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Trial court’s failure to explain reasons for sentence saved by postconviction remarks

State v. Venceremos Crump, 2013AP2163-CR, District 1, 3/18/14; court of appeals decision (1-judge; ineligible for publication); case activity

The circuit court articulated its reasons for the sentence imposed on Crump as required by State v. Gallion, 2004 WI 42, ¶17, 270 Wis. 2d 535, 678 N.W.2d 197, in light of the court’s comments in its order denying Crump’s postconviction motion, where it explicitly addressed the three primary sentencing factors and applied those factors to the facts of Crump’s case. (¶¶9-12).

The court of appeals doesn’t quote at all from the explanation the trial court gave at the sentencing hearing itself, but instead seems to rely on the court’s postconviction comments, citing State v. Fuerst, 181 Wis. 2d 903, 915, 512 N.W.2d 243 (Ct. App. 1994) (circuit court has additional opportunity to explain sentence during postconviction proceedings). See also State v. Stenzel, 2004 WI App 181, ¶9, 276 Wis. 2d 224, 688 N.W.2d 20 (review of sentencing discretion may canvass entire record, including postconviction proceedings). The lack of reference to the sentencing hearing is no doubt due to the paucity of the judge’s remarks. According to Crump’s briefs (available here), beyond some questions about the facts of the offense that the judge put to Crump during his allocution, at the sentencing hearing the court’s reasoning consisted of these scanty remarks:

Given that your last two convictions are somewhat remote and you did time served on those and a small amount of time, I think you are a candidate for probation, and the Court would find that you do have probationary needs, rather significant ones, I think. Going to impose and stay a sentence of, place you on probation. Stayed sentence of 9 months.

So much for Gallion “reinvigorating” the directive of McCleary v. State, 49 Wis. 2d 263, 281-82, 182 N.W.2d 512 (1971), that the exercise of sentencing discretion be set forth on the record at the sentencing hearing in order to facilitate the trial court’s focus on the relevant sentencing factors and its rationale for the sentence.

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