Long, long ago, in a galaxy far away, SCOW held that when circuit courts sentence a defendant, they must demonstrate their exercise of discretion on the record. State v. Gallion, 2004 WI 42, 270 Wis. 2d 535, 678 N.W.2d 197. Circuit courts often ignored this mandate, so appellate courts conjured sentencing rationales for them and affirmed. Click here and here. Now, our very own court of appeals has reversed a sentence for a Gallion violation and recommended the decision for publication!
The State charged Randy Bolstad with attempted armed robbery with threat of force as a repeater. He entered an Alford plea, and the court sentenced him to a three-year term of probation. Soon Bolstad was revoked. The circuit court held a “sentencing after revocation” hearing and sentenced him to 5 years initial confinement and 2 years extended supervision.
At sentencing, the circuit court must consider: (1) the protection of the public, (2) the gravity of the offense, and (3) the rehabilitative needs of the defendant. It may also consider any applicable mitigating and aggravating factors. Opinion, ¶14 (citing Gallion; State v. Salas Gayton, 2016 WI 58, ¶22, 370 Wis. 2d 264, 882 N.W.2d 459, and §973.017(2)).
The circuit court must state on the record the facts it is relying upon and the reason for the sentence it is choosing in light of these three factors. Opinion, ¶18 (citing McCleary v. State, 49 Wis. 2d 263, 277, 182 N.W.2d 512 (1971)). Appellate courts, in turn, must closely scrutinize the record to determine whether the circuit court in fact exercised its discretion and, if so, the basis for it. Opinion, ¶16.
When a circuit court fails to explicitly identify a required sentencing factor, appellate courts routinely search the record for hints that the circuit court may have considered it. Opinion, ¶19. This is why appellate courts never throw out sentences. They can just spin an isolated fact into a full-blown sentencing rationale.
But not in this case. Here the circuit court sentenced Bolstad without mentioning the “gravity of his offense.” The court of appeals searched the record high and low and found no evidence that the circuit court considered that factor. It then rejected the State’s argument that references to “undesirable behavior” and “unmanageable in the community” were euphemisms for “gravity of the offense.” Opinion, ¶¶29-31.
The court of appeals also rejected the State’s invitation to infer that the circuit court considered all 3 sentencing factors but gave more weight to the ones it mentioned. The circuit court does have the discretion to weigh one factor more heavily than others, BUT it must still show that it considered all three factors. In this case, the circuit court did not do that. Opinion, ¶¶35-36.
Note that this decision might be applied to other contexts. In TPR cases, for example, circuit courts often skip a few “best interest of the child” factors, and appellate courts shrug. Maybe after this decision, circuit courts will be held accountable for such lapses more often.