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Sentencing Guidelines: No Remedy for Omitted Offense

State v. Jeffrey S. Firebaugh, 2011 WI App 154 (recommended for publication); pro se; case activity

Because the Wisconsin Sentencing Commission had created no guideline “applicable” to Firebaugh’s offense (homicide by intoxicated use of a motor vehicle), he isn’t entitled to resentencing on the basis of failure to “consider” a (non-existent) guideline.

¶12      At the time of Firebaugh’s sentencing, neither the CPSC nor the Commission had developed a sentencing guideline for homicide by intoxicated use of a motor vehicle.  The offenses for which guidelines were developed included first- and second-degree sexual assault, first- and second-degree child sexual assault, burglary, theft, robbery, armed robbery, forgery and uttering, delivery or possession with intent to deliver cocaine, and delivery or possession with intent to deliver marijuana.  Compare Final Rep., supra, at 114, with Sentencing in Wisconsin, supra. We believe the State’s brief best sums up our conclusion:

In short, Firebaugh’s motion and appeal misfire because Firebaugh seeks an impossible remedy:  consideration of sentencing guidelines that did not exist at the time of his sentencing and that have not existed at any time since his sentencing.

Sentencing courts briefly were required to nod toward applicable guidelines under § 973.017(2), State v. Grady, 2007 WI 81, 302 Wis. 2d 80, 734 N.W.2d 364, at least  until that statute was repealed, State v. Barfell, 2010 WI App 61, ¶9, 324 Wis. 2d 374, 782 N.W.2d 437: “Without sentencing guidelines, now it is impossible to order Barfell resentenced and to have the sentencing guidelines considered. Nothing we order can have any practical legal effect. Therefore, the issue is moot.” If statutory repeal renders moot the failure to consider an applicable guideline, because there would be no guideline to consider on re-sentencing, then it surely bars relief for failure to consider a guideline that never existed in the first place, let alone on re-sentencing. For that matter, Grady explicitly made its holding prospective, 2007 WI 81, ¶45 (“this decision will become effective for any sentencing occurring after September 1, 2007”) – highly relevant here, because Firebaugh’s 2004 sentencing pre-dated Grady, thus dooming his argument for that reason as well. (The court here acknowledges, but simply ignores, Grady‘s prospective nature, ¶6 n. 3.) In brief, Firebaugh sought to invoke a case holding that plainly didn’t apply to him, in an effort to obtain relief that equally plainly wouldn’t be available to him anyway. It simply isn’t clear why the State and the court ignore these seemingly insuperable obstacles. (Put aside the very basis for what is in effect a collateral attack on the sentence – is it premised on a § 974.06 constitutional or jurisdictional defect? a common law new factor?) Nor, for that matter is it apparent why the State urged (Brief, p. 2), or the court now recommends, publication. Is it really necessary that one more nail be hammered in the long-buried guideline coffin? For that matter, as Michael O’Hear argues persuasively, Grady itself was all but inanimate at birth anyway, “Appellate Review of Sentence Explanations: Learning from the Wisconsin and Federal Experiences,” 93 Marq. L. Rev. 751, 773-76. The court’s determination to flog a doctrine that has no prospect of viability in the first place is curious.

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