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§ 973.195, TIS Sentence Adjustment Petition – Exercise of Discretion

State v. David S. Stenklyft, 2005 WI 71, on bypass
For Stenklyft: Suzanne L. Hagopian, SPD, Madison Appellate


¶126 [T]he record of the proceedings must clearly demonstrate that the circuit court exercised its discretion and weighed the appropriate factors when the court reached its decision on sentence adjustment. An example of such balancing would be a record that showed that the circuit court considered the nature of the crime, character of the defendant, protection of the public, positions of the State and of the victim, and other relevant factors such as “[t]he inmate’s conduct, efforts at and progress in rehabilitation, or participation and progress in education, treatment, or other correctional programs. . . .” Wis. Stat. § 973.195(1r)(b)(1). Here, the record does not show that the circuit court weighed all of the appropriate factors when the court reached the decision to grant sentence adjustment. [57] Therefore, the decision of the circuit court should be reversed ….

[57] While the circuit court considered some of these factors in the motion hearings for sentence adjustment and for reconsideration, the court did not make a sufficient record demonstrating an exercise of discretion in light of all of the appropriate factors. The circuit court did discuss the need for balancing, but only in regard to the incentive for rehabilitation of the defendant against the harm suffered by the victim and the victim’s desire for punishment. The circuit court was correct when the court expressed concern over whether the absolute veto given to the district attorney would stand up, but stopped short of finding such a veto unconstitutional, stating that “I’m not reaching those issues today.”

Keep in mind that Stenklyft was granted adjustment by the circuit court, ¶14. Reversal is almost an afterthought, as if it’s both obvious and routine, though that is hardly the case. How did the circuit court err? Typically, you need either a complete absence of discretion or else reliance on a clearly improper factor, neither of which occurred here. The only hint by the court of perceived error is that while the trial court considered some of the factors, it didn’t make a sufficient record of consideringall of them. What happened to the idea that there is a presumption that the trial court acted reasonably, and that the challenging party has a burden of showing some unreasonable basis for the exercise of discretion? (E.g., State v. David Arredondo, 2004 WI App 7, ¶52, though you could literally open the Reports at random and the odds would be decent you’d find a similar holding, the principle is so frequently stated.) The court doesn’t even pay lip service to this standard, let alone apply it in any concrete sense. Taken at face value, Stenklyft holds, then, that the circuit court must demonstrate consideration of all sentence-adjustment factors, else it hasn’t engaged in a sustainable exercise of discretion. Must, that is, unless there’s one set of guidelines for the grant of a petition, and another for rejection.


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