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Sentencing – Review — Factors — Defendant’s Age

State v. Wallace I. Stenzel, 2004 WI App 181
For Stenzel: Martin E. Kohler

Issue: Whether the sentencing court placed insufficient weight on defendant’s elderly age as a mitigating factor, and the likelihood he would not survive the confinement portion of his sentence.

Holding:

¶12. We agree with Stenzel that his age is a factor that the circuit court may consider as an aggravating or mitigating factor when imposing sentence. See Gallion, 270 Wis. 2d 535, ¶43 n.11. In this case, the court did consider Stenzel’s age. …

¶13. However, the court did not place any weight on Stenzel’s age because it concluded that the gravity of the offense was enormous. It explained at the postconviction hearing that at sentencing it was required to balance Stenzel’s exemplary life against the gravity of the offense. The court struck a proper balance at sentencing. …

¶14. The circuit court was correct in its assessment of the gravity of the offense. In 1957, the United States Supreme Court commented that the increasing slaughter on our highways perpetrated by drunk drivers “now reaches the astounding figures only heard of on the battlefield.” Breithaupt v. Abram, 352 U.S. 432, 439 (1957). …

¶15. The Wisconsin Supreme Court has also recognized the drunk driving plague … State v. Nordness, 128 Wis. 2d 15, 33-34, 381 N.W.2d 300 (1986). In Wisconsin, the carnage is just as shocking as it is nationally ….

¶16. We conclude that the circuit court appropriately exercised its discretion when it did not give Stenzel’s age the overriding and mitigating significance that he would have preferred.5 It remains within the discretion of the circuit court to discuss only those factors it believes are relevant, State v. Wickstrom, 118 Wis. 2d 339, 355, 348 N.W.2d 183 (Ct. App. 1984), and the weight that is attached to a relevant factor in sentencing is also within the wide discretion of the sentencing court. State v. Perez, 170 Wis. 2d 130, 143, 487 N.W.2d 630 (Ct. App. 1992). The circuit court explicitly linked the sentence imposed to the gravity of the offense and the need to send a message to the public. See Gallion, 270 Wis. 2d 535, ¶46. It was permissible for the court to impose a stiff sentence to emphasize society’s concern with the gravity of the offense. Roehl v. State, 77 Wis. 2d 398, 420, 253 N.W.2d 210 (1977). Similarly, in sending a message to the public that a death caused by intoxicated use of a vehicle would be dealt with harshly, the circuit court was appropriately considering the deterrence effect of the sentence.Harris v. State, 78 Wis. 2d 357, 370, 254 N.W.2d 291 (1977).

 

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