State of Wisconsin,

�� Plaintiff-Respondent,

�� v.

Jeffrey S. Firebaugh,

�� Defendant-Appellant.

Opinion Filed:	October 18, 2011
Submitted on Briefs:�	October 4, 2011
�

JUDGES:	Hoover, P.J., Peterson, J., and Thomas Cane, Reserve Judge
��
��

Appellant
ATTORNEYS:	On behalf of the defendant-appellant, the cause was submitted on the brief of Jeffrey S. Firebaugh.�

Respondent
ATTORNEYS:	On behalf of the plaintiff-respondent, the cause was submitted on the brief of Christopher G. Wren, assistant attorney general, and J.B. Van Hollen, attorney general.�

COURT OF APPEALS

DECISION

DATED AND FILED

October 18, 2011

A. John Voelker

Acting Clerk of Court of Appeals

NOTICE

This opinion is subject to further editing.� If published, the official version will appear in the bound volume of the Official Reports.�

A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals.� See Wis. Stat. � 808.10 and Rule 809.62.�

Appeal No.�	2010AP3083-CR	Cir. Ct. No.� 2004CF83
STATE OF WISCONSIN�			IN COURT OF APPEALS



State of Wisconsin, �� Plaintiff-Respondent, �� v. Jeffrey S. Firebaugh, �� Defendant-Appellant.

�� APPEAL from orders of the circuit court for Shawano County:� JAMES R. HABECK, Judge.� Affirmed.�

�� Before Hoover, P.J., Peterson, J., and Thomas Cane, Reserve Judge.

�1�� CANE, J. In 2004, Jeffrey Firebaugh was given a sentence of twenty years for homicide by intoxicated use of a motor vehicle.� He now appeals, pro se, an order denying his motion for resentencing and an order denying his motion for reconsideration.� He contends the sentencing court failed to consider the applicable sentencing guideline.� Because we conclude there was no applicable sentencing guideline, we affirm.[1]

BACKGROUND

�� 2�� Firebaugh�s offense date was March 13, 2004.� He was convicted on November 10, 2004.� Firebaugh was sentenced to ten years� initial confinement followed by ten years� extended supervision, for a total sentence of twenty years.�

�� 3�� In 2010, Firebaugh filed a motion for resentencing.� He asserted that under State v. Grady, 2007 WI 81, 302 Wis. 2d 80, 734 N.W.2d 364, and Wis. Stat. � 973.017(2)(a),[2] the sentencing court was required, but failed, to consider the applicable sentencing guideline.� In his motion, Firebaugh maintained that there was a �sentencing guideline adopted by the sentencing commission for homicide by intoxicated use of a motor vehicle.��

�� 4�� The circuit court denied Firebaugh�s resentencing motion and a subsequent motion for reconsideration.� It determined that there was no guideline at the time of Firebaugh�s sentencing for homicide by intoxicated use of a motor vehicle.�

DISCUSSION

�5�� On appeal, our review is limited to determining whether the circuit court erroneously exercised its discretion.� State v. Ziegler, 2006 WI App 49, �22, 289 Wis. 2d 594, 712 N.W.2d 76.� Under that standard, we will sustain discretionary acts if we find the circuit court examined the relevant facts, applied a proper standard of law, and using a demonstrative rational process, reached a conclusion that a reasonable judge could reach. �Sands v. Whitnall Sch. Dist., 2008 WI 89, �13, 312 Wis. 2d 1, 754 N.W.2d 439.� �When the trial court has properly exercised its discretion, we follow a consistent and strong policy against interference with the discretion of the trial court, and we afford a strong presumption of reasonability to the court�s sentencing determination �.�� Ziegler, 289 Wis. 2d 594, �22.�

�6�� For all felony offenses committed after February 1, 2003, Wis. Stat. � 973.017(2)(a) required the sentencing court to consider �the sentencing guidelines adopted by the sentencing commission under s. 973.30 or, if the sentencing commission has not adopted a guideline for the offense, any applicable temporary sentencing guideline adopted by the criminal penalties study committee created under 1997 Wisconsin Act 283.�� In Grady, 302 Wis. 2d 80, �44, our supreme court held that �a circuit court satisfies its � 973.017(2)(a) obligation when the record of the sentencing hearing demonstrates that the court actually considered the sentencing guidelines and so stated on the record.�[3]

�7�� One must understand the recent history of the Wisconsin Sentencing Commission to fully understand our resolution of this appeal.� Wisconsin�s transition from indeterminate to determinate sentencing formally began in 1998, with the enactment of 1997 Wis. Act 283.� Section 454 of that Act created the Criminal Penalties Study Committee (CPSC), which was tasked with �study[ing] the classification of criminal offenses in the criminal code, the penalties for all felonies and Class A misdemeanors and issues relating to the implementation of the changes in sentencing made by this act.�� See 1997 Wis. Act 283, � 454(1)(e).�

�8�� The CPSC�s legislative mandate also required it to chart a course for sentencing guideline use in Wisconsin.� The legislature required the CPSC to make recommendations concerning the �creation of a sentencing commission to promulgate advisory sentencing guidelines for use by judges when imposing sentence under section 973.01 of the statutes, as created by this act.�� 1997 Wis. Act 283, � 454(1)(e)4.� In the interim, the CPSC was to recommend �[t]emporary advisory sentencing guidelines � during the period before the promulgation of advisory sentencing guidelines by a sentencing commission.�� 1997 Wis. Act 283, � 454(1)(e)5.

�9�� The CPSC formed a sentencing guidelines subcommittee which was tasked with creating a sentencing commission and developing temporary advisory sentencing guidelines.� Joe Fontaine, Wis. Sentencing Comm�n, Sentencing Policy In Wisconsin: 1975-2005 at 36 (2005).� The subcommittee�s task was daunting; because of lost, inaccessible, or antiquated data, the subcommittee �lacked reliable data on state sentencing practices by which to construct descriptive ranges.�� Id. at 44.� Time presented another problem.� The CPSC�s final report noted the former sentencing commission had taken eleven years to develop sixteen guidelines.� Criminal Penalties Study Comm., Final Rep. 108 (1999).� �The CPSC, with a single program staffer and no easily accessible data, had to develop guidelines in less than a tenth of that time.�� Fontaine, supra, at 44.

�10�� As a result, the CPSC developed guidelines only for the eleven crimes that consumed the vast majority of corrections resources devoted to prisoners.� Final Rep., supra, at 108.� For the remainder of crimes, the CPSC simply developed a conversion table �to numerically convert �old world� indeterminate sentences to �new world� Truth-in-Sentencing determinate sentence ranges.�[4]� Id. at 107.� The task of developing additional and permanent sentencing guidelines was left to the sentencing commission.� Id.��

�11�� The Wisconsin Sentencing Commission was created by 2001 Wis. Act 109, � 14, which became law in 2002.� See Wis. Sentencing Comm�n, Ann. Rep. 1 (2005).� The Commission began meeting in the fall of 2003, and staff operations began in January 2004.� Id.� In July 2005, the Commission announced that updated sentencing guideline worksheets were available for the eleven offenses for which the CPSC had developed guidelines.� Wis. Sentencing Comm�n, Sentencing in Wisconsin, Vol. 2, No. 11, The Sentencing Guidelines Worksheets, Revised (July 22, 2005).� The Commission intended to adopt permanent sentencing guidelines in 2006.� Ann. Rep., supra, at 15.

�12�� At the time of Firebaugh�s sentencing, neither the CPSC nor the Commission had developed a sentencing guideline for homicide by intoxicated use of a motor vehicle.� The offenses for which guidelines were developed included first- and second-degree sexual assault, first- and second-degree child sexual assault, burglary, theft, robbery, armed robbery, forgery and uttering, delivery or possession with intent to deliver cocaine, and delivery or possession with intent to deliver marijuana.� Compare Final Rep., supra, at 114, with Sentencing in Wisconsin, supra.� We believe the State�s brief best sums up our conclusion:

In short, Firebaugh�s motion and appeal misfire because Firebaugh seeks an impossible remedy: consideration of sentencing guidelines that did not exist at the time of his sentencing and that have not existed at any time since his sentencing.

�� 13�� We wish to address one final point raised in Firebaugh�s brief.� He contends that in State v. Gallion, 2004 WI 42, 270 Wis. 2d 535, 678 N.W.2d 197, our supreme court directed the circuit court to apply Wis. Stat. � 973.017(2)(a) to a defendant convicted of homicide by intoxicated use of a motor vehicle.� It did not.� Our supreme court noted that truth-in-sentencing legislation placed increased responsibility on the judiciary for ensuring a fair and just sentence, and required that a court adequately explain its sentence on the record.� Id., ��31-32, 39.� The court�s only mention of � 973.017(2)(a) was a generic statement that courts must consider �any applicable temporary sentencing guidelines adopted by the Criminal Penalties Study Committeee and � in the future any applicable guidelines adopted by a sentencing commission.�� Id., �47.� Indeed, the court affirmed the defendant�s conviction even though the sentencing court apparently did not mention a guideline�presumably because none existed.� See id., ��59-62.

�� By the Court.�Orders affirmed.

��

[1] The State requests publication �in the interest of forestalling similar claims.�

[2] All references to the Wisconsin Statutes are to the 2003-04 version unless otherwise noted.

[3] Although Firebaugh relies heavily on Grady, the supreme court noted that its decision �will become effective for any sentencing occurring after September 1, 2007.�� State v. Grady, 2007 WI 81, �45, 302 Wis. 2d 80, 734 N.W.2d 364.

[4] The conversion table does not constitute sentencing guidelines.� See Grady, 302 Wis. 2d 80, �40 (�Sentencing guidelines include more than simply a sentencing range.�).

Case No.:	2010AP3083-CR
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