Issue/Holding: (The singular importance of this case requires this very lengthy excerpt, albeit without the footnotes which don’t seem to add substantive content.)
¶38. In light of the increased responsibility placed upon the sentencing court, we reaffirm McCleary‘s sentencing standards and reexamine the manner in which they are to be applied. What has previously been satisfied with implied rationale must now be set forth on the record.…
¶40. A basic framework for this process of reasoning that demonstrates the exercise of sentencing discretion has previously been set forth for sentencing courts. See Wis. J.I.–Crim. SM-34 at 8-9 (1999).9 Circuit courts are required to specify the objectives of the sentence on the record. These objectives include, but are not limited to, the protection of the community, punishment of the defendant, rehabilitation of the defendant, and deterrence to others. Id.10
¶41. Courts are to identify the general objectives of greatest importance. These may vary from case to case. In some cases, punishment and protection of the community may be the dominant objectives. In others, rehabilitation of the defendant and victim restitution may be of greater import. Still others may have deterrence or a restorative justice approach as a primary objective.
¶42. Courts are to describe the facts relevant to these objectives. Courts must explain, in light of the facts of the case, why the particular component parts of the sentence imposed advance the specified objectives.
¶43. Courts must also identify the factors that were considered in arriving at the sentence and indicate how those factors fit the objectives and influence the decision. In Harris, we detailed factors that courts may take into account in the exercise of discretion.11 These factors assist courts in identifying relevant considerations at sentencing. In addition, the legislature has mandated consideration of applicable mitigating or aggravating factors.12
¶44. In each case, the sentence imposed shall “call for the minimum amount of custody or confinement which is consistent with the protection of the public, the gravity of the offense and the rehabilitative needs of the defendant.” McCleary, 49 Wis. 2d at 276. See also Setagord, 211 Wis. 2d at 416; Borrell, 167 Wis. 2d at 764; Krueger, 119 Wis. 2d at 336-37. Accordingly, the circuit courts should consider probation as the first alternative. Probation should be the disposition unless: confinement is necessary to protect the public, the offender needs correctional treatment available only in confinement, or it would unduly depreciate the seriousness of the offense. Bastian, 54 Wis. 2d at 248-49, n.1.
¶45. If a circuit court imposes probation, it shall explain why the conditions of probation should be expected to advance the objectives it has specified. Likewise, if a circuit court imposes jail or prison, it shall explain why the duration of incarceration should be expected to advance the objectives it has specified. Finally, if a circuit court imposes a bifurcated sentence for a crime committed after December 31, 1999, it shall explain why its duration and terms of extended supervision should be expected to advance the objectives.
¶46. In short, we require that the court, by reference to the relevant facts and factors, explain how the sentence’s component parts promote the sentencing objectives. By stating this linkage on the record, courts will produce sentences that can be more easily reviewed for a proper exercise of discretion.
¶47. Because we recognize the difficulty in providing a reasoned explanation in isolation, we encourage circuit courts to refer to information provided by others. Courts may use counsels’ recommendations for the nature and duration of the sentence and the recommendations of the presentence report as touchstones in their reasoning. Courts may also consider information about the distribution of sentences in cases similar to the case before it. We note that Wis. Stat. § 973.017(2)(a) requires sentencing courts to consider any applicable temporary sentencing guidelines adopted by the Criminal Penalties Study Committee and to consider in the future any applicable guidelines adopted by a sentencing commission.13
The court goes on to hold that the articulated basis for sentence was adequate, where the court considered the gravity of the offense (focusing on the recklessness of Gallion’s conduct); Gallion’s character (including failure to take advantage of treatment options); and need for public protection (including general deterrence of drunk driving).¶¶ 58-61.
The concurrence provides a handy summary of the holding, ¶90:
The majority requires that circuit courts must comply with the following list of prerequisites in order to render a valid sentence. Circuit courts must: 1) explain the objectives of the sentence; 2) identify which objectives are of the greatest importance; 3) describe the facts relevant to these sentencing goals; 4) explain why the elements of the sentence advance those goals; 5) consider the 12 factors identified in Harris and three primary factors in McCleary; 6) explain how these factors influence the decision and are expected to meet the goals of the sentence; 7) consider the aggravating and mitigating factors listed in Wis. Stat. §§ 973.017(3) to (8); 8) consider probation as the first alternative and explain why probation is or is not sufficient and whether probation would further the goals of the sentence; 9) explain why the existence and duration of any prison term advances the objectives of the sentence; 10) explain why the existence and duration of any term of extended supervision advances the objectives of the sentence; and 11) consider any applicable sentencing guidelines pursuant to Wis. Stat. § 973.017(2)(a). Majority op., 39-46.
This listing indeed seems to be a fair reading of the majority bullet-point requirements. Note, too, the concurrence’s phraseology: “list of prerequisites in order to render a valid sentence.” This, too, seems to be a fair reading, but one which will no doubt be resisted and require a good deal of litigation. The majority doesn’t quite say that its requirements underpin “a valid sentence” – indeed, whether they do strikes at the heart of the independent-review doctrine (if a failure to properly exercise discretion results in an invalid sentence, then it’s hard to see how an appellate court can go ahead and look for reason to sustain it.
Nor is this the only ambiguity; retroactivity is put at issue, with this curiously unrefined pronouncement, ¶8: “Accordingly, we reaffirm the sentencing standards established in McCleary and determine that the application of those standards, demonstrating the exercise of discretion, must be set forth on the record for future cases.” (Emphasis supplied.) In the first place, just which“future” cases does the court have in mind? Again, leave it to the concurrence to explain, at least somewhat, ¶95: “the rule the majority announces today should not be available to defendants sentenced under TIS whose cases are final. See generally, State v. Lagundoye, 2004 WI 4, 268 Wis. 2d 77, 674 N.W.2d 526 (discussing and applying Wisconsin’s retroactivity rules for criminal cases).” In other words, the holding should apply to all cases in a direct-review status, regardless of when sentencing actually occurred. This does not, it should be stressed, mean that there was any real chance of a fully retroactive decision – it’s enough to say that retroactivity requires a watershed rule related to guilt or innocence, something not implicated by mere sentencing procedure. See, e.g., Page v. Palmateer, OR SCt S50171, 2/5/04. But this just begs the question: if the court is merely reinvigorating McCleary, ¶4, or reaffirming the sentencing standards established by that case, ¶8, then why is it necessary for this old rule to have but future utility? The answer can only be that the court is doing something more than reinvigorating or reaffirming an old case. And this gets back to the idea that the old requirements are newly required for a valid sentence. That, at least, will be the argument.