Though the sentencing court made comments suggesting it mistakenly believed the OWI sentencing guidelines “don’t consider the four primary sentencing factors,” these comments don’t show the sentencing court actually believed that; rather, the court of appeals concludes, the sentencing court was saying that following the guidelines was not appropriate in Weaver’s case. Thus, the sentencing court didn’t misuse its discretion.
¶11 The parties dispute the extent to which the guidelines take into consideration the primary sentencing factors. Even assuming without deciding they do so, the court did not erroneously exercise its discretion in refusing to follow them in this case. Weaver’s premise that the court misunderstood the guidelines and their relationship to the primary sentencing factors is not supported by a review of the record. Rather, the record reflects that the court acknowledged the guidelines but determined they were not appropriate in this case.
¶12 The court began Weaver’s sentencing hearing by reviewing the guidelines but then noted, “You know, we have become almost slavish to the guidelines. And we forget that the guidelines are the guidelines. There’s a 45 day minimum and one-year maximum for this offense.” The court further explained:
As I mentioned a few moments ago, when we impose OWI sentences, they’re usually a rote endeavor. We follow the guidelines. Everybody is happy with the guidelines. But we don’t consider the four primary sentencing factors of the seriousness of the offense, the need to protect the public, the rehabilitative needs of the offender, and the character of the offender.
I think as I read the probable cause portion of the Criminal Complaint and the Amended Criminal Complaint, I have to consider those four things in this particular circumstance and not be a slave to the guidelines.
The sentencing court then addressed Weaver’s obstreperous behavior after being stopped and his prior record and, the court of appeals concludes, the court’s comments show it clearly didn’t believe the guidelines adequately addressed the nature of the offense or Weaver’s conduct. Because the guideline’s aren’t mandatory and the sentencing court explained its basis for departing from them, there was no erroneous exercise of discretion. (¶¶13-16).
Practice note: Weaver was convicted of OWI under § 346.63(1)(a), but not operating with a prohibited alcohol concentration (PAC) under § 346.63(1)(b). (¶¶2, 6). This matters because, as the court of appeals points out (¶15 n.6), the statute authorizing the creation of the sentencing guidelines, § 346.65(2m)(a), refers only to controlled substance violations under § 346.65(1)(am) and PAC violations under § 346.63(1)(b); it does not refer to OWI violations under § 346.63(1)(a). Thus, the guidelines can’t applied “by rote” to OWI convictions, State v. Jorgenson, 2003 WI 105, ¶¶2, 27, 264 Wis. 2d 157, 667 N.W.2d 318—though the court of appeals in this case goes further by saying the guidelines were simply inapplicable to Weaver’s case. (¶15 n.6).
Weaver is in good company in thinking the guidelines also cover OWI: Of the 10 district guidelines (all available here), only the Eighth Judicial District Guidelines are denominated as “PAC sentencing guidelines”; the rest refer to “OWI” (or “OMVWI”) or “OWI/PAC.” Nevertheless, practitioners should be aware of this nuance when negotiating plea agreements or making sentencing arguments in stickier OWI cases, as it gives the prosecutor and the judge a basis for saying the guidelines don’t apply.