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“Order lifetime supervision” is enough said, given totality of sentencing remarks

State v. Shawn A. Anderson, 2019AP173-CR, District 3, 11/13/19 (not recommended for publication); case activity (including briefs)

The circuit court’s sentencing remarks considered in their entirety showed the court properly exercised its discretion in ordering Anderson to be subject to lifetime supervision under § 939.615.

Anderson was charged with and convicted of child sexual assault. The complaint and information gave notice that the state would be seeking lifetime supervision, the imposition of which is left to the circuit court’s discretion. At sentencing the court said plenty about why it was imposing a 27-year prison sentence (12 plus 15), but it said nothing about lifetime supervision until the end, when it fired off a cursory “Order lifetime supervision.” (¶¶3-7). Is that enough to explain why lifetime supervision, with its various onerous conditions, was appropriate?

Not by itself, certainly. But what Rachel Carson said about nature—”nothing exists alone”—applies to a sentencing hearing, too. And it doesn’t hurt that the circuit court gets a second chance to flesh out its sentencing rationale when it comes time to deny a postconviction motion. Which is what the circuit court did here, after conceding that it didn’t provide a “direct line” between its sentencing remarks and lifetime supervision at sentencing. (¶8). So between the whole of the sentencing remarks and the supplemental postconviction remarks, the circuit court said more than enough.

¶19     When read as a whole, the circuit court’s sentencing remarks indicate that the court believed there was a serious need to protect the public from Anderson due to his manipulative and deceitful character, his attraction to young girls, his use of the internet to establish a relationship with the underage victim, and his willingness to travel across state lines in order to meet her in person. Based on those factors, the court expressly found that, “in the interest of protecting the public,” Anderson’s rehabilitative needs would be “best addressed in a confined setting or with heavy supervision.” In all, the court’s sentencing remarks provided ample support for a determination that lifetime supervision was necessary to protect the public from Anderson, as required by Wis. Stat. § 939.615(2)(a).

¶20     Moreover, the circuit court further clarified the basis for its decision to place Anderson on lifetime supervision in its written decision denying Anderson’s postconviction motion to vacate the supervision requirement. See State v. Fuerst, 181 Wis. 2d 903, 915, 512 N.W.2d 243 (Ct. App. 1994) (observing that a postconviction hearing affords the circuit court the opportunity to clarify its sentencing decision). The court explained that during its sentencing remarks, it had “noted important facts supporting its conclusion that lifetime supervision is appropriate in the interest of protecting the public.” For instance, the court noted that during its sentencing remarks, it had emphasized the seriousness of Anderson’s crime, which Anderson had “attempted to mitigate” during his allocution. The court explained that it had “clarified to [Anderson] that while his crime may have been ‘non-forcible,’ … the crime was a serious crime (Class C felony punishable by up to 40 years in the State of Wisconsin).”

Anderson makes a valiant attempt to equate the imposition of lifetime supervision decision with decisions that involve other dispositions beyond the basic sentence, e.g., State v. Helmbrecht, 2017 WI App 5, 373 Wis. 2d 203, 891 N.W.2d 412 (court must forth separate, on the record analysis of the factors relevant to deciding whether to grant expungement), and State v. Ramel, 2007 WI App 271, 306 Wis. 2d 654, 743 N.W.2d 502 (court must explain decision to impose fine). The court rejects this line of argument, saying those decisions require consideration of factors outside the typical analysis relevant to the length of a sentence, while lifetime supervision is all about public protection, one of the primary sentencing factors a court must already consider. (¶¶28-29 & n.6).

One might also note that, in any event, the requirement that there be a separate explanation on those topics is, shall we say, more honored in the breach than the observance. Helmbrecht relied on the circuit court’s “thorough, well reasoned” postconviction decision to uphold the original expungement decision despite the circuit court’s failure to follow the rule. (¶30). (Sometimes, though, a court fails to take advantage of the second kick at the can it has been given with a postconviction motion.) As for Ramel, well, let’s just say subsequent case law has left its rule in tatters. State v. Vesper, 2018 WI App 31, 382 Wis. 2d 207, 912 N.W.2d 418.

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