On Point

State v. Ronnie L. Thums, 2006 WI App 173
For Thums: Paul G. LaZotte, SPD, Madison Appellate

Issue: Whether an offense which was partially committed during the TIS-I regime but not completed until advent of TIS-II comes under the former or latter sentencing regime.

Holding:

¶11      Thums had not committed the crime of stalking with a dangerous weapon during TIS-I. He therefore did not become subject to the TIS-I penalties during TIS-I. … Indeed, because Thums’ conduct did not meet the elements of stalking with a dangerous weapon on the effective date of TIS-II, his liability for that crime was prospective on that date, not retrospective. Thus, application of TIS-II would also not offend the general rule that statutes presumptively have only prospective effect. SeeBetthauser v. Medical Protective Co., 172 Wis. 2d 141, 147, 493 N.W.2d 40 (1992).

¶12      … (T)he fact that a defendant has notice of an obsolete penalty scheme does not mean the courts may apply penalties that the legislature no longer prescribes. ^[3]

¶13      Finally, we reject the State’s alternative argument that we should leave the penalty to the prosecutor’s discretion. Again, penalties are prescribed by the legislature. Prosecutorial discretion only allows the State to choose among available penalty schemes. …

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 ^[3]   Moreover, Thums’ notice necessarily includes notice of the change in penalty. Such a change could reasonably affect a defendant’s expectations about what sentence the court might apply to him or her, which in turn might affect that individual’s conduct. Theoretically, if a defendant has notice that a harsher penalty remains in effect, he or she may well decide not to complete the offense.

There is a related problem that the court expressly does not reach: what penalty scheme applies to a continuing offense that straddles the date of a penalty change, ¶8 and id., n. 2.

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

Issue/Holding:

¶21      We conclude that the circuit court here properly exercised its sentencing discretion under the standards set forth in Gallion. The court identified the objectives it sought to achieve with the sentence it imposed: punishing Klubertanz, protecting the public, deterring others, and rehabilitating Klubertanz. It analyzed the specific facts relating to the three primary sentencing factors and all the relevant optional factors in a way that explained why these objectives were all appropriate and why a term of imprisonment, as well as lengthy supervision, was necessary to meet the sentencing objectives. In short, the circuit court explained a rational basis for the “general range” it imposed. Id., ¶49.

¶22      Klubertanz asserts that Gallion requires that the circuit court must explain why it imposed three years of imprisonment. The circuit court did explain why it imposed a term of imprisonment rather than probation, and the term it chose was relatively short. Gallion does not require that it explain why it imposed three years as opposed to one or two. See Gallion, 270 Wis. 2d 535, ¶49; State v. Fisher, 2005 WI App 175, ¶22, 285 Wis. 2d 433, 702 N.W.2d 56.

¶23      Klubertanz also asserts that the court did not explain why it imposed a lengthy term of supervision. Again we disagree. The court’s comments on the predatory and exploitative nature of Klubertanz’s conduct, his threat to the victim, and his lack of acknowledgement that his conduct represented a serious problem rather than a “lapse of judgment” adequately explain the need for a lengthy period of supervision to insure that Klubertanz truly addresses his problem and that the public is protected. Klubertanz points to his employment, his lack of a prior criminal record, and the fact that he was married and had no other allegations of misconduct during the two years between the charging and the trial, during which time he was out on a signature bond. The court did consider these facts, but in view of the seriousness of Klubertanz’s offense and his failure to acknowledge that, the court decided that a lengthy period of supervision was nonetheless required to meet the objectives of protecting the public and rehabilitation.

The middle-aged Klubertanz had no prior criminal record, but instead a track record of positive contributions, ¶6; the presentence report recommended probation, ¶8. But the sentencing court’s general perception that probation would depreciate the seriousness of the offense (sex-related, involving a 15-year old, § 948.025(1)) apparently is enough to sustain the sentence of 3 years’ confinement, 12 supervision. The court of appeals comes awful close to saying in effect that recitation of the primary sentencing factors will immunize the sentence from appellate scrutiny, which more or less guts Gallion. Not that there was any ballast left in that case anyway.

State v. Chad W. Ziegler, 2006 WI App 49, PFR filed 3/13/06
For Ziegler: Kenneth P. Casey, UW Law School

Issue/Holding:

¶23      The principal objectives of a sentence include, but are not limited to, the protection of the community, the punishment of the defendant, rehabilitation of the defendant, and deterrence to others. Id., ¶40. A sentencing court should indicate the general objectives of greatest importance and explain how, under the facts of the particular case, the sentence selected advances those objectives. Id., ¶¶41, 42. Besides the objectives of the sentence, the sentencing court must also identify the factors that the court considered in arriving at the sentence and must indicate how those factors fit the objectives and influenced the sentencing decision. Id., ¶43. The primary sentencing factors which a court must consider are the gravity of the offense, the character of the defendant, and the need to protect the public. State v. Davis, 2005 WI App 98, ¶13, 281 Wis.  2d 118, 698 N.W.2d 823. The weight to be given to each factor is within the discretion of the sentencing court. Id. However, other factors may also be relevant. …

The court goes on to list secondary factors, PSI and counsels’ recommendations, and applicable sentencing guidelines. The court also stresses that Gallion “conveyed a message,” namely that sentences may not be upheld by “implied reasoning”; instead, the explanation for sentence must be on the record. ¶¶23-25.

State v. Germaine M. Taylor, 2006 WI 22, affirming unpublished summary order
For Taylor: Martha K. Askins, SPD, Madison Appellate

Issue/Holding:

¶17        The standards governing appellate review of an imposed sentence are well settled. ^[9] A circuit court exercises its discretion at sentencing, and appellate review is limited to determining if the court’s discretion was erroneously exercised.

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¶27      All told, the record before us demonstrates that the circuit court exercised individualized discretion on behalf of the sentence chosen for Taylor. That is, the court fixed a sentence that took into account the following:  (1) Taylor’s history of sexual assault; (2) his failure to recognize or accept the serious criminal nature of his conduct; (3) the read-in charges concerning the criminal damage to property and resisting or obstructing an officer; (4) the court’s belief that unless Taylor was made to serve a substantial term of confinement, the public would not be protected from his ongoing criminal conduct; and (5) the court’s belief that a long term of initial confinement was necessary to rehabilitate Taylor, as both probation and 60 days of confinement had not adequately impressed upon Taylor the seriousness of his conduct.

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¶30      Granted, the circuit court did not explicitly state why, in its discretion, it added six more years of initial confinement onto the PSI recommendation.  However,McCleary does not require a sentencing court to provide an explanation for the precise number of years chosen. …

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 ^[9] Taylor argues that “this court should no longer search the record for evidence to support the trial court’s sentence.” We recently reaffirmed the standards of McCleary v. State, 49 Wis. 2d 263, 182 N.W.2d 512 (1971). See State v. Gallion, 2004 WI 42, ¶76, 270 Wis. 2d 535, 678 N.W.2d 197 (quoting McCleary, 49 Wis. 2d at 277) (“Although we do not change the appellate standard of review, appellate courts are required to more closely scrutinize the record to ensure that ‘discretion was in fact exercised and the basis of that exercise of discretion is set forth.'”). We note that because Taylor was sentenced a little less than a year before we released Gallion, its holding does not apply to this case. See id. (“[W]e reaffirm the standards of McCleary and require the application to be stated on the record for future cases.”).
Because our analysis resolves the question presented for review, we decline to review State v. Grindemann, 2002 WI App 106, 255 Wis. 2d 632, 648 N.W.2d 507, as being unnecessary to this opinion.

Hard to figure just why the court took this case. As the court itself says as the outset of opinion, “We … conclude that under our well-established standards for reviewing the circuit court’s exercise of its sentencing discretion, and in light of the individual facts and circumstances of this case, the circuit court exercised proper discretion in its sentence and in its refusal to modify that sentence,” ¶2. Isn’t that why we have a court of appeals? To apply well-established standards of review to a discrete set of facts? This, then, is a fact-specific opinion which by definition adds little or nothing to sentencing review caselaw. Except, perhaps, for a curious aside: the court expressly refuses to apply Gallion because that case post-dated this sentencing, which means that this opinion is simply another meaningless feature of the vast wasteland of McCleary litigation. And which means, in turn, that whether the court’s analysis would support a similar result under similar facts in a post-Gallion setting remains to be seen. (The concurrence, ¶¶47-55, contains a very useful summary of relevant principles.) This purely prospective application of Gallion—“purely,” because Taylor’s case was on direct appeal when Gallion was decided, yet he is deprived of its benefit—is a bit odd, but not necessarily an unalloyed negative: it instantly reduces to dicta the court of appeals’ denigration of Gallion, in State v. Wallace I. Stenzel, 2004 WI App 181, ¶9 and State v. Edward W. Fisher, 2005 WI App 175, ¶¶21-22, for the simple reason that the sentences in those cases came before Gallion was decided hence that case was, we now know, inapplicable. And while it might be true that the court of appeals lacks authority to withdraw any language from its published opinions, State v. William L. Morford, 2004 WI 5, ¶40, nn. 39-40, it is equally true that the court is not bound by language that is in fact dicta, State v. Steven A. Harvey, 2006 WI App 26, ¶¶18-19.

State v. Steven A. Harvey, 2006 WI App 26
For Harvey: Christopher William Rose

Issue/Holding:

¶47      Harvey correctly states Gallion’s teaching that probation should be considered as the first sentencing alternative. Gallion, 270 Wis.  2d 535, ¶25. Here, the trial court expressly addressed probation. … In sum, the court concluded that probation would unduly depreciate the offense. …

¶48      Probation should be the disposition unless confinement is necessary to protect the public, the offender needs correctional treatment available only in confinement, or probation would unduly depreciate the seriousness of the offense. Id., ¶44. Of these factors, only the need for treatment in confinement gave the trial court some pause. But since the rule is stated in the disjunctive, all factors need not be satisfied. SeeState v. Schumacher, 144 Wis.  2d 388, 401, 424 N.W.2d 672 (1988) (applying the principle that where two statutory approaches are stated in the disjunctive, either approach may be employed). The court sufficiently explained the rationale underlying the bifurcated sentence and how the sentence would advance the specified objectives.See Gallion, 270 Wis.  2d 535, ¶45. We see no erroneous exercise of discretion.

State v. Donald Odom, 2006 WI App 145
For Odom: Eileen Miller Carter; J.C. Moore, SPD, Milwaukee Trial

Issue/Holding: Trial court’s discussion of the three primary sentencing factors was adequate, though the court did not explicitly identify those factors, ¶25.

State v. Jeremy D. Russ, 2006 WI App 9
For Russ: Martha K. Askins, SPD, Madison Appellate

Issue/Holding:

¶14      This court observes a strong policy of deferring to the sentencing discretion of a trial court, presuming the sentence to be reasonable unless the defendant can demonstrate from the record that the court acted unreasonably. State v. Mosley, 201 Wis. 2d 36, 43, 547 N.W.2d 806 (Ct. App. 1996). The sentencing court must address three primary sentencing factors, namely, the nature of the offense, the offender’s character, and the need to protect the public, and may also consider any other relevant factors. State v. Harris, 119 Wis. 2d 612, 623-24, 350 N.W.2d 633 (1984). The sentencing court has the discretion to balance the various factors as it sees fit. State v. Jones, 151 Wis. 2d 488, 495, 444 N.W.2d 760 (Ct. App. 1989). The court must, however, explain the reasons for the particular sentence it imposes, providing a “rational and explainable basis” therefor. Gallion, 270 Wis. 2d 535, ¶¶39, 76. The “rational and explainable basis” requirement allows this court to ensure that discretion was in fact exercised. Id., ¶76.

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¶17      Contrary to Russ’ claim that nowhere in the record did the court explain why a sentence of fifteen years would promote its goal of rehabilitation while protecting the public, the court did explain its rationale. It clearly stated that concurrent sentences would unduly diminish the seriousness of the offenses as well as public protection. We also reject Russ’ implicit argument that a sentencing court must explain with mathematical precision why it chose the specific number of years. The court did not have to explain why twelve years would not do and why fifteen would. As we recently indicated in State v. Fisher, 2005 WI App 175, ¶¶21-22, ___ Wis. 2d ___, 702 N.W.2d 56, defendants are not entitled to this degree of specificity. Indeed, we noted that even in Gallion the supreme court had upheld a sentence in which the sentencing judge had not specifically explained how the factors before the court translated into a specific number of years. See Fisher, 702 N.W.2d 56, 21-22; Gallion, 270 Wis. 2d 535, ¶¶53-55. We affirm on this issue.