¶ 30. {concurring!dissenting). I agree with the Majority that under the circumstances of this case Ricky J. Fortier is not barred by State v. Escalona-Naranjo, 185 Wis. 2d 168, 181, 517 N.W.2d 157, 162 (1994), from seeking redress on this appeal. I disagree, however, with the Majority's decision to remand.
¶ 31. First, the Majority does not assert that there is a presumption of unlawful vindictiveness that tainted Fortier's second sentencing. Indeed, under State v. Naydihor, 2004 WI 43, ¶¶ 32-56, 270 Wis. 2d 585, 608-623, 678 N.W.2d 220, 232-240, there is no presumption that vindictiveness infected the resentencing unless the error that led to the need for resentencing was that of the sentencing court. Here, as the Majority notes, the error that tainted the first sentencing in this case was made by the prosecutor, not by the judge, and, *194moreover, a different judge imposed the increased penalties after our remand. Absent a presumption of sentencing vindictiveness, a defendant who contends that the record does not justify the increased penalties "is required to demonstrate actual vindictiveness in order to prevail." Id., 2004 WI 43, ¶ 33, 270 Wis. 2d at 609-610, 678 N.W.2d at 233. Fortier has not done that.
¶ 32. Second, in light of the absence of any evidence of sentencing vindictiveness — by virtue of either the presumption discussed in Naydihor, or actual vindictiveness shown by Fortier — this case presents a simple appellate issue: did the second trial judge erroneously exercise her discretion in Fortier's resentenc-ing. See State v. Gallion, 2004 WI 42, ¶ 17, 270 Wis. 2d 535, 549, 678 N.W.2d 197, 203 ("It is a well-settled principle of law that a circuit court exercises discretion at sentencing. On appeal, review is limited to determining if discretion was erroneously exercised.") (citation omitted). Thus, I do not understand why the Majority is remanding the case to the trial court for, presumably, an evidentiary hearing.
¶ 33. Third, I have read closely the trial court's sentencing explanation of why it was imposing the 1,000 hours of community service, and why the trial court was concerned that Fortier needed significant help to avoid relapse into either alcohol dependency (which Fortier indicated he had resolved) or illegal-substance dependency (which the trial court determined was Fortier's alcohol-surrogate). Significantly, the trial court explained that the 1,000 hours were not to be make-work punishment, but, rather, were "to be performed at an organization which is appropriate to deal with persons who have addictions to controlled *195substance[s], or alcohol."1 Thus, the trial court also directed that Fortier participate in "a program of counseling and treatment at least four times a week. All the time that you're on probation." Further, the five-year suspension of Fortier's driving privileges is consistent with any sentencing court's mandate to protect the public: persons who have a proclivity to use substances that adversely affect their reasoning and their motor-skills and reflexes should not be driving. A defendant who contends that a trial court erroneously exercised its sentencing discretion must show that the trial court based the defendant's sentence on "clearly irrelevant or improper factors." Ibid. Fortier has not done so here.
¶ 34. In sum, I do not perceive how the trial court erroneously exercised its sentencing discretion on remand, and, accordingly, I would affirm. Thus, I respectfully dissent from the Majority's decision to remand this case for a hearing, although, as noted, I agree that Fortier's arguments on this appeal are not barred by Escalona-Naranjo.
One-thousand hours spread over the four years, as directed by the trial court, works out to a mere five hours per week on a fifty-week year. Many persons who have not been convicted of crimes volunteer more time than that to their community. In my view, it is far from unreasonable to require that Fortier do the same.