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Review – Exercise of Discretion – Generally

State v. Jack W. Klubertanz, 2006 WI App 71, PFR filed 4/14/06
For Klubertanz: Martha K. Askins, SPD, Madison Appellate

Issue/Holding:

¶21      We conclude that the circuit court here properly exercised its sentencing discretion under the standards set forth in Gallion. The court identified the objectives it sought to achieve with the sentence it imposed: punishing Klubertanz, protecting the public, deterring others, and rehabilitating Klubertanz. It analyzed the specific facts relating to the three primary sentencing factors and all the relevant optional factors in a way that explained why these objectives were all appropriate and why a term of imprisonment, as well as lengthy supervision, was necessary to meet the sentencing objectives. In short, the circuit court explained a rational basis for the “general range” it imposed. Id., ¶49.

¶22      Klubertanz asserts that Gallion requires that the circuit court must explain why it imposed three years of imprisonment. The circuit court did explain why it imposed a term of imprisonment rather than probation, and the term it chose was relatively short. Gallion does not require that it explain why it imposed three years as opposed to one or two. See Gallion, 270 Wis. 2d 535, ¶49; State v. Fisher, 2005 WI App 175, ¶22, 285 Wis. 2d 433, 702 N.W.2d 56.

¶23      Klubertanz also asserts that the court did not explain why it imposed a lengthy term of supervision. Again we disagree. The court’s comments on the predatory and exploitative nature of Klubertanz’s conduct, his threat to the victim, and his lack of acknowledgement that his conduct represented a serious problem rather than a “lapse of judgment” adequately explain the need for a lengthy period of supervision to insure that Klubertanz truly addresses his problem and that the public is protected. Klubertanz points to his employment, his lack of a prior criminal record, and the fact that he was married and had no other allegations of misconduct during the two years between the charging and the trial, during which time he was out on a signature bond. The court did consider these facts, but in view of the seriousness of Klubertanz’s offense and his failure to acknowledge that, the court decided that a lengthy period of supervision was nonetheless required to meet the objectives of protecting the public and rehabilitation.

The middle-aged Klubertanz had no prior criminal record, but instead a track record of positive contributions, ¶6; the presentence report recommended probation, ¶8. But the sentencing court’s general perception that probation would depreciate the seriousness of the offense (sex-related, involving a 15-year old, § 948.025(1)) apparently is enough to sustain the sentence of 3 years’ confinement, 12 supervision. The court of appeals comes awful close to saying in effect that recitation of the primary sentencing factors will immunize the sentence from appellate scrutiny, which more or less guts Gallion. Not that there was any ballast left in that case anyway.

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