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Review — Sentence After (Extended Supervision) Revocation — Sufficiency of Articulated Rationale

State v. Brandon E. Jones, 2005 WI App 259
For Jones: Amelia L. Bizarro

Issue: Whether the sentencing court provided sufficient reasons for Jones’s reconfinement following revocation of extended supervision.


¶9        ….  The key is for the circuit court to provide sufficient information about its reasoning so as to allow for meaningful review. The “need for meaningful appellate review of a trial court’s decision to take away a person’s liberty must be our polestar.” Swiams, 277 Wis.  2d 400, ¶18.

¶10      In State v. Wegner , 2000 WI App 231, ¶8, 239 Wis. 2d 96, 619 N.W.2d 289, we considered this very issue. There the judge imposing a reconfinement sentence was the same judge who imposed the original sentence. As in Swiams, we held that the circuit court’s duty at sentencing after revocation and its duty at the original sentencing were the same.Wegner, 239 Wis. 2d 96, ¶7 n.1. Nonetheless, we clarified the reconfinement court’s responsibilities. ….  Finally, we held that proper sentencing discretion can exist without an explicit delineation of the McCleary sentencing factors at reconfinement. Wegner, 239 Wis. 2d 96, ¶7. There must, however, be an indication that the circuit court considered those factors. Id. Ultimately, we concluded that as long as the reconfinement court considered the proper factors and the sentence was within the statutory limits, “the sentence will not be reversed unless it is so excessive as to shock the public conscience.” Id., ¶12 (citing State v. Owen, 202 Wis. 2d 620, 645, 551 N.W.2d 50 (Ct. App. 1996)).

¶11      Here, at the reconfinement hearing, the circuit court referenced Jones’s original offense and the accompanying sentence. Jones’s attorney told the court of Jones’s accomplishments while in confinement and after release to the community. … The court heard and considered the DOC report of Jones’s violations of the terms of his extended supervision and the DOC recommendation regarding reconfinement.

¶12      We observe that the circuit court connected the DOC report of Jones’s “abysmal” conduct while on extended supervision to the court’s conclusion that Jones continued to need rehabilitation. … Accordingly, the court concluded that Jones’s rehabilitation would have to occur in a “structured confined setting.” From this, we can reasonably infer that the court considered the most important sentencing factors to be the gravity of Jones’s offenses and his character. [ 4]

[4]  Although the circuit court makes no reference to protection of the public as a sentencing objective, we can infer from the nature of Jones’s extended supervision violations that reconfinement also advanced the goal of protection of the public. In particular, Jones’s failure to comply with Wisconsin ’s Sex Offender Registry and his unsupervised contact with minors support this inference.

It may seem like another era, but State v. Curtis E. Gallion, 2004 WI 42 is a mere 18 months’ old. No doubt you vividly recall its high-flown rhetoric about “reinvigorating” sentencing review and its explicit recognition that “the advent of truth-in-sentencing [imposes] a greater need to articulate on the record the reasons for the particular sentence imposed.” Gallion (¶38) specifically rejected the idea that implied rationales would any longer suffice. And, as relevant here, this regime of presumably meaningful review was extended to ES revocation, in State v. Swiams, 2004 WI App 217, ¶23, 277 Wis. 2d 400, 690 N.W.2d 452 (reconfinement proceeding is tantamount to “sentencing,” including for purposes of Gallion-type “meaningful review”). So far so good; indeed, you’d think a straightforward application of Gallion precludes footnote 4 above (which brazenly infers a reconfinement rationale). But you’d be wrong: no sooner had the supreme court released Gallion than the court of appeals began determinedly retreating from its mandate, scanting its impact, in State v. Wallace I. Stenzel , 2004 WI App 181, ¶9 (“it does not make any momentous changes”); and watering it down, in State v. Edward W. Fisher , 2005 WI App 175, ¶¶21-24 (sentencing court need not “explain[] with specificity the comparative weight it ascribed to each factor and exactly how these factors translated into a specific number of years”). Indeed, a cursory review of Gallion-type appeals uncovers none which vacated the sentence. (To be sure, it’s not really possible to review summary orders, so a definitive accounting isn’t possible; and, it’s not feasible to go through each and every Gallion-type appeal accessible on-line. But it’s a fair assumption that reversals are few and far between; some “reinvigoration” of the review process.And now the court of appeals comes to bury Gallion with a final spadeful of dirt, without pausing for pretense of praise. Indeed, it simply replaces Gallion’s acclaim for meaningful review with … State v. Brian C. Wegner , 2000 WI App 231, 239 Wis.2d 96, 619 N.W.2d 289, which, the court says (¶10), “considered this very issue.” Just as a purely procedural matter, one might wonder why, if the “very issue” was previously considered and therefore controlled by existing precedent, the need to publish what would be redundant authority. That quibble aside, is it really true that Wegner considered the issue? Note that the court repeatedly characterizes Wegner as a “reconfinement sentence” case (¶10). Now, read the very first sentence (¶1) of Wegner: “Brian C. Wegner argues that the trial court erroneously exercised its discretion when it sentenced him after probation revocation.” Not reconfinement, but sentencing after revocation of probation. Is this mischaracterization, then, mere sloppiness that however irksome (if the court can’t get that obvious a detail right, what else did it get wrong?) didn’t really impact the result? To answer that, consider two significant details.

First, Wegner is a pre-Gallion case. That wouldn’t make any difference if you don’t think that Gallion makes any difference. Apparently the court of appeals takes that view, hence the seamless applicability of Wegner. But note that whenever confronted with a sentencing that preceded Gallion, the court of appeals has been quick to say that Gallion applies only to future cases; see, e.g., State v. Eduardo Jose Trigueros, 2005 WI App 112, ¶4 n. 1. (“State v. Gallion, 2004 WI 42, 270 Wis. 2d 535, 678 N.W.2d 197, was decided after Trigueros was sentenced. Gallion in haec verba applies only to ‘future cases.’ See id., 2004 WI 42, ¶76 …”). In other words, the Gallion regime of strict review doesn’t apply to pre-Gallion sentencing; but the prior, anything-goes line of caselaw applies to post- Gallion sentencing. Heads I win, tails you lose.

Second, Wegner is also a pre-TIS case. This is where the court of appeals’ mischaracterization of “reconfinement” becomes insolubly problematic. “Reconfinement” all but says, “TIS”; you get reconfined only on a bifurcated sentence. And it is TIS, remember, that lies at the heart of Gallion: determinate sentencing, and elimination of parole, imposes greater responsibility on accurate sentencing data, articulation of sentencing rationales, and closer review on appeal. All of which may have pertained to a pre-TIS world, but only in much diminished form; hence the need for more meaningful review under TIS.

Thus, when the court of appeals (¶10) recites Wegner for the idea “that proper sentencing discretion can exist without an explicit delineation of the McCleary sentencing factors at reconfinement” it is twice-wrong. Wegner does not purport to address reconfinement factors. And, even if it did, such a holding would be supplanted by Gallion’s subsequent requirement that explicit delineation is necessary. Or, rather, was necessary. That case is now, for the time being at least, all but a dead letter.

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