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Sentencing – Review — Harsh & Excessive, Generally

State v. Jack W. Klubertanz, 2006 WI App 71, PFR filed 4/14/06
For Klubertanz: Martha K. Askins, SPD, Madison Appellate

Issue: Whether attack on a sentence as harsh and excessive is limited to factors present at the time of sentencing, or may instead be based on post-sentencing events such that as in this instance a claim that the defendant had been sexually assaulted in prison after sentencing might support a harsh-and-excessive sentence reduction.


¶40      We conclude that the circuit court’s authority to review its decision to determine whether the sentence it imposed is unduly harsh does not include the authority to reduce a sentence based on events that occurred after sentencing. Rather, in deciding whether a sentence is unduly harsh, the circuit court’s inquiry is confined to whether it erroneously exercised its sentencing discretion based on the information it had at the time of sentencing. A circuit court’s authority to modify a sentence based on events that occurred after sentencing is defined by “new factor” jurisprudence.

¶41      In this case Klubertanz does not argue that the sexual assault that occurred in prison was a new factor as defined in Crochiere, 273 Wis. 2d 57, ¶14. See footnote 4. This implicit concession is appropriate because there is no basis in the record for arguing the sexual assault in prison was highly relevant to the circuit court’s sentencing decision or an event or development that frustrates the purpose of the sentence the court imposed. Klubertanz also does not argue that the circuit court erroneously exercised its discretion by imposing a sentence that was unduly harsh. Rather, his argument is that the sentence became unduly harsh later, when he was assaulted in prison. The circuit court correctly decided that it did not have the authority to modify the sentence because the sexual assault in prison made the sentence unduly harsh.

The court goes on to say that “when a defendant claims that the conditions of confinement have rendered a sentence unduly harsh, the remedy is not modification of the sentence, but, if the requisite standards are met, a change in the prison conditions,” ¶43. What the court doesn’t say, but ought to be kept in mind, is that a sentence within the maximum is presumptively style=”not harsh and excessive, State v. Michael A. Grindemann,  2002 WI App 106, ¶¶29-33; and, more problematically, that “(t)he test for whether a sentence violates the Eighth Amendment and whether a sentence was excessive are virtually identical in Wisconsin,” ¶21, State v. Lonnie C. Davis, 2005 WI App 98. In other words, if you don’t have an 8th amendment claim, don’t bother making a harsh-and-excessive argument. Why, then, even allow harsh and excessive claims? If the sentence falls inside the maximum it’s presumptively OK; and if outside the maximum, then it’s automatically commuted anyway, § 973.13, without regard to sentence modification. If the sentence can’t be described as unconstitutional within the 8th amendment then it can’t be reduced on the theory it was harsh and excessive; but if it can be, then that only means it must be reduced as a violation of the cruel and unusual clause.

On other points of sentence review: Gallion is all but a dead letter – consider the view expressed by the very experienced Judge Dykman in concurrence, ¶¶45, 47: “Putting today’s decision and Grindemann together, it is apparent that in reality, there is nothing left of the concept recognized in State v. Tuttle, 21 Wis. 2d 147, 151, 124 N.W.2d 9 (1963), that appellate courts have the power to review sentences to determine whether the trial court erroneously exercised its discretion in sentencing. … The result is that we give trial courts nearly unlimited and practically unreviewable power to set sentences, but those sentences, once set, cannot be changed.  We believe in individualized justice, but stop with a judgment of conviction.” Indeed, Judge Dykman ought to have the final word, if at some length, because he puts it so well:

¶48      Our opinions offer the hope that we are reviewing sentencing decisions. While that is literally true, the majority’s opinion and Grindemann camouflage the reality that review of sentencing is now akin to hoping that Lucy will finally let Charlie Brown kick the football. There is something unsettling about courts offering the appearance of hope where hope does not exist.

¶49      A tangible result of these false hopes is that a considerable portion of this court’s resources is spent addressing appeals from motions for sentence modification. Precisely how much of our time is spent adjudicating these appeals is unclear. These cases also tax the resources of the public defender, the State and other appellate counsel—all for a sentencing review regime producing within a hair of the same results as one without any review of sentencing.

¶50      This court lacks the authority to restore meaningful review of sentencing or to scrap the pretense of meaningful review that currently exists and reverse Tuttle. However, either of these options would be preferable to the illusion of review that exists today. I do not know whether it would be better to eliminate review under the “unduly harsh or unconscionable” standard altogether or to give appellate courts real power to review sentencing decisions, but the choice is not mine to make. [11] I therefore conclude that under Grindemann, now expanded by the majority’s opinion, I must concur in the majority’s result.


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