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Sentencing Guidelines, § 973.017(2)(a) – Reviewability – Mandated Consideration

State v. Vincent T. Grady, 2007 WI 81, reconsideration denied2007 WI 125affirming 2006 WI App 188
For Grady: Donna L. Hintze, SPD, Madison Appellate


¶16 We first address whether Wis. Stat. § 973.017(10) precludes appellate review of a circuit court’s consideration of an applicable sentencing guideline pursuant to Wis. Stat. § 973.017(2)(a). Wisconsin Stat. § 973.017(10) provides the following:

(10) Use of Guidelines; No right or basis for Appeal. The requirement under sub. (2)(a) that a court consider sentencing guidelines adopted by the sentencing commission or the criminal penalties study committee does not require a court to make a sentencing decision that is within any range or consistent with a recommendation specified in the guidelines, and there is no right to appeal a court’s sentencing decision based on the court’s decision to depart in any way from any guideline.

¶18      Nothing in the language of § 973.017(10) suggests that a circuit court’s failure to consider an applicable sentencing guideline pursuant to § 973.017(2)(a) is not a valid grounds for appeal. Therefore, we conclude that like the other provisions of Wis. Stat. ch. 973 that establish obligations for circuit courts during sentencing, an appellate court may review whether or not a circuit court satisfied its § 973.017(2)(a) obligation.[5]

 [5] Seee.g.State v. Campbell, 2006 WI 99, ¶¶77-78, 294 Wis. 2d 100, 718 N.W.2d 649 (court reviewed whether a circuit court properly imposed attorney fees pursuant to Wis. Stat. §§ 973.06(1)(e) and 973.09(1g)); State v. Beets, 124 Wis. 2d 372, 374, 369 N.W.2d 382 (1985) (court reviewed whether Wis. Stat. § 973.155(1)(1981-82) required a sentencing credit); State v. Volk, 2002 WI App 274, ¶¶35-36, 258 Wis. 2d 584, 654 N.W.2d 24 (court reviewed whether Wis. Stat. § 973.01(2)(1999-2000) permitted a penalty enhancer to be applied to the term of extended supervision); State v. Canady, 2000 WI App 87, ¶9, 234 Wis. 2d 261, 610 N.W.2d 147 (court reviewed whether the circuit court satisfied its Wis. Stat. § 973.20(1r)(1997-98) obligation related to imposing restitution); State v. Pope, 107 Wis. 2d 726, 731, 321 N.W.2d 359 (Ct. App. 1982) (court reviewed whether the circuit court satisfied its Wis. Stat. § 973.09(1m)(1979-80) obligation to consider the financial resources and future ability of the probationer to pay when establishing the amount of restitution and method of payment). …

The court of appeals had held “that §973.017(10) precludes appellate review of the circuit court’s alleged noncompliance,” 2006 WI App 188, ¶4, so that holding is now clearly overruled.


¶33      The consideration of an applicable sentencing guideline must be found in the record. Appellate review of a circuit court’s exercise of discretion depends on appellate courts being able to access a circuit court’s acts of discretion from the record. …

¶35      The consideration of an applicable guideline must occur for each sentence imposed for a sentencing court to satisfy its § 973.017(2)(a) obligation. “Individualized sentencing, after all, has long been a cornerstone to Wisconsin’s criminal justice jurisprudence.” Gallion, 270 Wis. 2d 535, ¶48.

¶36      In this case, the record of the postconviction motion hearing reveals that the sentencing judge considered the applicable guideline during the sentencing hearing. During the hearing on Grady’s postconviction motion, Judge DiMotto explicitly stated that she had considered the sentencing guideline for armed robbery when she sentenced Grady. In the order denying Grady’s postconviction motion, the court also stated that it “considered the sentencing guidelines without explicitly identifying that fact and it is clearly apparent from the record that the court did so.” Hereafter, supplementing the record with evidence beyond the sentencing hearing will be insufficient. Nevertheless, in this case, we are satisfied that Judge DiMotto considered the applicable sentencing guideline during Grady’s sentencing hearing.

¶43      (W)e reject Grady’s suggestion that § 973.017(2)(a) requires the sentencing court to explain its use of any applicable guideline.

¶44      Based on the enacted language and context, we hold that a circuit court satisfies its § 973.017(2)(a) obligation when the record of the sentencing hearing demonstrates that the court actually considered the sentencing guidelines and so stated on the record.

¶45      Although the concept of sentencing guidelines has existed for over 25 years, there has been uncertainty about their use. Because our holding will require different practices by circuit courts sentencing defendants, this decision will become effective for any sentencing occurring after September 1, 2007.

The long and short of it seems to be that “a sentencing court must consider an applicable guideline, not explain it,” ¶42. You might think that adequate regard for the “applicable guideline” would require both completion of the guideline worksheet and also consideration of the guideline’s recommended range—nonetheless, the court rejects any such requirement, ¶¶38-39.The court stresses on reconsideration, 2007 WI 125:

when a circuit court’s consideration of sentencing guidelines is reviewed, the reviewing court may not supplement the sentencing record with evidence outside the sentencing hearing for any sentencing occurring after September 1, 2007. Whether a circuit court has met its § 973.017(2)(a) obligation in a sentencing after that date must be determined from the record of the sentencing hearing.


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