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Sentencing – Review – Articulation of Factors – Consideration of Sentences in Other, Similar Cases (Individualized Sentencing)

State v. Stephen C. Sherman, 2008 WI App 57, PFR filed 4/16/08
For Sherman: John J. Grau


¶15      Sherman claims the only evidence about his mental health came from his expert, Dr. Gerald Wellens. Sherman claims the court failed to consider his expert’s opinion. However, at sentencing, the court expressly considered Wellens’ opinion. The court noted that Wellens only examined Sherman for a short period of time and that his perceptions of Sherman were plainly outweighed by contradictory testimony of people who were more familiar with Sherman. See State v. Thompson, 172 Wis. 2d 257, 264-65, 493 N.W.2d 729 (Ct. App. 1992) (weight given to each sentencing factor is within the trial court’s discretion). The contention that the court failed to consider Wellens’ opinion is unsupported by the record.

¶16      Finally, Sherman claims the court erroneously exercised its discretion by failing to consider sentences given in other sexual assault cases involving teachers. Sherman provided this information to the court in a sentencing memorandum. In support of this argument, he relies upon our supreme court’s decision in Gallion, 270 Wis. 2d 535.

¶17      In Gallion, our supreme court suggested many facts that courts may consider during sentencing, including information about sentences in other cases.See id., ¶47. Here, Sherman’s argument fails because the court clearly considered Sherman’s sentencing memorandum. The court noted that other sexual assault cases “rise and fall on their own facts, and I know none of those facts so I’m not dealing with any of those cases here today.” The court also noted that it was familiar with a case not included in Sherman’s memorandum, which resulted in a sentence providing twenty years’ initial confinement. The court based its sentence on the facts of Sherman’s case: “[Y]our sentence, Mr. Sherman, rises and falls on the facts here and your character and your behavior. No one else’s.”

¶18      Individualized sentencing “has long been a cornerstone to Wisconsin’s criminal justice jurisprudence.” Id., ¶48. “No two convicted felons stand before the sentencing court on identical footing … and no two cases will present identical factors.” Id., ¶48 (quoting State v. Lechner, 217 Wis. 2d 392, 427, 576 N.W.2d 912 (1998)). Here, the court considered all the information before it, including Sherman’s sentencing memorandum. We reject any implication that the court was required to give his memorandum more weight. See Grady, 302 Wis. 2d 80, ¶¶41-42.

What if the sentencing court had refused to consider at all the data about other sentencings? Would the individualized-sentencing principle have sheltered this refusal? The court doesn’t say. But nor does the court say that this data couldn’t be considered. Refusal to give sentencing inputs “more weight” is one thing; refusal to consider them at all is another.


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