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Sentencing Guidelines: General Purpose – Retroactive Repeal, § 973.017(2)(a); Statutory Construction: § 990.04

State v. Thomas H.L. Barfell, 2010 WI App 61; for Barfell: Roberta A. Heckes; BiCResp. Br.Reply Br.App. Supp. Br.Resp. Supp. Br.

Sentencing – Guidelines, General Purpose

¶7        While Barfell is correct that he “has a due process right ‘to be sentenced on the basis of true and correct information’ pertaining to ‘the offense and the circumstances of its commission … and the defendant’s personality, social circumstances and general pattern of behavior,’” State v. Slagoski, 2001 WI App 112, ¶7, 244 Wis. 2d 49, 629 N.W.2d 50, the sentencing guidelines do not add to the accuracy of information in any of these categories. There are three principal reasons for the use of sentencing guidelines:

[I]t will remedy an unjustifiable disparity of sentences imposed by Wisconsin trial judges for like offenses, it will correct the public’s perception that there is such disparity and it will neutralize the perceived threat that if sentencing guidelines are not developed and promulgated by the court system, the Wisconsin legislature will enact a set of “determinate” sentences ….

In Implementation of Felony Sentencing Guidelines, 113 Wis. 2d 689, 693, 335 N.W.2d 868 (1983). None of these reasons have anything to do with insuring the accuracy of information a court relies upon at sentencing.

Sentencing – Guidelines, Retroactive Repeal, § 973.017(2)(a)

Because § 973.017(2)(a) did not confer any right on defendants, its repeal applies retroactively so that sentencing court failure to consider guidelines no longer supports relief:

¶8        Barfell argues against the rule in Wisconsin that procedural statutes are to be applied retroactively and substantive statutes are to be applied prospectively. See Trinity Petroleum, Inc., 302 Wis. 2d 299, ¶40. In Trinity Petroleum, Inc., the supreme court reminded us, “[A] procedural law is that which concerns the manner and order of conducting suits or the mode of proceeding to enforce legal rights and the substantive law is one that establishes the rights and duties of a party.”  Id., ¶41. Applying this definition to the now repealed Wis. Stat. § 973.017(2)(a), we conclude that it was a procedural statute, it concerned what a court was to do at sentencing, the court was to consider “sentencing guidelines adopted by the sentencing commission.” The requirement did not establish a right running to Barfell, rather it was a procedural attempt to further the State’s goals. While it did impose a duty on the court, the court was not a party to the action; therefore, it was the repeal of a procedural statute and the repeal is to be applied retroactively.

How quick we forget. Not three years ago, State v. Vincent T. Grady, 2007 WI 81, ¶35 said this: “The consideration of an applicable guideline must occur for each sentence imposed for a sentencing court to satisfy its § 973.017(2)(a) obligation. ‘Individualized sentencing, after all, has long been a cornerstone to Wisconsin’s criminal justice jurisprudence.’ Gallion, 270 Wis. 2d 535, ¶48.” Whatever the downside to a guideline regime, its termination carries its own costs, namely “the corrosive effect of” sentencing disparities. And now the court of appeals is saying, with a straight face, that the very cornerstone of criminal justice jurisprudence, individualized sentencing, is for the state and not the individual’s benefit?

And does it matter that the sentencing commission is under the delusion, “Sentencing courts are still required to consider the guidelines under § 973.017 (2)(a)”? Lots of other good stuff on that site, related to guidelines and exercise of sentencing discretion. Then, too, long as the court bothered to cast an eye on In re Guidelines, it might have wanted to continue its gaze to p. 696, where the supreme court emphasizes that guidelines “can be helpful to a judge at the starting point of the exercise of his or her discretion in determining an appropriate sentence for a particular offender.” Gallion, too, has a bit to say on the subject, ¶47:

Because we recognize the difficulty in providing a reasoned explanation in isolation, we encourage circuit courts to refer to information provided by others. Courts may use counsels’ recommendations for the nature and duration of the sentence and the recommendations of the presentence report as touchstones in their reasoning. Courts may also consider information about the distribution of sentences in cases similar to the case before it. We note that Wis. Stat. § 973.017(2)(a) requires sentencing courts to consider any applicable temporary sentencing guidelines adopted by the Criminal Penalties Study Committee and to consider in the future any applicable guidelines adopted by a sentencing commission.

Still more good stuff in ¶43 (“In addition, the legislature has mandated consideration of applicable mitigating or aggravating factors.”). Is it irrelevant that the author of this opinion communicated transparent disdain for Gallion, in State v. Wallace I. Stenzel, 2004 WI App 181, ¶¶6-9? You be the judge.

This isn’t to say that the result is necessarily wrong, just that the court’s analysis is much too facile. Maybe you could say that the guideline regime was merely a method meant to enforce the particular defendant’s right to individualized sentencing, and was procedural on that account. E.g., State v. Michael J. Parent, 2006 WI 132, ¶32 n. 8 (statute simply prescribing method, or “legal machinery,” used in enforcing right or remedy is procedural). But that’s a bit different than baldly asserting that the statute was procedural because it furthered the state’s goals. Ultimately, mootness probably would have precluded relief anyway. As the court goes on to stress, ¶9, the sentencing commission’s defunding made the guidelines out of date even at the time of Barfell’s sentencing. Thus: “Without sentencing guidelines, now it is impossible to order Barfell resentenced and to have the sentencing guidelines considered. Nothing we order can have any practical legal effect. Therefore, the issue is moot.”

Ex post facto considerations aren’t triggered by retroactive effect: repeal “does not criminalize innocent conduct, increase the penalty for burglary, or deny Barfell a previously existing defense. Therefore, the retroactive application of the repeal of the statute will not offend the ex post facto clause of the federal and state constitutions,” ¶13.

Statutes – Construction – § 990.04

¶11      The “rights of action” referred to in Wis. Stat. § 990.04 are not individual rights defined and protected in the constitution or statutes. Rather, ‘“rights of action’ are grounds of liability.” Whalen v. Strong, 230 A.D. 617, 621, 246 N.Y.S. 40 (N.Y. App. Div. 1930). [5]

[5] The definition from Black’s Law Dictionary 1349 (8th ed. 2004) is in agreement:

right of action.  1. The right to bring a specific case to court.  [Cases:  Action 1, 2. C.J.S. Actions §§ 2–9, 11, 17, 21, 26, 31–33, 36.]  2.  A right that can be enforced by legal action; a chose in action.  Cf. CAUSE OF ACTION.  [Cases: Action 1, 2; Property 5.5.  C.J.S. Actions §§ 2–9, 11, 17, 21, 26, 31–33, 36; Property § 22; Trading Stamps and Coupons § 2.].