                                                             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 App. 2012 – Unpublished)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
                                                                    No.    2011AP2833.ssa



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.




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