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Sentencing Review – Factors – TIS, pre-Gallion – Generally

State v. Germaine M. Taylor, 2006 WI 22, affirming unpublished summary order
For Taylor: Martha K. Askins, SPD, Madison Appellate


¶17        The standards governing appellate review of an imposed sentence are well settled. [9] A circuit court exercises its discretion at sentencing, and appellate review is limited to determining if the court’s discretion was erroneously exercised.

¶27      All told, the record before us demonstrates that the circuit court exercised individualized discretion on behalf of the sentence chosen for Taylor. That is, the court fixed a sentence that took into account the following:  (1) Taylor’s history of sexual assault; (2) his failure to recognize or accept the serious criminal nature of his conduct; (3) the read-in charges concerning the criminal damage to property and resisting or obstructing an officer; (4) the court’s belief that unless Taylor was made to serve a substantial term of confinement, the public would not be protected from his ongoing criminal conduct; and (5) the court’s belief that a long term of initial confinement was necessary to rehabilitate Taylor, as both probation and 60 days of confinement had not adequately impressed upon Taylor the seriousness of his conduct.

¶30      Granted, the circuit court did not explicitly state why, in its discretion, it added six more years of initial confinement onto the PSI recommendation.  However,McCleary does not require a sentencing court to provide an explanation for the precise number of years chosen. …

 [9] Taylor argues that “this court should no longer search the record for evidence to support the trial court’s sentence.” We recently reaffirmed the standards of McCleary v. State, 49 Wis. 2d 263, 182 N.W.2d 512 (1971). See State v. Gallion, 2004 WI 42, ¶76, 270 Wis. 2d 535, 678 N.W.2d 197 (quoting McCleary, 49 Wis. 2d at 277) (“Although we do not change the appellate standard of review, appellate courts are required to more closely scrutinize the record to ensure that ‘discretion was in fact exercised and the basis of that exercise of discretion is set forth.'”). We note that because Taylor was sentenced a little less than a year before we released Gallion, its holding does not apply to this case. See id. (“[W]e reaffirm the standards of McCleary and require the application to be stated on the record for future cases.”).
Because our analysis resolves the question presented for review, we decline to review State v. Grindemann, 2002 WI App 106, 255 Wis. 2d 632, 648 N.W.2d 507, as being unnecessary to this opinion.

Hard to figure just why the court took this case. As the court itself says as the outset of opinion, “We … conclude that under our well-established standards for reviewing the circuit court’s exercise of its sentencing discretion, and in light of the individual facts and circumstances of this case, the circuit court exercised proper discretion in its sentence and in its refusal to modify that sentence,” ¶2. Isn’t that why we have a court of appeals? To apply well-established standards of review to a discrete set of facts? This, then, is a fact-specific opinion which by definition adds little or nothing to sentencing review caselaw. Except, perhaps, for a curious aside: the court expressly refuses to apply Gallion because that case post-dated this sentencing, which means that this opinion is simply another meaningless feature of the vast wasteland of McCleary litigation. And which means, in turn, that whether the court’s analysis would support a similar result under similar facts in a post-Gallion setting remains to be seen. (The concurrence, ¶¶47-55, contains a very useful summary of relevant principles.) This purely prospective application of Gallion—“purely,” because Taylor’s case was on direct appeal when Gallion was decided, yet he is deprived of its benefit—is a bit odd, but not necessarily an unalloyed negative: it instantly reduces to dicta the court of appeals’ denigration of Gallion, in State v. Wallace I. Stenzel, 2004 WI App 181, ¶9 and State v. Edward W. Fisher, 2005 WI App 175, ¶¶21-22, for the simple reason that the sentences in those cases came before Gallion was decided hence that case was, we now know, inapplicable. And while it might be true that the court of appeals lacks authority to withdraw any language from its published opinions, State v. William L. Morford, 2004 WI 5, ¶40, nn. 39-40, it is equally true that the court is not bound by language that is in fact dicta, State v. Steven A. Harvey, 2006 WI App 26, ¶¶18-19.


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