State v. Wallace I. Stenzel, 2004 WI App 181
For Stenzel: Martin E. Kohler
Issue: Whether the sentencing court placed insufficient weight on the likelihood defendant would not survive the confinement portion of his sentence.
¶17. Stenzel faults the court for not assigning any relevancy to his life expectancy. He argues that he was seventy-eight years old at the sentencing and the eight years of initial confinement is very close to the 10.4 years of his life expectancy, thus, virtually guaranteeing that he will serve a life sentence. We repeat that it is within the discretion of the circuit court to determine what is relevant to the sentence.Perez, 170 Wis. 2d at 143. Generally, courts that have addressed similar arguments have not been inclined to consider life expectancy as a relevant factor in sentencing. See Cristina J. Pertierra, Note and Comment, Do The Crime, Do The Time: Should Elderly Criminals Receive Proportionate Sentences? 19 Nova L. Rev. 793, 812-818 (1995) (collecting cases).
¶20. We agree with these other jurisdictions that the defendant’s life expectancy, coupled with a lengthy sentence, while perhaps guaranteeing that the defendant will spend the balance of his or her life in prison, does not have to be taken into consideration by the circuit court.7 If the circuit court chooses to consider a defendant’s life expectancy, then it must explain, on the record, how the defendant’s life expectancy fits into the sentencing objectives. See Gallion, 270 Wis. 2d 535, ¶46.