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Sentencing Review – Factors – TIS, Generally

State v. Wallace I. Stenzel, 2004 WI App 181
For Stenzel: Martin E. Kohler


¶6. In State v. Gallion, 2004 WI 42, 270 Wis. 2d 535, 678 N.W.2d 197, the Wisconsin Supreme Court revisited the seminal case in sentencing jurisprudence, McCleary v. State, 49 Wis. 2d 263, 182 N.W.2d 512 (1971) …¶7. The appellate standard of review is limited to determining if the sentencing court erroneously exercised its sentencing discretion. Id., ¶17.

¶8. In Gallion, the supreme court reaffirmed the core concepts of McCleary, that to properly exercise its discretion, a circuit court must provide a rational and explainable basis for the sentence. Gallion, 270 Wis. 2d 535, ¶¶22, 39. … Gallion unmistakably requires that “[w]hat has previously been satisfied with implied rationale must now be set forth on the record.” Id., ¶38. …

¶9. While Gallion revitalizes sentencing jurisprudence, it does not make any momentous changes. The weight to be given each factor is still a determination particularly within the wide discretion of the sentencing judge. Anderson v. State, 76 Wis. 2d 361, 364, 251 N.W.2d 768 (1977). Moreover, when we review a sentence, we still look to the entire record, including any postconviction proceedings and to the totality of the court’s remarks. See State v. Santana, 220 Wis. 2d 674, 683, 584 N.W.2d 151 (Ct. App. 1998) (“The transcripts of the sentencing hearing as well as several postconviction hearings make an extensive record of the trial court’s comments at sentencing and its explanation for what was considered.”). Having been reinvigorated, we now turn to Stenzel’s arguments.

“Having been reinvigorated”? Yikes. Look, Gallion clearly says that what needs to be reinvigorated is the standard set by McCleary, 2004 WI 42, ¶4. No one said the court of appeals needed enlivening, which would have simply been silly at best, insulting at worst. Hard to believe the court of appeals doesn’t know the difference, which raises at least a possibility that the quoted phrase is a flippant reaction. Why mention it? Because when the supreme court expresses concern that sentencing review is a rubber-stamp exercise, ¶26 n. 7, and the court of appeals’ rejoinder is, “Oho, now we’ve been reinvigorated,” it just doesn’t instill confidence that the marching order will be obeyed.


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