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Sentencing – Discretion – Review

State v. Jason D. Spears, 2011AP934-CR, District 1, 9/20/11

court of appeals decision (1-judge, not for publication); for Spears: Kyle S. Conway; case activity

Trial court’s failure to explain rationale for sentence violated State v. Gallion, 2004 WI 42, ¶¶44-49, 270 Wis. 2d 535, 678 N.W.2d 197, and requires remand for resentencing.

¶11      Here, the circuit court did not explain how Spears’s criminal history impacted its sentencing decision, or what other factors it considered in arriving at the sentence.  We are left to guess why the circuit court rejected probation.[4]  Nor did the circuit court explain how the sentence imposed related to its statement that it was going to protect the public, or how the sentence would affect Spears’s rehabilitative needs.

¶12      In its Decision and Order denying the motion for sentence modification or resentencing, rather than explain the rationale behind the particular sentence given, the circuit court noted that it “reduc[ed] [Spears’s] exposure significantly from what the State sought.”  While defense attorneys may well consider such reduction a victory of sorts, we are unaware of any Wisconsin case that has ever held that imposing a lesser sentence than the State’s recommendation is sufficient to show that discretion was properly exercised.

¶13      We are cognizant of the very high volume of cases and the resulting time pressures faced by busy urban courts.  We nonetheless are compelled by existing law to require more of an explanation of the reasoning process used by the circuit court at sentencing than can be found in the transcript and the postconviction Decision and Order in this case.  Consequently, we must reverse and remand for resentencing consistent with the requirements of Gallion and McCleary.

[4]  The fact that Spears failed previously on probation was obviously known to the circuit court.  The court mentioned several times the fact that Spears was now serving a sentence because his probation had been revoked.  A prior failure on probation, especially when that failure and this criminal activity arise from the same conduct, could be an appropriate factor to consider in rejecting probation.  The problem here is that the record does not connect those dots.

A Gallion violation is nearly as a rare as a unicorn sighting. In gauging the potential impact, take into account that the State confessed error, and agreed to resentencing, ¶5.

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