COURT OF APPEALS DECISION DATED AND RELEASED April 8, 1997 |
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No. 96-1584-CR
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT I
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
WALTER L. WILLIAMS,
Defendant-Appellant.
APPEAL from a judgment
and an order of the circuit court for Milwaukee County: JEFFREY A. WAGNER, Judge. Affirmed.
Before Wedemeyer, P.J.,
Schudson and Curley, JJ.
CURLEY,
J. Walter L. Williams appeals from a judgment of conviction and an
order denying his postconviction motion.
Williams contends that the trial court erroneously exercised its
discretion at sentencing because it gave no reasons for the sentence
imposed. The following is the full text
of the court’s comments when imposing sentence:
Okay.
Well, based upon the totality of the circumstances, those factors the Court
must take into consideration, and based upon the Defendant’s prior history, the
Court is going to impose a sentence in the House of Corrections of 130 days
consecutive to anything else the Defendant is now serving.
We
conclude that the trial court erroneously exercised its discretion. We affirm the judgment and the order,
however, because we determine that the sentence imposed is sustainable by the
facts.
It is a well-settled
principle of law that the trial court exercises discretion in sentencing, and
on appeal, review is limited to determining if discretion was erroneously
exercised. McCleary v. State,
49 Wis.2d 263, 278, 182 N.W.2d 512, 520 (1971). Discretion contemplates a logical process of reasoning based on
the facts of record and proper legal standards; it is more than simply making a
decision. Id. at 277, 182
N.W.2d at 519. In exercising
discretion, the sentencing court considers the gravity of the offense, the character
of the offender, and the need to protect the public. State v. Larsen, 141 Wis.2d 412, 427, 415 N.W.2d
535, 541 (Ct. App. 1987). An erroneous
exercise of discretion occurs if the sentencing court fails to state, on the
record, the factors influencing the sentence or if too much weight is given to
one factor in the face of contravening factors. Id. at 428, 415 N.W.2d at 542. An erroneous exercise of discretion also
occurs when there is no evidence in the record that the trial court undertook a
reasonable inquiry and examined the facts when making its decision. McCleary, 49 Wis.2d at 278,
182 N.W.2d at 520.
Here, the trial court’s
comments at sentencing were inadequate.
A statement that the court considered the facts and the proper standards
does not provide evidence in the record necessary to establish that the court
undertook a reasonable inquiry and an examination of the facts. The record shows that the trial court made a
decision; it does not show that the court engaged in a logical process of
reasoning to reach that decision.
This conclusion does not
end our inquiry, however. We will not
set aside a sentence simply because discretion was not exercised or was
erroneously exercised. Id.
at 282, 182 N.W.2d at 522. Rather, we
search the record to determine if the sentence is sustainable as a proper
discretionary act. Id. This review does not, as Williams claims,
“delve into the trial court’s mind to divine what the trial court’s unspoken
rationale was.” Rather, the review
determines whether there are facts that would support the sentence had
discretion been exercised on the basis of those facts. See State v. Kirschbaum, 195
Wis.2d 11, 21, 535 N.W.2d 462, 465 (Ct. App. 1995). Thus, to be successful in an appeal of a sentencing decision, a defendant
must show from the record that a sentence is unreasonable, see State
v. Haskins, 139 Wis.2d 257, 268, 407 N.W.2d 309, 314 (Ct. App. 1987), a
burden Williams does not even attempt to meet.
Here,
the facts in the record support the sentence.
Williams was serving a nine-month sentence for obstructing an officer
when he failed to return to the House of Correction after being released for
child care. According to his attorney’s
representations at the sentencing hearing, Williams did not return because he
discovered his children were suffering from lead poisoning and he needed to
move them. He moved them to
Mississippi. Counsel represented that
when he was arrested, he was returning to Milwaukee to resolve the matter;
however, this occurred eleven months after his escape.
Williams
pled guilty to the escape charge and was sentenced immediately. During the sentencing hearing, the
prosecutor requested incarceration for five months, consecutive to the prior
sentence. The State pointed out that
Williams had numerous convictions on traffic and misdemeanor offenses. Defense counsel asked for a three-month
consecutive sentence. Considering that
the sentence was only ten days more than the defense requested and
substantially less than the maximum, that Williams had numerous prior
convictions, and that he had left the state and been absent almost a year, this
court concludes that the 130-day sentence is easily sustainable by the proper
exercise of discretion.
By
the Court.—Judgment
and order affirmed.
Not
recommended for publication in the official reports.
No. 96-1584-CR
(C)
SCHUDSON,
J. (concurring). The majority correctly
declares that “the trial court's comments at sentencing were inadequate” and
fail to reflect “a logical process of reasoning.” Majority slip op. at 3.
The majority also accurately identifies why, under the standard of
review articulated in McCleary v. State, 49 Wis.2d 263, 182
N.W.2d 512 (1971), we affirm rather than remand for the trial court to conduct
a proper sentencing. I write
separately, however, to express and further explain the enormous frustration I
feel when, again and again, we have little choice but to affirm this trial
court's sentencings despite its complete failure to provide statements
reflecting any “logical process of reasoning.”
Over
the years this court has received numerous appeals—and has more appeals
pending—of sentences from only one trial judge who consistently couches his
sentencing comments in nothing more than references to “the totality of the
circumstances” and “factors the court must take into consideration.” As the majority has reiterated, such comments
do not satisfy legal requirements.
Moreover, the frequency with which such appeals arrive—all containing
virtually identical language—leaves little doubt that even if the judge
actually has considered the individual circumstances of each case, he
has completely failed to articulate a sentence that could convey reasoning to
or inspire confidence from defendants and victims, their friends and families,
and the public.
The
fact that, under McCleary, this court steps in to search the
record and compensate for the trial judge's failures is no consolation. This court, 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. This 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.
Additionally,
although the trial court's brevity may save its resources in the short
run, such brevity not only reduces confidence in the sentencing process, but
also imposes substantial costs on the justice system as well. Postconviction motions to modify sentences
drain resources of counsel and trial courts, and are but the prelude to
countless appeals that otherwise would not be filed.
Thus,
although it seems this court has little choice but again to affirm this trial
judge's sentence, we would be little more than acquiescent “enablers” if we
failed to admonish this trial judge with additional words of the supreme court
in McCleary:
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.
Id. at 280-81, 182 N.W.2d at 521. Accordingly, I trust the trial court will
understand that, once again, affirmance of its bottom line does not connote
approval of its process.