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
Robert W. Hansen, J.
(dissenting). This case seems to involve three “R’s” — reading, ’riting and repetition — with the third “R” the important one here.
What got the defendant into trouble with the law was not his reading. One need not subscribe in toto to the literary critiques in the majority opinion to agree that the reading interests of the defendant have no relevance to charge, conviction or sentence imposed. In fact, as a former mayor of New York City implied, checks are not forged by books.
What brought the defendant to court was the second “R” — ’riting—in this case, writing a forged check. His plea of nolo contendere and a presentence investigation preceded the imposition of sentence.
However, on the matter of the sentence to be imposed, it is the third “R” — repetition, the predictability of re-occurrence — that became material, in fact, controlling. *295 In imposing the maximum sentence of ten years (subsequently reduced on motion to nine years), the trial court stated:
“The Court: I want to read into the record certain pertinent portions of the presentence report, on Page 1 under the heading ‘Defendant’s statement: The defendant disclosed that he had always taken pride in his ability to cash checks. . . . The defendant added that he didn’t feel that he would be caught for this offense and that he had no respect for the authorities. . . . The defendant denied any feeling of guilt in this offense as he does not consider taking money from institutions “stealing” but “profit sharing.” The defendant continued his statement by stating how superior he felt to most other people, including the law itself. . . .’”
As the probation officer stated in his “summary and recommendations,” such statements go beyond establishing “that the defendant does not have the proper attitude or sense of responsibility needed in order to benefit from probation.” They support the conclusion that “it appears to the law investigating officer that the defendant has no desire to change or conform to them [the laws of society].” The court was confronted and society threatened by the predictability of repetition — of the same type of offense by the same defendant.
It is a principal, public-protecting purpose of the whole process of the administration of criminal justice to make recidivism less likely. Whether this purpose can best be served by probation or incarceration depends upon the facts and factors in a particular case. The choice between supervision and isolation is a choice between tools to use in seeking to insure some insurance against repetition. The majority opinion concedes that the facts in the presentence report justified the trial court “in rejecting the probation alternative.” The writer would agree that probation is not indicated for a convicted felon who states that he has no sense of guilt, no *296 remorse, and gives every indication that he does not intend to abide by the laws of society. However, the majority states that while the trial judge “obviously felt, and said, that incarceration was necessary in view of the defendant’s attitude,” he “gave no reason why the ten-year sentence (later reduced to nine) was necessary.” No search is necessary for the reason. It is the same reason: what the majority terms “the defendant’s attitude,” and what the writer would term the “predictability of repetition.” Future conduct as well as present attitude are involved. The length of, as well as the necessity for, incarceration are alike involved where it is made clear by a defendant that he intends to continue to act in defiance of the laws of the land. The defendant’s express intention to live ungoverned by the law provides both reason and reasonableness to the sentence imposed. If, in fact, the majority felt that the trial judge here had imposed sentence “without explaining why,” the appropriate remand would be for resentencing or completion of the record by stating such reasons.
Instead the majority reduces the nine-year sentence to five years. The four-year difference between the trial court and appellate court sentences does not affect eligibility to parole. The majority thinks it may, or at least should, affect the granting of parole. Here the defendant has applied for parole, and action on his application has been deferred, not denied. However, the majority points out that the maximum sentence is related to the date of mandatory release. Exactly so, and exactly why, given the defendant’s attitude and intentions, early release without a wholehearted change as to attitude and intent was not in the public interest. The indeterminate sentence law is intended not only to justify earlier release where prospects for conforming to the laws are good, but to continue isolation from the community where such prospects are poor, or, as here, without a change of at *297 titude, nonexistent. The majority gives weight to the defendant’s statement, made at the time of his motion for reduction of sentence, that he had “learned his lesson,” finding it “entirely inconsistent” with the assumption that defendant’s defiance of the law would continue. It concedes that the trial court was not obliged to place much credence in “this eleventh hour remorse.” Post-midnight repentance might be a more apt description, chronologically speaking. Actually, the trial court was required to give the statement no credence, and none it gave. To give it weight, even mention, on appeal is to substitute the judgment of a court that did not hear the statement for the evaluation of the court that did.
What is puzzling and disturbing in the majority opinion is the holding that “this is a mine-run forgery.” Coupled with a detailed reference to a proposed Model Sentencing Act (presumably intended for legislative, not judicial, consideration) that categorizes felonies into first, second and third degrees, the implication is clear that forgery, as a crime against property, is not considered as a very serious offense. The suggested distinction between “a dangerous offender” and “an ordinary felon” clearly puts forgers with the ordinaries. If there is merit to such categorization, it is enough to say that the legislature, not the courts, ought adopt it. If the “considered judgment of all these studies” is accepted by this court as persuasive that “the ordinary offender ought not be sentenced to a term in excess of five years unless circumstances are present” etc., we have a new maximum sentence established not by the legislature, but by this court, based upon a distinction between “dangerous” and “ordinary” not established by the legislature, but recognized by this court. That makes this court not only a reviewing court as to sentences imposed by trial courts, but a super-legislature determining for itself the relative seriousness of differing crimes as well as the appropriate *298 ness of sentences imposed within statutorily set máxi-mums.
Prophecy is always a risky undertaking, hut the writer has some doubts about the majority opinion’s prediction that “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 merit.” It may be that the convicted criminal who has neither the law nor the facts on his side will be reduced to complaining about the sentence. However, it is as likely that he will add a complaint as to the sentence to other points raised on appeal or by writ. The shotgun, not the rifle, is the model for most appeals in criminal cases.
The concurring opinion relates a reduction of sentence in this case to the matter of “great disparity [in sentences imposed] in substantially similar cases.” Case-by-case adjustment downward by an appellate court is hardly an answer to so complex a problem. As the writer pointed out, concurring in Riley v. State (1970), 47 Wis. 2d 801, 808, 809 , 177 N. W. 2d 838 , the “various proposals for legislative action to promote greater uniformity in sentencing procedures . . . limit the reviewing agency created to eliminating disparate results, and authorize adjusting sentences up or down to further this goal. . . .” In any event, as stated in Riley, the writer believes that, under our form of government, the “discussion and decision in this area belong to the legislative branch of our government, not the judicial.” If guidelines there are to be, however or by whom established, the writer would hope that they would include reserving to trial judges the right to impose a maximum sentence where a convicted defendant makes clear that he will repeat the offense or violate the laws as soon as he is given the opportunity to do so. The people are entitled to the fair and firm enforcement of criminal laws, including pro *299 tection against repetition of the same offense by the same offender. The writer would affirm.