Background
William J. Bonney pled no contest to first-degree sexual assault after being accused of having intercourse with and impregnating his adult daughter. An incest charge was dismissed and read in for sentencing. Bonney admitted that he began sexually abusing the victim when she was 14, that she became pregnant at 21, and that paternity testing after she gave birth revealed the crime. At the original sentencing in 2016, the State recommended 25 years of initial confinement and 20 years of extended supervision. The defense sought seven to ten years of initial confinement and longer extended supervision, citing mitigating circumstances including Bonney’s apparent limited intellectual functioning and a psychological evaluation by Dr. Jerry Roherty.
The circuit court noted Roherty’s diagnoses of antisocial personality disorder and borderline personality disorder with dependent and schizoid personality traits. It emphasized the gravity of the offense, the duration of the abuse, and its lasting effects on the victim and her child, concluding that those considerations outweighed the mitigating evidence. The court imposed 20 years of initial confinement and 10 years of extended supervision.
In September 2024, Bonney sought sentence modification or resentencing based on a new evaluation by Dr. LaToya Williams. Williams disputed Roherty’s personality-disorder diagnoses and instead diagnosed borderline intellectual functioning and major depressive disorder. In January 2025, the State agreed to a new sentencing hearing at which the court could consider all available information, including Williams’s report, while indicating that it would argue the new information should not substantially change the sentence. The circuit court held the proceeding in April 2025. Williams testified that Roherty’s methodology was suspect, that the earlier personality-disorder diagnoses were unlikely to be accurate, and that Bonney presented a low risk of reoffending. Defense counsel sought initial confinement closer to 11 or 12 years and argued that postsentencing conduct could be considered at resentencing.
The Court’s Holding
The Court of Appeals rejected Bonney’s contention that the circuit court merely reviewed the 2016 sentence for possible modification rather than resentencing him anew. Reading the transcript as a whole, the court concluded that the circuit court understood the proceeding to be a new sentencing, took evidence and argument, applied the correct framework, and appropriately considered the sentencing factors identified in State v. Gallion. The appellate court emphasized that the circuit court fully accepted Williams’s testimony that the original antisocial-personality-disorder diagnosis was invalid and that Bonney’s reoffense risk was not high. It also recognized Bonney’s positive use of available resources as postsentencing information that properly could be considered under State v. Wood.
The court nevertheless found no erroneous exercise of discretion in imposing the same term. Although the corrected diagnosis and rehabilitation evidence could be considered, the circuit court reasonably continued to emphasize the nature of the offense and its impact on the victim. A resentencing court need not defer to the original sentencing objectives, but nothing prohibits it from reaching the same objectives again. Some isolated language suggested sentence-modification analysis when viewed out of context, but the entire transcript established an actual resentencing. The court reviewed the sentencing decision for erroneous exercise of discretion, not de novo. It declined to decide the State’s alternative forfeiture argument because it could address the allegedly forfeited claim on the merits under State v. Erickson.
The State conceded two procedural errors. Under Wood, the original sentence should have been vacated before resentencing because an initial sentence is a nullity when resentencing is required. The circuit court also should have granted Bonney’s motion for resentencing and issued an amended judgment of conviction, rather than denying sentence modification and leaving the original sentence in effect. The court therefore reversed the order denying the postconviction motion and remanded with directions to vacate the original judgment of conviction, grant resentencing, and issue an amended judgment imposing the same sentence: 20 years of initial confinement followed by 10 years of extended supervision.
Key Takeaways
- A resentencing court may impose the same sentence after considering corrected psychological evidence and postsentencing conduct, provided it conducts a genuine new sentencing and reasonably exercises its discretion.
- Isolated references to denying a motion do not necessarily convert a resentencing into sentence-modification review; the appellate court examined the entire transcript.
- The original sentence must be vacated before resentencing, and the court must grant the resentencing motion and issue an amended judgment rather than leave the original sentence intact.
- The court resolved the substantive sentencing claim without deciding whether Bonney forfeited it, and its remand changes the judgment’s procedural form, not the length of the sentence.
Why It Matters
The decision distinguishes the substantive validity of a resentencing from the formal steps required to implement it. Acceptance of new expert testimony does not compel a shorter sentence when the court reasonably concludes that offense severity and victim impact still control. At the same time, a court conducting resentencing cannot simply deny modification and preserve the original judgment.
The opinion is per curiam and will not be published. Its citation as precedent or authority is restricted by WIS. STAT. RULE 809.23(3).