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State v. Gregory K. Nielsen, 2010AP387-CR, Sanction Order

Nielsen sanction after show cause (summary order, not citable), on remand from State v. Nielsen, 2011 WI 94

Sanction for Incomplete Brief Appendix 

The appellant’s brief argued that the circuit court failed to fulfill the mandate articulated in State v. Gallion, 2004 WI 42, 270 Wis. 2d 535, 678 N.W.2d 197, to explain the rationale for the particular sentence imposed. The appendix included only a select portion of the circuit court’s sentencing remarks; just three of the eight transcript pages that contained the circuit court’s remarks. Counsel for the appellant explains that only a small portion of the circuit court’s sentencing remarks were included in the appendix because the appellate issue was narrowly focused on something that should have occurred at sentencing but did not and the pages provided in the appendix were the one where the occurrence should have logically occurred. Counsel further explains that she did not blithely or negligently throw pages into the appendix but included just the transcript pages counsel earnestly believed were essential to understanding the issue raised. Counsel suggests that she and other attorneys in her office are now on notice to take a more expansive and inclusive view of the required appendix content such that future “misunderstandings or disagreements” regarding content will be minimal.

Although we appreciate that counsel deliberated on the content of the appendix, there is no reason to omit the entirety of the sentencing court’s remarks when the exercise of sentencing discretion is at issue. It is long established that when reviewing a sentence, this court looks to the totality of the sentencing court’s remarks. See State v. Stenzel, 2004 WI App 181, ¶9, 276 Wis. 2d 224,688 N.W.2d 20; State v. Timmerman, 198 Wis. 2d 309, 318, 542 N.W.2d 221 (Ct. App. 1995). Additionally, the decision in State v. Bons, 2007 WI App 124, ¶21-25, 301 Wis. 2d 227, 731 N.W.2d 376, explained the importance of providing a meaningful appendix in compliance with WIS. STAT. RULE 809.19(2), and signaled that this court intended to enforce the appendix certification rule. See also Bons, ¶29 (Brown, J. concurring).

The appendix to the appellant’s brief was inadequate. The $150 sanction is warranted.

(Bolding supplied.)

This is a summary order which may not be cited “as precedent or authority,” § 809.23(3)(a). Not that you’d want to. The nicer question is whether the court itself will cite this uncitable order next time it brings the hammer down on an attorney for compiling an appendix that isn’t up to the court’s standards. But that is a question for another day. Today, some brief commentary on the court’s exercise of discretion, regarding amount of the fine.

It’s not at all clear how or why the court derived the figure of $150. True, that was the sanction meted out in Bons, but there (not a sentencing issue, by the way), the appendix apparently failed to include the trial court decisions at all, thus was “in flagrant violation of the” certification requirement, 2007 WI App 124, ¶20. As the concurrence in that case put it, “inundating us with reams and reams of material bearing no relation to the precise issues before the court is another practice that should be avoided,” (¶29, conc. op., emph. supp.). Same, re: S.C. Johnson v. Morris, 2010 WI App 6, ¶5 n. 1 and Werner v. Hendry, 2009 WI App 103, ¶11; and State v. Peterson, 2008 WI App 140, ¶6 n. 5. So it may be true, without exhaustively researching the matter, that the court has consistently imposed fines in the amount of $150 for violating the appendix / false-certification rule. At the same time (again, without taking the time for painstaking analysis), it may well be that in each such instance the violation was truly “flagrant,” though in the end that doesn’t really matter – the problem is the court clearly means to mete out identical punishments of $150 regardless of the nature of the violation. That is, whether you’ve committed a flagrant or good-faith violation, you’re going to be fined the same amount. Strike you as a sound exercise of discretion? “A court should use caution in imposing sanctions against attorneys. … Mistakes by attorneys can often be corrected without sanctions if they are isolated mistakes resulting from inexperience, inadvertence or misunderstanding.  Furthermore, circuit courts should tailor sanctions to the severity of the misconduct.” Anderson v. Circuit Court for Milwaukee County, 219 Wis.2d 1, ¶22, 578 N.W.2d 633 (1998). When it comes to the appendix, the court is a hammer and you are a $150 nail.

This discussion has assumed, of course, that there was a violation. But how can you be certain? If the court isn’t minded to engage in granular decision-making with respect to the amount, how can you be sure it did so with respect to the violation itself? Going forward, the lesson is that “there is no reason to omit the entirety of the sentencing court’s remarks when the exercise of sentencing discretion is at issue.” (Well, that and the idea that the court equates “no reason to omit the entirety” with “flagrant violation.”) In other words, if your appeal involves sentencing review, your appendix should always and necessarily include all the judge’s sentencing remarks. And getting that word out is the reason for posting an uncitable order.

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