State v. Timothy J. Trimble ( 2021 )

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
June 2, 2021
A party may file with the Supreme Court a
Sheila T. Reiff petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.
Appeal No. 2019AP2406-CR Cir. Ct. No. 2017CF174
STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT III
STATE OF WISCONSIN,
PLAINTIFF-RESPONDENT,
V.
TIMOTHY J. TRIMBLE,
DEFENDANT-APPELLANT.
APPEAL from an order of the circuit court for Vilas County:
NEAL A. NIELSEN III, Judge. Affirmed.
Before Stark, P.J., Hruz and Seidl, JJ.
Per curiam opinions may not be cited in any court of this state as precedent
or authority, except for the limited purposes specified in WIS. STAT. RULE 809.23(3).
¶1 PER CURIAM. Timothy Trimble, pro se, appeals an order denying
his motion to “correct and modify” his sentence. The legal basis for Trimble’s
No. 2019AP2406-CR
argument that the circuit court erred by denying his motion is difficult to discern.
Ultimately, however, we conclude Trimble has failed to show that the court erred
in any way. We therefore affirm.
BACKGROUND
¶2 In September 2017, the State filed an Information in Vilas County
case No. 2017CF174 charging Trimble with nine offenses, including one count of
operating a motor vehicle while under the influence of an intoxicant (OWI), as a
tenth or subsequent offense. At the time of the conduct giving rise to the charges
in the Vilas County case, Trimble had been released from custody on a cash bond
in Oneida County case No. 2017CF88, where he had been charged with two
offenses, including one count of OWI, as a tenth or subsequent offense.
¶3 The Vilas County and Oneida County cases were consolidated and
resolved pursuant to a single plea agreement. Trimble pled no contest to the OWI
charge in the Vilas County case (Count 1) and the OWI charge in the
Oneida County case (Count 10), and the remaining charges were dismissed. As
part of the plea agreement, the State agreed to recommend a total of fourteen
years’ imprisonment, comprised of nine years’ initial confinement and five years’
extended supervision.
¶4 The circuit court accepted Trimble’s no-contest pleas during a
combined plea and sentencing hearing on October 3, 2018, and the State then
made its sentence recommendation in accordance with the terms of the plea
agreement. After addressing the seriousness of the offenses, Trimble’s character,
and the need to protect the public, the court sentenced Trimble as follows:
I accept the recommendation of the State in the case. The
Court is going to sentence Mr. Trimble on count 1 to nine
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years in the Wisconsin State Prison System. Four years of
initial confinement. Five years of extended
supervision. … On count 10, the Court will sentence
Mr. Trimble to the Wisconsin State Prison System for a
term of nine years. Five years of initial confinement and
four years of extended supervision. His sentence is to be
consecutive to the sentence imposed in count 1.
¶5 The circuit court subsequently entered a judgment of conviction,
which stated that the “State Prison” portion of Trimble’s sentence on Count 10
(the Oneida County charge) would be served “Consecutive” to his sentence on
Count 1 (the Vilas County charge). The judgment further stated, however, that the
“Extended Supervision” portion of the Oneida County sentence would be
“Concurrent” to the Vilas County sentence. Thus, pursuant to the judgment of
conviction, Trimble’s aggregate sentences—consecutive four- and five-year terms
of initial confinement, followed by concurrent four- and five-year terms of
extended supervision—were equal to the State’s recommendation of nine years’
initial confinement and five years’ extended supervision.
¶6 In late February 2019, the circuit court received a letter from a
sentencing associate with the Wisconsin Department of Corrections (DOC) asking
the court to review the relationship of Trimble’s Oneida County sentence to his
Vilas County sentence. The letter cited State v. Bagnall, 61 Wis. 2d 297, 312, 212
N.W.2d 122 (1973), superseded by statute on other grounds as stated in State v.
Rabe, 96 Wis. 2d 48, 55-56, 291 N.W.2d 809 (1980), in which our supreme court
stated that “terms in the Wisconsin state prison system are to be served
concurrently or consecutively, but … a court cannot split a sentence and provide
for only part of a term to be served concurrently with another.”
¶7 In response to the DOC’s letter, on March 6, 2019, the circuit court
sua sponte issued a corrected judgment of conviction, which stated that both the
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No. 2019AP2406-CR
“State Prison” and “Extended Supervision” portions of Trimble’s Oneida County
sentence were to be served “Consecutive” to his Vilas County sentence. Thus,
under the corrected judgment of conviction, Trimble’s sentences on both counts
totaled eighteen years, comprised of nine years’ initial confinement and nine
years’ extended supervision. Stated differently, the effect of the correction was to
increase the total length of Trimble’s extended supervision from five years to nine
years, thereby increasing his total potential prison exposure from fourteen years to
eighteen years.
¶8 In August 2019, Trimble, pro se, filed a one-page “motion to correct
and modify sentence.” Trimble asked the circuit court to modify his Oneida
County sentence “to run … concurrent” to his Vilas County sentence, asserting
“that seems to be what the Court wanted to do by running count 10’s extended
supervision concurrent to Count 1.” Trimble argued this modification “would
ensure the Court[’s] original sentence, and protection of the public, and confirm
with” Bagnall. He further contended the modification “would not degrade the
original sentence” and “would allow Trimble to obtain needed treatment.”
Trimble later refiled the same motion in October 2019.
¶9 On November 8, 2019, the circuit court issued a written order
denying Trimble’s motion. The court stated that a review of the sentencing
transcript “clearly reveals the Court’s intention to impose consecutive periods of
confinement to the Wisconsin Prison System, for reasons amply stated on the
record.” The court acknowledged that Trimble’s original judgment of conviction
“did … provide that the periods of extended supervision would run concurrently,”
which was contrary to Bagnall. The court observed, however, that after the DOC
brought that error to the court’s attention, the judgment “was corrected
accordingly on March 6, 2019.” As such, the court stated there was “no reason to
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No. 2019AP2406-CR
conduct a hearing” on Trimble’s motion to correct and modify his sentence.
Trimble now appeals.
DISCUSSION
¶10 As noted above, the legal basis for Trimble’s argument that the
circuit court erred by denying his motion to correct and modify his sentence is
somewhat unclear. In his brief-in-chief on appeal, Trimble contends that by
modifying his sentence on the Oneida County charge to increase the total length of
his extended supervision from five years to nine years, the court upset his
expectation in the finality of his original sentence. In support of his argument,
Trimble cites two cases that addressed whether a circuit court’s modification of a
defendant’s sentence violated the defendant’s right to be free from double
jeopardy. See State v. Willett, 2000 WI App 212, ¶1, 238 Wis. 2d 621, 618
N.W.2d 881; State v. North, 91 Wis. 2d 507, 509-10, 283 N.W.2d 457 (Ct. App.
1979), abrogated by State v. Gruetzmacher, 2004 WI 55, ¶35, 271 Wis. 2d 585,
679 N.W.2d 533.
¶11 The State therefore characterizes Trimble’s argument regarding his
expectation of finality in his original Oneida County sentence as a double jeopardy
claim. The State then argues that Trimble forfeited his double jeopardy claim by
failing to raise it in the circuit court. In his reply brief, Trimble denies that he is
asserting a double jeopardy claim, but he again relies on Willett and North—both
of which addressed whether the circuit court’s modification of a sentence violated
the defendant’s constitutional right to be free from double jeopardy.
¶12 Under these circumstances, we agree with the State that Trimble’s
argument regarding his expectation of finality in his original Oneida County
sentence is, in essence, a double jeopardy claim. See, e.g., State v. Jones, 2002
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No. 2019AP2406-CR
WI App 208, ¶10, 257 Wis. 2d 163, 650 N.W.2d 844 (stating “the analytical
touchstone for double jeopardy is the defendant’s legitimate expectation of finality
in the sentence”). We also agree with the State that Trimble failed to raise any
argument regarding finality or double jeopardy in his motion to correct and modify
his sentence in the circuit court. Nevertheless, given Trimble’s pro se status and
the fact that the State has briefed the legal issue of double jeopardy on appeal, we
exercise our discretion to ignore Trimble’s forfeiture and address the merits of his
argument. See Wal-Mart Stores, Inc. v. LIRC, 2000 WI App 272, ¶15, 240
Wis. 2d 209, 621 N.W.2d 633 (noting that the forfeiture rule “is one of
administration, not jurisdiction, and it is a general rule to which there are
exceptions”).
¶13 The double jeopardy clauses of both the state and federal
constitutions protect against multiple punishments for the same offense. State v.
Sauceda, 168 Wis. 2d 486, 492, 485 N.W.2d 1 (1992). Whether a double
jeopardy violation has occurred is a question of law that we review independently.
Jones, 257 Wis. 2d 163, ¶8. If a defendant has a legitimate expectation of finality
in his or her sentence, “then an increase in that sentence is prohibited by the
double jeopardy clause.” Id., ¶9 (citation omitted). “On the other hand, if a
circumstance exists to undermine the legitimacy of that expectation, then a court
may permissibly increase the sentence.” Id.
¶14 Wisconsin courts have recognized that a defendant does not have a
legitimate expectation of finality in an illegal sentence. In State v. Martin, 121
Wis. 2d 670, 678, 360 N.W.2d 43 (1985), our supreme court stated there is an
“exception to the applicability of the double jeopardy clause to increased
sentences” that permits a court to increase a sentence “if the initial sentence is
illegal.” The court subsequently clarified that this exception applies “when the
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No. 2019AP2406-CR
initial conviction is valid, the initial sentence is invalid, [and] the resentencing
court has no new information or newly known information.” State v. Carter, 208
Wis. 2d 142, 156, 560 N.W.2d 256 (1997), abrogated on other grounds by State v.
Harbor, 2011 WI 28, ¶¶47-48 & n.11, 333 Wis. 2d 53, 797 N.W.2d 828. In
addition, “an increased sentence is permissible at a resentencing only when it is
‘based upon a desire to implement the original dispositional scheme as manifested
by the record in the first sentencing proceeding.’” State v. Helm, 2002 WI App
154, ¶9, 256 Wis. 2d 285, 647 N.W.2d 405 (quoting Martin, 121 Wis. 2d at 687).
¶15 We agree with the State that the requirements for applying the illegal
sentence exception to double jeopardy are satisfied in this case. It is undisputed
that Trimble’s initial conviction on the Oneida County charge was valid, that his
initial sentence on that charge was invalid under Bagnall, and that no new
information or newly known information (aside from the fact of the illegality) was
before the circuit court when it issued the corrected sentence. See Carter, 208
Wis. 2d at 156.
¶16 Moreover, the corrected sentence reflects the circuit court’s desire to
implement the “original dispositional scheme” set forth in the sentencing hearing
transcript. See Helm, 256 Wis. 2d 285, ¶9. During the sentencing hearing, the
court explained why it believed it was necessary for Trimble’s sentences to be
consecutive, rather than concurrent, stating:
The intention of the legislature in imposing increasing
penalties at each stage of OWI offenses is to recognize the
dangerousness of this conduct and hopefully provide some
incentive to stop committing it. … And I think it’s the
intention of the legislature by expressing a minimum
penalty for an offense that you can’t go rack up two or
three of them and get sentenced once for the same, for the
same degree of punishment that you would receive if
committed separately and served separately. It’s not the
legislative intent. It’s not the intent expressed by the will
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No. 2019AP2406-CR
of the people through their elected representatives to look
at something like concurrent sentencing in a situation like
this.
Although Trimble’s judgment of conviction ultimately stated that the extended
supervision portion of his Oneida County sentence would be concurrent to his
Vilas County sentence, the court did not explain its rationale for that decision
during the sentencing hearing.
¶17 Under these circumstances, the correction that the circuit court
chose—i.e., maintaining Trimble’s original period of initial confinement but
increasing his total extended supervision by four years—was consistent with the
court’s original sentencing rationale, which emphasized the need to impose
consecutive sentences for Trimble’s repeated OWI violations, and which did not
express any specific reason or desire to make his terms of extended supervision
concurrent. Furthermore, during its sentencing remarks, the court explained that
Trimble’s offenses were serious and carried the potential for great violence; that
Trimble’s character was essentially poor because he did not appreciate the gravity
of his offenses and the serious risk his conduct posed to others; and that the public
required protection from Trimble because he had demonstrated an inability or
unwillingness to refrain from driving while intoxicated. These remarks supported
the court’s original decision to impose a substantial period of initial confinement,
and they also support its subsequent decision to correct Trimble’s illegal sentence
by making the extended supervision portion of his Oneida County sentence
consecutive to his Vilas County sentence.
¶18 On these facts, we agree with the State that the illegal sentence
exception to double jeopardy applies, and the circuit court did not violate
Trimble’s right to be free from double jeopardy when it modified his sentence on
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No. 2019AP2406-CR
the Oneida County charge. Stated differently, under the circumstances of this
case, Trimble had no legitimate expectation of finality in his illegal
Oneida County sentence.
¶19 In his brief-in-chief on appeal, Trimble appears to fault the circuit
court for failing to hold a hearing before modifying his sentence. He asserts the
court modified his sentence “without giving [him] a chance to argue the court[’]s
original intent of running the incarceration sentence concurrent to the extended
supervision.” He therefore asks that we remand this matter for the court “to
explain [its] reasoning for running the [extended] supervision concurrent, if
according to [the court, it’s] intention was amply stated that all sentences run
consecutive.”
¶20 Trimble’s argument in this regard is undeveloped. He fails to cite
any legal authority in support of the proposition that the circuit court was required
to hold a hearing before modifying his sentence under any circumstances, much
less the circumstances of this case. See State v. Pettit, 171 Wis. 2d 627, 646-47,
492 N.W.2d 633 (Ct. App. 1992) (court of appeals need not address arguments
that are undeveloped or unsupported by references to legal authority). We agree
with the State that although the court did not hold a hearing, “it corrected
[Trimble’s] sentence in a manner that was consistent with the purposes of the
original sentence,” as set forth in the sentencing hearing transcript. Trimble does
not explain what purpose a hearing would have served under these circumstances.
¶21 Trimble also asserts the circuit court “failed to take into account”
that he has “not had an OWI in 12 years.” Again, this argument is undeveloped.
First, Trimble does not cite any portion of the record in support of his assertion
that he has “not had an OWI in 12 years.” We need not consider arguments that
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No. 2019AP2406-CR
are unsupported by references to the record. Lechner v. Scharrer, 145 Wis. 2d
667, 676, 429 N.W.2d 491 (Ct. App. 1988). Second, Trimble does not explain
whether he believes the court failed to consider this alleged fact during its original
sentencing decision, or during its subsequent decision to modify his
Oneida County sentence. Third, Trimble does not explain why the court’s alleged
failure to consider the length of time between his OWI convictions constituted an
erroneous exercise of the court’s sentencing discretion in the first instance, or
otherwise prevented the court from modifying his Oneida County sentence to
make the extended supervision portion of that sentence consecutive to his
Vilas County sentence.
¶22 In his brief-in-chief, Trimble also asks us to “take note” that
“3 months ago a man was sentence[d] on his 23rd OWI to 2½ years incarcerat[ion]
consisting of 1 year prison and 1½ extended supervision … [y]et I get 18 years for
my 10th with no accident[s] or harm to anyone, or destruction of property.”
Trimble asserts this discrepancy is not “equal and fair treatment.” In his reply
brief, Trimble similarly asks us to “take into consideration that this year a
defendant was sentence[d] to 2½ years incarceration for his 23rd OWI.”
¶23 Again, however, Trimble does not provide any record citations in
support of his factual assertions regarding the length of the sentence that another
defendant may have received. And, even more importantly, Trimble does not
develop any argument explaining why the sentence that other defendant allegedly
received bears on the sentences the circuit court imposed in this case. The mere
fact that a defendant’s sentence is different from other defendants’ sentences is
insufficient to support a disparate sentencing claim. See State v. Perez, 170
Wis. 2d 130, 144, 487 N.W.2d 630 (Ct. App. 1992). “Even leniency in one case
does not transform a reasonable punishment in another case into a cruel one.” Id.10
No. 2019AP2406-CR
¶24 Finally, Trimble argues—for the first time in his reply brief—that
the circuit court’s modification of his Oneida County sentence was “[i]n violation
of the plea agreement that the court accepted.” Trimble asserts he “should not be
penalized by a higher sentence th[a]n bargained for and accepted by the State and
Court.” He therefore contends we must remand this matter “to allow [him] to
renegotiate a plea deal or force the Court to honor the original agreed upon
sentence of 14 years[,] [i]nstead of the more severe punishment of 18 years.”
¶25 “As a general rule, we do not review issues raised for the first time
in a reply brief.” Baraboo Nat’l Bank v. State, 199 Wis. 2d 153, 157 n.1, 544
N.W.2d 909 (Ct. App. 1996). We could reject Trimble’s argument that the
modification of his Oneida County sentence breached the plea agreement on that
basis alone. We note, however, that Trimble’s argument also fails on the merits.
The plea agreement was between Trimble and the State. Under the agreement, the
State was required to recommend a total of fourteen years’ imprisonment,
comprised of nine years’ initial confinement and five years’ extended supervision.
It is undisputed that the State complied with the plea agreement when making its
sentence recommendation.
¶26 “It is well established, however, that the sentencing court is not in
any way bound by or controlled by a plea agreement between the defendant and
the state.” State v. McQuay, 154 Wis. 2d 116, 128, 452 N.W.2d 377 (1990).
Thus, although the circuit court initially imposed sentences that complied with the
State’s recommendation, the plea agreement did not require the court to do so, nor
did it prevent the court from later modifying Trimble’s Oneida County sentence.
We therefore reject Trimble’s argument that the court’s modification of his
sentence violated the plea agreement.
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By the Court.—Order affirmed.
This opinion will not be published. See WIS. STAT. RULE
809.23(1)(b)5. (2019-20).
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