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Sentencing courts need not “parrot typical buzz words seen in sentencing transcripts;” implicit rationale is enough

State v. Danny F. Anton, 2015AP2336-CR, District 1, 8/2/16; (not recommended for publication); case activity (including briefs)

This decision openly thumbs its nose at Gallion. Between it and SCOW’s recent decision in State v. Salas Gayton you have to wonder whether Gallion has been overruled sub silentio.

Anton raised a common challenge to his sentence: the court failed to explain its reasons for the sentence it imposed in accordance with State v. Gallion, 2004 WI 42, 270 Wis. 2d 535, 678 N.W.2d 197 and McCleary v. State, 49 Wis. 2d 263, 182 N.W.2d 512 (1971). His strategy made sense because, as the postconviction court noted, “the [sentencing] court did not need to reiterate the facts at sentencing or explicitly include them as part of its sentencing analysis when the court’s decision was not guided by the facts of this case but by other factors, most particularly the defendant’s extremely poor character . . .” Slip op. ¶5 (emphasis supplied). The sentencing court did not comment on aggravating or mitigating factors. Nor did it “parrot some of the typical buzz words commonly seen in some sentencing transcripts.” It focused on his character, his rehabilitative needs, and the amount of time he was already serving. Id.

According to the court of appeals, no more was necessary:

¶9 Even when a sentencing court “fails to specifically set forth the reasons for the sentence imposed, ‘we are obliged to search the record to determine whether in the exercise of proper discretion the sentence imposed can be sustained.’” See State v. Hall, 2002 WI App 108, ¶6, 255 Wis. 2d 662, 648 N.W.2d 41 (quoting McCleary, 49 Wis. 2d at 282). If this independent search shows facts upon which the sentence is based, or facts fairly inferable [sic] from the record, reasons based on legally relevant factors, and evidence that “‘the sentence imposed was the product of that discretion,’” then “‘the sentence should ordinarily be affirmed.’” Hall, 255 Wis. 2d 662, ¶19 (quoting McCleary, 49 Wis. 2d at 281).

¶10 While this court would have preferred that the sentencing court address each primary sentencing factor more completely and more explicitly state the objectives for the sentence imposed, the court did meet the minimum requirements in this particular case. The court focused most extensively on Anton’s character, noting plainly that it was “appall[ing]” and simply “bad” to the extent that the court found Anton undeserving of a green card. The court discussed the importance of punishing Anton for his crime and noted that Anton’s forgeries went “to the very heart of the justice system.” The court implicitly addressed the need to protect the public by revoking Anton’s driver’s license.

Technically, Gallion remains binding precedent because SCOW has never explicitly overruled it. SCOW has, however, ignored it. See e.g. State v. Salas Gayton, 2016 WI 58, decided this term. Justice A.W. Bradley,  author of Gallion, noted this problem in her concurrence to Salas Gayton:

¶44. . . . [T]he majority creates an explanation for the circuit court’s exercise of discretion not set forth on the record. By creating its own explanation, the majority contravenes Wisconsin’s long-standing jurisprudence, which does not permit appellate courts to invent a rationale for sentencing decisions not found in the record.

¶45 Instead, circuit courts must clearly set forth the rationale for sentencing so that it can be subject to meaningful appellate review. State v. Gallion, 2004 WI 42, ¶49, 270 Wis. 2d 535, 678 N.W.2d 197. This requirement was established in McCleary v. State, 49 Wis. 2d 263, 182 N.W.2d 512 (1971), reinvigorated in Gallion, and is sub silencio eroded by the majority opinion.

¶79 [T]he majority rests its conclusion that the circuit court properly exercised its discretion on a nonexistent sentencing court rationale. In so doing, it appears to turn back the clock and erode the advances made in improving transparency and review of sentencing decisions.

Is Gallion still good law? It’s an issue worthy of review, but don’t expect a majority of SCOW to answer “yes.”

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