COURT OF APPEALS DECISION DATED AND FILED May 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 III |
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State of Plaintiff-Respondent, v. Mark Allan
Campbell, Defendant-Appellant. |
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APPEAL
from a judgment and an order of the circuit court for
Before
¶1 PETERSON, J. Mark Campbell appeals a
judgment of conviction for first-degree sexual assault of a child and an order
denying his motion for resentencing.
BACKGROUND
¶2
¶3 The court thoroughly analyzed on the record various factors influencing
the sentence. It discussed the serious effect
of the crime on
¶4 We commend the court for what was otherwise a model explanation of the sentence it imposed. However, it omitted one critical and mandatory consideration: the sentencing guidelines. Wisconsin Stat. § 973.017(2) provides:
When a court makes a sentencing decision concerning a person convicted of a criminal offense committed on or after February 1, 2003, the court shall consider all of the following:
(a) If the offense is a felony, the sentencing guidelines
adopted by the sentencing commission created under 2001
¶5
DISCUSSION
¶6 Both parties agree this appeal requires us to determine
whether the circuit court’s failure to consider the sentencing guidelines was harmless
error. This is a question of law we
review independently. State
v. Harrell, 2008 WI App 37, ¶37, 308
¶7 Our analysis of whether the court’s failure to consider the sentencing
guidelines was harmless is bound by the parameters described by our supreme
court in State v. Grady, 2007 WI 81, 302
For sentencing hearings occurring after September 1, 2007, a circuit court satisfies its [Wis. Stat.] § 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.
¶8 Here, the circuit court acknowledged it neither actually considered the sentencing guidelines nor mentioned them on the record. The State argues this error was harmless because the court considered the same factors required by the guidelines and later clarified it would have imposed the same sentence even if it had considered them. We are unable to reconcile this argument with Grady.
¶9 While we agree the factors the court considered closely tracked the factors in the sentencing guidelines, Grady requires more than this. Grady explicitly held that courts must mention the guidelines on the record. If it is not enough after Grady for the court to actually consider the guidelines but not say so on the record, it is certainly not enough for the court to concede it never in fact considered the sentencing guidelines. To hold otherwise would eviscerate the requirements of Grady.[1]
¶10 Grady determined this procedure was necessary for courts to discharge
the obligation imposed by the legislature’s enactment of Wis. Stat. § 973.017(2). The statute makes consideration of applicable
sentencing guidelines mandatory: “the
court shall consider … the sentencing
guidelines.”
¶11 This mandatory obligation entails more than simply examining the
same factors as those listed in the guidelines.
The guidelines also contain tables recommending sentence ranges based on
the severity of the offense and the risk posed by the defendant. While Wis. Stat. § 973.017(2)(a)
“does not require a court to make a sentencing decision that is within any
range or consistent with a recommendation specified in the guidelines,” Grady,
302
¶12 We also reject the State’s contention that the court would have
imposed the same sentence even had it considered the guidelines. As proof for its argument, the State asserts the
court confirmed considering the guidelines would not have changed its decision.
However, Grady precludes consideration of evidence beyond the sentencing
hearing.
¶13 The State nevertheless asserts that Grady only prohibits evidence of whether the court considered the guidelines, not evidence of whether its failure to do so would have changed the sentence. We disagree. While the court’s sentencing analysis was considered and thoughtful, Grady requires courts to actually consider applicable sentencing guidelines and mention them on the record. A court cannot eliminate these requirements simply by saying complying with them would not have changed the result.
By the Court.—Judgment affirmed; order reversed and cause remanded with directions.
Recommended for publication in the official reports.
[1]
In State
v. Sherman, 2008 WI App 57, 310