holding that a nine-year sentence for forging a $50 check was an erroneous exercise of discretion by relying in part on the defendant's testimony and the weaknesses of a professional report favoring the sentence, despite the fact that the circuit court believed the defendant's explanation was not credible and that the defendant thought he was above the law and lacked a sense of responsibility
How later courts described this case
- holding that a nine-year sentence for forging a $50 check was an erroneous exercise of discretion by relying in part on the defendant's testimony and the weaknesses of a professional report favoring the sentence, despite the fact that the circuit court believed the defendant's explanation was not credible and that the defendant thought he was above the law and lacked a sense of responsibility
- holding that a circuit court that did not provide adequate reasoning or explanation for a discretionary decision "fail[ed] to exercise discretion," and explaining that "[d]iscretion is not synonymous with decision-making"
- explaining that offenders are to be sentenced according to the needs of the particular case as determined by the offenders' degree of culpability and upon the mode of rehabilitation that appears to be of greatest efficacy
- concluding where the sentencing discre tion was exercised on the basis of clearly irrelevant or improper factors, an erroneous exercise of discretion occurs 10
Written by the judges who cited it.
The opinion
Hallows, C. J.
(concurring). I concur with much of what is said in the court’s opinion, but I would go farther in justification of the result.
This is the second case to modify the sentence pronounced by a trial court since State v. Tuttle (1963), 21 Wis. 2d 147 , 124 N. W. 2d 9 , and Jung v. State (1966), 32 Wis. 2d 541 , 145 N. W. 2d 684 , which recognized the power of this court to review the propriety of a sentence. In both of these cases and in some subsequent cases, it was stated the court would only reverse or modify a sentence in a rare instance of abuse of discretion. Both Tuttle and Jung were decided before the American Bar Association’s standards on sentencing were drafted and approved. In Jung we pointed out the then lack of standards or agreement in sentencing and stated at page 548 a study of the problem was then in progress by the American Bar Association.
In Denny v. State (1970), 47 Wis. 2d 541 , 178 N. W. 2d 38 , this court by its mandate reduced a sentence because the trial court was in error in resentencing the defendant to a greater sentence than he received at the first trial. Denny pointed out the importance, in resen-tencing, sentencing on a new trial, or modifying a sen *292 tence, of the court having the transcript of the original sentencing and the need for the reasons for the sentence appearing in the record because we are being increasingly called upon to review criminal sentences. Denny states, at page 546, “. . . trial courts must now make a record of the concrete, identifiable, specific reasons for all resentencing, so this court can properly reconstruct what happened in reviewing the sentence.” We also pointed out the necessity of including the presentence report when used by a trial judge and of requiring it to appear in the record, citing Embry v. State (1970), 46 Wis. 2d 151 , 174 N. W. 2d 521 , and the Standards Relating to Appellate Review of Sentences, American Bar Association Project on Minimum Standards for Criminal Justice, Approved Draft, 1968, page 42, sec. 2.3.
The lack of a complete record on sentencing should be error, not an abuse of discretion. In my view of the case before us, the reduced sentence is justified on the merits and not because the trial court failed to give reasons in the record why the lengthy sentence was imposed. The trial court did give its reasons briefly in one form or another but they are insufficient to justify the sentence when all facts appearing in the record are considered. The court’s opinion views this case as within the rule that we only modify a sentence when it results from an abuse of discretion. This court should review sentencing as a matter of course as it does other legal issues. If the “abuse of discretion” test is to be used, then the concept of abuse should be liberalized or the error-concept adopted. See the dissent in Riley v. State (1970), 47 Wis. 2d 801, 809 , 177 N. W. 2d 838 .
What the majority calls an abuse of discretion may well be a constitutional error. An excessive sentence may be so greatly disproportioned to the offense charged as to constitute a violation of the constitutional guarantee against cruel and unusual punishment. Weems v. *293 United States (1910), 217 U. S. 349 , 30 Sup. Ct. 544, 54 L. Ed. 793 . In Ralph v. Warden (4th Cir. 1970), 438 Fed. 2d 786, the court, quoting from Weems , stated, “The court gave full effect to current concepts of proportionality, because the cruel and unusual punishment clause is ‘progressive’ and ‘is not fastened to the obsolete, but may acquire meaning as public opinion becomes enlightened by a humane justice.’ ” See also: Trop v. Dulles (1958), 356 U. S. 86, 101 , 78 Sup. Ct. 590, 2 L. Ed. 2d 630 , “The [eighth] amendment must draw its meaning from the evolving standards of decency that mark the progress of a maturing society.”
The trial court was in error in not considering the sentence given to Gregory James Heydak. In multibranch criminal courts, as in Milwaukee, it is important that the judges conducting criminal trials follow general standards to insure uniformity and equality in individualized sentences. There should be no tough judge or soft judge. Great disparity in substantially similar cases is one of the current injustices in our jurisprudence and the grounds of many complaints to this court. There is need for the establishment and unification of guidelines for all sentencing which should apply not only to a multi-branch criminal court but also to all courts in the state. The objectives of criminal sanctions can be developed by trial judges becoming more concerned and cognizant of uniform standards of individualizing sentences; and like other legal solutions, standards can be developed by judicial appellate review and decision on the merits of sentences. It is no longer acceptable that a sentence within the maximum allowed by statute is not an abuse of discretion.
The present trend is toward uniform guidelines in criminal sentencing and procedure. Some of these have been set forth in three American Bar Association standards, i.e., Standards Relating to Criminal Appeals; *294 Standards Relating to Sentencing, Alternatives and Procedures; and Standards Relating to Appellate Review of Sentencing. This new concern of sentencing and the need for uniform guidelines have been the subject of many state institutes for judges on sentencing and is now an important and popular course in the National College of State Trial Judges. This concern also motivated this court to recognize jurisdiction in the trial court to reconsider a sentence after the defendant had been imprisoned. Hayes v. State (1970), 46 Wis. 2d 93 , 175 N. W. 2d 625 .
Although this court ought not to set aside a valid sentence because it is excessive and impose a new sentence to commence retroactively, such procedure was required in this case because the trial court did not follow the recommendations in Hayes . Rather than modify the original sentence, the trial court vacated it and imposed a new sentence which was not made retroactive.