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COURT OF APPEALS DECISION DATED AND FILED February 5, 2009 David
R. Schanker Clerk of Court of Appeals |
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NOTICE |
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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. |
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Appeal No. |
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STATE OF WISCONSIN |
IN COURT OF APPEALS |
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DISTRICT II |
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State of
Plaintiff-Respondent, v. Tobarus D. Porter,
Defendant-Appellant. |
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APPEAL
from a judgment and an order of the circuit court for
Before Vergeront, Lundsten and Storck, JJ.[1]
¶1 PER CURIAM. Tobarus Porter appeals a judgment of conviction and an order denying his postconviction motion. We reverse and remand for resentencing because it is not clear that the court considered the sentencing guideline.
¶2 Porter was convicted on one count of first-degree sexual assault of a child. He moved for resentencing on the ground that the circuit court did not consider the sentencing guideline for this offense. The circuit court denied the motion.
¶3 On appeal, the parties agree that a sentencing guideline
under Wis. Stat. § 973.30(1)(c) (2005-06)[2]
exists for this offense and, therefore, the sentencing court was obliged by Wis. Stat. § 973.017(2)(a) to “consider” that guideline. A sentencing court satisfies that obligation
when the record of the sentencing hearing demonstrates that the court actually
considered the sentencing guidelines and so stated on the record. State v. Grady, 2007 WI 81, ¶¶2, 29-45, 302
¶4 The parties agree that the sentencing transcript in Porter’s case does not show that the court considered the sentencing guideline. Porter goes on to argue that the circuit court’s statements at the postconviction hearing are not sufficient to show that the court considered the guideline at the original sentencing. We agree.
¶5 At the postconviction hearing, after explaining that it was well aware of the sentencing guidelines and had, in fact, been involved in their development, the circuit court acknowledged that there was no indication in the sentencing record here that the applicable guideline had been considered. The court then stated that it is “very difficult to attempt to clarify the record ... when the verbiage and the precise reference to the guidelines is missing [from the record of the sentencing].” The court went on to repeat its awareness of the guidelines and then, in sum, stated it “was aware of the guidelines and was so aware of them at the time of the sentencing.”
¶6 We are uncertain what the circuit court meant when it said
that it is very difficult to clarify a sentencing record that makes no
reference to consideration of a guideline.
Here, for example, we would affirm if the court simply stated, in any
words, that its sentencing decision did include consideration of the applicable
sentencing guideline. The problem is
that the court never said words to that effect, but rather only spoke in terms
of being aware of the guidelines at the time of sentencing. Thus, we are unable to say, in the words of Grady,
that “we are satisfied” that the court considered the guideline. See Grady, 302
¶7 We next turn to whether the court’s failure to consider the
guideline was harmless error. The State
argues that a court’s lack of consideration of the guideline can be held harmless
error. See Sherman, 310
¶8 In Porter’s case, the State argues that the error was harmless because, in sentencing, the court considered the relevant factors listed in the guideline, even if it was not doing so specifically with the guideline process in mind at the time. In other words, the State argues that the court addressed the same mitigating and aggravating factors it would have had it expressly considered the guideline at sentencing, and therefore a resentencing to re-address those same factors is pointless. We disagree. The core feature of sentencing guidelines is that they are designed to provide information to the sentencing court regarding sentences imposed by other courts on similarly situated defendants. This does not occur if a sentencing court simply considers the same mitigating and aggravating factors as those identified in a guideline. Simply put, the consideration of the same factors does not lead to any guidance from the guideline. Accordingly, we cannot accept the State’s argument that considering the same factors renders the failure to consider a guideline harmless.
¶9 Moreover, the State’s argument would have the effect of
holding such error harmless in nearly every sentencing that is sustainable
under the standards that sentencing courts are required to meet to make a
satisfactory exercise of sentencing discretion.
See, e.g., State v. Gallion, 2004 WI 42, ¶¶39-46, 270
¶10 The parties’ briefs also address whether the sentencing court relied on inaccurate information at sentencing. Because we have already concluded that resentencing is necessary, we need not address this issue. On remand, the court shall resentence Porter with consideration of the applicable sentencing guideline.
By the Court.—Judgment and order reversed and cause remanded with directions.
This opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)5.