State v. Curtis E. Gallion
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2004 WI 42 SUPREME COURT CASE NO.: COMPLETE TITLE: OF WISCONSIN 01-0051-CR State of Wisconsin, Plaintiff-Respondent, v. Curtis E. Gallion, Defendant-Appellant-Petitioner. REVIEW OF A DECISION OF THE COURT OF APPEALS 2002 WI App 265 Reported at: 258 Wis. 2d. 473, 654 N.W.2d 446 (Ct. App. 2002-Published) OPINION FILED: SUBMITTED ON BRIEFS: ORAL ARGUMENT: September 17, 2003 SOURCE OF APPEAL: COURT: COUNTY: JUDGE: Circuit Milwaukee John J. Di Motto JUSTICES: CONCURRED: DISSENTED: NOT PARTICIPATING: April 15, 2004 WILCOX, J., concurs (opinion filed). ATTORNEYS: For the defendant-appellant-petitioner there were briefs and oral argument by Randall E. Paulson, assistant state public defender. For the plaintiff-respondent the cause was argued by Eileen W. Pray, assistant attorney general, with whom on the briefs was Peggy A. Lautenschlager, attorney general. An amicus curiae brief was filed by Robert R. Henak and Henak Law Office, S.C., Milwaukee, on behalf of Counsel for Wisconsin Association of Criminal Defense Lawyers. An amicus curiae brief was filed by Walter J. Dickey, David E. Schultz, and Michael E. Smith, University of Wisconsin Law School, and oral argument by Walter J. Dickey. 2004 WI 42 NOTICE This opinion is subject to further editing and modification. The final version will appear in the bound volume of the official reports. No. 01-0051-CR (L.C. No. 00 CF 1148) STATE OF WISCONSIN : IN SUPREME COURT State of Wisconsin, FILED Plaintiff-Respondent, APR 15, 2004 v. Curtis E. Gallion, Cornelia G. Clark Clerk of Supreme Court Defendant-Appellant-Petitioner. REVIEW of a decision of the Court of Appeals. ¶1 Affirmed. ANN WALSH BRADLEY, J. In all Anglo-American jurisprudence a principal obligation of the judge is to explain the reasons for his actions. His decisions will not be understood by the people and cannot be reviewed by the appellate courts unless the reasons for decisions can be examined. It is thus apparent that requisite to a prima facie valid sentence is a statement by the trial judge detailing his reasons for selecting the particular sentence imposed. McCleary v. State, 49 Wis. 2d 263, 280-81, 182 N.W.2d 512 (1971). ¶2 Those words are as true today as they were when they first appeared in McCleary. Yet, sentencing courts have strayed No. from the directive. Instead, for some, merely 01-0051-CR uttering the facts, invoking sentencing factors, and pronouncing a sentence is deemed sufficient. Such an approach confuses the exercise of discretion with decision-making. ¶3 As the McCleary court instructed, evidence of exercise of discretion must be set forth on the record: must be evidence that discretion was in fact Discretion is not synonymous with decision-making. we "there exercised. Rather, the Id. at 277. term contemplates a process of reasoning." ¶4 the Now, in the wake of truth-in-sentencing legislation, reinvigorate the McCleary directive that the exercise sentencing discretion must be set forth on the record. of 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." ¶5 The legislature well Id. recognized that explaining the reasons for the particular sentence should not be optional for the circuit court under truth-in-sentencing. requirement adopted in McCleary by It codified the enacting Wis. Stat. § 973.017(10m) (2001-02): "Statement of reasons for sentencing decision. (a) The court shall state the reasons for its sentencing decision and . . . shall do so in open court and on the record."1 1 All references to the Wisconsin Statutes are to the 200102 version unless otherwise noted. Wisconsin Stat. § 973.017(10m) reads in full: 2 No. ¶6 01-0051-CR In this opinion, we examine the process of reasoning which demonstrates the proper exercise of sentencing discretion. Having emphasized that both our precedent and the legislative mandate that the exercise of sentencing discretion be set forth on the record, we turn to the facts of this case. ¶7 Curtis Gallion seeks review of a published court of appeals' decision that affirmed a judgment convicting him of STATEMENT OF REASONS FOR SENTENCING DECISION (a) The court shall state the reasons for its sentencing decision and, except as provided in par. (b), shall do so in court and on the record. (b) If the court determines that it is not in the interest of the defendant for it to state reasons for its sentencing decision in the defendant's presence, the court shall state reasons for its sentencing decision in writing and include the written statement in the record. This statute codifies what was recognized in McCleary. There, this court expressly adopted Standard 2.3(c) of the ABA Standards Relating to Appellate Review of Sentences, which provides: The sentencing judge should be required in every case to state his reasons for selecting the particular sentence imposed. Normally, this should be done for the record in the presence of the defendant at the time of sentence. In cases in which the sentencing judge deems it in the interest of the defendant not to state fully the reasons for the sentence in the presence of the defendant, he should prepare such a statement for transmission to the reviewing court as a part of the record. McCleary (1971). v. State, 49 Wis. 2d 3 263, 281-82, 182 N.W.2d 512 No. homicide by intoxicated use of a motor vehicle.2 the circuit failing to court provide erroneously exercised an explanation adequate given, citing McCleary. 01-0051-CR He asserts that its for discretion the in sentence Essentially, Gallion advances that the basic prerequisites for the sound exercise of discretion must be reexamined in light of sentencing legislation.3 the changes In addition, brought he by contends truth-inthat the circuit court erred in placing undue emphasis on the character of the victim and imposing a sentence that is harsh and excessive. ¶8 We agree that truth-in-sentencing provides an impetus for this court to reexamine the basic requirements for the sound exercise of discretion. standards established Accordingly, we reaffirm the sentencing in McCleary and determine that the application of those standards, demonstrating the exercise of discretion, must be set forth on the record for future cases.4 2 State v. Gallion, 2002 WI App 265, 258 Wis. 2d 473, 654 N.W.2d 446 (affirming a decision of the circuit court for Milwaukee County, John J. DiMotto, Judge). 3 Wisconsin adopted truth-in-sentencing legislation in two phases. The first phase, TIS-I, was enacted in June 1998 and applied to offenses committed on or after December 31, 1999. See 1997 Wis. Act 283. The second phase, TIS-II, was enacted in July 2002 and became effective February 1, 2003. See 2001 Wis. Act 109. 4 The legislature has defined the cases subject to truth-insentencing. Wis. Stat. § 973.017(1) provides: (1) DEFINITION. In this section, "sentencing decision" means a decision as to whether to impose a bifurcated sentence under s. 973.01 or place a person on probation and a decision as to the length of a 4 No. ¶9 01-0051-CR Further, we determine that the circuit court provided an adequate explanation for the sentence given, used relevant information regarding the character of the victim, and imposed a sentence that was neither unduly harsh nor excessive. In essence, we conclude that the circuit court did not erroneously exercise its discretion. Therefore, we affirm the court of appeals. I ¶10 On March 3, 2000, at about 1:30 a.m., Gallion was drunk and driving his car at a high rate of speed in Milwaukee. He ran a red light and collided with another vehicle, crashing into its side. Vanessa Brown, a passenger in the other car, was killed by the collision. A blood test, taken within three hours of the accident, revealed Gallion's blood alcohol content to be .237, nearly two-and-a-half times the legal limit. ¶11 Two months later, Gallion entered a plea of guilty to homicide by intoxicated use of a motor vehicle.5 Pursuant to this plea, the State agreed to recommend prison, but leave the length of confinement for the circuit court to determine. presentence writer investigation recommended a was ordered, sentence of 13 to and 16 the years A presentence in prison followed by 5 to 7 years of extended supervision. bifurcated sentence, including the length of each component of the bifurcated sentence, the amount of a fine, and the length of a term of probation. This opinion is directed to those cases that come within this statutory definition. 5 Wisconsin Stat. § 940.09(1)(b)(1997-98). 5 No. ¶12 At sentencing, the circuit court heard testimony from Brown's mother, father, teacher, and employer. received Both 01-0051-CR several the letters witnesses and from her writers relatives addressed The court also and associates. Brown's admirable qualities along with the impact her death had on their lives. ¶13 In transcript, discussed a lengthy explanation, the circuit court sentencing covering referenced factors. The court 20 pages of relevant facts and addressed: (1) the gravity of the offense, (2) the character and rehabilitative needs of Gallion, and (3) the need to protect the community. It then sentenced Gallion to 21 years of confinement followed by 9 years of extended supervision. The maximum penalty for the offense was 40 years of confinement, followed by 20 years of extended supervision. ¶14 Gallion subsequently moved to modify alleging an erroneous exercise of discretion. his sentence, He asserted that the circuit court's sentence was arbitrary in that it failed to explain the length it imposed. court accorded too increased the much Gallion further argued that the weight to sentence Brown's because his character and had character compared The circuit court denied Gallion's motion. In doing unfavorably to hers. ¶15 so, it concluded that its sentencing basis for its exercise of discretion. remarks provided ample The court also explained that it was "obliged to consider all aspects of the defendant's crime, including the character of the victim and the impact of the defendant's crime on the people who were close to her, as 6 No. relevant to the gravity of the offense." The 01-0051-CR court then concluded that it was "allowed by law to sentence the defendant to a maximum of 60 years for this offense and was only required to consider the relevant sentencing factors in determining an appropriate sentence within the exercise of its discretion." ¶16 The court of appeals agreed with the circuit court's decision. was It rejected Gallion's argument that more specificity required of the circuit court at sentencing. State v. Gallion, 2002 WI App 265, ¶9, 258 Wis. 2d 473, 654 N.W.2d 446. The court further determined that "the sentencing court considered Vanessa Brown's character in the context of assessing crime severity and did not punish Gallion simply because Brown was an extraordinary person." Id., ¶20. It noted that Gallion "[had] not met his burden of showing that the court imposed a more harsh sentence because of that contrast [of character]." Id., ¶24 (emphasis in original). Upon reviewing the circumstances surrounding the sentence, the court concluded that the sentence imposed was not "so excessive and unusual and so disproportionate to the offense committed as to shock public sentiment . . . ." Id., ¶41 (citations omitted). II ¶17 It is a well-settled principle of law that a circuit court exercises discretion at sentencing. at 277. On appeal, review is limited discretion was erroneously exercised. McCleary, 49 Wis. 2d to determining See id. at 278. if When discretion is exercised on the basis of clearly irrelevant or 7 No. 01-0051-CR improper factors, there is an erroneous exercise of discretion. Id. ¶18 On review, "[i]n any instance where the exercise of discretion has been demonstrated, [the appellate court] follows a consistent and strong policy against interference with the discretion of the trial court in passing sentence." Id. at 281. See also In re Felony Sentencing Guidelines, 120 Wis. 2d 198, 203, 353 N.W.2d 793 (1984). "[S]entencing decisions of the circuit court are generally afforded a strong presumption of reasonability because the consider relevant factors the defendant." circuit and court is demeanor best of the suited to convicted State v. Borrell, 167 Wis. 2d 749, 781, 482 N.W.2d 883 (1992) (citing State v. Harris, 119 Wis. 2d 612, 622, 350 N.W.2d 633 (1984)). "Appellate judges should not substitute their preference for a sentence merely because, had they been in the trial judge's different sentence." ¶19 position, they would have meted out a McCleary, 49 Wis. 2d at 281.6 The McCleary court summarized the reasoning process necessary to facilitate appellate review: [T]he term [discretion] contemplates a process of reasoning. This process must depend on facts that are of record or that are reasonably derived by inference from the record and a conclusion based on a logical rationale founded upon proper legal standards. Id. at 277. III 6 In this case, we neither decide nor address application of the independent appellate review doctrine. 8 the No. ¶20 As Wisconsin indicated, is State v. the seminal McCleary, case Wis. 49 for 2d 01-0051-CR sentencing 263. in McCleary outlined the purposes to be served by sentencing along with the scope and extent of the circuit court's discretion. In it, this court criticized a circuit court for imposing a sentence close to the maximum without adequate explanation. ¶21 McCleary was a young man, a first-time offender, who was convicted of forging and uttering a $50 check. 67. of Id. at 266- For this offense, he was sentenced to an indeterminate term nine years, year Id. at 270. statute. reasons one for less than the maximum available by Although the circuit court stated its rejecting probation, it explanation for the sentence imposed. failed Id. to give any Because this court was unable to find facts in the record to support the circuit court's decision, it concluded that McCleary's constituted an erroneous exercise of discretion. 273. See id. at The court, therefore, reduced McCleary's sentence to an indeterminate term of not more than five years. ¶22 the sentence Id. at 290. The McCleary court concluded that the discretion of sentencing judge explainable basis." "must be Id. at 276. exercised on a rational and It determined that in order to have a valid sentence there must be "a statement by the trial judge detailing sentence imposed." ¶23 imposed McCleary in each his reasons for selecting the particular Id. at 281. further case should recognized call for that the "[t]he minimum sentence amount of custody or confinement which is consistent with the protection 9 No. 01-0051-CR of the public, the gravity of the offense and the rehabilitative needs of the defendant." Id. at 276. reiterated in subsequent cases. This principle has been E.g., State v. Setagord, 211 Wis. 2d 397, 416, 565 N.W.2d 506 (1997); Borrell, 167 Wis. 2d at 764; State v. Krueger, 119 Wis. 2d 327, 336-37, 351 N.W.2d 738 (1984). ¶24 Thus, these requirements of "detailing the reasons for selecting the particular sentence imposed" and a sentence calling for the "minimum amount of custody or confinement" are not new under Wisconsin law. Instructions Committee acknowledge as much. and Indeed, both the Criminal Jury the Criminal Bench Book Committee See Wis. J.I. Crim. SM-34 at 8-9 (1999) ("The justification for the length of the sentence should always be set forth in the record, as well as the reasons for not imposing a sentence of lesser duration."); Wisconsin Judicial Benchbook, CR 36-18 (2002) ("Judge must detail reasons for selecting particular sentence imposed"). ¶25 Likewise, not new to our sentencing jurisprudence is the concept that probation should be considered as the first alternative. In Bastian v. State, 54 Wis. 2d 240, 248-49, n.1, 194 N.W.2d 687 (1972), this court expressly adopted Standard 1.3 of the ABA Standards Relating to Probation. That standard provides in part that, "Probation should be the sentence unless the sentencing court finds that: (i) confinement is necessary to protect the public from further criminal activity by the offender; or 10 No. 01-0051-CR (ii) the offender is in need of correctional treatment which can most effectively be provided if he is confined; or (iii) it would unduly depreciate the seriousness of the offense if a sentence of probation were imposed." This requirement is consistent with the McCleary standard calling for the minimum amount of custody or confinement. ¶26 We believe that McCleary was and still is one of the best statements addressing how a circuit court should exercise its discretion. As we noted, there has been a regrettable disconnect, however, between its principles as-stated and its principles as-applied. mechanical form of transcript reflects This disconnect has resulted in a more sentencing: that the as long circuit as the court sentencing enunciates the primary sentencing factors and discusses the facts, followed by the imposition of an ultimate sentence, it has properly exercised its discretion.7 ¶27 appeals Apparently concerned with this approach, the court of recently asked this court to "clarify the showing necessary to overcome the presumption that a trial court has properly exercised its sentencing discretion." Certification by Court of Appeals of Wisconsin, State v. Crouthers, 99-1307-CR, filed March 30, 2000, p. 1. The court explained: 7 See, e.g., State v. Wagner, 191 Wis. 2d 322, 332-33, 528 N.W.2d 85 (Ct. App. 1995). See also State v. CurbelloRodriguez, 119 Wis. 2d 414, 439, 351 N.W.2d 758 (Ct. App. 1984) (Bablitch, J., concurring) ("So long as the trial court discusses each such factor, this court is a rubber stamp for any sentence which may be imposed.") 11 No. 01-0051-CR [T]he collective memory of the panel members assigned to this appeal could not produce any ready examples of cases since [McCleary] in which an appellate court overturned a sentence determination, absent the use of an improper factor or other illegality. . . . There appears to be some truth to the appellant's contention that a trial court that articulates the magic words "seriousness of the offense," "character of the offender" and "need to protect the public" will avoid any meaningful review of the sentence it imposes. Id. at 2. noted: In remarks prescient to this case, the court further "[c]hallenges discretion are increase under truth-in-sentencing legislation." Id. ¶28 to sentencing likely to With the advent of truth-in-sentencing, we recognize a greater need to articulate on the record the reasons for the particular system, sentence sentencing imposed. Under discretion was branches of government. and the manner of the old, shared indeterminate among all three The legislature set the maximum penalty its enforcement; the courts imposed an indeterminate term; and the executive branch, through the parole board, determined how much of that term was going to be served. See Borrell, 167 truth-in-sentencing Wis. 2d at 767 legislation, (citation the omitted). executive diminished with the elimination of parole. role Under has been The legislative role is limited to setting the parameters of the penalty. As a result, the judiciary's responsibility for ensuring a fair and just sentence has significantly increased. ¶29 committee The Criminal Penalties Study Committee, an 18-person charged with making 12 recommendations and drafting No. proposed truth-in-sentencing legislation, noted 01-0051-CR that the judiciary must respond to our evolving system of sentencing: This shift of more complete and informationally accurate sentencing decisionmaking to the judiciary places upon judges the task to more carefully fashion a sentence based upon the severity of the crime, the character of the offender, the interests of the community, and the need to protect the public. Judges are on the front lines of the criminal justice system every day, listening to victims and their families, defendants and their families, law enforcement, prosecutors, defense attorneys, and the public. State of Wisconsin Criminal Penalties Study Committee, Final Report, August 31, 1999, at i.8 ¶30 We share some of the concerns voiced by the court of appeals in the Crouthers certification. sentencing, sentencing a clarification is necessary to of the ensure In light of truth-inrequisite that the standards sentencing of court demonstrates compliance with McCleary and to assist in appellate review. ¶31 Likewise, we agree with the Criminal Penalties Study Committee that responsibility the placed judiciary upon the truth-in-sentencing. As sentencing caused legislation informationally judiciary." The the must sentencing a "shift of gravity the court Committee accurate sentencing center address in observed, of more light of truth-in- complete and decisionmaking for increased determining to when the an inmate should be released from prison changed from the parole 8 This report can be accessed http://www.doa.state.wi.us/docs_view2.asp?docid=42. 13 at No. 01-0051-CR board's determination, positioned much later in the process, to the judiciary's sentencing determination at the outset. ¶32 control Previously over the the length sentencing of time court actually had only modest in prison. spent Judges were thought to possess inadequate information to address the future progress of the inmate. Instead, only prison officials with sustained contacts with the inmate were thought to be in a position to determine if the rehabilitative efforts had been successful. Likewise, if the inmate was determined to be incorrigible over the years, it was thought that the on-thescene prison officials advising the parole board were better positioned to assess the inmate's dangerousness and commensurate need for additional prison time. ¶33 Parole sentencing boards, courts' in exercise essence, of served discretion. as a Under check on truth-in- sentencing legislation, parole is abolished and that check is removed. ¶34 Now judges have an enhanced need for more complete information upfront, at the time of sentencing. Judges would be assisted in knowing about a defendant's propensity for causing harm, the circumstances likely to precipitate the harm (e.g., alcoholic beverages, proximity to school children, etc.), and the connection between the elements of the sentence recommended and the objectives of sentencing. To this end, we encourage judges to request more complete presentence reports. ¶35 Information compiled by a sentencing commission will also be helpful in providing comparative data as to the length 14 No. of sentence defendants. for the same crimes and 01-0051-CR similarly situated The rule of law is advanced by providing advisory guidelines that channel outcomes in the majority of cases and serve as a touchstone for explaining the reasons for the particular sentence imposed. ¶36 Experience has taught us to be cautious when reaching high consequence conclusions about human nature that seem to be intuitively correct conclusion that information and at is the moment. based reached Better on an by more organized instead complete and is a accurate framework for the exercise of discretion. ¶37 McCleary and its progeny established standards assist and assess the exercise of sentencing discretion. to Until now, adherence to these standards has been implied as long as the "magic words" were stated, some facts were detailed, and the sentence imposed was within the statutory limits. McCleary, however, requires more. ¶38 the In light of the increased responsibility placed upon sentencing standards and applied. What rationale must court, we reexamine the reaffirm manner has previously now be set in been forth McCleary's on sentencing which are they satisfied the with record. to be implied McCleary certainly contemplates this when it states, "decisions will not be understood appellate examined." by courts the people unless the and cannot reasons 49 Wis. 2d at 281. 15 be for reviewed decisions by the can be No. ¶39 As McCleary observed, judges are to reasons for the particular sentence they impose. 01-0051-CR explain the Id. at 280-81. How much explanation is necessary, of course, will vary from case to case. Judges, however, are required to "rational and explainable basis" for the sentence. ¶40 provide a Id. at 276. A basic framework for this process of reasoning that demonstrates the exercise of sentencing discretion previously been set forth for sentencing courts. Crim. SM-34 at 8-9 (1999).9 See Wis. J.I. Circuit courts are required to specify the objectives of the sentence on the record. 9 The oral following: pronouncement of sentence should objectives that a criminal protection of the community punishment rehabilitation of the defendant deterrence of others 6. Identify the general importance in this case. objectives of greatest 7. Identify the factors that were considered in arriving at the sentence and indicate how they influenced the decision. 8. If probation is rejected, indicate why. . . . . Wis. J.I. Crim. SM-34 at 9 (1999). 16 These include . . . . 5. Explain the general sentence may address: has the No. 01-0051-CR objectives include, but are not limited to, the protection of the community, punishment of the defendant, rehabilitation of the defendant, and deterrence to others. ¶41 Courts are greatest importance. to identify the Id.10 general objectives These may vary from case to case. of In some cases, punishment and protection of the community may be the dominant objectives. In others, rehabilitation of the defendant and victim restitution may be of greater import. may have deterrence or a restorative justice Still others approach as a primary objective. ¶42 Courts are to describe the facts relevant to these objectives. Courts must explain, in light of the facts of the case, why the particular component parts of the sentence imposed advance the specified objectives. ¶43 Courts must also identify the factors that were considered in arriving at the sentence and indicate how those factors fit the objectives and influence the decision. In Harris, we detailed factors that courts may take into account in 10 Likewise, under truth-in-sentencing, the legislature has mandated that when a court makes a sentencing decision that the court shall consider the protection of the public, the gravity of the offense, the rehabilitative needs of the defendant, and any applicable mitigating or aggravating factors, including the aggravating factors specified in subs. (3) to (8). Wis. Stat. §§ 973.01(2)(ad), (ag), (ak), and (b) 17 No. the exercise of discretion.11 These factors assist courts in identifying relevant considerations at sentencing. the legislature has 01-0051-CR mandated consideration of In addition, applicable mitigating or aggravating factors.12 11 These factors include: "(1) Past record of criminal offenses; (2) history of undesirable behavior pattern; (3) the defendant's personality, character and social traits; (4) result of presentence investigation; (5) vicious or aggravated nature of the crime; (6) degree of the defendant's culpability; (7) defendant's demeanor at trial; (8) defendant's age, educational background and employment record; (9) defendant's remorse, repentance and cooperativeness; (10) defendant's need for close rehabilitative control; (11) the rights of the public; and (12) the length of pretrial detention." Harris v. State, 75 Wis. 2d 513, 519-20, 250 N.W.2d 7 (1977). Additional factors have been recognized as appropriate considerations (e.g., read-ins, Austin v. State, 49 Wis. 2d 727, 183 N.W.2d 56 (1971), and the effect of the crime on the victim, State v. Jones, 151 Wis. 2d 488, 444 N.W.2d 760 (Ct. App. 1989)). The circuit court need discuss only the relevant factors in each case. See State v. Echols, 175 Wis. 2d 653, 683, 499 N.W.2d 631 (1993). 12 These factors are applicable for felonies committed on or after February 1, 2003. See Wis. Stat. § 973.017(2). Wis. Stat. § 973.017(3) provides: (3) AGGRAVATING FACTORS: GENERALLY. When making a sentencing decision for any crime, the court shall consider all of the following as aggravating factors: (a) The fact that the person committed while his or her usual appearance was disguised, or altered, with the intent less likely that he or she would be with the crime. (b) The fact that the person committed the crime using information that was disclosed to him or her under s. 301.46. (c) The fact that the person committed the crime for the benefit of, at the direction of, or in association with any criminal gang, as defined in s. 939.22(9), with the specific intent to 18 the crime concealed, to make it identified No. ¶44 01-0051-CR In each case, the sentence imposed shall "call for the minimum amount of custody or confinement which is consistent with the protection of the public, the gravity of the offense and the rehabilitative needs of the defendant." Wis. 2d at 276. 167 Wis. 2d McCleary, 49 See also Setagord, 211 Wis. 2d at 416; Borrell, at 764; Krueger, 119 Wis. 2d at 336-37. Accordingly, the circuit courts should consider probation as the first alternative. Probation should be the disposition unless: confinement is necessary to protect the public, the offender needs correctional treatment available only in confinement, or promote, further, or assist in any criminal conduct by criminal gang members, as defined in s. 939.22(9g). (d) The fact that the person committed the felony while wearing a vest or other garment designed, redesigned, or adapted to prevent bullets from penetrating the garment. (e) 1. Subject to subd. 2., the fact that the person committed the felony with the intent to influence the policy of a governmental unit or to punish a governmental unit for a prior policy decision, if any of the following circumstances also applies to the felony committed by the person: . . . . Additionally, the legislature has set forth aggravating factors for specific crimes. These include (1) Serious Sex Crimes Committed While Infected With Certain Diseases, (2) Violent Felony Committed Against Elder Person, (3) Child Sexual Assault or Child Abuse By Certain Persons, (4) Homicide or Injury By Intoxicated Use of a Vehicle, and (5) Controlled Substances Offenses. See Wis. Stat. §§ 973.017 (4), (5), (6), (7), and (8). 19 No. it would unduly depreciate the seriousness of 01-0051-CR the offense. Bastian, 54 Wis. 2d at 248-49, n.1. ¶45 If a circuit court imposes probation, it shall explain why the conditions of probation should be expected to advance the objectives it has specified. Likewise, if a circuit court imposes jail or prison, it shall explain why the duration of incarceration should be expected to advance the objectives it has specified. Finally, if a circuit court imposes a bifurcated sentence for a crime committed after December 31, 1999, it shall explain why its duration and terms of extended supervision should be expected to advance the objectives. ¶46 the In short, we require that the court, by reference to relevant facts and factors, explain how the component parts promote the sentencing objectives. sentence's By stating this linkage on the record, courts will produce sentences that can be more easily reviewed for a proper exercise of discretion. ¶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 20 No. Committee and to consider in the future any 01-0051-CR applicable guidelines adopted by a sentencing commission.13 ¶48 Although we anticipate less disparity with the advent of sentencing guidelines, that does not mean there is less of a need for the exercise of discretion. Individualized sentencing, after all, has long been a cornerstone to Wisconsin's criminal justice jurisprudence. the sentencing court "[N]o two convicted felons stand before on identical footing. . . . and cases will present identical factors." Wis. 2d 392, 427, 576 N.W.2d 912 (1998). no two State v. Lechner, 217 Sentencing guidelines will provide helpful information and serve as a touchstone for explaining the reasons for the particular sentence imposed. ¶49 not We are mindful that the exercise of discretion does lend itself to mathematical precision. The exercise of discretion, by its very nature, is not amenable to such a task. As a result, we do not expect circuit courts to explain, for instance, the difference between sentences of 15 and 17 years. We do expect, however, an explanation for the general range of the sentence imposed. This explanation is not intended to be a 13 For crimes committed on and after February 1, 2003, circuit courts are required to use sentencing guidelines where applicable. Wis. Stat. § 973.017(2)(a). Until the new sentencing commission develops these guidelines, courts shall apply the temporary advisory guidelines drafted by the Criminal Penalties Study Committee. While the circuit courts must consider the guidelines, they are not intended to replace the court's exercise of discretion. The defendant does not have a right to appeal a sentencing decision on the basis that the court departed in any way from the guideline. Wis. Stat. § 973.017(10). 21 No. semantic trap for circuit courts. a call for more "magic words." on-the-record explanation will 01-0051-CR It is also not intended to be Rather, the requirement of an serve to fulfill the McCleary mandate that discretion of a sentencing judge be exercised on a "rational and explainable basis." 49 Wis. at 276. This will assist appellate courts in determining whether the circuit court properly exercised its discretion.14 ¶50 In sum, Wisconsin's common law of sentencing has failed to produce the guidance that McCleary envisioned, not because McCleary was wrong, McCleary has been eroded. but because the application of Allowing implied reasoning rather than requiring an on-the-record explanation for the particular sentence imposed lies at the heart of this erosion. ¶51 The rule of law suffers when the sentencing judge's discretion is unguided sentencing decisions and must be unchecked. made The knowable rationale and subject 14 for to Explaining the benefits of appellate review, the McCleary court noted: In addition to the desirability of reviewing sentences to make sure that they are just, commensurate with the degree of guilt and the need for rehabilitation of the defendant, the American Bar Association Standards point out that sentence review will facilitate the rehabilitation of the offender by affording him an opportunity to assert a reasonable grievance he may have regarding his sentence. A byproduct of a reasonable review of sentencing by an appellate court may well be the diminution of the appellate court's workload by reducing appeals on the merits. 49 Wis. 2d at 278. 22 No. review. We sentencing, progeny determine the must that standards be with the established reaffirmed and the advent by 01-0051-CR of truth-in- McCleary and application of its those standards must be on the record.15 IV ¶52 We turn next to Gallion's arguments that the circuit court erroneously exercised its discretion in this case by (1) failing to provide an adequate given, (2) placing undue explanation emphasis on the for the sentence character of the victim, and (3) imposing a sentence that is harsh and excessive. ¶53 Gallion's first claim is that the circuit court committed error in not providing an adequate explanation for the sentence imposed. Specifically, he contends that re-sentencing is required in light of the circuit court's failure to describe the comparative weight given to the factors it identified, or to explain why the sentence necessary confinement. constitutes the minimum amount Gallion complains, "almost any number of years in prison could be plugged in [the sentence imposed]." further asserts incarceration that, was of "the court needed 15 never stated to how He much accomplish The concurrence conveys its apprehension in this case with a litany of unanswered questions. Concurrence, ¶93. It then suggests that the answer to these questions lies in acknowledging the validity of a "fully explained, rationally based sentence[]." Concurrence, ¶94. What the concurrence apparently fails to realize, however, is that our decision today is not meant to undermine such recognition. Rather, it should be viewed as a means of achieving that end in a manner that is consistent with McCleary and its progeny. 23 No. rehabilitation/protection, or how, or why, 21 01-0051-CR years of incarceration was needed . . . ." ¶54 In addition, Gallion argues that he has a constitutional right to have the court explain why it imposed 21 years of confinement rather than a shorter period, such as 15 years. He maintains, "Due Process does not allow a court to impose a 20-year sentence, without being able to explain its last five years." Gallion also notes, "[i]mprisonment for even one day has a substantial impact on a man's liberty." United States ex rel. Miller v. Twomey, 479 F.2d 701, 715 (7th Cir. 1973) (citing Argersinger v. Hamlin, 407 U.S. 25 (1972)). ¶55 Neither the prior application of McCleary process mandates the specificity that Gallion seeks. nor due As noted above, although the standards of McCleary are clear, there has been a regrettable disconnect between its principles as-stated and its principles as-applied. ¶56 For his due process argument, Gallion relies solely on Borrell, 167 Wis. 2d at 772. The court in Borrell set forth "three due process rights at sentencing: (1) to be present at the hearing and to be afforded the right to allocution, (2) to be represented by counsel, and (3) to be sentenced on the basis of true and correct information." Id. at 772. It emphasized the need for circuit courts to express the factual basis for the sentence imposed so that defendants may challenge the accuracy of those facts. It stated: In Wisconsin, the third [due process] right that requires a judge to sentence only on the basis of true 24 No. 01-0051-CR and correct information incorporates the requirement enumerated in McCleary that the judge must articulate the basis for the sentence imposed on the facts of the record. Id. ¶57 We are not persuaded that this proposition supports Gallion's argument. Although Borrell required a circuit court to articulate the basis for the sentence imposed, it did not require that articulation to be done with the specificity that Gallion claims. ¶58 Accordingly, we examine the circuit court's actions under the law as it has been understood since McCleary. That law emphasized the delineation of the primary sentencing factors to the particular facts of the case. State v. Hall, 2002 WI App 108, ¶17, 255 Wis. 2d 662, 648 N.W.2d 41. court's explanation, which spans 20 Here, the circuit pages of transcript, provides ample evidence of that. ¶59 With respect to the gravity of the offense, the circuit court focused on the recklessness of Gallion's behavior and the consequences of his actions. It stated: What brings you here today is a vehicular homicide. You drank and drank and drank to excess. You were almost two and a half times the legal limit. You got behind the wheel of a car. You drove it recklessly, irresponsibly, excessively, like your drinking. You went through the intersection of 35th and Locust, struck the car that Vanessa Brown was riding in and extinguished her life. The court further impressed upon Gallion that his crime would forever affect the victim's friends, especially her three-year-old son. 25 co-workers, and family, No. ¶60 01-0051-CR In considering Gallion's character, the circuit court again discussed particularized facts. It stated that Gallion was a young man with limited education and employment history. Additionally, it recognized that he suffered from a severe drug and alcohol dependency. After examining his prior criminal record, however, the court concluded that Gallion did not have a good track record in trying to turn around his life. especially concerned with the fact that he had It seemed not taken advantage of the treatment options offered to him in the past. ¶61 Finally, the circuit court took into account the need to protect the public from Gallion and others like him. determined that rehabilitation the in an defendant could institutional best It accomplish setting. The his court also observed that society has an interest in punishing Gallion so that his sentence might serve as a general deterrence against drunk driving. ¶62 After identified the considering recommendations presentence report writer. imposing a these factors, of the the circuit defense court counsel and It further recognized that it was truth-in-sentencing disposition. The court then arrived at a sentence it believed was fair and just "given the nature of this specific crime, given who [Gallion is], and the interest of the community as a whole." Upon examining the circuit court's actions under the law as it has been understood since McCleary, we are satisfied that the circuit court properly exercised its discretion. V 26 No. ¶63 01-0051-CR Gallion's next claim on appeal is that the circuit court erred in placing undue emphasis on the character of the victim. His arguments are twofold. First, he contends that the court improperly considered the victim's character in evaluating the gravity of the offense. Second, he maintains that the court improperly increased his sentence because his character compared unfavorably to the character of the victim. ¶64 Under Wisconsin law, victims have certain rights at sentencing. Article I, § 9m of the Wisconsin Constitution provides in part that, "[t]his state shall ensure that crime victims have . . . the opportunity to make a statement to the court at disposition . . . ." This right is implemented by two statutes imposing obligations on the court. to inquire consulted of the with sentencing.16 the district victim attorney and whether given he or she has notice of the The other is to determine whether victims wish to provide information to the court.17 16 has One obligation is The only limitation on the Wisconsin Stat. § 972.14(2m) provides: Before pronouncing sentence, the court shall inquire of the district attorney whether he or she has complied with s. 971.095(2) and with sub. (3)(b), whether any of the victims of a crime considered at sentencing requested notice of the date, time and place of the sentencing hearing and, if so, whether the district attorney provided to the victim notice of the date, time and place of the sentencing hearing. 17 Wisconsin Stat. § 972.14(3)(a) provides: Before pronouncing sentence, the court shall determine whether a victim of a crime considered at sentencing wants to make a statement to the court. If a victim 27 No. 01-0051-CR victim's ability to make a statement is that it must be relevant to the sentence. ¶65 One type of information that appears to be relevant is that which relates to the impact of the crime on the victim or victim's family. court provided Crime victims have the right "[t]o have the with information pertaining to the economic, physical and psychological effect of the crime upon the victim and have the information considered by the court." § 950.04(1v)(pm). crime affected considerations Wis. Stat. "A statement from the victims about how the their that lives a is judge relevant must sentencing the gravity of the crime." take to into one of account the at State v. Voss, 205 Wis. 2d 586, 595-96, 556 N.W.2d 433 (Ct. App. 1996) ¶66 Notwithstanding these rights, Gallion argues that the circuit court and court of appeals erred in concluding that the gravity of the offense depended, in part, on the good character of the victim. determination that He takes his issue crime was with the circuit "especially court's tragic aggravated because of the kind of person the victim was." and He also takes exception to the court of appeals' observation that, "It is precisely because of [Vanessa Brown's] outstanding wants to make a statement, the court shall allow the victim to make a statement in court or submit a written statement to be read in court. The court may allow any other person to make or submit a statement under this paragraph. Any statement under this paragraph must be relevant to the sentence. 28 No. character that the loss is so great." 01-0051-CR Gallion, 258 Wis. 2d 473, ¶17. ¶67 Gallion asserts that the character of the victim is irrelevant to the gravity of a homicide by intoxicated use of a motor vehicle. Moreover, he warns that "[t]here is simply no way to validate [the circuit court's] conclusion without holding open the door to an argument, when a victim of lesser character is killed, that the offense is 'not aggravated' or 'less aggravated.'" ¶68 We reject Gallion's assertion that the good character of the victim is irrelevant. discretion in determining sentencing decision. N.W.2d 631 The circuit court possesses wide what factors are relevant to its State v. Echols, 175 Wis. 2d 653, 683, 499 (1993). Here, it determined that Brown's good character and the loss her death caused her family, friends, and co-workers, were both relevant and appropriate considerations in assessing the gravity of the offense. This was reflected at sentencing when the court told Gallion, "[y]ou have [inflicted] so much hurt on so many people. You have affected so many lives." Indeed, it is unrealistic to expect judges to listen to friends and family of the victim and to not consider their admonition that one will testimony. ¶69 Similarly, acknowledging the we positive reject Gallion's contributions of victim devalue the worth of victims who do not have family or friends to speak for them. We fail to see how one necessitates the other. 29 No. ¶70 01-0051-CR In doing so, however, we are mindful of the dangers in measuring a victim's comparative worth. In State v. Spears, the dissent addressed this concern: The court should . . . not attempt to measure the relative value of the victim's life. While the defendant may benefit when no one appears to mourn the deceased, there is no corresponding right to argue that "since nobody else cares, why should we" or to otherwise diminish the value of the victim's life. Even though there might be circumstances in which the court could weigh the positive contributions and worth of the victim in assessing the harm caused by the crime, it does not follow that there is a right to have a court consider that a victim was a terrible burden on society. State v. Spears, 227 Wis. 2d 495, 516, 596 N.W.2d 375 (1999) (Abrahamson, C.J., dissenting). ¶71 circuit In his second court gave argument, weight to the Gallion contends irrelevant factor that the that his character compared unfavorably to the character of the victim. For support, he cites a passage in the circuit court's postconviction decision, which he maintains is an admission that the court punished him for this comparison. It states: Their lives crossed paths, however, on March 3, 2000, when the defendant drank to the point of intoxication more than two times the legal limit and got behind the wheel of a car which he drove recklessly and irresponsibly, and ultimately caused the victim's death. The court highlighted the contrast between the victim and the defendant not to punish the defendant for being "the exact opposite," but rather to punish him for the choices he made on March 3, 2000, which so needlessly brought their lives together in such a tragic way. (emphasis added). 30 No. ¶72 Again, we disagree with Gallion. 01-0051-CR The defendant has the burden of showing that the "sentence was based on clearly irrelevant or improper factors." See State v. Haskins, 139 Wis. 2d 257, 268, 407 N.W.2d 309 (Ct. App. 1987); State v. Wickstrom, 118 Wis. 2d 339, 354-55, 348 N.W.2d 183 (Ct. App. 1984). Gallion has not met this burden with the passage in question. Indeed, when read in context, it is evident that the court was punishing him not for his contrast in character, but rather for the choices he made that fateful night. VI ¶73 Gallion's final claim in this case sentence imposed was "harsh and excessive." the legislature's subsequent reclassification is that the He bases this on of his offense. Since Gallion's sentencing, the maximum term of confinement for homicide by intoxicated use of a motor vehicle has been reduced to 15 years. Wis. Stat. § 940.09(1c)(a). This dramatic change in the law, Gallion reasons, requires resentencing. ¶74 The problem with Gallion's argument is that the reclassification does not apply to him; rather, it only applies to offenders who commit their crimes on or after February 1, 2003. See id. As the State correctly notes, the legislature had an opportunity to make the change retroactive, but chose not to do so. Consequently, the maximum term of confinement for Gallion's offense extended supervision § 940.09(1)(b) remains 40 years, remains (1997-98). Given and the 20 years. the facts maximum Wis. of term of Stat. this case, we cannot say that his sentence is "harsh and excessive" or that it 31 No. shocks the public sentiment. 01-0051-CR State v. Daniels, 117 Wis. 2d 9, 22, 343 N.W.2d 411 (Ct. App. 1983). ¶75 § Gallion's argument is further undermined by Wis. Stat. 973.195, the statutory provision specifically enacted address sentencing disparity between TIS-I and TIS-II. to Under it, an offender serving a bifurcated sentence on a Class C to E felony may petition the sentencing court to adjust the sentence if the inmate has served 85 percent of the term of confinement See Wis. Stat. § 973.195. in prison. Likewise, an offender serving a bifurcated sentence on a Class F to I felony may petition inmate the has prison. sentencing served 75 See id. court to adjust percent of the Offenders like the term Gallion sentence of if the confinement serving in bifurcated sentences for Class B felonies, however, may not petition for sentence adjustment under the statute. See id. Accordingly, we reject his claim. VII ¶76 In sum, we reaffirm the standards of McCleary and require the application to be stated on the record for future cases. McCleary mandates that the discretion of a sentencing judge be exercised on a "rational and explainable basis." Wis. 2d at 276. standard of review, Although we appellate do not courts change are the required 49 appellate 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." Id. at 277. 32 No. ¶77 Additionally, we determine that the 01-0051-CR circuit court provided Gallion an adequate explanation for the sentence given, used relevant information regarding the character of the victim, and imposed a sentence that was neither harsh nor excessive. Therefore, we conclude that the erroneously exercise its discretion. circuit court did not Accordingly, we affirm the court of appeals. By the Court. The decision affirmed. 33 of the court of appeals is No. ¶78 JON P. WILCOX, J. 01-0051-CR.jpw I agree with the (concurring). majority that our decision in McCleary v. State, 49 Wis. 2d 263, 182 N.W.2d 512 (1971), and the sentencing standards articulated therein need to be reaffirmed. sentences is a very Rendering just, individualized difficult process and it encompasses probably the most important part of the circuit courts' duties in this state. Well-defined sentencing standards and sentences that are fully explained lead to less disparities and make the function of reviewing courts easier. However, some sentencing disparity will be a necessary corollary to the modern philosophy of individualized sentencing. As the majority recognizes, sentencing is not amenable to mathematical precision. Majority op., ¶49. ¶79 While I agree with much of the majority opinion regarding the need for circuit courts to fully explain their sentences, I write separately because I have apprehensions over some of the language the majority employs. I concur in the majority's sentiment that "McCleary was and still is one of the best statements addressing how a circuit court should exercise its discretion," majority op., ¶26. However, the majority does not merely reaffirm McCleary; rather, it supplements selective portions of McCleary and in doing so seemingly undercuts other sections, which may lead to imprudent appellate interference with the sentencing discretion of circuit courts. ¶80 appellate The majority standard of states that review, but it is not nonetheless changing the states that appellate courts should "more closely scrutinize the record" of 1 No. the sentencing court. Majority op., ¶¶4, 77. majority "[w]hat declares that has previously 01-0051-CR.jpw Further, the been satisfied with implied rationale must now be set forth on the record." Majority op., ¶38. Yet, this court in McCleary stated: We will not, however, set aside a sentence for [failure to set forth the factors considered in rendering a sentence]; rather, we are obliged to search the record to determine whether in the exercise of proper discretion the sentence imposed can be sustained. It is not only our duty not to interfere with the discretion of the trial judge, but it is, in addition, our duty to affirm the sentence on appeal if from the facts of record it is sustainable as a proper discretionary act. McCleary, 49 Wis. 2d at 282 (emphasis added). Hall, 2002 WI App 108, ¶19, 255 See also State v. Wis. 2d 662, 648 N.W.2d 41. This statement from McCleary forms the basis of the independent review doctrine. deciding the Although the majority states that it is not application of the independent review doctrine, majority op., ¶18 n.6, this doctrine constitutes an integral part of McCleary. Clearly, if the majority is reaffirming McCleary, this doctrine should continue to apply. ¶81 I fear the majority opinion will be interpreted as an invitation for appellate courts to take a more active role in modifying sentences. The majority quotes with approval language contained in the court of appeals' certification in State v. Crouthers, 99-1307-CR, filed March 30, 2000, which suggests that appellate courts should take a more active role in modifying and overturning sentences. majority subjects not Majority op., ¶¶27, 30. only the final sentencing Further, the decision to appellate review, but also the rationale utilized by the circuit 2 No. court: 01-0051-CR.jpw "[t]he rationale for sentencing decisions must be made knowable and subject to review." Majority op., ¶51. This language, considered in light of the requirement that circuit courts describe the goals of the sentence and why the constituent parts of sentence advance those objectives, majority op., ¶¶42, 45, as well as how the relevant sentencing factors influence the final decisions, majority op., ¶46, should not be interpreted as suggesting that appellate courts may overturn or modify fully-explained, reasonable sentences, simply because the appellate court disagrees with the rationale of the sentencing court. ¶82 I agree with the majority that circuit courts need to explain their sentencing decisions by considering the relevant sentencing factors, setting forth the facts upon which the decisions are based, and describing the reasons why a particular sentence was given in light of the interrelationship between the goals of sentencing, the sentencing factors, and case specific facts. However, once those decisions are fully explained, and so long as they are reasonable and based on appropriate factors, appellate courts should not second-guess the reasoning behind those decisions. ¶83 As this court stated in McCleary, sentences that are explained factors and are rendered in accordance with presumptively reasonable and the appropriate should not disturbed: An appellate court should not supplant the predilections of a trial judge with its own. . . . [A]ll an appellate court can ask of a trial judge is that he state the facts on which he 3 be No. 01-0051-CR.jpw predicates his judgment, and that he give the reasons for his conclusion. If the facts are fairly inferable from the record, and the reasons indicate the consideration of legally relevant factors, the sentence should ordinarily be affirmed. If there is evidence that discretion was properly exercised, and the sentence imposed was the product of that discretion, the trial judge fully complies with the standard. McCleary, 49 Wis. 2d at 281 (emphasis added). However, the majority suggests that even if a sentence is fully explained and its rationale explicitly nonetheless courts. be subject set to forth on the heightened record, scrutiny See majority op., ¶¶4, 49, 51. it by should appellate I am apprehensive that the opinion of the majority today will be read as signaling a departure from this court's previous "consistent and strong policy against interference with the discretion of the trial court in passing sentence." McCleary, 49 Wis. 2d at 281. this court has previously stated: As "sentencing decisions of the circuit court are generally afforded a strong presumption of reasonability because the consider relevant factors the defendant." State N.W.2d 883 (1992). v. Thus, court and Borrell, is demeanor 167 best of suited the Wis. 2d 749, to convicted 781-82, 482 The majority recognizes this as an accurate statement of the law. ¶84 circuit any Majority op., ¶18. reading of the majority opinion as an invitation to overturn or modify a sentence that has been fully explained and rationally justified would be in direct conflict with the dictates of McCleary. is exercised, explanation for that the is, so Under McCleary, once discretion sentence long as given 4 there in is a connection reasonable with the No. appropriate factors and the facts of the case, 01-0051-CR.jpw an appellate court should uphold the sentencing determination of the circuit court. McCleary, 49 Wis. 2d at 280-81. Therefore, as long as the circuit court indicates that it considered the appropriate factors and explains how those factors relate to the ultimate sentence imposed, the circuit court's value judgments as to the weight and relevance of certain factors and how they relate to the imposed sentence should not be disturbed. ¶85 As this court has previously stated: "Judicial review of a judge's exercise of sentencing discretion is available in the appellate courts to prevent arbitrariness, capriciousness and unjustified disparity, but even that review 'must be made in light of the strong policy against interferences with the trial court's discretion Sentencing Guidelines, (1984)(quoting N.W.2d 475 in State passing 120 v. (1976)). sentence.'" Wis. 2d 198, Killory, While these 73 In 203, re 353 N.W.2d 793 Wis. 2d 400, comments were Felony 408, made in 243 the context of the old indeterminate sentencing system, nothing in the language or history of truth-in-sentencing (TIS) suggests that the legislature intended a greater degree of appellate interference with the circuit courts' discretion in rendering sentences. To be sentencing grids, sure, like appellate-court-imposed precision the exercise "[w]ithout there tuner of is can in ever sentencing an elaborate system of the federal system, no modulate with discretion." exacting State Ramuta, 2003 WI App 80, ¶25, 261 Wis. 2d 784, 661 N.W.2d 483. 5 v. No. ¶86 01-0051-CR.jpw Indeed, nothing about the nature of TIS changes the fundamental reality that circuit court judges, as members of their community who preside over sentencing, are in the best position to determine the appropriate sentence, rather than distant appellate tribunals examining a cold record: "[Appellate courts], distant in time and place from the sentencing scene, cannot understand the facts, know the nuances, see and hear the defendants and victims, and feel the forces in the courtroom as only a trial judge can. [An appellate court] cannot recapture the trial judge's unique opportunity to address the defendant, the victim, the friends and families, and the public to provide the moral and legal leadership the justice that sentencing, at its best, seeks to assure." Hall, 255 Wis. 2d 662, ¶32 (Schudson, J., concurring) (quoting State v. Williams, No. 96-1584-CR, unpublished slip op. at 4-5 (Wis. Ct. App. April 8, 1997) (Schudson, J., concurring)). The advent of TIS does not alter the fact that judges sentence in the context of the community in which they were elected, each of which has unique standards and needs. "[T]he interests of the public, too, will vary according to the particular community in which the crime was committed, the capacity of the community to rehabilitate the criminal, and the needs of that community for protection from that type of criminal activity." In re Felony Sentencing Guidelines, 120 Wis. 2d at 202. ¶87 While the arrival of the new sentencing guidelines18 will provide a much needed tool for circuit courts and will 18 See Wis. Stat. § 973.30; Wis. Stat. § 973.017(2)(a)(200102). All statutory references are to the 2001-02 version, unless otherwise noted. 6 No. 01-0051-CR.jpw hopefully result in less disparity between sentences for similar crimes and defendants, these guidelines will not replace the need for discretion on the part of the circuit courts. majority recognizes, majority op., ¶47 n.13, As the pursuant to Wis. Stat. § 973.017(10), compliance with the range of sentences provided in the guidelines is not mandatory and the defendant does not have a right to appeal on the basis that the court departed from the guidelines. ¶88 Furthermore, greater appellate interference in sentencing decisions would run contrary to the very purpose of TIS. While the legislature has indicated the need under TIS for circuit courts decisions, to explain the reasons Wis. Stat. § 973.017(10m), for there their is no sentencing indication that the legislature intended appellate courts to take a more active role in altering the length of a rationally explained sentence. enacting The TIS legislature's was to unambiguous "create certainty overriding in the goal in length of confinement at the time of sentencing." State v. Champion, 2002 WI 654 App 267, legislature ¶17, wished 258 to Wis. 2d 781, ensure that both N.W.2d 242. the public and The the defendant would be certain that the defendant would serve 100 percent of the sentence rendered and not a minute less. ¶¶13-16.19 This purpose is entirely 19 inconsistent with Id., the Truth-in-Sentencing was enacted in two stages. Under TIS I, 1997 Wis. Act 283, § 419, an inmate's sentence could not be reduced based on good behavior while in prison. See Wis. Stat. § 973.01(4)(1997-98). However, under TIS II, 2001 Wis. Act 109, § 1143m, inmates convicted of certain felonies may petition the court for sentence reduction after completing a certain percentage of their sentence. See Wis. Stat. § 973.195. 7 No. 01-0051-CR.jpw concept of appellate courts actively modifying or overturning sentences that are rationally considered and fully explained on the record. intend to "It is not reasonable that the legislature would provide both the defendant and the public with certainty regarding confinement and then permit the courts to undo that certainty . . . ." ¶89 Id., ¶16 (emphasis added). Yet, portions of the majority opinion seem to read as questioning the propriety and wisdom of TIS and the concomitant elimination of parole boards, suggesting that since parole boards no longer exist, appellate courts must now take a more active role in modifying sentences. Specifically, the majority states Majority op., ¶¶28, 30-37.20 that "[t]he rule of law suffers when the sentencing judge's discretion is unguided and unchecked," requires appellate majority more op. detailed review." ¶51, and sentencing that the standards Majority op., ¶30. advent "to of assist TIS in While I agree with the majority that, in light of TIS, there is a "greater need to articulate on the record the reasons for the particular sentence imposed," majority op., ¶28, I fear that the majority's directive to "more closely scrutinize the record," majority op., ¶4, will be read as an invitation for appellate courts to modify or overturn sentences on a more frequent basis. 20 However, such After discussing the philosophy behind the inclusion of parole boards under indeterminate sentencing and the elimination of parole by TIS, the majority remarks: "Experience has taught us to be cautious when reaching high consequence conclusions about human nature that seem to be intuitively correct at the moment." Majority op., ¶36. 8 No. 01-0051-CR.jpw interference with the circuit courts' discretion would erode the certainty the legislature sought to provide with TIS. ¶90 Moreover, while I agree that it is necessary to impress upon the circuit courts the need for fully explained, rationally based sentences under the standards of McCleary, that reaffirmation should not be read as implying that there are now increased opportunities for appellate courts to interfere with sentencing discretion. The majority requires that circuit courts must comply with the following list of prerequisites in order to render a valid sentence. explain the objectives of the Circuit courts must: sentence; 2) identify 1) which objectives are of the greatest importance; 3) describe the facts relevant to these sentencing goals; 4) explain why the elements of the sentence advance those goals; 5) consider the 12 factors identified in Harris and three primary factors in McCleary; 6) explain how these factors influence the decision and are expected to meet the goals of the sentence; 7) consider the aggravating and mitigating factors listed in Wis. Stat. §§ 973.017(3) to (8); 8) consider probation as the first alternative and explain why probation is or is not sufficient and whether probation would further the goals of the sentence; 9) explain why the existence and duration of any prison term advances the objectives of the sentence; 10) explain why the existence and duration of any term of extended supervision advances the objectives of the sentence; and 11) consider any applicable Wis. Stat. § 973.017(2)(a). sentencing guidelines Majority op., ¶¶39-46. 9 pursuant to No. ¶91 01-0051-CR.jpw Most of these requirements already exist by virtue of statutes or previous addition to majority today courts. The reference to decisions reaffirming imposes majority the the an of court. requirements additional requires relevant this that facts and of However, McCleary, requirement sentencing factors on the circuit courts, explain in how "by the sentence's component parts promote the sentencing objectives." Majority op., ¶46. That this requirement appears nowhere in McCleary is somewhat understandable, as courts did not determine the constituent parts of a sentence until the advent of TIS. While it is important to stress the need for circuit courts to consider all the applicable sentencing factors, appellate courts should not, record, view under these the auspices factors as of a closely mandatory scrutinizing checklist circuit court must abide by to avoid reversal. the that a As the majority aptly notes, the amount of explanation necessary to sustain a given sentence "will vary from case to case." Majority op., ¶39. ¶92 I also wish to emphasize that Judge DiMotto's sentencing decision would pass muster under the standards the majority articulates. covering 20 pages of Judge DiMotto's transcript, sentencing painstakingly decision, explained the rationale for Gallion's sentence and incisively described the relationship factors. that between the applicable facts and appropriate This sentencing decision clearly was not of the type necessitated today's decision. See majority op., ¶26 (concluding it is necessary to reinvigorate McCleary in light of 10 No. sentences that are rendered in a "mechanical 01-0051-CR.jpw form"). Judge DiMotto provided an entirely logical, on-the-record explanation for Gallion's sentence that considered all the appropriate sentencing factors and relevant facts of the case. While not necessarily the pinnacle of sentencing perfection, this type of sentence should be sufficient under any interpretation of McCleary. ¶93 Furthermore, because appellate courts will undoubtedly face an increasing number sentencing decisions on of the requests basis of to modify today's or overturn decision, I am troubled by the fact that the majority leaves many important questions unanswered by providing very little guidance as to how its reinvigoration of McCleary is to be applied in future cases. Must circuit courts comply with all of these requirements in every case? at bar, and obviously vacated If a case involves a heinous crime, such as the one the court does inappropriate, for failure may to not the discuss discuss circuit just this why probation court's one is sentence be factor? What standard is to be applied when reviewing whether the circuit court adequately explained how the parts of a sentence further the sentencing objectives identified or why the circuit court emphasized certain factors and minimized others? May a sentence be overturned or modified simply because the appellate court does not objectives believe the identified sentence or rendered disagrees with would the further the circuit court's determination as to which factors are most important? May an appellate court modify a sentence, even if the circuit court has 11 No. fully complied with the above list of 01-0051-CR.jpw prerequisites, if the appellate court believes the objectives of the sentence could be accomplished by a less harsh sentence? May a sentence be overturned because the appellate court does not agree with the sentencing objectives the circuit court has identified? example, if the emphasizing appellate the court circuit need court for sentences deterrence modify the and sentence an offender punishment, because it For while may an believes rehabilitation should have been the primary objective of the sentence? simply The majority leaves these questions unanswered by stating that the amount of explanation for a valid sentence "will vary from case to case," majority op., ¶39, and by failing to give appellate courts any guidance in determining how much explanation is enough. ¶94 These questions highlight the need to look to McCleary as a whole and presume that fully explained, rationally based sentences are valid. case specific facts, So long as the circuit court considers the the appropriate sentencing factors, and rationally explains why it believes the sentence is appropriate in light of the factors it considers most important and the goals it has identified, the appellate court should not secondguess the substance of those decisions. All that McCleary requires is that sentences be fully explained after considering the applicable McCleary, 49 sentencing Wis. 2d at factors 281. and Indeed, case specific McCleary was facts. chiefly concerned with circuit courts that offered no explanation for sentences; it did not contemplate that appellate courts would 12 No. 01-0051-CR.jpw reverse sentencing determinations that were fully explained and based on legally relevant factors merely because they might disagree with the rationale employed by the circuit courts. at 280-81. Id. While a sentence should not be affirmed when the circuit court offers no explanation (as in McCleary), a sentence should not be overturned simply because the circuit court failed to discuss one of the legally relevant factors. Rather, McCleary requires that an appellate court search the record "to determine whether in the exercise of sentence imposed can be sustained." proper discretion Id. at 282. the Moreover, while the majority repeatedly states the sentence rendered must call for the "minimum amount of custody or confinement" majority op., ¶¶23-24, 44 (quoting McCleary, 49 Wis. 2d at 276), it bears emphasizing minimum that amount sentencing although of "trial custody"' factors, courts consistent 'minimum' does should with not impose the mean '"the appropriate 'exiguously minimal,' that is, insufficient to accomplish the goals of the criminal justice (explaining that system[.]" "each Ramuta, sentence 261 Wis. 2d 784, must navigate the fine ¶25 line between what is clearly too much time behind bars and what may not be enough")(internal citations omitted). ¶95 Finally, it is worth emphasizing that the standards announced today should not be applied retroactively to cases that are final. Indeed, the majority recognizes that the requirements it articulates apply only to future cases. See majority all op., ¶8. Were it otherwise, the validity of sentences rendered heretofore under TIS would be in question. 13 No. As discussed supplement supra, what the was requirements previously announced required 01-0051-CR.jpw today under clearly McCleary. Therefore, the rule the majority announces today should not be available final. to defendants sentenced under See generally, State Lagundoye, v. TIS whose 2004 cases WI 4, are 268 Wis. 2d 77, 674 N.W.2d 526 (discussing and applying Wisconsin's retroactivity rules for criminal cases). ¶96 the Despite my concerns with the majority opinion, I join ultimate mandate that Gallion's reversed. 14 sentence should not be No. 1 01-0051-CR.jpw
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