State v. Jammie L. Blount

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 8, 2022
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. 2021AP1943-CR Cir. Ct. No. 2020CF528

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT II

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

JAMMIE L. BLOUNT,

DEFENDANT-APPELLANT.

APPEAL from a judgment and an order of the circuit court for
Racine County: MAUREEN M. MARTINEZ, Judge. Affirmed.
No. 2021AP1943-CR

¶1 KORNBLUM, J.1 Jammie L. Blount appeals from a circuit court
judgment and order denying his postconviction motion requesting a sentence
modification based on a “new factor.” He argues that the court erred in the
manner in which it immediately corrected a sentence that both he and the State
agreed was illegal. Blount argues that the court’s corrected sentence is a “new
factor” that warrants reversal of his sentence. We conclude the circuit court
properly denied Blount’s postconviction motion and affirm.

BACKGROUND

¶2 This appeal concerns sentencing after Blount entered guilty pleas,
pursuant to plea agreements, on two different cases on the same day, case
Nos. 2020CF528 and 2020CF329.2 Only case No. 2020CF528 is before us. The
specific facts underlying both complaints are not relevant to this appeal. As part
of the plea deal in case No. 2020CF528, the State reduced a felony charge of
stalking to three misdemeanor counts of disorderly conduct, each with the
domestic abuse enhancer. The only aspect of the plea agreement that concerned
both cases was the State’s agreement to recommend concurrent sentences.

¶3 The circuit court sentenced Blount on both cases on the same day.
After listing the factors in sentencing and stating its priorities of protection of the
public, gravity of the offense, and rehabilitation of the defendant, the court

1
This appeal is decided by one judge pursuant to WIS. STAT. § 752.31(2)(f) (2019-20).
All references to the Wisconsin Statutes are to the 2019-20 version unless otherwise noted.
2
Case No. 2020CF329, which is not on appeal in this case, concerned a recklessly
endangering safety charge. Case No. 2020CF528 was a charge of felony stalking, domestic
abuse, party to a crime.

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No. 2021AP1943-CR

proceeded to sentencing on each of the cases. In case No. 2020CF329, the court
sentenced Blount to a four-year prison sentence, “two in and two on ES [extended
supervision].”

¶4 The circuit court then considered the appropriate sentence on the
case before us. The court agreed with Blount’s attorney that Blount needed “some
probation time.” The court imposed and stayed ninety-days’ confinement on each
count to run consecutive to each other “if you get revoked.” The court put Blount
on probation for three years. The court then established conditions for probation.
After discussion of the conditions, earned release credit and the challenge
incarceration program, the following exchange took place:

MS. DONOHOO: Just clarification, is the probation
concurrent or consecutive to the prison?

THE COURT: It’s consecutive to the prison.

MS. DONOHOO: Thank you.

THE COURT: Well, it will be concurrent with his ES, but
then it last[s] farther than his ES. Its one more year than
his ES is going to go. Because his ES will be two years.

MR. RAMIREZ: I don’t think you can do that, Judge.

THE COURT: It has to be concurrent?

MS. DONOHOO: Concurrent or consecutive to the
sentence. I don’t think that you can make it concurrent or
consecutive to just the IC [initial confinement] portion.

THE COURT: To just the part of the ES?

MS. DONOHOO: Right.

THE COURT: Okay. Well, my thoughts were, is that he
needs time to engage in the culinary school, and they can
help him with all of that on probation. So I’m going to say
it’s consecutive. Okay.

Anything else?

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No. 2021AP1943-CR

MS. DONOHOO: Not from the State.

MR. RAMIREZ: So the three years of the probation
consecutive to the prison sentence.

THE COURT: Right.

MR. RAMIREZ: Okay.

The court then concluded the sentencing.

¶5 Blount filed a postconviction motion seeking sentence modification.
Blount argued that the circuit court erroneously exercised its discretion when it
corrected its error by increasing the amount of time that Blount would spend on
supervision by making the probation sentence in case No. 2020CF528 consecutive
to case No. 2020CF329. Blount characterized the original sentence as “a global
sentence consisting of two-years[’] confinement followed by five-years[’]
supervision.” Blount argued that the court could have achieved the same result,
five-years’ supervision, with a different sentencing structure. Blount requested a
resentencing for one year total probation in this case.

¶6 The circuit court denied the postconviction motion, explaining:

I ordered in 20CF528, 90 days imposed and stayed, and
three years probation. And then in the other case, the 329
case, I had ordered four years two and two. And my effort,
because that’s what I read in the PSI and that’s what was
argued, was to give him lots of time on probation because
he said he wanted to go to culinary school. Probation and
parole can help with that. And on page 30 of the transcript
of the sentencing argument, I say it. My thoughts were that
he is—needs to engage in the culinary school and they can
help him with all of that on probation, so I’m going to say
it’s consecutive because the question was—I originally had
said it should be consecutive to—or concurrent with the ES
on the … 528 case … and I can’t do it that way. It doesn’t
work that way. That was pointed out to me, and I said,
okay. I’m trying to give this guy a lot of time on probation.
It sounds to me like he needs it. And so I made it
consecutive.

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No. 2021AP1943-CR

Blount now appeals, arguing that the error that the court made initially is a “new
factor,” and this court should order resentencing.

DISCUSSION

Standard of Review

¶7 The law is well established that a circuit court exercises its discretion
at sentencing. On appeal, the standard of review is whether the court erroneously
exercised its discretion. State v. Gallion, 2004 WI 42, ¶17, 270 Wis. 2d 535, 678
N.W.2d 197. As our supreme court stated in Gallion:

[S]entencing decisions of the circuit court are generally
afforded a strong presumption of reasonability because the
circuit court is best suited to consider the relevant factors
and demeanor of the convicted defendant. Appellate
judges should not substitute their preference for a sentence
merely because, had they been in the [circuit] judge’s
position, they would have meted out a different sentence.

Id., ¶18 (first alteration in original; citations omitted).

¶8 Whether a factor is a “new factor” for purposes of sentencing is a
question of law that this court reviews de novo. State v. Harbor, 2011 WI 28,
¶33, 333 Wis. 2d 53, 797 N.W.2d 828.

Erroneous Exercise of Discretion

¶9 Blount agrees that in issuing the sentence of probation for three
years with stayed consecutive ninety-day jail sentences, the circuit court properly
exercised its discretion under Gallion, 270 Wis. 2d 535, ¶40. The problem arose
after the initial sentencing. The State asked the court if the sentence in case
No. 2020CF528 was to be concurrent or consecutive to the sentence in case
No. 2020CF329, in which the court had imposed a four-year term (two-years

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No. 2021AP1943-CR

confinement plus two-years extended supervision.). The court initially stated it
would be consecutive to prison, then immediately stated “concurrent” with the
extended supervision portion of the sentence, and stated “but then it last[s] farther
than his ES. Its one more year than his ES is going to go. Because his ES will be
two years.”

¶10 Blount’s counsel pointed out in the very next sentence that the
solution the court was attempting was illegal. The state agreed. The court then
corrected itself based on the comments of both parties and imposed a consecutive
sentence in this case, reverting back to its original sentence. The court then
explained its reasoning—to provide Blount with more time to engage in
rehabilitation through culinary school. A consecutive sentence could accomplish
this. At no time did Blount’s counsel object or raise the argument he raises here:
that when the court stated it wanted to make the sentence in this case concurrent
with a portion of the sentence in the previous case, the court had created the
permanent expectation in Blount that the court was limiting his overall exposure to
five years.3

¶11 Blount essentially is arguing that a circuit court cannot correct a
known sentencing error, even within moments of committing that error, without
the sentencing being subjected to a “new factor” analysis. We disagree. The court
here complied with long-established Wisconsin law, which allows a court to

3
The State argues that Blount forfeited his right to raise any of his arguments because he
did not object to the circuit court’s actions at the time of sentencing. We agree that judicial
efficiency would have been promoted had Blount lodged his objection when the circuit court
could have considered it at sentencing. However, forfeiture is not a jurisdictional issue, and the
appellate court can consider arguments that arguably were forfeited. State v. Erickson, 227
Wis. 2d 758, 766-67, 596 N.W.2d 749 (1999).

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No. 2021AP1943-CR

correct a legal error in sentencing when the error correction is done immediately
and prior to the defendant starting to serve his or her sentence. See State v.
Gruetzmacher, 2004 WI 55, ¶¶2, 36-38, 271 Wis. 2d 585, 679 N.W.2d 533 (error
corrected within two weeks of sentencing where court changed the sentence in one
of several cases from probation to incarceration); State v. Burt, 2000 WI App 126,
¶11, 237 Wis. 2d 610, 614 N.W.2d 42 (circuit 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).

¶12 In this case, the circuit court’s error was recognized immediately,
and both parties agreed the court erred. At the time of the correction, the sentence
had not even been entered into the record, and Blount had not left the courtroom.
The court properly exercised its discretion in correcting the error.

¶13 Blount agrees that the sentencing court can correct errors, but argues
that the errors must be corrected in his favor. He appears to argue that when the
circuit court imposed the illegal sentence, it was actually pronouncing a “global”
sentence of no more than five-years’ supervision and that correcting the error
added more time to Blount’s overall supervision. Thus, according to Blount, the
court committed reversible error because it violated his expectations of a global
five-year period of supervision in both cases.

¶14 Blount’s argument is based on two assumptions that the record does
not support. The first assumption is that the circuit court, in sentencing on the two
cases, was invoking a global-sentencing scheme that guaranteed Blount a

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No. 2021AP1943-CR

maximum of five years under supervision.4 However, neither the circuit court nor
any of the parties at the plea or sentencing hearings referred to the two sentences
as “global” or in any other way interrelated them. The Plea Questionnaire/Waiver
of Rights form in this case does not mention the other case other than to indicate
that “State recommends concurrent time with 20CF329,” which the State
reiterated at the plea hearing. The sentencing on each case was separate. At no
time did the court establish a firm expectation that Blount would be subject to a
maximum of five-years’ supervision.

¶15 The second faulty assumption is that even though the circuit court
could have considered other alternatives, the court’s failure to do so violated
Blount’s rights. Blount supplies no authority for the proposition that a defendant
is entitled to the sentence of his choice when a court corrects an error.

¶16 In conclusion, the circuit court did not erroneously exercise its
discretion when it corrected an error in sentencing within moments of making the
error.

4
Blount does not define what he means by “global.” However, it appears that he is
using a commonly understood meaning of the term in criminal law, to refer to a plea agreement
which resolves multiple cases at once. The cases become interconnected through this device. See
State v. Lange, 2003 WI App 2, ¶36, 259 Wis. 2d 774, 656 N.W.2d 480.

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No. 2021AP1943-CR

New Factor

¶17 Blount argues that a new factor requires resentencing. He posits that
the “new factor” is an “increased” global sentence due to making the sentences
concurrent, “when no new aggravating facts were presented that would justify the
increase.” Whether a new factor requires resentencing is a question of law that
this court reviews de novo. See Harbor, 333 Wis. 2d 53, ¶33.

¶18 A new factor is “a fact or set of facts highly relevant to the
imposition of sentence, but not known to the trial judge at the time of original
sentencing, either because it was not then in existence or because, even though it
was then in existence, it was unknowingly overlooked by all of the parties.” Id.,
¶40 (citation omitted). Blount has the burden to demonstrate by clear and
convincing evidence that the new sentence is a “new factor.” See id., ¶36. A court
has discretion to modify a sentence, but not on second thoughts alone. Id.
Nonetheless, even the existence of a new factor does not require sentence
modification. Id., ¶37. “Thus, to prevail, the defendant must demonstrate both the
existence of a new factor and that the new factor justifies modification of the
sentence.” Id. at ¶¶37-38.

¶19 Blount has not shown by clear and convincing evidence that a new
factor exists here. He recites the history of the exchange at the sentencing hearing
and argues that the circuit court’s realization that the sentence it had imposed was
not lawful amounts to a “new factor” for purposes of resentencing. First, as
discussed above, the record does not support Blount’s assumption that the court
intended to impose a “global” sentence with a maximum supervision of five years.
Second, the court did not increase the sentence in this case. The sentence in this
case was three-years’ probation. What the court did was make the sentence

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No. 2021AP1943-CR

consecutive to the other sentence because the court could not accomplish the
sentencing goals in the manner it had attempted. This is not a “new factor.”
Correction of an error of law under these circumstances does not amount to a new
factor.

¶20 Even if Blount’s argument passed the first test for a “new factor,” it
would not require resentencing. The circuit court engaged in error correction
which did not change any part of the current sentence of three-years’ probation, it
just made the sentence consecutive to another sentence. The court articulated its
reasons for doing so, which Blount agreed were appropriate: to rehabilitate Blount
by allowing him to attend culinary school. The court did not engage in second
thoughts.

CONCLUSION

¶21 In conclusion, the circuit court appropriately exercised its discretion
to correct an illegal sentence within a few moments of imposing it. Nothing in the
record supports the assumption that the court intended to impose a “global”
sentence with a maximum period of supervision of five years, which it then
violated by correcting the error. Blount did not prove by clear and convincing
evidence that error correction was a “new factor” that requires resentencing. For
the above-stated reasons, we affirm the judgment and order of the circuit court.

By the Court.—Judgment and order affirmed.

This opinion will not be published. See WIS. STAT.
RULE 809.23(1)(b)4.

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