Pearce presumption in Wisconsin

2022As the Administrator correctly notes, in Colten v. Kentucky, 407 U.S. 104, 116-17 (1972), the United States Supreme Court refused to apply 15 No. 2021AP837 Pearce’s presumption of vindictiveness in a case involving a two-tiered decision-making system, even where the second tier “impose[d] a punishment more severe” than the first tier.

2004See also Colten, 407 U.S. at 116 (explaining the fact that the second sentencer was not the court whose judgment was reversed was a significant factor justifying the nonapplication of the Pearce presumption). ¶ 50.

2004Likewise, in Chaffin, 412 U.S. at 26 , the Court reaffirmed that the Pearce presumption applies only when there is a "possibility of vindictiveness." The Court explained: Pearce was not written with a view to protecting against the mere possibility that, once the slate is wiped clean and the prosecution begins anew, a fresh sentence may be higher for some valid reason associated with the need for flexibility and discretion in the sentencing process.

2004Likewise, in Chaffin, 412 U.S. at 26 , the Court reaffirmed that the Pearce presumption applies only when there is a "possibility of vindictiveness." The Court explained: Pearce was not written with a view to protecting against the mere possibility that, once the slate is wiped clean and the prosecution begins anew, a fresh sentence may be higher for some valid reason associated with the need for flexibility and discretion in the sentencing process.

2009See Naydihor, 270 Wis.2d 585, ¶ 33 , 678 N.W.2d 220 . ¶ 17 In Naydihor , our supreme court found that the Pearce presumption did not apply.

2009See Naydihor, 270 Wis.2d 585, ¶ 33 , 678 N.W.2d 220 . ¶ 17 In Naydihor , our supreme court found that the Pearce presumption did not apply.

2009We have recognized that the Court has limited the Pearce presumption to those contexts where "[i]nherent in the[] circumstances is the `reasonable likelihood of vindictiveness.'" [ State v. ] Church, [ 2003 WI 74, ¶ 54 ,] 262 Wis.2d 678 , 665 N.W.2d 141 (quoting Goodwin, 457 U.S. at 373 , 102 S.Ct. 2485 ).

2009We have recognized that the Court has limited the Pearce presumption to those contexts where "[i]nherent in the[] circumstances is the `reasonable likelihood of vindictiveness.'" [ State v. ] Church, [ 2003 WI 74, ¶ 54 ,] 262 Wis.2d 678 , 665 N.W.2d 141 (quoting Goodwin, 457 U.S. at 373 , 102 S.Ct. 2485 ).

2004The Court held that the Pearce presumption does not apply when the second sentence follows a trial and the first was based on a guilty plea, overruling Simpson v. Rice, 395 U.S. 711 (1969), the Pearce companion case.

2004The Court held that the Pearce presumption does not apply when the second sentence follows a trial and the first was based on a guilty plea, overruling Simpson v. Rice, 395 U.S. 711 (1969), the Pearce companion case.

2009We have recognized that the Court has limited the Pearce presumption to those contexts where "[inherent in the[] circum stances is the 'reasonable likelihood of vindictiveness.'" [State v.] Church, [ 2003 WI 74, ¶ 54 ,] 262 Wis. 2d 678 , 665 N.W.2d 141 (quoting Goodwin, 457 U.S. at 373).

2009We have recognized that the Court has limited the Pearce presumption to those contexts where "[inherent in the[] circum stances is the 'reasonable likelihood of vindictiveness.'" [State v.] Church, [ 2003 WI 74, ¶ 54 ,] 262 Wis. 2d 678 , 665 N.W.2d 141 (quoting Goodwin, 457 U.S. at 373).

2003We have stated that the Leonard rule is both "substantially similar to" and "broader than" the Pearce rule, and also that the two rules are based on the same "purposes" and "due process rules." Martin, 121 Wis. 2d at 687 . ¶ 43.

2003We have stated that the Leonard rule is both "substantially similar to" and "broader than" the Pearce rule, and also that the two rules are based on the same "purposes" and "due process rules." Martin, 121 Wis. 2d at 687 . ¶ 43.

2004In doing so, the Court noted that "the Pearce presumption was not designed to prevent the imposition of an increased sentence on retrial 'for some valid reason associated with the need for flexibility and discretion in the sentencing process,' but was 'premised on the apparent need to guard against vindictiveness in the resentenc-ing process.'" Id. at 799 (quoting Chaffin, 412 U.S. at 25 ) (first emphasis added).

2004In doing so, the Court noted that "the Pearce presumption was not designed to prevent the imposition of an increased sentence on retrial 'for some valid reason associated with the need for flexibility and discretion in the sentencing process,' but was 'premised on the apparent need to guard against vindictiveness in the resentenc-ing process.'" Id. at 799 (quoting Chaffin, 412 U.S. at 25 ) (first emphasis added).

2004Subsequent opinions have also elucidated ... [that the basis for the Pearce presumption] derives from the judge's "personal stake in the prior conviction," a statement clearly at odds with reading Pearce to answer the two-sentencer issue. *621 McCullough, 475 U.S. at 140 n.3 (quoting Chaffin, 412 U.S. at 27 ) (citations omitted).

2004As the McCullough court noted, it had previously clarified in Chaffin that the basis for the Pearce presumption originates from the judge's "personal stake in the prior conviction." McCullough, 475 U.S. at 140 n.3 (quoting Chaffin, 412 U.S. at 27 ).

2007Our supreme court has read the Pearce rule as "extending to information about events and circumstances either that the circuit court was unaware of at the initial sentencing or that occurred after the original sentencing." Carter, 208 Wis. 2d at 149 (citations omitted). ¶ 7.

2007Our supreme court has read the Pearce rule as "extending to information about events and circumstances either that the circuit court was unaware of at the initial sentencing or that occurred after the original sentencing." Carter, 208 Wis. 2d at 149 (citations omitted). ¶ 7.

2004In Blackledge, 417 U.S. at 27 , the Court extended the Pearce presumption to cover prosecutorial vindictiveness when a prosecutor brought a more seri *615 ous charge against the defendant prior to his trial de novo after the defendant invoked his right to an appeal under North Carolina's two-tier appellate process.

2004Thus, the Court has stated that the Pearce presumption applies only where there is a "realistic likelihood of 'vindictiveness,'" Blackledge v. Perry, 417 U.S. 21, 27 (1974), and not where there is "no realistic motive for vindictive sentencing!.]" Texas v. McCullough, 475 U.S. 134, 139 (1986).

2004The Court in Wasman, 468 U.S. at 572 , clarified that information used to rebut the Pearce presumption is not limited to "conduct" of the defendant.

2004The Court in Wasman, 468 U.S. at 572 , clarified that information used to rebut the Pearce presumption is not limited to "conduct" of the defendant.

2003Because the Pearce presumption "may operate in the absence of any proof of an improper motive and thus . .. block a legitimate response to criminal conduct," United States v. Goodwin, supra, 457 U.S., at 373 , we have limited its application, like that of "other 'judicially created means of effectuating the rights secured by the [Constitution],' " to circumstances "where its 'objectives are thought most efficaciously served,'" Texas v. McCullough, supra, 475 U.S., at 138 , quoting Stone v. Powell, 428 U.S. 465, 482, 487 (1976).

2003Because the Pearce presumption "may operate in the absence of any proof of an improper motive and thus . .. block a legitimate response to criminal conduct," United States v. Goodwin, supra, 457 U.S., at 373 , we have limited its application, like that of "other 'judicially created means of effectuating the rights secured by the [Constitution],' " to circumstances "where its 'objectives are thought most efficaciously served,'" Texas v. McCullough, supra, 475 U.S., at 138 , quoting Stone v. Powell, 428 U.S. 465, 482, 487 (1976).

1997See State v. Stubbendick, 110 Wis. 2d 693, 698-700 , 329 N.W.2d 399 (1983) (initial guilty plea and sentence vacated; resentence after reconviction on jury trial; resentenc-ing court properly considers amplified knowledge of defendant's crime and a new presentence report including conduct after initial sentencing); Denny v. State, 47 Wis. 2d 541, 545-46 , 178 N.W.2d 38 (1970) (initial conviction vacated; resentence after second trial; resentencing court erred by failing to state on the record reasons based on new information or newly known information warranting increased sentence). ¶ 8.

1997See State v. Stubbendick, 110 Wis. 2d 693, 698-700 , 329 N.W.2d 399 (1983) (initial guilty plea and sentence vacated; resentence after reconviction on jury trial; resentenc-ing court properly considers amplified knowledge of defendant's crime and a new presentence report including conduct after initial sentencing); Denny v. State, 47 Wis. 2d 541, 545-46 , 178 N.W.2d 38 (1970) (initial conviction vacated; resentence after second trial; resentencing court erred by failing to state on the record reasons based on new information or newly known information warranting increased sentence). ¶ 8.