Issue/Holding1: Sentencing guidelines for specified offenses (namely: §§ 346.63 (1) (b) or 346.63(5) [PAC offenses]) are within the authority granted by § 346.65(2m)(a). ¶¶16-18. However, the guidelines do not apply to an offense under § 346.63(1)(a) (OWI), therefore “it is inappropriate for a circuit court to simply apply the guidelines as the sole basis for its sentence in a § 346.63(1)(a) case.” ¶27. Nonetheless “in exercising its broad discretion in the area of sentencing, a court may refer to the sentencing guidelines for PAC offenses in sentencing a defendant convicted of OWI. These violations are similar and one cannot argue that the factors relevant to one offense are not a relevant consideration in sentencing for the other.” Id.
Issue/Holding2: District-based sentencing guidelines § 346.65(2m)(a) violate neither equal protection nor due process:
¶38. Jorgensen argues that the guidelines increase disparity, but as noted by the court of appeals, she has provided no evidence of such an effect. Instead, she asserts that the court of appeals in Smart concedes the point, with its acknowledgement that the statute “creates different classes of people” that might be subject to different standards. See Smart, 257 Wis. 2d 713, ¶6. We disagree with this assertion. In fact, as this court has recognized: “Equal protection does not deny a state the power to treat persons within its jurisdiction differently; rather the state retains broad discretion to create classifications so long as the classifications have a reasonable basis.”McManus, 152 Wis. 2d at 131.
¶39. We agree that having different guidelines in the various judicial districts may lead to some disparity. It is not a perfect solution to the sentencing disparity problem. However, under a rational basis test, it need not be a perfect solution. It must only be a step in the right direction. As noted by the court of appeals in Smart, 257 Wis. 2d 713, ¶7:
Smart argues the guideline scheme does not bear a rational relationship to the objective of reducing disparity and actually increases it by allowing each judicial district to develop their own standards. While we agree the statute may not be the best way to reduce drunk driving sentencing disparity, a rational basis inquiry does not require perfection. Our only question is whether the statute bears some relationship to advancing that goal. It does. By mandating the creation of guidelines within judicial districts, the statute attempts to reduce sentencing disparity within those districts. While statewide guidelines would perhaps be more equitable, there is no requirement the legislature choose the wisest or most effective means of reducing disparity.
In addition, this court has held: “The fact a statutory classification results in some inequity . . . does not provide sufficient grounds for invalidating a legislative enactment.” McManus, 152 Wis. 2d at 131.
A mandatory guideline scheme, which has the effect of allowing a presumptive sentence to be increased on the basis of facts neither submitted to the jury nor proved beyond reasonable doubt, violates the 6th amendment. U.S. v. Booker, US SC No. 04-104, 1/12/05.