State v. John Eddie Farmer, Sr., 2014AP2623-CR, 6/30/15, District 1 (one-judge opinion, ineligible for publication); click here for docket and briefs
Defense lawyers encounter this problem too often. The circuit court inadequately explains the reasons for the sentence it imposed and then shores up its rationale at the postconviction stage. This decision holds that a circuit court, which failed to mention any sentencing objectives, nevertheless met Gallion’s “bare minimum requirements.” And even if it hadn’t, it wouldn’t matter because the court of appeals could search the record for reasons to affirm the sentence. Slip op. ¶14.
It does matter whether a circuit court explicitly states on the record an adequate reason for a sentence it has imposed. You know the saying: “Justice must not only be done, it must appear to be done.” It matters to the client and everyone at the sentencing hearing whether the court acknowledges that it must address (1) the seriousness of the crime, (2) the defendant’s character, and (3) the need to protect the public and then proceeds to do so, as required by McCleary and Gallion. It matters when the court fails to mention any sentencing factor at all. Knowing that the court of appeals will search the record for reasons to sustain an inadequately explained decision provides no solace. To the contrary, it gives circuit courts permission to cut corners. It causes lawyers to stop appealing sentences that violate McCleary/Gallion. And when that occurs, justice is neither done nor seen to be done.
In this case, the court of appeals saw the problem and said that it “would have preferred that the circuit court, at the sentencing, address each primary sentencing factor more completely and more explicitly state the objectives for the sentence imposed.” Slip op. ¶14. Citing pre-Gallion case law, the court of appeals repeatedly held that it could examine the sentencing and postconviction record and “infer” the circuit court’s sentencing goals, though they were never articulated. Slip op. ¶¶ 15-16 n.3 (quoting State v. Santana, 220 Wis. 2d 674, 683, 584 N.W.2d 151 (Ct. App. 1998) and State v. Hall, 2002 WI App 108, 255 Wis. 2d 662, 648 N.W.2d 41).
Let’s revisit Gallion. It held: “What has previously been satisfied with implied rationale must now be set forth on the record. McCleary certainly contemplates this when it states, ‘decisions will not be understood by the people and cannot be reviewed by the appellate courts unless the reasons for decisions can be examined.'” Id., ¶38. (Emphasis added). It further held that “circuit courts are required to specify the objectives of the sentence on the record,” and they are to “describe the facts relevant to those objectives.” Gallion, ¶¶40-42.
Ironically, in Gallion the sentencing court actually articulated the 3 required sentencing objectives. The issue was whether its explanation for the sentence it chose was adequate. Here, the circuit court didn’t bother to articulate its sentencing objectives, and the court of appeals upheld its exercise of discretion based on pre-Gallion case law.
If the Gallion decision could sing, it would surely belt out this tune from the hit musical Chicago:
Cellophane, Mr. Cellophane shoulda been my name
Mr. Cellophane ’cause you can look right through me
Walk right by me and never know I’m there
Sassy and whimsical post. I like it. Who doesn’t love the musical, Chicago?
The case analysis above has a simple takeaway. Appellate and post-conviction attorneys must be vigilant in repeating the words of State v. Gallion, quoted above, in our appellate briefs, ad nauseam and ad infinitum. Remind appellate courts, “What has previously been satisfied with implied rationale must now be set forth on the record. McCleary certainly contemplates this when it states, ‘decisions will not be understood by the people and cannot be reviewed by the appellate courts unless the reasons for decisions can be examined.’” Id., ¶38. (Emphasis added). The Wisconsin Supreme Court in Gallion took sentencing law much further than McCleary, and now “circuit courts are required to specify the objectives of the sentence on the record,” and they are to “describe the facts relevant to those objectives.” Gallion, ¶¶40-42. We must not let go.
Perhaps the promise of Gallion seems invisible presently. But eventually the promise of Gallion will be heard. If the problem occurs in the circuit court, the Court of Appeals should be reminded the people hurt are the people in the chairs in that circuit court when the sentence is handed down. If sentences are meant to send a message, a message without rationale and analysis is all cellophane.
Appellate courts are to call errors. Appellate courts should never bat clean up. When that happens, it is all so confusing to the “people”