State v. Gallion

JON E WILCOX, J.

¶ 78. (concurring). I agree with the majority that our decision in McCleary v. State, *573 49 Wis. 2d 263 , 182 N.W.2d 512 (1971), and the sentencing standards articulated therein need to be reaffirmed. Rendering just, individualized sentences is a very 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. The majority states that it is not changing the appellate standard of review, but nonetheless states that appellate courts should "more closely scrutinize the record" of the sentencing court. Majority op., ¶¶ 4, 77. Further, the majority declares that "[w]hát has previously 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 sen *574 tence]; 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). See also State v. Hall, 2002 WI App 108, ¶ 19 , 255 Wis. 2d 662 , 648 N.W.2d 41 . This statement from McCleary forms the basis of the independent review doctrine. Although the majority states that it is not deciding the 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 Mc-Cleary, 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 op., ¶¶ 27, 30. Further, the majority subjects not only the final sentencing decision to appellate review, but also the rationale utilized by the circuit court: "[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 *575 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 and rendered in accordance with the appropriate factors are presumptively reasonable and should not be 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 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 he 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 set forth on the record, it should nonetheless be subject to heightened scrutiny by appellate courts. See majority op., ¶¶ 4, 49, 51. I am apprehensive that the opinion of the majority *576 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 . As this court has previously stated: "sentencing decisions of the circuit court are generally afforded a strong presumption of reasonability because the circuit court is best suited to consider the relevant factors and demeanor of the convicted defendant." State v. Borrell, 167 Wis. 2d 749, 781-82 , 482 N.W.2d 883 (1992). The majority recognizes this as an accurate statement of the law. Majority op., ¶ 18.

¶ 84. Thus, any 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 . Under McCleary , once discretion is exercised, that is, so long as there is a reasonable explanation for the sentence given in connection with the appropriate factors and the facts of the case, an appellate court should uphold the sentencing determination of the circuit court. Mc-Cleary, 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 in passing sentence.'" In re Felony Sentencing Guidelines, *577 120 Wis. 2d 198, 203 , 353 N.W.2d 793 (1984)(quoting State v. Killory, 73 Wis. 2d 400, 408 , 243 N.W.2d 475 (1976)). While these comments were made in 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 sure, "[w]ith-out an elaborate system of sentencing grids, like there is in the federal system, no appellate-court-imposed tuner can ever modulate with exacting precision the exercise of sentencing discretion." State v. Ramuta, 2003 WI App 80, ¶ 25 , 261 Wis. 2d 784 , 661 N.W.2d 483 .

¶ 86. 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 *578 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 guidelines 1 will provide a much needed tool for circuit courts and will 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. As the majority recognizes, majority op., ¶ 47 n.13, 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 to explain the reasons for their sentencing decisions, Wis. Stat. § 973.017 (10m), there is no indication that the legislature intended appellate courts to take a more active role in altering the length of a rationally explained sentence. The legislature's unambiguous overriding goal in enacting TIS was to "create certainty in the length of confinement at the time of sentencing." State v. Champion, 2002 WI App 267, ¶ 17 , 258 Wis. 2d 781 , 654 N.W.2d 242 . The legislature wished to ensure that both *579 the public and the defendant would be certain that the defendant would serve 100 percent of the sentence rendered and not a minute less. Id., ¶¶ 13-16. 2 This purpose is entirely inconsistent with the concept of appellate courts actively modifying or overturning sentences that are rationally considered and fully explained on the record. "It is not reasonable that the legislature would intend to provide both the defendant and the public with certainty regarding confinement and then permit the courts to undo that certainty . .. ." Id., ¶ 16 (emphasis added).

¶ 89. 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. Majority op., ¶¶ 28, 30-37. 3 Specifically, the majority states that "[t]he rule of law suffers when the sentencing judge's discretion is unguided and unchecked," majority op. ¶ 51, and that the advent of TIS requires more detailed sentencing standards "to assist in appellate review." Majority op., ¶ 30. *580 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. However, such 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. Circuit courts must: 1) explain the objectives of the sentence; 2) identify 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 *581 objectives of the sentence; and 11) consider any applicable sentencing guidelines pursuant to Wis. Stat. § 973.017 (2)(a). Majority op., ¶¶ 39-46.

¶ 91. Most of these requirements already exist by virtue of statutes or previous decisions of this court. However, in addition to reaffirming the requirements of McCleary , the majority today imposes an additional requirement on circuit courts. The majority requires that sentencing courts, "by reference to the relevant facts and factors explain how the sentence's component parts promote the sentencing objectives." Majority op., ¶ 46. That this requirement appears nowhere in Mc-Cleary 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, under the auspices of closely scrutinizing the record, view these factors as a mandatory checklist that a circuit court must abide by to avoid reversal. 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. Judge DiMotto's sentencing decision, covering 20 pages of transcript, painstakingly explained the rationale for Gallion's sentence and incisively described the relationship between the applicable facts and appropriate factors. This sentencing decision clearly was not of the type that necessitated today's decision. See majority op., ¶ 26 (concluding it is necessary to reinvigorate McCleary in light of sentences that are rendered in a "mechanical form"). Judge DiMotto provided an entirely logical, on-the- *582 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 of requests to modify or overturn sentencing decisions on the basis of today's decision, I am troubled by the fact that the majority leaves many important questions unanswered by providing very little guidance as to how its reinvigo-ration of McCleary is to be applied in future cases. Must circuit courts comply with all of these requirements in every case? If a case involves a heinous crime, such as the one at bar, and the court does not discuss why probation is obviously inappropriate, may the circuit court's sentence be vacated for failure to discuss just this one 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 believe the sentence rendered would further the objectives identified or disagrees with 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 fully complied with the above list of 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? For example, if the circuit court sentences an offender while emphasizing the need for *583 deterrence and punishment, may an appellate court modify the sentence because it believes rehabilitation should have been the primary objective of the sentence? The majority leaves these questions unanswered by simply 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. So long as the circuit court considers the case specific facts, 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 second-guess the substance of those decisions. All that Mc-Cleary requires is that sentences be fully explained after considering the applicable sentencing factors and case specific facts. McCleary, 49 Wis. 2d at 281 . Indeed, McCleary was chiefly concerned with circuit courts that offered no explanation for sentences; it did not contemplate that appellate courts would 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. Id. at 280-81 . 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 proper discretion the sentence imposed can be sustained." Id. at 282 . Moreover, *584 while the majority repeatedly states the sentence rendered must call for the "minimum amount of custody or confinement" majority op., ¶¶ 23-24, 44 (quoting Mc-Cleary, 49 Wis. 2d at 276 ), it bears emphasizing that although "trial courts should impose ' "the minimum amount of custody"' consistent with the appropriate sentencing factors, 'minimum' does not mean 'exigu-ously minimal,' that is, insufficient to accomplish the goals of the criminal justice system[.]" Ramuta, 261 Wis. 2d 784, ¶ 25 (explaining that "each sentence must navigate the fine 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 op., ¶ 8. Were it otherwise, the validity of all sentences rendered heretofore under TIS would be in question. As discussed supra, the requirements announced today clearly supplement what was previously required under Mc-Cleary. Therefore, the rule the majority announces today should not be available to defendants sentenced under TIS whose cases are final. See generally, State v. Lagundoye, 2004 WI 4 , 268 Wis. 2d 77 , 674 N.W.2d 526 (discussing and applying Wisconsin's retroactivity rules for criminal cases).

¶ 96. Despite my concerns with the majority opinion, I join the ultimate mandate that Gallion's sentence should not be reversed.

See Wis. Stat. §973.30 ; Wis. Stat. § 973.017 (2)(a) (2001-02). All statutory references are to the 2001-02 version, unless otherwise noted.

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 .

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.