1. Has the court of appeals effectively overturned this court’s precedent recognizing undue harshness as a ground for sentence modification?
2. Is the time ripe for this court to put teeth in the McCleary-Gallion mandate that the appellate courts ensure that sentences – particularly sentences in the highest range – are rational and explainable?
Court of Appeals opinion: State v. Mark S. Rigdon, 2013AP200-CR, District 2, 2/12/14 (per curiam)
As carefully and compellingly explained in Rigdon’s Petition for Review, this case asks whether there is any sort of meaningful sentencing review in this state. The supreme court has long recognized a claim for sentence modification based on undue harshness, e.g., State v. Wuensch, 69 Wis. 2d 467, 230 N.W.2d 665 (1975), but the court of appeals routinely rejects such claims (as it did in this case) because the sentence doesn’t exceed the lawful maximum. But a sentence exceeding the maximum must be commuted under § 973.13, so by limiting harsh and excessive claims to illegally long sentences, the court of appeals has effectively (and improperly) overruled the precedent recognizing the claim.
Regarding the second issue, despite the supreme court’s “re-invigoration” of McCleary v. State, 49 Wis. 2d 263, 182 N.W.2d 512 (1971), in State v. Gallion, 2004 WI 42, 270 Wis. 2d 535, 678 N.W.2d 197, the court of appeals often appears to give only lip service to the McCleary-Gallion mandate, and so does not meaningfully review sentences at all. As one court of appeals judge memorably put it, “review of sentencing is now akin to hoping that Lucy will finally let Charlie Brown kick the football. There is something unsettling about the courts offering the appearance of hope where hope does not exist.” State v. Klubertanz, 2006 WI App 71, ¶¶47-48, 291 Wis. 2d 751, 713 N.W.2d 116 (Dykman, J., concurring). Perhaps the supreme court will take this opportunity to really reinvigorate meaningful appellate review of criminal sentences.