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Sentencing Discretion, DNA Surcharge: Ability to Pay

State v. Michael T. Ziller, 2011 WI App 164 (recommended for publication); for Ziller: Michael S. Holzman; case activity

¶11      On the basis of our review of the record in this case, we are satisfied that the circuit court properly exercised its discretion in sentencing Ziller.  The circuit court considered the three primary sentencing factors and noted them on the record.  See State v. Gallion, 2004 WI 42, ¶44, 270 Wis. 2d 535, 678 N.W.2d 197.  The court adhered to the Cherry standards.  It noted that Ziller had previously been employed, which indicates that he had the ability to compensate his victims.  Furthermore, Ziller stated, “I take full responsibility for what happened….  I want to make things right with the victims as soon as I can.”  The court ordered that Ziller pay roughly $10,000 in restitution to fully compensate his victims.  As the court determined that Ziller was employable such that he could pay $10,000 in restitution, and as Ziller stated that he wanted “to make things right with the victims,” the court was well within its discretion to order Ziller to pay the $250 surcharge rather than force the cost upon the public.

¶12      If Ziller is asking this court to adopt a rule whereby a circuit court must explicitly describe its reasons for imposing a DNA surcharge, we decline to adopt such a rule.  The circuit court is in the best position to examine the relevant sentencing factors in each case.  State v. Spears, 227 Wis. 2d 495, 506, 596 N.W.2d 375 (1999).  The burden is therefore on the defendant to show that the sentence is unreasonable, and Ziller has failed to point to any aspect of his sentence that is unreasonable.  State v. Lechner217 Wis. 2d 392, 418, 576 N.W.2d 912 (1998).

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  • Robert R. Henak November 17, 2011, 9:21 am

    Both common sense and controlling authority in Wisconsin have required an explanation for the sentence imposed since at least McCleary in 1971. The Supreme Court purportedly “reinvigorated” the requirement that sentencing courts explain why a particular part of the sentence will further the goals of the sentence in Gallion. Requiring SOME explanation is not the same as requiring “magic words.”

    The Court here confuses the initial question of whether the sentencing court erroneously exercised its discretion with the standard for appellate review. Based on the statement provided here, the sentencing court clearly failed to provide any explanation for this component of its sentence and therefore erroneously exercised its discretion under McCleary and Gallion. It is the current standard of review, which allows the appellate court to hypothesize a rational basis even when the sentencing court failed to provide one, which authorizes affirming the sentence here.

    Generally, the court’s confusion on these points would not matter. However, the Court’s suggestion, and in an opinion recommended for publication, that circuit courts need not do that which the Supreme Court clearly has stated they must do will cause needless confusion and encourage sentencing courts to merely decide rather than exercise their discretion, leaving it to the appellate courts to come up with a viable rationale.

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