which their

arguments are based.

¶21 The Fifth Amendment to the United States

Constitution protects an individual from being twice put in

jeopardy for the same offense. The Double Jeopardy Clause of

the Fifth Amendment to the United States Constitution states,

"[N]or shall any person be subject to the same offence to be

twice put in jeopardy of life or limb." In Benton v. Maryland,

395 U.S. 784, 89 S. Ct. 2056, 23 L. Ed. 2d 707 (1969), this

guarantee against double jeopardy was held enforceable against

the states through the Fourteenth Amendment. The Wisconsin

Constitution also guarantees protection from double jeopardy.

Article I, § 8(1) states, in relevant part, "[N]o person for the
same offense may be put twice in jeopardy of punishment. . . ."

Because the protections afforded by these provisions are

coextensive, Wisconsin courts have traditionally treated them as

one. State v. Gruetzmacher, 2004 WI 55, ¶21, 271 Wis. 2d 585,

679 N.W.2d 533.

¶22 The guarantee against double jeopardy encompasses

three separate constitutional protections. North Carolina v.

Pearce, 395 U.S. 711, 717, 89 S. Ct. 2072, 23 L. Ed. 2d 656
(1969). "It protects against a second prosecution for the same
11
 No. 2011AP2833-CR

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." Id.

The prohibition at issue in this case concerns an individual's

protection against multiple punishments.

¶23 In DiFrancesco, 449 U.S. 117, the United States

Supreme Court held that the appropriate inquiry under the third

of these constitutional protections is whether the defendant has

a legitimate expectation of finality in her sentence. If a

defendant has a legitimate expectation of finality in her

sentence, then an increase in that sentence violates double

jeopardy. Id. at 437-38; see also Jones v. Thomas, 491 U.S.

376, 394, 109 S. Ct. 2522, 105 L. Ed. 2d 322 (1989) (Scalia, J.,

dissenting) ("It is clear from DiFrancesco . . . that when a

sentence is increased in a second proceeding, the application of

the double jeopardy clause turns on the extent and legitimacy of

a defendant's expectation of finality in that sentence. If a

defendant has a legitimate expectation of finality, then an
increase in that sentence is prohibited.")

¶24 The Supreme Court in DiFrancesco elaborated on the

underlying rationale of the Double Jeopardy Clause:

The constitutional prohibition against 'double
jeopardy' was designed to protect an individual from
being subjected to the hazards of trial and possible
conviction more than once for an alleged offense. . .
. The underlying idea, one that is deeply ingrained in
at least the Anglo-American system of jurisprudence,
is that the State with all its resources and power
should not be allowed to make repeated attempts to
convict an individual for an alleged offense, thereby

12
 No. 2011AP2833-CR

subjecting him to embarrassment, expense and ordeal
and compelling him to live in a continuing state of
anxiety and insecurity, as well as enhancing the
possibility that even though innocent he may be found
guilty.

DiFrancesco, 449 U.S. at 127-28 (quoting Green v. United States,
355 U.S. 184, 187-88, 78 S. Ct. 221, 2 L. Ed. 2d 199 (1957)).
¶25 The Court noted that, while these considerations are

rational with regard to reprosecution after acquittal, they do

not have "significant application to the . . . review [of] a

sentence." Id. at 136. The Court in DiFrancesco concluded that

sentences and acquittals are very different for double jeopardy

purposes. While the Double Jeopardy Clause renders an acquittal

final and unreviewable, the same does not hold true for

sentences. "[A] sentence does not have the qualities of

constitutional finality that attend an acquittal." Id. at 134.

Consequently, "the Double Jeopardy Clause does not provide the

defendant with the right to know at any specific moment in time

what the exact limit of his punishment will turn out to be."

Id. at 137.

¶26 As this court observed in Gruetzmacher, the "issuance

of the United States Supreme Court's decision in DiFrancesco

changed the landscape of double jeopardy law" in sentencing

cases. Gruetzmacher, 271 Wis. 2d 585, ¶30. "After DiFrancesco

dismissed the notion that there was a per se rule against

modifying a sentence, the idea that modification to increase

sentences already being served ran afoul of the double jeopardy

clause was no longer sound." Id. Under DiFrancesco's
interpretation of the Double Jeopardy Clause of the Fifth

13
 No. 2011AP2833-CR

Amendment, it is unquestionably permissible, in certain

contexts, to review and modify a defendant's sentence after the

defendant has already begun serving the originally-imposed

sentence.

¶27 Following DiFrancesco, several cases in Wisconsin have

considered whether sentence modifications violated a defendant's

protection against double jeopardy due to the defendant's

legitimate expectation of finality in her sentence.

¶28 In Burt, the court of appeals applied the rationale

set forth in DiFrancesco in a case where the circuit court

misspoke during sentencing and sentenced the defendant to

concurrent sentences rather than consecutive. The circuit court

became aware of the mistake when it sentenced Burt's co-

conspirator immediately after sentencing Burt. The circuit

court called Burt back into the courtroom the same day and

modified the sentence. The court of appeals held that "the

protections against double jeopardy were not violated when the

trial court realized it made an error of speech in pronouncing
Burt's sentence and took immediate steps to correct the sentence

before the judgment of conviction was entered into the record."

Burt, 237 Wis. 2d 610, ¶11. The court of appeals reasoned that

"Burt had already been convicted and was not faced with the

embarrassment, expense, and ordeal or continued state of anxiety

and insecurity caused by repeated attempts to convict him." Id.

(internal quotation marks omitted). The court of appeals

concluded that, where the circuit court was simply correcting an
error in speech in the pronouncement of the sentence later in
14
 No. 2011AP2833-CR

the same day the original sentence was imposed, the defendant's

interest in finality "is not a significant concern." Id. at

¶12.

¶29 In State v. Willet, 2000 WI App 212, 238 Wis. 2d 621,

618 N.W.2d 881, the court of appeals examined the same question

that was presented in Burt——that is, whether the defendant had a

legitimate expectation of finality in his original sentence——and

concluded that the circuit court erred in modifying its original

sentence after the defendant had already begun serving it. The

circuit court in Willet initially determined that the

defendant's sentences for three convictions could not, under the

law, be served consecutively to a sentence that the defendant

was to receive four days later when his probation was revoked.

Willet, 2000 WI App 212, ¶2. Four months later, the circuit

court concluded that the defendant's initial sentence was based

on an erroneous understanding of the law and modified the three

sentences so that they were consecutive to the later sentence.

Id. at ¶1. The court of appeals reversed the circuit court,
concluding the defendant had a legitimate expectation of

finality under the circumstances. Id.

¶30 The court of appeals in Willet reasoned that, unlike

the defendant in Burt, "who was resentenced on the same day,

Willet had already been serving his sentence for four months

when the trial court changed it from concurrent to consecutive."

Id. at ¶6. Also, the court of appeals emphasized the fact that,

unlike Burt, this was clearly not a "slip of the tongue" by the
circuit court. Id. Instead, the circuit court misunderstood
15
 No. 2011AP2833-CR

the law, and, four months later, attempted to "seek a stiffer

sentence for Willet." Id. The court of appeals concluded that

Willet had a legitimate expectation of finality in the sentence,

and that "[t]he double jeopardy clause prevents the trial court

from going back, four months later, to redo the sentence." Id.

¶31 In State v. Jones, 2002 WI App 208, the court of

appeals, in light of DiFrancesco, provided a framework for

analyzing whether a defendant's right to be free from double

jeopardy has been violated when he is resentenced after an

original sentence has already been imposed. Jones distilled two

principles from DiFrancesco concerning the issue of whether a

court may increase a sentence after the defendant has begun

serving the sentence. First, 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. Jones, 2002 WI

App 208, ¶9. Second, "'[i]f a defendant has a legitimate

expectation of finality [in the sentence], then an increase in

that sentence is prohibited by the double jeopardy clause.'"
Id. (quoting United States v. Fogel, 829 F.2d 77, 87 (D.C. Cir.

1987)). The corollary to that second principle, however, is

that "if a circumstance exists to undermine the legitimacy of

that expectation, then a court may permissibly increase the

sentence." Id.

¶32 The court of appeals in Jones further noted that

Wisconsin precedent has long recognized that "the application of

the double jeopardy clause to an increase in a sentence turns on
the extent and legitimacy of a defendant's expectation of
16
 No. 2011AP2833-CR

finality in the sentence." Id. at ¶10. The court of appeals

then concluded that whether a defendant has a legitimate

expectation of finality is "the analytical touchstone of double

jeopardy . . . , which may be influenced by many factors, such

as the completion of the sentence, the passage of time, the

pendency of an appeal, or the defendant's misconduct in

obtaining sentence." Id.

¶33 In Gruetzmacher, this court applied the non-exhaustive

list of factors set forth in Jones to determine whether the

circuit court erred in modifying the defendant's sentence two

weeks after it was initially imposed. In Gruetzmacher, the

circuit court originally sentenced the defendant to 40 months

initial confinement for a substantial battery charge.

Gruetzmacher, 2004 WI 55, ¶7. During the initial sentencing

hearing, the circuit court indicated that 40 months

incarceration was the minimum period the court believed was

appropriate as a consequence of the defendant's actions. Id. at

¶10. Later the same day, the circuit court realized that the
substantial battery charge was a Class E felony that carried a

maximum initial confinement of 24 months. Id. at ¶8. Realizing

that the 40-month sentence exceeded the maximum amount that

could be imposed for the offense, the circuit court attempted to

contact the parties to schedule another hearing. Id. The

parties were unable to reconvene until two days later. Id.

When the parties reconvened, the circuit court explained the

error to the parties and scheduled a new sentencing hearing for
two weeks later. Id. At the new sentencing hearing, the
17
 No. 2011AP2833-CR

circuit court modified Gruetzmacher's sentence so that he was

serving 24 months initial confinement on the substantial battery

charge. Id. at ¶11. Additionally, the circuit court modified

another sentence Gruetzmacher was to serve for bail jumping from

12 years of probation to 40 months initial confinement, all to

run concurrent with the substantial battery charge. Id. In

effect, the resentencing did not increase the amount of

incarceration time originally imposed, but shifted the 40-month

sentence from the substantial battery charge to the bail jumping

charge.

¶34 In Gruetzmacher, this court noted that the factors set

forth in Jones illustrate "there is no immutable rule

prohibiting sentence increases once a defendant has begun to

serve the sentence. Instead, the Jones factors must be

evaluated in light of the circumstances in each particular

case." Id. at ¶34. We then observed that the record indicated

the circuit court clearly stated that 40 months was the

appropriate sentence for Gruetzmacher considering his lengthy
prior criminal record and violent conduct, and concluded the

circuit court acted appropriately. Id. at ¶37. We stressed

that the circuit court discovered the error in sentencing on the

same day and the parties reconvened two days later to address

the matter. Id. at 38. Additionally, the circuit court took

steps to keep Gruetzmacher from entering the prison system until

the sentencing error was corrected, and "[t]he fact that the

justice system as a whole had not yet begun to act upon the
circuit court's sentence is an important fact that bears
18
 No. 2011AP2833-CR

emphasis." Id. Moreover, this court reasoned that Gruetzmacher

"was not a case where, upon mere reflection, the circuit court

decided to increase . . . [the defendant's] sentence." Id.

Accordingly, we concluded "Gruetzmacher did not have a

legitimate expectation of finality" and that the circuit court

acted appropriately in resentencing him. Id.

¶35 The State argues that Gruetzmacher and Burt are

analogous to the facts of the present case. The State contends

that, like Gruetzmacher and Burt, there was a very limited

passage of time between when the circuit court erred in imposing

the original sentence and when it recalled the case. Further,

the State argues that in Burt, the circuit court misspoke when

it imposed the original sentence, stating the defendant would

serve "concurrent" sentences when the circuit court intended to

say "consecutive" sentences. Similarly, the State argues that

in the instant case the circuit court misspoke when it first

sentenced Robinson due to misunderstanding the nature of how the

new sentences would interact with Robinson's prior criminal
record.

¶36 Robinson disagrees with the State's reading of Burt

and Gruetzmacher and argues both cases are easily

distinguishable from the present case. Robinson points out

that, in Burt, the circuit court's intention to impose

consecutive, rather than concurrent, sentences was clear from

the circuit court judge's notes, which were sealed into the

record. Here, Robinson argues, nothing in the record suggests

19
 No. 2011AP2833-CR

the circuit court misunderstood the nature of the sentences

being imposed at the time of the original sentencing hearing.

¶37 With regard to Gruetzmacher, Robinson contends that

the present case is distinguishable because the circuit court

did not misunderstand the law when it imposed the original

sentence. In Gruetzmacher, the circuit court changed what was

an illegal sentence because the court initially exceeded the

maximum allowable sentence. Robinson argues that, unlike

Gruetzmacher, Robinson's original sentence was legally imposed

and nothing in the record suggests the circuit court intended to

impose a sentence different from the original sentence.

Robinson further argues that the present case is more properly

compared to Willet than it is to Burt or Gruetzmacher.

¶38 We agree with the State's argument that this case is

analogous to Burt and Gruetzmacher and distinguishable from

Willet. As detailed above, the court of appeals in Jones set

forth a list of factors, which were adopted and applied by this

court in Gruetzmacher, that are relevant to whether a defendant
has a legitimate expectation of finality in his or her sentence.9

9
It bears emphasis that the factors listed in Jones are
non-exhaustive. See State v. Jones, 2002 WI App 208, ¶10, 257
Wis. 2d 163, 650 N.W.2d 844 (emphasis added) (noting that a
"defendant's legitimate expectation of finality in the sentence
. . . may be influenced by many factors, such as the completion
of the sentence, the passage of time, the pendency of an appeal,
or the defendant's misconduct in obtaining sentence.") However,
regarding the other two factors specifically set forth in Jones,
both parties agree that Robinson did not engage in any
misconduct in obtaining her original sentence and there was no
pendency of an appeal. Accordingly, they do not apply here.

20
 No. 2011AP2833-CR

Here, two Jones factors are particularly germane: (1) the

completion of the sentence and (2) the passage of time between

the original sentence and resentencing. In Burt, the circuit

court modified the defendant's sentence on the same day the

original sentence was imposed. In Gruetzmacher, the circuit

court realized its error on the same day the original sentence

was imposed, notified the parties the same day, and scheduled a

hearing to resentence the defendant two days later. Here, Judge

Van Grunsven realized hours after sentencing Robinson that he

had misunderstood the Waukesha County sentences and, because of

that misunderstanding, erred in imposing the original sentence.

Consequently, in order to rectify this mistake, Judge Van

Grunsven recalled and resentenced Robinson the following day.

Like Burt and Gruetzmacher, little time passed between the

original imposition of Robinson's sentence and her resentencing.

Willet is easily distinguishable from this line of cases, in

that a four-month gap existed between the original sentencing of

the defendant and the circuit court's attempt to recall the
defendant and impose a greater sentence.

¶39 Additionally, in Gruetzmacher, we emphasized a

significant factor in determining that the circuit court acted

appropriately in resentencing the defendant was that "the

justice system as a whole had not yet begun to act upon the

circuit court's sentence." Gruetzmacher, 271 Wis. 2d 585, ¶38.

Upon review of the record, we conclude the same holds true in

the present case. The circuit court notified the parties it had
made a mistake regarding Robinson's original sentence and
21
 No. 2011AP2833-CR

corrected the sentence one day later, before any judgment of

conviction had been entered. In fact, no judgment of conviction

was ever produced reflecting the originally-imposed sentence.

See Gruetzmacher, 2004 WI 55, ¶38; Burt, 2000 WI App 126, ¶11

(holding "the protections against double jeopardy were not

violated when the trial court realized it made an error of

speech in pronouncing Burt's sentence and took immediate steps

to correct the sentence before the judgment of conviction was

entered into the record").

¶40 Robinson raises a number of arguments in an attempt to

distinguish the present case from Gruetzmacher and Burt. The

essence of Robinson's arguments, however, focuses on the same

point: Robinson contends that nothing in the record supports the

circuit court's explanation for modifying Robinson's sentence.

According to Robinson, the sentence the circuit court originally

imposed was lawful and no misunderstanding of fact is evident

from the record. Robinson stresses that in the cases on which

the State relies, there is clear evidence in the record
corroborating the justifications provided by the circuit courts

for resentencing. See Burt, 2000 WI App 126, ¶18 (noting the

judge's intention to impose consecutive, rather than concurrent,

sentences was supported by his notes); Gruetzmacher (noting that

the judge's original intention to impose a sentence of 40 months

was clear from the transcript of the original sentencing

hearing). Here, Robinson argues, no such evidence exists in the

record.

22
 No. 2011AP2833-CR

¶41 This is problematic, Robinson contends, because with

nothing in the record to corroborate a judge's explanation for

resentencing a defendant after a lawful sentence has been

imposed, a judge will be free to deliberate on any previously

imposed sentence and sua sponte modify it without any

constitutional safeguard available for the defendant.

¶42 Cases that examine double jeopardy claims in the

context of sentencing present a difficult balancing act for

appellate courts. On the one hand, it is unacceptable for the

defendant's sentence to be seen as a work in progress that a

circuit court can add to or subtract from at will. This result

would clearly conflict with the underlying rationale of the

Double Jeopardy Clause; that is, to prevent the State from

effectively "mak[ing] repeated attempts to convict an individual

for an alleged offense . . . and compelling him to live in a

continuing state of anxiety and insecurity." DiFrancesco, 449

U.S. at 127-28 (quoting Green, 355 U.S. 184, 187-88). On the

other hand, 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. "The

Constitution does not require that sentencing should be a game

in which a wrong move by the judge means immunity for the

prisoner." DiFrancesco, 449 U.S. at 135 (quoting Bozza v.

United States, 330 U.S. 160, 166-67, 67 S. Ct. 645, 91 L. Ed.

818 (1947)).

¶43 Accordingly, we reaffirm today the approach set forth
in Jones and adopted by this court in Gruetzmacher as the
23
 No. 2011AP2833-CR

appropriate framework for determining whether a defendant has a

legitimate expectation of finality. In cases such as these, a

bright line rule is simply unworkable. As we noted in

Gruetzmacher, "the Jones factors must be evaluated in light of

the circumstances in each case." Id. at ¶34. Evaluating the

extent and legitimacy of a defendant's expectation of finality

is a multi-factor inquiry that rests largely on the facts of

each individual case.

¶44 Here, Judge Van Grunsven noticed he had misunderstood

Robinson's prior criminal record during the original sentencing

hearing on the same day it occurred and scheduled a new

sentencing hearing for the following day. This was not a case

where the circuit court judge decided, after further

deliberating on the initial sentence imposed, that a different

sentence length was more appropriate. Here, as Judge Van

Grunsven explained on the record, he misunderstood Robinson's

lengthy criminal record, failed to sentence Robinson in a way

that matched his intention, and acted to remedy the error as
expeditiously as possible. We hold that the record supports

this explanation, considering the complexity of the defendant's

prior criminal history as recited on the record, Judge Van

Grunsven's lengthy remarks regarding the "despicable" nature of

Robinson's conduct and the need to protect the public, and the

promptness with which the sentence was rectified.10

10
In addition, no Presentence Investigation Report was
produced in this case. Judge Van Grunsven therefore had no
written explanation of Robinson's previous sentences.

24
 No. 2011AP2833-CR

¶45 We agree with Robinson's observation that the record

shows the State and the circuit court correctly described

Robinson's prior criminal record and the structure of Robinson's

plea agreement before Robinson was sentenced. The record of the

original sentencing hearing is replete with references from the

State and the circuit court regarding Robinson's prior criminal

record and how the sentences for Counts One, Two, and Three

would interact with the Waukesha County sentences she was

currently serving.

¶46 We disagree, however, with Robinson's contention that

nothing exists in the record of the original sentencing hearing

to support the circuit court's explanation for modifying

Robinson's sentence. During Robinson's original sentencing

hearing on May 10, 2011, Judge Van Grunsven emphasized his

concerns regarding Robinson's conduct repeatedly:

With regard to the gravity of the offense, I will tell
you, much of what I read in the complaint is
absolutely despicable behavior. Police officers are
brought to a scene to help you after a relapse and you
start . . . taking swipes at them . . .

Quite frankly, in relation to your character, this
Court considers the litany of cases that were
dismissed and read-in as part of plea negotiations out
in Waukesha and while everyone seems to say that
Jacqueline has turned the corner, I think the history
and violation of laws of the state give me great cause
for concern, despite the fact she's been off of
probation she's been revoked and I also see her as a
threat to society.

She is continuing to commit crimes, despite the fact
she has pending charges, leading to the bail jump
charge and other cases and I just, while she indicates

25
 No. 2011AP2833-CR

that she's now clean and sober and going to take the
opportunities seriously, I'm not so certain.
¶47 After observing that Robinson's conduct was

"despicable," and noting that he considered her to be a "threat

to society," Judge Van Grunsven sentenced Robinson for Counts

One, Two, and Three in a manner that provided no additional time

of incarceration beyond the amount that had already been imposed

for the Waukesha County sentences. In light of Judge Van

Grunsven's observations regarding Robinson's conduct, we find

the record supports Judge Van Grunsven's explanation for

resentencing Robinson after realizing he misunderstood the

nature and length of the Waukesha County sentences.

¶48 Robinson argues that, without more in the record

corroborating the circuit court's explanation for modifying

Robinson's sentence, we should conclude the circuit court

modified the sentence in a way that violated Robinson's right

against double jeopardy. We disagree for two reasons. First,

as we explained above, there is evidence in the record

supporting the circuit court's justification for modifying
Robinson's sentence. Second, Robinson's argument essentially

says that, without clear and convincing evidence in the record

corroborating the circuit court's explanation, a reviewing court

should presume that the circuit court, after deliberating on the

initial sentence imposed, decided a harsher sentence would be

more appropriate than the one originally intended and imposed.

In light of the great deference we afford sentencing courts, we
decline to create such a presumption. See, e.g., Solem v. Helm,

26
 No. 2011AP2833-CR

463 U.S. 277, 290, 103 S. Ct. 3001, 77 L. Ed. 2d 637 (1983)

("Reviewing courts, of course, should grant substantial

deference to the . . . discretion that trial courts possess in

sentencing convicted criminals."); State v. Paske, 163 Wis. 2d

52, 70, 471 N.W.2d 55 ("We will review sentencing for abuse of

discretion."); 7 Crim. Proc. § 27.5(e)(3d ed.) ("Sentencing

decisions in many jurisdictions are subject only to review for

abuse of discretion. In some states, sentences are evaluated

under an even less exacting 'shock-the-conscience' standard.").

We do not, as a matter of course, presume that judges act

capriciously without clear evidence supporting their actions.

Quite the contrary——taking judges at their word is a fundamental

assumption built into our legal system. In the absence of clear

evidence to the contrary, we decline to assign improper motive

on the part of the circuit court.

¶49 The dissent accuses us of failing to address the

reflection doctrine. We agree with the dissent's statement

that, in cases concerning a judicial change of a sentence,
double jeopardy and reflection are two distinct doctrines. We

disagree with the dissent's implicit contention, however, that——

regardless of the arguments advanced by the parties——both

doctrines must always be addressed. In its attempt to bring

this case within the ambit of the reflection doctrine, the

dissent mischaracterizes the issue before this court, the

arguments raised by the parties, and the impact of our holding.

¶50 Robinson petitioned this court to review whether her
"state and federal constitutional rights against double
27
 No. 2011AP2833-CR

jeopardy" were violated by the circuit court's actions. We

accepted Robinson's petition on this question and today we

answer it. Our analysis relies on the double jeopardy arguments

advanced by the parties in order to address the double jeopardy

issue raised by the defendant. We do not cite or discuss——just

as the parties do not cite or discuss——the numerous cases in our

reflection doctrine jurisprudence the dissent comprehensively

reviews and suggests we are altering or overruling. Simply put,

the dissent wishes to discuss the vitality of a body of law that

is beyond the scope of the issue raised in the petition for

review. "Typically, appellate courts do not take it upon

themselves to create and develop arguments on a party's behalf,"

State v. Brown, No. 2011AP2907-CR, unpublished order, (Feb. 26,

2014) (Bradley, J. dissenting), and we decline to do so here.

IV. CONCLUSION

¶51 The circuit court, upon discovering its error in

imposing the original sentence for Robinson, promptly notified

the parties. Robinson was resentenced on the following day.
The judgment of conviction for the original sentence had not yet

been entered into the record. Under the reasoning of

DiFrancesco and the factors set forth in Jones, we hold Robinson

did not have a legitimate expectation of finality and the

circuit court acted appropriately in resentencing Robinson.

Accordingly, we affirm the court of appeals.

By the Court.—The decision of the court of appeals is

affirmed.

28
 No. 2011AP2833.dtp

¶52 DAVID T. PROSSER, J. (concurring). This is a close

case that requires some "reflection" upon existing precedent. I

join the majority opinion but write separately to provide

support for the court's decision.

I

¶53 The dissent relies heavily on the reflection doctrine.

To explain the doctrine, the dissent repeatedly cites Scott v.

State, 64 Wis. 2d 54, 218 N.W.2d 350 (1974), which is the

seminal case on the subject.

¶54 The Scott case deserves close attention, however,

because it created a new rule that did not arise naturally from

Wisconsin case law. Understanding Scott puts a circuit court's

sentencing "mistakes" in a different light.

¶55 Calvin Scott was charged with armed robbery. Scott,

64 Wis. 2d at 56. He was convicted at a jury trial on May 17,

1973, and immediately sentenced to an indeterminate term of not

more than five years, which term was to be served consecutive to

any previously imposed sentence. Id. On May 18——the following
day——the trial court, sua sponte, resentenced Scott, increasing

his indeterminate term to not more than seven and one-half

years, consecutive to any previously imposed sentence. Id.

¶56 At the initial sentencing, the court relied on the

fact that Scott had no criminal record prior to the armed

robbery, but the court knew that Scott had been convicted of

injury by conduct regardless of life——after the robbery——for

shooting and injuring his alleged accomplice. Id. at 57 & n.1.
For that offense, Scott had already been sentenced to an
1
 No. 2011AP2833.dtp

indeterminate term of not more than five years. Id. at 57 n.1.

Thus, the court's five-year sentence for the armed robbery

produced a projected ten years in prison for Scott. Id. at 57.

¶57 At 8:20 a.m. on May 18, the court, sua sponte, ordered

a further sentencing hearing for later in the day. Id. At 4:10

p.m. the hearing commenced and the court increased Scott's

indeterminate sentence by two and one-half years, bringing his

projected time in prison to 12 and one-half years instead of

ten. See id. at 57-58.

¶58 The circuit court explained its position:

When I was driving home last night, it became
clear to me that I had not accomplished the goal that
I set out to do in the sentencing of this
matter. . . .

[In sentencing the defendant,] I tried to find
some fairness in treating the two people involved in
the situation the same. . . . You were already in
jail for another matter for five years. The other
gentleman received ten years for his offense. . . .

[M]y intent at the time was a sentence of seven
and one-half years, because if I sentenced you to
seven and one-half years, I was doing two very
important things, I thought, but I didn't communicate
them to you.

I was giving you less than what Mr. Porter got
for the same offense, and there were reasons for that,
and those reasons were in your favor . . . . If I
gave you just five years, you would be receiving a ten
year sentence the same as Mr. Porter. But Mr. Porter
was receiving ten years for one offense, and you were
serving ten years for two offenses. That was not fair
to the community.

So my notes indicated that you should be
sentenced to seven and one-half years for this

2
 No. 2011AP2833.dtp

offense, for the March 6, 1969 robbery. And that was
my intent yesterday and always has been.
Id. (emphasis added).

¶59 On appeal the Scott court reversed the circuit court

with respect to the sentence. Id. at 61-62. It quoted State v.

Foellmi, that "[a] trial court should not reduce a sentence on

'reflection' alone or simply because it has thought the matter

over and has second thoughts. It must base its modification on

'new factors' brought to its attention." Scott, 64 Wis. 2d at

59 (quoting State v. Foellmi, 57 Wis. 2d 572, 582, 205

N.W.2d 144 (1973)). Then it added:

Logic dictates that if a court is precluded from
reducing a sentence after some later reflection, it
should also be precluded from increasing a sentence
for the same reasons. It would create a double
standard to not allow such a reduction and to permit
the increase.

. . . .

A review of the record in the instant case shows
that the decision to increase the sentence was based
solely on "reflection." Here the court amended the
sentence so as to conform the sentence to its unspoken
intent. This in our opinion does not constitute a new
factor upon which a trial court may increase a
defendant's sentence.
Id. at 59-60.

¶60 There are several problems with the Scott opinion.

¶61 First, the court relied on three cases, State v.

Leonard, 39 Wis. 2d 461, 159 N.W.2d 577 (1968); Denny v. State,

47 Wis. 2d 541, 178 N.W.2d 38 (1970); and Foellmi, as foundation

for its legal conclusions. All three cases are problematic.
¶62 The Scott court quoted Leonard as follows:

3
 No. 2011AP2833.dtp

Hereafter, on resentencing following a second
conviction after retrial, or mere resentencing, the
trial court shall be barred from imposing an increased
sentence unless (1) events occur or come to the
sentencing court's attention subsequent to the first
imposition of sentence which warrant an increased
penalty; and (2) the court affirmatively states its
grounds in the record for increasing the sentence.
Scott, 64 Wis. 2d at 58 (quoting Leonard, 39 Wis. 2d at 473).

¶63 Leonard involved a fact situation related to

sentencing after a second trial. Leonard, 39 Wis. 2d at 464-65.

Had this court's ruling been confined to these facts, it would

have been grounded in the sound principle that a defendant

should not be punished solely for asserting his rights in a

successful appeal. But the court extended the principle to

"mere" resentencings because "we see no good reason" to

distinguish some resentencings from others. Id. at 465. Thus,

the court said, "the trial court shall be barred from imposing

an increased sentence unless (1) events occur or come to the

sentencing court's attention subsequent to the first imposition

of sentence which warrant an increased penalty . . . ." Id. at

473 (emphasis added). This language is arguably ambiguous in

its effect on a judicial "mistake" in sentencing. Is a judicial

mistake in sentencing an "event"? If a mistake is an "event"

and the mistake comes "to the sentencing court's attention

subsequent to the first imposition of sentence," the court may

increase the sentence. However, if a judicial mistake is not an

"event," the formulation makes no provision for correcting a

judicial error if the correction would increase a defendant's
sentence.

4
 No. 2011AP2833.dtp

¶64 The Scott court then quoted the Denny case as follows:

"A trial judge is not free to re-evaluate the first sentence; he

is in effect bound by the maximum of the previous sentence

unless new factors or newly known factors justify a more severe

sentence." Scott, 64 Wis. 2d at 59 (quoting Denny, 47

Wis. 2d at 544).

¶65 Because Denny also involved a sentence imposed after a

second trial, the quoted statement was intended to apply in a

different context from the situation in Scott.

¶66 The court then quoted the "reflection" sentence from

Foellmi, 57 Wis. 2d at 582. Scott, 64 Wis. 2d at 59. Foellmi

is a curious decision written by Justice Horace W. Wilkie, who

also wrote a concurring opinion. Foellmi, 57 Wis. 2d at 578,

586. The concurring opinion is at odds with the majority

opinion. Compare id. at 579, with id. at 586-87 (Wilkie, J.,

concurring). Chief Justice Harold Hallows also concurred but

disagreed with the majority's reasoning. Id. at 583 (Hallows,

C.J., concurring). Justice Connor T. Hansen, by contrast, wrote
a third concurring opinion, joined by two other justices,

pointedly disagreeing with Justice Wilkie's concurrence. Id. at

587 (Hansen, J., concurring).

¶67 At issue in Foellmi was a sentence by a La Crosse

County circuit judge who sentenced a defendant to prison after

he pled guilty to 16 burglaries. Foellmi, 57 Wis. 2d at 574-75.

The judge sentenced Foellmi to eight concurrent sentences of not

more than five years on the first eight counts. Id. at 575. He
then sentenced the defendant to eight concurrent sentences of
5
 No. 2011AP2833.dtp

not more than five years on the second eight counts, with the

sentence for count nine to run consecutively to the sentence for

count one. Id. Less than two months later, the court ordered

that the defendant be returned to La Crosse from the Wisconsin

State Reformatory——solely on the court's initiative——to be

resentenced. Id.

¶68 The court explained that its undisclosed intention all

along was to impose a "trial run" sentence in which the

defendant would be ordered back to court within 90 days of the

original sentence, after the defendant had heard "the prison

gates clank behind him" and experienced the reality of prison

life, e.g., the ultimate example of "Scared Straight." Id. at

576. Upon the defendant's return, the court reduced all 16

sentences from five years to three years and stated that counts

two through eight would be concurrent with count one, counts ten

through 16 would be concurrent with count nine, and count nine

would run consecutively with count one. Id. at 577. The court

then stayed execution of all sentences and placed the defendant
on probation. Id.

¶69 Was this procedure proper? The divided Foellmi court

affirmed the second sentence but adopted rules to prevent "trial

run" sentences from happening in the future——at least without

legislative authorization. Id. at 579-81. The court stated,

"It is inappropriate for a sentencing court to make a change in

an imposed sentence unless new factors are made known." Id. at

582. The court quoted a passage from the Supreme Judicial Court
of Massachusetts:
6
 No. 2011AP2833.dtp

Occasions inevitably will occur where a conscientious
judge, after reflection or upon receipt of new
probation reports or other information, will feel that
he has been too harsh or has failed to give due weight
to mitigating factors which properly he should have
taken into account. In such cases the interests of
justice and sound judicial administration will be
served by permitting the trial judge to reduce the
sentence within a reasonable time.
Id. (quoting Dist. Attorney for the N. Dist. v. Superior Court,

172 N.E.2d 245, 250 (Mass. 1961)). Then this court rebutted the

Massachusetts court: "We think the Massachusetts court goes too
far. A trial court should not reduce a sentence on 'reflection'

alone or simply because it has thought the matter over and has

second thoughts. It must base its modification on 'new factors'

brought to its attention." Id.

¶70 No doubt Chief Justice Hallows was miffed by the first

sentence because he had cited the Massachusetts decision with

approval in a unanimous decision, Hayes v. State, 46 Wis. 2d 93,

102 n.2, 104, 175 N.W.2d 525 (1970), which declared that "a

trial court may exercise its inherent power to change and modify

its judgments after the execution of the sentence has

commenced . . . ." Id. at 101. "We adopt one year from the
date of sentencing for the time being as a time limit within

which a motion can be made to have the court exercise its

inherent power to modify a criminal sentence." Id. at 106.

¶71 The Foellmi decision was this court's full retreat

from the Hayes decision, and Scott was the court's effort to

treat sentence increases the same as sentence reductions. The
court used Scott to make this point, rather than to establish

7
 No. 2011AP2833.dtp

coherent policy, because this court certainly allowed circuit

courts to correct "mistakes" when the correction benefited a

defendant.

¶72 Examination of Scott and other early cases suggests

that this court was reluctant to repudiate judicial authority to

modify sentences, but it was apprehensive about permitting trial

judges to modify their sentences whenever they had second

thoughts about them. Judicial discretion of that nature would

seriously undermine finality, creating uncertainty in the system

as well as possible unfairness to defendants. As a practical

matter, judicial authority to modify sentences had to be

cabined. The new factor analysis set out in Rosado v. State, 70

Wis. 2d 280, 288, 234 N.W.2d 69 (1975), complemented the

reflection doctrine described in Scott. These cases established

parameters for discretionary sentence modification.

¶73 However, changing a sentence after rethinking or

second-guessing it on the merits is different from correcting a

sentence because of a judicial mistake. The new factor criteria
are not suitable for evaluating judicial mistakes. This is one

reason why the reflection doctrine does not control this case.

¶74 In addition, the Scott decision was influenced in part

by concerns about double jeopardy. This is true,

notwithstanding the fact that there was minimal discussion of

double jeopardy in the opinion. See Scott, 64 Wis. 2d at 58.

The Scott court stated: "Jeopardy in a constitutional sense has

not attached and said sentence could be increased." Id.
(citations omitted).
8
 No. 2011AP2833.dtp

¶75 Chief Justice Hallows was still a member of the court

when Scott was decided. In the Hayes case, Justice Hallows

wrote:

[United States v. Benz, 282 U.S. 304 (1931)] pointed
out the so-called lack of power to change a sentence
after the commencement thereof was not a question of
jurisdiction or the power of the court but the result
of the application of the theory that to change a
sentence after commencement raised a question of
double jeopardy. However, this question can only
arise if the sentence is increased; there is no
question of double jeopardy where the length of
sentence is shortened.
Hayes, 46 Wis. 2d at 101.

¶76 Hayes was cited in State v. North, 91 Wis. 2d 507,

509-10, 283 N.W.2d 457 (Ct. App. 1979), where the court of

appeals said:

Once a criminal defendant begins serving a sentence, a
court may, in certain situations, properly modify or
correct the sentence. Modification to correct
sentencing flaws runs afoul of the double jeopardy
provisions when the amending court seeks to increase
sentences already being served.

. . . .

[The Wisconsin Supreme Court] has stated that double
jeopardy situations arise in modifying sentences when
the sentence is enhanced or increased.

Id. (footnotes omitted) (citing Hayes, 46 Wis. 2d at 101).
¶77 The majority opinion here emphasizes United States v.

DiFrancesco, 449 U.S. 117 (1980), which was decided ten years

after Hayes and one year after North. DiFrancesco "changed the

landscape of double jeopardy law." State v. Gruetzmacher, 2004
WI 55, ¶30, 271 Wis. 2d 585, 679 N.W.2d 533. DiFrancesco said:

9
 No. 2011AP2833.dtp

Historically, the pronouncement of sentence has
never carried the finality that attaches to an
acquittal. . . . [Under English common law, the]
trial court's increase of a sentence, so long as it
took place during the same term of court, was
permitted. This practice was not thought to violate
any double jeopardy principle. The common law is
important in the present context, for our Double
Jeopardy Clause was drafted with the common-law
protections in mind.

. . . .

The double jeopardy considerations that bar
reprosecution after an acquittal do not prohibit
review of a sentence.

. . . .

The Double Jeopardy Clause does not provide the
defendant with the right to know at any specific
moment in time what the exact limit of his punishment
will turn out to be.
DiFrancesco, 449 U.S. at 133-34, 136-37 (citations omitted).

¶78 DiFrancesco disavowed the "dictum" in Benz, 282 U.S.

at 307, to the effect that the federal practice of barring an

increase in sentence after service of the sentence began was

constitutionally barred. DiFrancesco, 449 U.S. at 138. This
disavowal removed the foundation for this court's comments in

Hayes and the court of appeals decision in North. Indeed,

Gruetzmacher withdrew language from North that would have

greatly impeded the ability of circuit judges to correct

mistakes. Gruetzmacher, 271 Wis. 2d 585, ¶35.

¶79 Gruetzmacher discussed several post-DiFrancesco cases

from Wisconsin, State v. Jones, 2002 WI App 208, 257

Wis. 2d 163, 650 N.W.2d 844, State v. Willett, 2000 WI App 212,
238 Wis. 2d 621, 618 N.W.2d 881, and State v. Burt, 2000 WI App

10
 No. 2011AP2833.dtp

126, 237 Wis. 2d 610, 614 N.W.2d 42, which, together, make the

Scott case outmoded with respect to quickly-addressed judicial

mistakes.

¶80 "The Constitution does not require that sentencing

should be a game in which a wrong move by the judge means

immunity for the prisoner." Bozza v. United States, 330 U.S.

160, 166-67 (1947). This aphorism was quoted in both

DiFrancesco and Gruetzmacher and provides guidance in the review

of judicial "mistakes." See DiFrancesco, 449 U.S. at 135;

Gruetzmacher, 271 Wis. 2d 585, ¶29.

II

¶81 Human beings make mistakes. Even judges.

¶82 Sigmund Freud once lectured on "The Psychology of

Errors"——"certain phenomena which are very frequent, very

familiar and very little heeded, and which have nothing to do

with the pathological, inasmuch as they can be observed in every

normal person."1 Freud said:

I refer to the errors which an individual commits——as
for example, errors of speech in which he wishes to
say something and uses the wrong word; or those which
happen to him in writing, and which he may or may not
notice; or the case of misreading, in which one reads
in the print or writing something different from what
is actually there. A similar phenomenon occurs in
those cases of mishearing what is said to one, where
there is no question of an organic disturbance of the
auditory function. Another series of such occurrences
is based on forgetfulness——but on a forgetfulness
which is not permanent, but temporary, as for instance

1
Sigmund Freud, A General Introduction to Psychoanalysis 10
(G. Stanley Hall trans., Boni & Liveright, Inc. 1920).

11
 No. 2011AP2833.dtp

when one cannot think of a name which one knows and
always recognizes; or when one forgets to carry out a
project at the proper time but which one remembers
again later, and therefore has only forgotten for a
certain interval.
(Emphasis added.)

¶83 One need not buy into Freud's explanation of these

phenomena to acknowledge that they exist. For instance, in this

case, at the beginning of the sentencing hearing, there was

discussion between the court and the defense attorney:

[THE COURT:] State and Mr. Rypel are making a joint
recommendation of concurrent time to a sentence she's
currently serving in Waukesha County. Is that
correct?

MR. RYPEL: Yes.

THE COURT: Matter is here for sentencing. I trust I
will be enlightened as to what she's serving in
Washington and I will hear from the State.
(Emphasis added.) The reference to Washington County is a

classic slip-of-the-tongue, to which no one responded. Did

counsel mishear what the court said? Or did counsel disregard

what the court said?
¶84 In my view, neither constitutional law nor sound

public policy demands that a defendant benefit from an authentic

judicial mistake in sentencing. The challenge for an appellate

court in reviewing a sentence modification is identifying an

authentic mistake that may be corrected from a change of

position based on reflection that requires a new factor as a

prerequisite to modification.

¶85 In North, the court sentenced a defendant for one
count of misdemeanor theft and one count of uttering a forged

12
 No. 2011AP2833.dtp

check, which was a felony. North, 91 Wis. 2d at 508-09. The

maximum penalty for misdemeanor theft was six months in the

county jail, or a fine of $200, or both. Id. at 509. The

maximum penalty for forgery-uttering was ten years in prison or

a fine of $5,000, or both. Id. Inexplicably, the court

sentenced North to two and one-half years in prison on the theft

charge, and six months concurrent on the forgery charge. Id.

The court's sentencing objective——two and one-half years in

prison——seems clear, but the prison sentence was assigned,

mistakenly, to the wrong offense. Id. When the court attempted

to correct the "obvious error" several months later, it was

reversed. Id. at 511.

¶86 In my view, the circuit court's error in North was

indeed "obvious" and the circuit court should have been

permitted to correct it.

¶87 However, not all errors are so obvious.

¶88 In Burt, the circuit court sentenced a defendant on

three serious felonies: (1) party to a crime of first-degree
reckless homicide; (2) party to a crime of attempted armed

robbery by the use of force; and (3) party to a crime of armed

robbery by threat of force. Burt, 237 Wis. 2d 610, ¶1. In

imposing sentence, the circuit court said:

As to count one [first-degree reckless homicide],
Mr. Burt, you're sentenced to the Wisconsin state
prison system for a period of forty years.

As to count three, you're sentenced to the
Wisconsin state prison system for——Let me correct
that.

13
 No. 2011AP2833.dtp

As to count four [attempted armed robbery],
you're sentenced to the Wisconsin state prison system
for a concurrent term of twenty years.

As to count three [armed robbery], you're
sentenced to a term of consecutive probation
consecutive to both counts one and four for a term of
seven years and a sentence of forty years is imposed
and stayed.

Id., ¶3 (brackets in original).
¶89 Burt was sentenced on the morning of March 6, 1997.

Id. Later, the court sentenced Burt's co-defendant, Anthony
Sandifer. Id., ¶4. Sandifer's attorney immediately objected to

Sandifer's sentence, asserting that it was much longer than

Burt's 40-year sentence. Id. The circuit court responded by

calling Burt back to the courtroom for a corrected sentence.

The court explained:

I'm going to place my original notes in a sealed
envelope in the file for appellate purposes, but my
notes are clear, and I did misspeak, and the court is
fully aware——very little time having passed in this
matter——as to what its original intent was, and quite
honestly, based on what the court thought it imposed——
this sentence was somewhat less than the sentence that
this defendant was to receive, the court believing
that this defendant was a more aggressive actor in the
matter, quite candidly.

So I understand whenever there is a change of
this kind, it's bound to raise eyebrows and raise
concerns, but the court intends to impose the sentence
that it had in mind and meant to say at the time of
the sentencing . . . .
Id.

¶90 The court then repeated the sentence that it imposed

on Burt in the morning, except that it changed the 20-year

14
 No. 2011AP2833.dtp

concurrent sentence for attempted armed robbery to a 20-year

consecutive sentence for attempted armed robbery. Id.

¶91 The court of appeals upheld the 20-year increase in

Burt's sentence, noting that "the trial court realized it made

an error of speech in pronouncing Burt's sentence and took

immediate steps to correct the sentence before the judgment of

conviction was entered into the record." Id., ¶11. The court's

"error" in executing its original intention was substantiated by

its "original notes" and its sentence of Sandifer. Would the

result have been different if Sandifer had been sentenced the

day after Burt was sentenced so that Burt's sentence could not

be corrected the same day?

¶92 Misstatements involving consecutive sentences and

concurrent sentences may not be uncommon. During the pendency

of this case, the court received a petition for review in State

v. Maxcey, No. 2012AP1988-CR, unpublished slip op. (Wis. Ct.

App. July 30, 2013),2 a sentencing dispute that included the

following colloquy:

THE COURT: . . . I think, Mr. Maxcey, that I do
have to sentence you for four separate crimes and I am
going to do that. I am, however, going to make your
confinement concurrent to the confinement that you are
now serving and you don't get any credit for it.
Because you committed these armed robberies without a
gun, I am going to sentence you to three years of
confinement time on each of the armed robberies, so it
should be a total of twelve years of confinement.
That would be consecutive to the five years you are

2
This case is being cited solely for the facts and not as
precedent or authority.

15
 No. 2011AP2833.dtp

serving but that is a length of time that makes sense
to me, given the nature of the crime——

[DEFENSE COUNSEL]: I thought you said it was
going to be concurrent.

THE COURT: Did I say consecutive? Three years
consecutive to——this is what I meant to say, I am
sentencing [you] on one count with three read-ins; the
bottom line number is twelve years because there are
four crimes that I am considering here, but it will be
concurrent to the sentence he is serving. Does that
explain it?

[DEFENSE COUNSEL]: Yes.

Id. (emphasis added) (brackets in original).
¶93 In both Burt and Maxcey, a circuit court judge

misspoke but an attorney alerted the judge to the error and the

error was promptly corrected.

¶94 The difficulty in the present case is that it involves

an error of "mishearing" rather than the more familiar error of

misspeaking. In addition, the circuit court's position that it

"misheard" information about the concurrent sentences in

Waukesha County is contradicted by the fact that the court

repeated what it heard. The circumstances of this case were
such that no attorney alerted the court to the error because the

court did not misspeak. The parties asked for concurrent

sentences, the court imposed concurrent sentences, and the court

intended to impose concurrent sentences. The court seemingly

misunderstood the effect of the sentences it imposed because it

thought it was imposing sentences concurrent to a 33-month

sentence of confinement from Waukesha County.

16
 No. 2011AP2833.dtp

¶95 That misunderstanding is inconsistent with the "two

years in and four years out" statement found in the transcript.

Thus, if this court were to adopt the position that judicial

errors simply may not be corrected if correction produces an

increased sentence, it could reverse the circuit court here

based solely on its statements at the initial sentencing. Such

inflexibility, however, would effectively dispute the

authenticity of statements the court made about the defendant

during the initial sentencing, statements the court made about

its intentions during resentencing, and statements the court

made in its written opinion denying a postconviction motion. It

would not explain why the court went to CCAP to check out the

Waukesha County sentences shortly after its own sentencing. It

would place great importance on the fact that Robinson was

sentenced in the afternoon, unlike Burt who was sentenced in the

morning, so that the court could not modify its sentence the

same day. It also would place significance on the fact that no

attorney spoke up and rescued the court from a mistake.
However, it would place no significance on the fact that the

court was dealing with a complicated set of facts, that it had

no presentence investigation that put the Waukesha sentences in

writing, and that it acted to correct its mistake within 24

hours.

¶96 The confusion related to the sentences is evident from

the discussion during the plea hearing on April 12, 2011. The

following exchange took place between the court and the
Assistant District Attorney (ADA):
17
 No. 2011AP2833.dtp

[ADA]: The State's recommendation is for count two,
five months, House of Corrections, that would be
concurrent with count three, consecutive to count one.
Or count three, five months, House of Corrections,
that is concurrent with count two and consecutive to
count one. And for count one, six months in the House
of Corrections with release to CJRC for treatment,
consecutive to count two and three.

THE COURT: I'm sorry. Count one was what?

[ADA]: Count one was six months in the House of
Corrections, with release to CJRC for treatment, and
that would be consecutive to counts two and three.

THE COURT: So let me see if I get this straight.
Count one, six months, House of Corrections, with
release to CJRC, consecutive to any other sentence.
Count two, five months in the House of Corrections,
concurrent to any other sentence. Counts three, five
months in the House of Corrections, concurrent to
count two but consecutive to count one.

[ADA]: Yes.

. . . .

THE COURT: I'm confused.

. . . .

[ADA] I think the bottom-line is that——for the three
counts in this case, [we're] asking for, essentially,
11 months in the House of Corrections——

THE COURT: Well, that doesn't make any sense. You
want me to run all counts concurrent with the
sentences in 08-CF-518 -- 08-CM -- So while on the one
hand you're saying all counts concurrent, you're also
saying counts one and counts three to be consecutive.

Why don't you guys take a moment and pass this
case. Take a moment to set this out because this is
getting extremely confusing. I don't know what you're
asking me to sentence . . . .
¶97 Eventually, the ADA told the court that the sentence
was to be concurrent with the Waukesha sentences, but she also

18
 No. 2011AP2833.dtp

said, "I'm willing to change the offer to a lengthy House

sentence, concurrent to the sentence in the three cases, in

which she was just revoked." It is true that the confusion

related to the three counts from the Milwaukee County incident,

but the plea hearing demonstrates that the judge was having a

hard time wrapping his head around which sentences were

concurrent and which ones were consecutive. It is

understandable that the confusion would linger until the

sentencing hearing less than a month later.

¶98 This is a close case, but I come down on the side of

the judge. It does not take psychoanalysis to understand that

the phenomenon of "mishearing" is different from not hearing. A

misunderstanding, when acted upon very quickly, should not

prevent a court from correcting a sentence. Such a correction

does not violate double jeopardy and is a reasonable result in

this case.

¶99 For the reasons stated, I respectfully concur.

19
 No. 2011AP2833.ssa

¶100 SHIRLEY S. ABRAHAMSON, C.J. (dissenting). Wisconsin

case law sets forth two separate doctrines governing a judicial

change in a sentence: double jeopardy and reflection.1

¶101 The majority opinion addresses the defendant's

constitutional double jeopardy argument and denies that it

addresses the reflection doctrine.2 The majority opinion admits

that constitutional double jeopardy protection and the

reflection doctrine both apply in "cases concerning a judicial

change of a sentence."3 Nevertheless, the majority opinion

sometimes addresses the act of reflection but avoids the term

and refers to reflection as the judge "deliberating," ¶¶41, 44,

48, or similar words. Paragraphs 42 and 43 of the majority

opinion openly address the defendant's reflection arguments.

¶102 I examine the application of the reflection doctrine

in the present case, in which the circuit court changed the

terms of a sentence after the circuit court imposed a valid

1
See, e.g., Scott v. State, 64 Wis. 2d 54, 58, 218
N.W.2d 350 (1974) (overturning a change in a sentence on
reflection grounds even when "[j]eopardy in a constitutional
sense has not yet attached").
2
See majority op., ¶50 ("We do not cite or
discuss . . . the numerous cases in our reflection doctrine
jurisprudence . . . .").
3
Majority op., ¶49.

1
 No. 2011AP2833.ssa

sentence.4 I would vacate the second sentence and reinstate the

original sentence.

¶103 I address the reflection doctrine because the

reflection doctrine has been raised at every stage of the

litigation; because this court typically decides cases on

grounds other than constitutional grounds when it can;5 because

the reflection doctrine presents difficulties for litigants and

the courts; and because the reflection doctrine is dispositive

in the instant case.

¶104 By neglecting the reflection doctrine, the majority

opinion ignores an important and, in the present case,

dispositive issue and muddles the present law on the reflection

doctrine. Because I conclude that the circuit court overstepped

its limited authority under the existing reflection law to

change the sentence it imposed, I dissent.

4
The case law variously refers to such a change in an
original valid sentence interchangeably as "amending the
sentence," Scott, 64 Wis. 2d at 57; "resentencing," State v.
Foellmi, 57 Wis. 2d 572, 581, 205 N.W.2d 144 (1973); "a change
in an imposed sentence," Foellmi, 57 Wis. 2d at 582; "sentence
modification," State v. Hedgwood, 113 Wis. 2d 544, 546, 335
N.W.2d 399 (1983); a "sentence increase," Scott, 64 Wis. 2d at
59; "sentence reduction," State v. Wuensch, 69 Wis. 2d 467, 472,
230 N.W.2d 665 (1975); or a "sentence change," Wuensch, 69
Wis. 2d at 480. I use the word "change" to include all these
terms. The majority opinion similarly refers to "a judicial
change of a sentence." Majority op., ¶49.
5
See, e.g., Adams Outdoor Advertising, Ltd. v. City of
Madison, 2006 WI 104, ¶91, 294 Wis. 2d 441, 717 N.W.2d 803.

2
 No. 2011AP2833.ssa

¶105 In response to my dissent, the concurrence

acknowledges that the reflection doctrine is alive (but not

well) in Wisconsin law and is germane to the present case. The

concurrence "reflects" on the reflection doctrine "to provide

support for the court's decision." Concurrence, ¶52.

¶106 The concurrence does not advocate discarding the

reflection doctrine. Instead, the concurrence recasts the

doctrine to distinguish between an "authentic mistake that may

be corrected" (which the concurrence concludes happened in the

instant case) and "a change of position based on reflection that

requires a new factor as a prerequisite to modification."

Concurrence, ¶84.

¶107 My discussion of the reflection doctrine is organized

as follows:

I. The parties' positions on the recollection doctrine.

II. An examination of the reflection doctrine and its

application to the present case.

III. The concurrence's position on the reflection doctrine.

IV. The future prospects of the reflection doctrine.

I

3
 No. 2011AP2833.ssa

¶108 The reflection doctrine has been presented to this

court by both parties and the amicus.6 The majority opinion

asserts that the dissent is "creat[ing] and develop[ing]

arguments on a party's behalf."7 Yet the parties addressed this

issue time and again and the reflection issue was fully before

this court.

¶109 Both parties addressed the issue of reflection in

their briefs in this court. The defendant's brief notes that

the increase in the defendant's sentence "was impermissibly

based on the court's second guessing of its original sentence."8

The State's brief defends against the charge of reflection,

stating "the sentencing court in this case did not impermissibly

modify the sentence 'upon reflection.'"9

¶110 The circuit court's order denying the defendant's

post-conviction motion was appealed to the court of appeals.

Both the judgment of conviction and the post-conviction order

are before this court for review. The post-conviction motion

6
The parties spent most of oral argument and their briefs
discussing the double jeopardy issue. The short unpublished per
curiam opinion of the court of appeals addressed only the double
jeopardy issue.
7
Majority op., ¶50 (quoting State v. Brown, No. 2011AP2907-
CR, unpublished order (Feb. 26, 2014) (Bradley, J.,
dissenting)).
8
Brief of Defendant-Appellant-Petitioner at 6.
9
Brief of Plaintiff-Respondent at 16.

4
 No. 2011AP2833.ssa

noted that the modified sentence "is neither permissible nor

fair and constitutes double jeopardy and modification of the

sentence without a new factor."10

¶111 Additionally, a nonparty (amicus) brief of the

Wisconsin Association of Criminal Defense Lawyers discussed the

"reflection" issue at length.

¶112 At oral argument, the issue of reflection emerged

again. Defense counsel noted:

I don't believe that there's anything suggesting, or
to meet that burden of proof in this record. I think
there are only the comments of the judge on Day Two
that make any suggestion of whether or not it was
reflection. . . . It does, I think, kind of sound like
reassessing and reweighing some of the factors insofar
as he misunderstood the nine-month sentence, but I
don't believe that any evidence was introduced into
the record at that point that would suggest it was not
reflection.11
¶113 The State in its oral argument before this court

stated: "[R]eflection is a factor that can be considered in

addition to the [State v. Jones, 2002 WI App 208, 257
Wis. 2d 163, 650 N.W.2d 844, double jeopardy] factors. I think

you can look what the sentencing, the record, you can look to

10
State v. Robinson, Case No. 11-CF-288, Post-conviction
Motion To Restore Original Sentence (Milwaukee Cnty. Cir. Ct.,
Nov. 14, 2011).
11
Oral arg. at 24:48-25:28, available at
http://www.wicourts.gov/supreme/scoa.jsp?docket_number=2011ap283
3&begin_date=&end_date=&party_name=&sortBy=date (last visited
June 2, 2014) (emphasis added). See the defendant's reflection
argument, discussed at ¶¶40-41 of the majority opinion.

5
 No. 2011AP2833.ssa

the time it took for the court to resentence, and you can look

to whether the trial court impermissibly reflected."12 The State

continued: "[W]hat you can discuss is, you know, well, the

State's argument is that there is no reflection. I do think

this court should address that issue, because prior cases in the

appellate courts have discussed in the double jeopardy context

whether the trial court impermissibly reflected in imposing its

sentence, resentence."13 The State openly recognized that

impermissible reflection would bar the circuit court's change in

the sentence imposed in the present case.

¶114 The majority opinion erroneously asserts that no

arguments regarding the reflection doctrine are before the

court. Majority op., ¶¶49-50. The majority opinion declares

that it "do[es] not cite or discuss . . . the numerous cases in

our reflection doctrine jurisprudence . . . ." Majority op.,

¶51. Nevertheless, the very cases the parties and the majority

opinion discuss involved the reflection doctrine. See State v.

Gruetzmacher, 2004 WI 55, ¶38, 271 Wis. 2d 585, 679 N.W.2d 533
(discussed at majority op., ¶¶33-40); State v. Burt, 2000 WI App

126, ¶¶14-15, 237 Wis. 2d 610, 614 N.W.2d 42 (discussed at

majority op., ¶¶28, 35-39). By denying that it is addressing

the reflection doctrine, the majority opinion contravenes our

goals of finality and fundamental fairness, casts doubt on the

continued vitality of the reflection doctrine, and undermines,

12
Oral arg. at 1:00:24-1:00:44.
13
Oral arg. at 1:01:40-1:01:56.

6
 No. 2011AP2833.ssa

if not overrules, numerous cases of long standing adopting the

reflection doctrine.14
II

¶115 I turn now to an explanation of the reflection

doctrine and its application to the present case.

¶116 The reflection doctrine is one aspect of the law that

a circuit court's inherent power to change a sentence is a

"discretionary power that is exercised within defined

parameters."15 The doctrine prevents a circuit court from

14
In addition to the cases cited herein, a long line of
cases addresses the question of when it is appropriate for a
circuit court to change a valid sentence it has imposed.

See State v. Macemon, 113 Wis. 2d 662, 668, 335 N.W.2d 402
(1983) ("The rule in Wisconsin is that it is inappropriate for a
sentencing court to make a change in an imposed sentence unless
new factors are made known. 'A trial court should not reduce a
sentence on "reflection" alone or simply because it has thought
the matter over and has second thoughts. It must base its
modification on "new factors" brought to its attention.' State
v. Foellmi, 57 Wis. 2d 572, 582, 205 N.W.2d 144 (1973)."); State
v. Martin, 121 Wis. 2d 670, 674 n.1, 360 N.W.2d 43 (1985) ("A
trial court is not free to modify a sentence solely on
reconsideration and reflection and a deliberate change of mind.
See Scott v. State, 64 Wis. 2d 54, 58-60, 218 N.W.2d 350
(1974)."); State v. Perry, 136 Wis. 2d 92, 113, 401 N.W.2d 748
(1987) ("In Scott, the court made clear that a court should not
increase a sentence on '"reflection" alone.' [Scott, 64
Wis. 2d ] at 59, 218 N.W.2d 350."); State v. Grindemann, 2002 WI
App 106, ¶21, 255 Wis. 2d 632, 648 N.W.2d 507 (overturning a
circuit court's change in a sentence because "it may not reduce
a sentence merely upon 'reflection' or second thoughts.
[Wuensch, 69 Wis. 2d at] 480; Scott v. State, 64 Wis. 2d 54, 59,
218 N.W.2d 350 (1974)").
15
State v. Ninham, 2011 WI 33, ¶88, 333 Wis. 2d 335, 797
N.W.2d 451 (citing State v. Crochiere, 2004 WI 78, ¶12, 273
Wis. 2d 57, 681 N.W.2d 524) (emphasis added)).

7
 No. 2011AP2833.ssa

changing its imposed sentence "to conform the sentence to its

unspoken intent."16

¶117 The reflection doctrine can be traced to State v.

Foellmi, 57 Wis. 2d 572, 581-82, 205 N.W.2d 144 (1973), which

held that a sentencing court may reduce or modify a sentence

after its imposition if new factors bearing on the sentence are

made known, but a sentencing court should not reduce a sentence

"on 'reflection' alone or simply because it has thought the

matter over and has second thoughts." Foellmi, 57 Wis. 2d at

582.

¶118 The case law recognizes that a sentencing court may

change a valid sentence that it has imposed for a variety of

reasons other than reflection. It can, for example, change a

valid sentence it has imposed because of a new factor,17 or for

erroneous exercise of discretion based upon its conclusion that

16
Scott, 64 Wis. 2d at 60. See also State v. Crochiere,
2004 WI 78, ¶12, 273 Wis. 2d 57, 681 N.W.2d 524.

Whether a circuit court has changed a sentence it has
imposed on reflection is a question of law for this court.

For a discussion of sentence modification and the
reflection doctrine, see Jeffrey Kassel, Comment, Sentence
Modification by Wisconsin Trial Courts, 1985 Wis. L. Rev. 195,
200-03.
17
See Rosado v. State, 70 Wis. 2d 280, 234 N.W.2d 69
(1975).

8
 No. 2011AP2833.ssa

the sentence was unduly harsh or unconscionable,18 or because it

is impossible to carry out the original sentence,19 or to correct

formal or clerical errors.20

¶119 In addition, a circuit court can change a valid,

imposed sentence to comport with the circuit court's initial

intention, when the circuit court's initial intention appears on

the record of the original proceedings.21

¶120 This court has carefully explained that evidence of

the circuit court's original intention must be in the record of

the original proceedings if a circuit court is to change a

sentence to conform to its original intention. Such a rule

enables an appellate court to avoid inquiring into the

authenticity of a circuit court's assertion at a second

sentencing proceeding of its intention at the original

proceedings. As this court explained: "Were we clairvoyant and

able to say for certain in every case what the trial judge

18
Wuensch, 69 Wis. 2d at 478-80 ("The trial court cannot
change the sentence upon mere reflection or indulge in 'shock
treatment.' However, we perceive no valid reason why a trial
court should not be permitted to review a sentence for abuse of
discretion based upon its conclusion the sentence was unduly
harsh or unconscionable."); see also State v. Harbor, 2011 WI
28, ¶35 n.8, 333 Wis. 2d 53, 797 N.W.2d 828 (citing Wuensch for
the same proposition).
19
State v. Sepulveda, 119 Wis. 2d 546, 555-56, 350
N.W.2d 96 (1984)
20
Hayes v. State, 46 Wis. 2d 93, 101-01, 175 N.W.2d 625
(1970) (overruled in part by State v. Taylor, 60 Wis. 2d 506,
210 N.W.2d 873 (1973)).
21
Scott, 64 Wis. 2d at 59-60.

9
 No. 2011AP2833.ssa

really 'intended,' this [court might investigate the trial

judge's intentions]. Being mere mortals however, we must

refrain from such delicate undertakings, and we refuse to

sanction a procedure that encourages such an inquiry."22

¶121 Along these lines, the majority opinion urges that

"taking judges at their word is a fundamental assumption built

into our legal system," and that in "the absence of clear

evidence to the contrary, we decline to assign improper motive

on the part of the circuit court." Majority op., ¶48. The

reflection doctrine accomplishes exactly the goal the majority

opinion espouses.

¶122 Under the reflection doctrine, an appellate court does

not gauge whether a circuit court's explanation at resentencing

is an accurate statement of the circuit court's original

intention.

¶123 The paradigmatic application of the reflection

doctrine and the requirement of contemporaneous evidence in the

record to support the circuit court's original intention is
found in Scott v. State, 64 Wis. 2d 54, 60, 218 N.W.2d 350

(1974), one of the seminal reflection cases.23

¶124 In Scott, two defendants were charged with armed

robbery. The first defendant, Calvin Scott, was sentenced to up

to five years in prison. The second defendant, James Porter,

22
Id. at 59 (citations and quotations omitted).
23
Scott was not a double jeopardy case. Scott, 64 Wis. 2d
at 58.

10
 No. 2011AP2833.ssa

was sentenced to up to ten years in prison. Scott, however, was

already serving a five-year prison sentence for another crime.

Thus, defendant Scott was sentenced to a total of ten years of

prison for two crimes while defendant Porter was sentenced to

ten years but for only one crime.

¶125 The sentencing court realized this difference in the

two sentences while driving home after sentencing the

defendants. The next day, the sentencing court ordered

defendant Scott back to court to be resentenced. At the hearing

to change the sentence, the circuit court explaining that it did

not intend to have one defendant serve ten years for a single

crime and have another serve ten years for two crimes; such a

result, said the circuit court at resentencing, "was not fair to

the community." Scott, 64 Wis. 2d at 58.

¶126 In Scott, the supreme court reinstated the original

sentence, concluding that when a sentencing court

unintentionally erred in imposing a sentence, an appellate court

would not engage in the delicate inquiry of examining the
original intention of the sentencing court. Rather, the Scott

court concluded that because the sentencing court's decision to

increase the sentence attempted to conform the sentence to its

unspoken intention, the increase in the sentence was based on

reflection and was prohibited.

¶127 The Scott court explained:

A review of the record in the instant case shows that
the decision to increase the sentence was based solely
on "reflection." Here the court amended the sentence
so as to conform the sentence to its unspoken intent.

11
 No. 2011AP2833.ssa

. . . [T]he trial court's amended sentence . . . must
be reversed and the original sentence . . . re-
instated.
Scott, 64 Wis. 2d at 59-60.

¶128 Numerous cases have reiterated and applied the Scott

holding: A court cannot change a sentence to conform to its

original intention, unless the record demonstrates that original

intention.24

¶129 When the record demonstrates that a changed sentence

conforms to the circuit court's original intention, no
impermissible reflection has occurred. For example, in State v.

Burt, 2000 WI App 126, 237 Wis. 2d 610, 614 N.W.2d 42, the

circuit court's notes from the first sentencing proceeding

demonstrated the original intention for the duration of the

sentence and that the circuit court judge had a "slip of the

tongue"25——that is, that the circuit court meant to say one word

at the original sentencing proceeding and said another word

instead. The change in the sentence was therefore upheld under

the Scott test. Burt, 237 Wis. 2d 610, ¶15.

¶130 By contrast, the record in the instant case fails to
demonstrate that the court's initial intention was the longer

sentence. Indeed, the circuit court in the present case

apparently acknowledged that its original intention was not in

24
See, e.g., Harbor, 333 Wis. 2d 53, ¶35; State v. Kluck,
210 Wis. 2d 1, 6-7, 563 N.W.2d 468 (1997); Wuensch, 69 Wis. 2d
at 480.
25
State v. Burt, 2000 WI App 126, ¶12, 237 Wis. 2d 610, 614
N.W.2d 42.

12
 No. 2011AP2833.ssa

the record, explaining that it was changing the sentence to

conform the sentence to its unspoken intention that a longer

sentence be imposed:

Yesterday afternoon we had a sentencing hearing
involving [the defendant]. At the conclusion of the
hearing and subsequent thereto the [circuit court] did
some research and I realized I made a mistake. The
split sentence I proposed yesterday did not reflect
this Court's intent as far as a fair sentence in this
case.
¶131 The circuit court in the present case changed the

initial sentence when, after thinking the sentence over and

doing some research, it decided that the original sentence did

not conform with its unspoken, unstated intention. The circuit

court stated it came to realize that the sentence imposed was

not harsh enough.

¶132 Put differently, the circuit court in the present case

came to the conclusion that the original sentence would have to

be increased in order to meet its intended but unstated

sentencing goals.26 That reasoning is exactly the kind of

reasoning prohibited by the reflection doctrine.

III

¶133 The concurrence critiques three aspects of the

reflection doctrine:

(A) The initial reflection cases relied on cases with

different facts. Concurrence, ¶¶60-74.

26
See Burt, 237 Wis. 2d 610, ¶15.

13
 No. 2011AP2833.ssa

(B) Double jeopardy "make[s] the Scott case outmoded

with respect to quickly-addressed judicial mistakes."

Concurrence, ¶79.

(C) The concurrence changes the reflection doctrine to

rely on what the concurrence characterizes as

psychoanalysis and mind-reading to determine a circuit

court's unspoken intention. Concurrence, ¶98.

A

¶134 With respect to the concurrence's first critique, the

Scott court explicitly stated that it was adopting the

reflection doctrine by relying on the rationale of past cases

with different fact scenarios.27 The Scott court knew what it

was doing. Regardless of the concurrence's hindsight view of

the persuasiveness of the seminal cases, see concurrence, ¶¶66-

70, or its analysis of the motivations and positions of

individual justices, the concurrence recognizes that the

holdings of Scott and Foellmi are good law in Wisconsin: A

circuit court is barred from "amend[ing] the sentence so as to
conform the sentence to its unspoken intent." Scott, 64 Wis. 2d

at 59-60.

B

¶135 With respect to the concurrence's double jeopardy

argument, nowhere in our case law has it been suggested that the

27
Scott, 64 Wis. 2d at 58-59 (citing State v. Leonard, 39
Wis. 2d 461, 473, 159 N.W.2d 577 (1968); Denny v. State, 47
Wis. 2d 541, 544, 178 N.W.2d 38 (1970); Foellmi, 57 Wis. 2d at
582).

14
 No. 2011AP2833.ssa

application of double jeopardy principles abrogates the need for

the reflection doctrine. Indeed, the concurrence implicitly

concedes that even if the double jeopardy case of United States

v. DiFrancesco, 449 U.S. 117, 133-37 (1980), limits the

application of the reflection doctrine, the reflection doctrine

retains importance whenever a circuit court changes a valid,

imposed sentence. Concurrence, ¶84.

¶136 The concurrence cites Burt, 137 Wis. 2d 610, ¶¶12-15,

to show the limits of the reflection doctrine,28 but Burt

demonstrates that courts analyze both the double jeopardy and

reflection doctrines and apply each test independently.

C

¶137 With respect to the concurrence's application of the

reflection doctrine to the present case, the concurrence

modifies the reflection test to uphold the circuit court's

sentence in the instant case as follows: A sentence changed

because of an "authentic judicial mistake in sentencing" is

permissible, even though the record of the initial proceedings
does not demonstrate the circuit court's original intention.

Concurrence, ¶84.

¶138 The concurrence justifies its modified reflection test

to eliminate the record requirement, but at the same time seeks

to avoid the use of psychoanalysis and mind-reading to "dispute

the authenticity of . . . statements the court made about its

intentions . . . ." Concurrence, ¶95.

28
Concurrence, ¶¶88-91.

15
 No. 2011AP2833.ssa

¶139 Yet the concurrence's modification of the reflection

doctrine forces an appellate court in the trap of

psychoanalyzing and reading the mind of the circuit court.

¶140 The concurrence has constructed a long, involved

narrative engaging in mind-reading to determine the circuit

court's original intention in the present case and to conclude

that the circuit court made an authentic judicial mistake.

¶141 According to the concurrence, "the [circuit] court

seemingly misunderstood the effect of the sentences it imposed,"

concurrence, ¶94; was in "confusion" during the original

sentencing proceeding, concurrence, ¶¶96, 97; and had "a hard

time wrapping [its] head around" which sentences were concurrent

and which were consecutive. Concurrence, ¶97.

¶142 Despite the circuit court's hearing and correctly

repeating the defendant's various sentences at the original

sentencing proceeding, concurrence, ¶94, the concurrence gamely

attempts to read the circuit court's mind to find evidence of

confusion at the original sentencing hearing regarding what the
circuit court "thought it was imposing." Concurrence, ¶94.

¶143 This is exactly the type of psychoanalysis that the

concurrence expressly claims to avoid. Concurrence, ¶98. The

concurrence puts appellate courts in the position of having to

assess whether a circuit court's post-sentencing assertion of a

mistake at the original sentencing is "authentic" or not.

¶144 In contrast, the existing reflection doctrine allows

an appellate court to avoid psychoanalyzing the authenticity of
the circuit court's assertion at a second sentencing of a
16
 No. 2011AP2833.ssa

mistake at the original sentencing by requiring that the change

in the sentence conform with the circuit court's original

intention as expressed in the record of the original

proceedings.

¶145 As the court noted in Scott, appellate courts are not

mind-readers and must rely on the record to assess the circuit

court's original intention.29 The record must contain clear and

convincing evidence that the reason for the change in the

sentence is not mere reflection. In Burt, the circuit court's

contemporaneous sealed notes demonstrated the court's original

intention.30 In the present case, as in Scott, the sentencing

court based the change of the sentence on its unspoken intention

at the original sentencing proceedings and fails to pass the

reflection test.31

¶146 Consequently, I conclude that the circuit court erred

in the present case in changing the sentence.

IV

¶147 Many states impose far stricter limitations on trial
courts' sentence changes than Wisconsin. These states do not

29
Scott, 64 Wis. 2d at 59-60. See ¶120, supra.
30
Burt, 237 Wis. 2d at 610, ¶4.
31
Scott, 64 Wis. 2d at 59 (vacating a defendant's new
sentence and reinstating the original sentence when the only
evidence of the circuit court's original intention came from the
court's own statement at the resentencing hearing).

17
 No. 2011AP2833.ssa

need or have a reflection doctrine to limit a trial court's

authority to change a sentence.32

¶148 This court has grappled with the circumstances under

which a circuit court may change a valid sentence after it is

imposed. The appellate courts have decided numerous cases

involving sentence changes.33 The legislature has also addressed

this issue in crafting statutes regarding sentence changes.34

¶149 If the court wishes to overrule or modify the

reflection doctrine, it should do so, rather than create a

32
At the time the reflection doctrine was adopted,
Wisconsin was the only state that permitted circuit courts to
modify a sentence after the sentence had begun or the term had
ended. See Kassel, supra note 16, at 200-03. Attorney Kassel
notes:

Prior to 1970, Wisconsin followed the common-law
majority rule that the power of the trial court to
modify its judgment or sentence ceases when the
sentence has begun or the term of the court has
expired. This long-standing limitation on the power
of the trial court was rejected by the Wisconsin
Supreme Court in Hayes v. State [46 Wis. 2d 93, 175
N.W.2d 625 (1970)].

Id. at 200.

The general rule in other states more strictly prevents
trial courts from changing a sentence. See Lee R. Russ, Power
of State Court, During Same Term, To Increase Severity of Lawful
Sentence—Modern Status, 26 A.L.R. 4th 905, §§ 3, 8 (1983 & Supp.
2013).
33
See Harbor, 333 Wis. 2d 53, ¶¶35-51 (analyzing our
court's history of "new factor" analysis).
34
See Hayes, 46 Wis. 2d at 106 (holding that the new
criminal code mandated a 90-day window for sentence changes).

18
 No. 2011AP2833.ssa

confusing and contradictory outcome as it does in the present

case.

¶150 The court might conclude that the reflection doctrine

is not good policy, or that it is too difficult to apply, and

that the doctrine should be abandoned.

¶151 Or the court could create a bright-line rule, holding

that a circuit court, on its own motion or on motion of a party,

may change a valid, imposed sentence within a fixed amount of

time after the imposition——say, 48 hours.35

¶152 If, however, the court is overruling or altering the

numerous cases adopting and applying the reflection doctrine, it

35
In areas of imprecise durational requirements, courts
occasionally set bright-line time limits in the interests of
certainty. The United States Supreme Court recently confronted
the issue in Maryland v. Shatzer, 559 U.S. 98, 130 S. Ct. 1213
(2010), when dealing with the time limit after an invocation of
counsel that police can recommence interrogation:

It is impractical to leave the answer to that question
for clarification in future case-by-case adjudication;
law enforcement officers need to know, with certainty
and beforehand, when renewed interrogation is lawful.
And while it is certainly unusual for this Court to
set forth precise time limits governing police action,
it is not unheard-of. In County of Riverside v.
McLaughlin, 500 U.S. 44, 111 S. Ct. 1661, 114
L. Ed. 2d 49 (1991), we specified 48 hours as the time
within which the police must comply with the
requirement of Gerstein v. Pugh, 420 U.S. 103, 95
S. Ct. 854, 43 L. Ed. 2d 54 (1975), that a person
arrested without a warrant be brought before a
magistrate to establish probable cause for continued
detention.

Shatzer, 559 U.S. at 110. The Court in Shatzer settled on a 14-
day time period, after weighing and balancing various factors.

19
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should state its intention. Instead, the majority opinion

muddles the existing doctrine, while claiming not to address it.

¶153 For the reasons set forth, I dissent. I would hold

that the record of the proceedings in the present case does not

demonstrate that the circuit court increased the imposed

sentence to conform to the circuit court's original intention.

Rather, the record shows the circuit court reflected on the

sentence initially imposed: it checked records; it did

research; and it changed the sentence because it concluded that

the sentence it imposed was not the one it intended to impose or

should have imposed.

¶154 Indeed the concurrence in effect concedes that the

record is not sufficient to permit a sentence change under

existing law and must modify the reflection doctrine to uphold

the changed sentence in the present case.

¶155 Adhering to the current law on reflection, I would

vacate the second sentence and reinstate the original sentence.

¶156 I am authorized to state that Justice ANN WALSH
BRADLEY joins this opinion.

20
 No.

21
 No.

1