|
COURT OF
APPEALS DECISION DATED AND
RELEASED July
11, 1996 |
NOTICE |
|
A party may file with the Supreme Court a petition to review an
adverse decision by the Court of Appeals.
See § 808.10 and Rule
809.62, Stats. |
This opinion is subject to further editing. If published, the official version will appear in the bound
volume of the Official Reports. |
No. 95-0207-CR
STATE OF WISCONSIN IN
COURT OF APPEALS
DISTRICT IV
STATE
OF WISCONSIN,
Plaintiff-Respondent,
v.
JOHN
C. SETAGORD,
Defendant-Appellant.
APPEAL
from a judgment of the circuit court for Dane County: ROBERT R. PEKOWSKY, Judge.
Affirmed.
Before
Gartzke, P.J., Dykman and Vergeront, JJ.
VERGERONT,
J. John Setagord appeals from a judgment of conviction for
taking a hostage, party to a crime, in violation of §§ 940.305 and 939.05, Stats.; conspiracy to escape, as a
repeater, in violation of §§ 946.42(3)(a), 939.62 and 939.31, Stats.; and battery to a police
officer, party to a crime and as a repeater, in violation of §§ 940.20(2),
939.62 and 939.05, Stats. The crimes were committed when Setagord and
two other inmates attempted to escape from the Dane County Jail. A person who takes a hostage contrary to §
940.305 is guilty of a Class A felony.
The penalty for a Class A felony is life imprisonment. Section 939.50(3)(a), Stats.
The trial court initially sentenced Setagord to life without parole on
the hostage-taking charge, concurrent with the sentence he was already
serving. The trial court imposed an
eleven-year sentence on the battery to a police officer charge, consecutive to
the sentence he was already serving, and an eleven-year sentence on the
conspiracy to escape charge, consecutive to the battery sentence.
Setagord
appealed the sentence on the hostage-taking charge only. In State v. Setagord, 187
Wis.2d 340, 523 N.W.2d 124 (Ct. App. 1994), we reversed that sentence. We held that § 973.014(2), Stats., 1991-92,[1]
does not authorize a court to impose the sentence of life imprisonment without
parole, but instead requires the court to either set a parole eligibility date
or allow parole eligibility to be determined by the Wisconsin Parole
Commission. We reversed the judgment
and remanded to the trial court for resentencing.
On
remand, the trial court imposed a mandatory life sentence on the hostage-taking
charge with a parole eligibility date of October 21, 2091, one hundred years
from the date of the crimes Setagord committed. We hold: (1) § 973.014(1)(b), Stats., permits a trial court to set a
parole eligibility date beyond a person's expected lifetime; and (2) the
trial court did not erroneously exercise its discretion in setting Setagord's
parole eligibility date. We therefore
affirm.
SECTION 973.014(1)(b), Stats.
We first decide whether
§ 973.014(1)(b), Stats.,
permits a trial court to set a parole eligibility date beyond a person's
expected lifetime. We declined to
address this issue in State v. Setagord, 187 Wis.2d 340, 523
N.W.2d 124 (Ct. App. 1994), because the issue was not before us.
The
interpretation of a statute presents a question of law, which we decide de
novo. See State v. Eichman,
155 Wis.2d 552, 560, 456 N.W.2d 143, 146 (1990). Id. The purpose
of statutory construction is to discern the intent of the legislature. In determining the legislature's intent, we
first consider the language of the statute.
Id. If the
language of the statute is ambiguous, we examine the scope, history, context, subject
matter and object of the statute in order to ascertain the intent of the
legislature. Ball v. District No.
4, Area Bd., 117 Wis.2d 529, 538, 345 N.W.2d 389, 394 (1984). A statute is ambiguous when it is capable of
being understood by reasonably well-informed persons in two or more different
senses. State v. Martin,
162 Wis.2d 883, 894, 470 N.W.2d 900, 904 (1991).
The
State contends that the language of § 973.014(1)(b), Stats., is capable of only one
reasonable interpretation. The State
focuses on the word "any" in the phrase "any later date"
and contends that this authorizes a court to indirectly deny the possibility of
parole by setting the date so far in the future that it is certain the
defendant will not be alive on that date.
This is a reasonable interpretation, but we conclude it is not the only
reasonable interpretation.
The
State acknowledges that its interpretation is an indirect way of authorizing a
court to deny the possibility of parole.
In § 973.014(2), Stats.,
1993-94, the legislature uses the direct language "the court shall provide
that the sentence is without the possibility of parole" with reference to
one group of persons sentenced to life imprisonment--those sentenced under
§ 939.62(2m), Stats.[2] The absence of this direct language in §
973.014(1)(b) and the use instead of the language that the court may choose the
option that "[t]he person is eligible for parole on a date set by the
court," leads us to conclude that "a date set by the court"
under § 973.014(1)(b) may reasonably be interpreted as a date that allows for
the possibility of parole.
Since
the statute is ambiguous, we look to its legislative history to aid us in
discerning legislative intent. Section
973.014, Stats., was originally
enacted by 1987 Wis. Act 412, § 5.
Prior to its enactment, all persons convicted of crimes, including those
convicted of a crime punishable by life imprisonment, were eligible for parole
on a date set by statute. Under §§ 53.11
and 57.06(1)(b), Stats., 1987-88,
the minimum period of time that a person sentenced to life imprisonment could
serve before becoming eligible for parole release was approximately thirteen
years and four months. State v.
Borrell, 167 Wis.2d 749, 765 n.6, 482 N.W.2d 883, 889 (1992).
1987
Wis. Act 412 was originally introduced as 1987 A.B. 8. This bill provided that if a person is
convicted of a crime that is punishable by life imprisonment, "the court
shall sentence the person to life imprisonment without parole eligibility
unless it finds that mitigating circumstances justify life imprisonment with
parole eligibility," in which case the parole eligibility was determined
by statute. 1987 A.B. 8, § 11. The Senate then adopted Senate Substitute
Amendment 1, which provided that if a person commits first-degree murder while
attempting to commit certain violent felonies, "the court may set a date
of parole eligibility later than that provided in [s. 304.06(1)]."
The
measure moved back to the Assembly, which adopted the following amendment to
Senate Substitute Amendment 1:
973.014 SENTENCE OF LIFE
IMPRISONMENT; PAROLE ELIGIBILITY DETERMINATION. When a court sentences a person to life
imprisonment for a crime committed on or after the effective date of this
section .... [revisor inserts date], the court shall make a parole eligibility
determination regarding the person and choose one of the following options:
(1) The person is not eligible for
parole.
(2) The person is eligible for
parole under s. 57.06(1).
(3) The
person is eligible for parole on a date set by the court. The court may not set a date that occurs
before the earliest possible parole eligibility date as calculated under
s. 57.06(1).
Assembly Amendment 1 to Senate Substitute Amendment 1.
After
a vote in which the Senate did not concur in the Assembly's amendment, a
Committee of Conference (committee) on 1987 A.B. 8 was formed. The report of the committee agreed to
Assembly Amendment 1 with these amendments:
deletion of subsec. (1); renumbering of subsecs. (2) and (3) to
subsecs. (1) and (2); and replacing the second sentence of renumbered
subsec. (2) with "Under this subsection, the court may set any later date
than that provided in s. 57.06(1), but may not set a date that occurs before
the earliest possible parole eligibility date as calculated under s.
57.06(1)." Assembly Amendment 1 as
amended by the committee report became § 973.014, Stats., 1987-88.
Were
this the only legislative history available, Setagord would have a strong
argument that the deletion of the option of "[t]he person is not eligible
for parole" from Assembly Amendment 1 indicates a legislative intent not
to authorize a court to deny the possibility of parole under § 973.014(1)(b),
Stats. However, the Legislative Reference Bureau (LRB) file on 1987 Wis.
Act 412 also contains a memo from Bruce Feustel, Legislative Attorney,[3]
to "File" on the subject of "Differences between the Senate and
Assembly positions on Assembly Bill 8 (Life sentence without
parole)." The memo is dated May
23, 1988, four days after the Senate nonconcurred in Assembly Amendment 1 and the day before the committee issued its
report. The memo contains the following
comparison of the Senate and Assembly amendments:
|
SENATE (as
shown by Senate Substitute Amendment 1 to Assembly Bill 8) 1. Parole Eligibility restrictions;
persons covered: Any person who
commits first-degree murder while committing or attempting to commit a
violent felony (kidnapping, abduction, taking hostages, robbery, arson,
sabotage, mayhem, criminal damage to property of a witness or aggravated
sexual assault). 2. Court's options regarding parole: Provide
that the person: -- is
subject to ordinary parole eligibility -- is
subject to delayed parole eligibility on a date fixed by the court (no limit, could be a date 100
years in the future) 3. Miscellaneous: No additional items. |
ASSEMBLY (as
shown by Assembly Amendment 1 to Senate Substitute Amendment 1 to Assembly
Bill 8) 1. Parole eligibility restrictions;
persons covered: Any person who
commits any crime punishable by life imprisonment (first-degree murder,
treason, or, under certain circumstances, kidnapping, taking hostages or
tampering with household products). 2. Court's options regarding parole: Provide
that the person: -- is
subject to ordinary parole eligibility -- is
subject to delayed parole eligibility on a date fixed by the court (no limit, could be a date 100 years in the future) -- is
not eligible for parole 3. Miscellaneous: Sentencing commission is prohibited from
issuing guidelines on court/parole eligibility determination and the current
prohibition on probation for first-degree murder is extended to all crimes
punishable by life imprisonment. |
The
State argues that from the memo's nature and date, it can confidently be
concluded that it was prepared for the committee. In the State's view, the committee decided to strike the option
of ineligibility for parole because it was not necessary, since the same result
could be achieved by setting the parole eligibility date beyond the defendant's
expected lifetime. Setagord responds
with three arguments: (1) there is no indication that the
committee saw this memo or accepted Feustel's interpretation of the two
amendments; (2) the Assembly would not, in the first instance, have
adopted an amendment containing an option that was surplusage; and (3) the
Senate would not have agreed to language that implicitly authorized a court to
choose parole ineligibility when the Senate had just rejected such a
provision.
Our
own review of the complete LRB file persuades us that the committee had
Feustel's memo before it and accepted his interpretation that, if the court
opted to set a parole eligibility date, it could set a date 100 years in the
future.
The
LRB file contains a "Drafting Request" stapled to a copy of the
Feustel memo. The request is from
Representative Louise Tesmer, stating that she represents the
"Conference," and the subject is Assembly Amendment 1 to Senate
Substitute Amendment 1 to Assembly Bill 8.
The request was received by "BF" on May 24. The instructions read as follows:
A position on 1 and 3
Senate position on 2
modification
on language.
Stapled behind the Feustel memo is a form containing the
handwritten wording the committee agreed upon as a Conference Amendment to
Assembly Amendment 1.
The
only reasonable inference is that the instructions in the Drafting Request
refer to Feustel's memo. The committee
agreed to points 1 and 3 in the Assembly column of his memo and to point 2 in
the Senate column. Because point 2 in
the Senate column states that the court's option of fixing a parole eligibility
date has "no limit, could be a date 100 years in the future," the
committee must have accepted this interpretation of the court's authority.
This
disposes of Setagord's first argument concerning the significance of the
memo. Setagord's second and third
arguments are not persuasive on the issue of the committee's intent. It may be that when the Assembly adopted
Assembly Amendment 1, it was not aware of an interpretation of subsec. (3) that
would make the option of denying parole eligibility surplusage. But that does not mean the committee could
not have come to a different conclusion after reading Feustel's memo. And although the Senate had rejected the
Assembly's express language authorizing the court to determine a person
ineligible for parole, any number of factors could cause the Senate members on
the committee, and the Senate as a whole, to come to a different conclusion as
a result of the conference.
Our
construction of § 973.014(1)(b), Stats.,
is not inconsistent with § 973.014(2), even though § 973.014(2) uses more
direct language. Whereas
§ 973.014(1)(b) permits a court to make parole for a person sentenced to
life imprisonment impossible by setting a parole eligibility date beyond the
person's expected lifetime, subsec. (2) requires that, for the particular
subcategory of persistent repeaters, a court must provide that the
sentence is without the possibility of parole.
Setagord
also points to the amendment to § 973.014(1), Stats., enacted by 1995 Wis. Act 48. This Act, effective August 31, 1995, created
§ 973.014(1)(c), which provides a third option for the court: "The person is not eligible for
parole." This is the same third
option contained in Assembly Amendment 1 that was removed as a result of the
agreement of the committee. We may
accord subsequent amendments some weight in determining the intent of
legislation enacted earlier. See McGarrity
v. Welch Plumbing Co., 104 Wis.2d 414, 427, 312 N.W.2d 37, 43-44
(1981). However, we conclude that this
later amendment does not assist us in interpreting subsec. (1)(b).
The
language of the 1995 amendment is consistent with both Setagord's and the
State's interpretation of § 973.014(1)(b), Stats. The
legislature could have decided to clarify subsec. (1)(b) by making explicit
that which was already implicit in the court's authority under subsec.
(1)(b). On the other hand, the
legislature could have decided to authorize the court to do something that it
had earlier not intended to authorize.
The parties have pointed to no legislative history of 1995 Wis. Act 48
that would shed light on the intent of 1987 Wis. Act 412. The enactment of 1995 Wis. Act 48, in
itself, is insufficient to counter the persuasive indication of legislative
intent expressed by the Drafting Request and the Feustel memo.
SENTENCING DISCRETION
Having concluded that
the trial court had the authority under § 973.014(1)(b), Stats., to set a parole eligibility
date beyond Setagord's expected lifetime, we now consider whether it
erroneously exercised its discretion in doing so.
We
first address the State's contention that Setagord may not raise this issue on
appeal because he did not first bring a motion for sentence modification in the
trial court. We conclude that under the
circumstances of this case, it was not necessary for Setagord to bring that
motion before the trial court.
Ordinarily,
to obtain review of a sentence as of right, the defendant must move for
sentence modification in the trial court either under Rule 809.30 or § 973.19, Stats. State v.
Hayes, 167 Wis.2d 423, 425-26, 481 N.W.2d 699, 700 (Ct. App.
1992). This rule is part of the broader
rule that postconviction motions must be made in order for issues to be
considered as a matter of right on appeal, except in challenges to the
sufficiency of the evidence and except as to issues previously raised. Section 974.02(2), Stats.; Hayes, 167 Wis.2d
at 426, 481 N.W.2d at 700. The State
argues that neither exception applies.
The first clearly does not. As
for the second, the State contends that at the hearing before the trial court
after remand, Setagord was not arguing that the trial court had abused its
sentencing discretion, as he is arguing on appeal, but was simply arguing what
the proper sentence should be.
The
State's analysis overlooks the context of the hearing after remand. The trial court had already sentenced
Setagord to life without parole. The
State argued, in the context of Setagord's appeal of that sentence, that the
trial court had the authority to accomplish the same result by setting a parole
eligibility date "so far in the future that the defendant cannot possibly
live to enjoy parole." Setagord,
187 Wis.2d at 344, 523 N.W.2d at 125.
We did not decide the validity of that claim because the trial court had
not attempted that approach.
At
the hearing after remand, the State argued that the same factors that had
justified the court's first sentence of life without parole justified a
sentence tantamount to life without parole, that is, a parole eligibility date
so far in the future that Setagord would not live to see the date. The State requested that date be set at one
hundred years from the date of the hostage taking--October 21, 1991. Setagord's counsel's arguments were directed
to persuading the court that a sentence tantamount to life without parole was
not reasonable and that the parole eligibility date should be left to the
parole board so that there was, at least, the possibility that Setagord might
live some years outside prison. In
effect, the State was urging the court to follow the same reasoning and come to
essentially the same result as it had earlier, while Setagord was urging the
court to reconsider its earlier reasoning and come to a significantly different
result.
In
reaching its decision on resentencing, the court reviewed its reasons for
imposing the first sentence and stated that it was still in agreement with
those reasons and the conclusion it reached then--that Setagord needed to spend
his entire life in prison.
The
purpose of requiring a postconviction motion before raising an issue on appeal
is to provide the trial court with the opportunity to first address the
issue. The trial court here had that
opportunity because of the hearing held after remand. It explained why it was not changing its conclusions. Under these circumstances, no purpose is
served by requiring Setagord to again argue to the trial court that it is
unreasonable to set a parole eligibility date so that he will spend his entire
life in prison.
Setagord
argues that the trial court erroneously exercised its discretion because the
sentence fails to consider his rehabilitative needs; exceeds that which is
necessary to protect the public; is grossly disproportionate with the parole
eligibility dates for others sentenced to life imprisonment; and places
excessive weight on the desire to "send a message" to prisoners. Setagord also contends the trial court
erroneously exercised its discretion in demonstrating a "forsworn
inflexibility." Sentencing is committed
to the sound discretion of the trial court, and our review is limited to determining
whether there has been a "clear" abuse of that discretion. McCleary v. State, 49 Wis.2d
263, 278, 182 N.W.2d 512, 520 (1971).
Our limited review in this area reflects the strong public policy
against interference with sentencing discretion; we presume that the trial
court acted reasonably, and we assign to the defendant the burden of
"show[ing] some unreasonable or unjustified basis in the record for the
sentence complained of." State
v. Harris, 119 Wis.2d 612, 622-23, 350 N.W.2d 633, 638-39 (1984). We do not substitute our preference for a
particular sentence simply because we would have decided the matter
differently. McCleary, 49
Wis.2d at 281, 182 N.W.2d at 521.
The
primary factors a court must consider in fashioning a sentence are the gravity
of the offense, the character of the offender, and the need for public
protection. Harris, 119
Wis.2d at 623, 350 N.W.2d at 639. The
court may also consider, among other things, the defendant's criminal record;
history of undesirable behavior patterns; the defendant's personality,
character and social traits; the results of a presentence investigation; the
vicious or aggravated nature of the crime; the defendant's degree of
culpability; his demeanor at trial; the age, educational background and employment
record of the defendant; his remorse, repentance and cooperativeness; the need
for close rehabilitative control; the rights of the public; and the length of
pretrial detention. State v.
Iglesias, 185 Wis.2d 117, 128, 517 N.W.2d 175, 178, cert. denied,
115 S. Ct. 641 (1994).
Although
all relevant factors must be considered, the sentence may be based upon any one
or more of the three primary factors. Anderson
v. State, 76 Wis.2d 361, 368, 251 N.W.2d 768, 772 (1977). The weight to be given to each of the
factors that influence the trial court's decision is particularly within the
discretion of the trial court. State
v. Larsen, 141 Wis.2d 412, 428, 415 N.W.2d 535, 542 (Ct. App. 1987).
Before
imposing the initial sentence, the trial court read the lengthy presentence
report, the report of Julie McReynolds, who was held hostage by Setagord and
two inmates for thirteen hours, and the statement of the husband of Julie
McReynolds. The court had heard the
trial testimony of Deputy McReynolds and Deputy Leonard Harris who were
performing a "head count" when McReynolds was overpowered by
Setagord. It also viewed a video tape
of Deputy McReynolds in the cell with Setagord. While McReynolds was bound, gagged and blindfolded, Setagord
struck her. Setagord also made a
statement.
The
court commented on the horrible experiences of Deputy McReynolds, Deputy
Harris, the law enforcement personnel who worked to resolve the incident and
the community, which was waiting in suspense throughout.
The
trial court noted that it had a firm idea of who Setagord was from everything
it had heard and read. It referred to
Setagord's lengthy criminal record. It
described Setagord as unable to control himself and dangerous, taking out his
rage and anger on others. The court
considered Setagord to be intelligent and clever enough to execute a plan,
utilizing someone less intelligent to carry it out. It described Setagord as the leader of the attempted escape,
desperate and willing to lose everything in order to get out of the jail.
The
court stated that, based on the presentence report, there was no opportunity
for rehabilitation, nothing available in the community or anywhere else to
change Setagord. There had been a lack
of response in past attempts to deal with problems. The court considered Setagord's expressions of remorse, stressing
that it did not know if he was sincere and that the agent who prepared the
report felt he was not sincere.
While
noting that punishment was a factor in its sentencing considerations, the court
made clear that the determining factor in this case was deterrence. The court stated that the overcrowding in
the Dane County Jail placed the law enforcement personnel in the jail at risk. According to the presentence report, Setagord
had received recognition in prison because of what he had done. In the court's view, that increased the risk
to law enforcement personnel and the community. The court decided it was necessary to send a message to all
inmates by way of a severe sentence for Setagord.
At
the hearing after remand, the court heard arguments from the State and
Setagord's counsel, and statements from Dane County Sheriff Richard Raemsich
and Setagord. It did not repeat all of
its reasons for imposing the initial sentence, but it adopted them by
reference. It did reiterate its concern
that the jail was overcrowded, and was therefore dangerous for inmates, law
enforcement personnel and posed a high risk for the community. The court emphasized that it still
considered it essential to convey a message that taking hostages in the jail
would result in a harsh sentence. The
court noted Setagord's statement that he was remorseful and wanted some chance
to show in the future that he had changed.
But the court stated that it also remembered him as portrayed in the
video, and still considered him dangerous and capable of doing the same thing
again. The court said Setagord needed
to be kept from the public for the rest of his life.
Setagord
argues that the trial court erroneously exercised its discretion by wholly
failing to consider his rehabilitative needs.
As evidence for his potential for rehabilitation, Setagord points to his
troubled background, which included child abuse, psychiatric problems,
substance abuse and juvenile delinquency.
He also points to his statement at the resentencing, in which he
expressed remorse and his attempts in prison to understand what he did and his
problems and to take responsibility for them.
We
conclude that there is evidence in the record to support the court's conclusion
that there was no potential for rehabilitation. In the seven years preceding this crime, Setagord had been
convicted in various jurisdictions of numerous crimes, including indecent exposure,
resisting arrest, criminal damage to property, carrying a concealed weapon and
second-degree sexual assault. He
admitted to other sexual assaults of daughters of a girlfriend. When placed on probation, there were
numerous probation violations and he spent most of probation either in jail or
a halfway house. When transferred to a
halfway house, he received twenty-three incident reports and apparently
assaulted at least one staff member. He
was terminated from the halfway house for reasons including "his not
providing sufficient effort in the treatment goals; total disrespect for staff,
program and others; mismanagement of his financial affairs; along with an
uncooperative attitude." The
presentence investigator did not detect any real expressions of remorse or
sympathy toward the victims of the hostage-taking incident. The investigator also noted that there had
been a great deal of time, money and energy already spent on rehabilitation for
Setagord, which Setagord had spurned.
The
evidence Setagord points to does not show that the court's conclusion was
unreasonable. The court specifically
referred to Setagord's troubled background, but found that did not excuse his
actions. Setagord does not explain how
his troubled background demonstrates that he has the potential for rehabilitation. The trial court was not required to accept
Setagord's expressions of remorse as evidence that he had the potential for
rehabilitation. The court could
reasonably conclude that his past actions were more probative of his
rehabilitative potential. To the extent
Setagord is arguing that the court should have relied on progress he had made
in prison since the initial sentencing, such evidence is not properly
considered in resentencing.
"[W]hen resentencing a defendant the trial court must consider only
the circumstances existing when defendant was first sentenced." State v. Solles, 169 Wis.2d
566, 569, 485 N.W.2d 457, 458 (Ct. App. 1992).
Setagord
next argues that the gravity of the offense does not warrant the parole
eligibility date set by the court. This
argument focuses in large part on what Setagord perceives as the disparity
between his parole eligibility date and the parole eligibility dates set in
other cases under § 973.014(1)(b), Stats.
However,
Setagord provides no authority for the proposition that a sentence, which, in
itself, is not an erroneous exercise of discretion, becomes unreasonable in
comparison to other sentences. In the
context of an equal protection analysis to sentencing disparities, more than a
showing of a disparity is required; the disparity must be arbitrary or based on
considerations not pertinent to proper sentencing discretion. Ocanas v. State, 70 Wis.2d
179, 187, 233 N.W.2d 457, 462 (1975).
We see no reason to require a lesser showing here simply because
Setagord does not couch his disparity argument as an equal protection
challenge. "By its very nature,
the exercise of discretion dictates that different judges will have different
opinions as to what should be the proper sentence in a particular case. As a result, a judge imposing a sentence in
one case cannot be bound by the determination made by a judge in another
case." Ocanas, 70
Wis.2d at 187-88, 233 N.W.2d at 462 (citation omitted).
Setagord
emphasizes that he did not take a life and that the crime of hostage taking
does not compare to the crime of first-degree intentional homicide. However, the legislature has decided that
they are comparable because it has made each a Class A felony with a penalty of
life imprisonment. Sections 940.01,
940.305(1)[4]
and 939.50(3)(a), Stats. The legislature has also given the court the
discretion to set a parole eligibility date for both crimes under
§ 973.014(1), Stats. The fact that under § 973.014(2) the court
is required to sentence certain defendants to imprisonment without the
possibility of parole does not limit the court's discretion in setting a parole
eligibility date for defendants whose crimes fall under § 973.014(1). Setagord concedes as much when he states
that he is not contending that § 973.014(2) provides the only set of
circumstances in which a court may impose a sentence that is, in effect, life
imprisonment without the possibility of parole.[5]
The
proper focus concerning the gravity of the offense factor is whether the trial
court's evaluation of that factor is unreasonable in light of the facts of record. We conclude it is not. The court did not, as Setagord suggests,
rule as a categorical matter that all hostage takers should be sentenced to
life without the possibility of parole.
The court considered the facts involved in this particular hostage taking:
it occurred in an overcrowded county jail; was committed by inmates; the
hostage was a sheriff's deputy; and the incident was thus a direct assault on
the criminal justice system. The court
also considered Setagord's treatment of the hostage, including the threats to
kill her.
Setagord
also argues that the need to protect the public does not warrant the parole
eligibility date set by the court.
Setagord refers only to the danger he himself presents. Given the court's finding that Setagord has
no potential for rehabilitation, which we have decided is not unreasonable,
there is a reasonable basis for the court's conclusion that Setagord needs to
be permanently imprisoned for the protection of the public.
However,
the need to protect the public is not measured only by the need to deter
Setagord. It also is measured by the
need to deter others from committing the same sort of crime. This need for general deterrence brings us
to Setagord's claim that the court placed excessive weight on the need to deter
others. A court erroneously exercises
its discretion when it gives too much weight to one sentencing factor in light
of contravening factors. State
v. Thompson, 172 Wis.2d 257,
264, 493 N.W.2d 729, 732 (Ct. App. 1992).
The court clearly stated that the determining factor was the need to
deter other inmates from committing the same type of crime. However, Setagord does not point out what
the contravening factors were that the court ignored. Given the lack of potential for rehabilitation and the gravity of
the offense, these two factors are certainly not contravening factors.
We
conclude the record supports the court's conclusion that the need to deter
others in order to protect the community, law enforcement personnel and other
inmates is the critical factor. The
sentencing report related that Setagord described the respect and
congratulations he had received from other prison inmates as a result of his
crime. The report also described the
effect on other inmates who were in the jail at the time of the incident: other
cell blocks became unmanageable, making threats to other deputies and chanting,
"Kill the bitch." As a result
of the incident, some deputies will no longer work in the jail.
Setagord
argues that a parole eligibility date set for when he is in his fifties or
sixties would be sufficient deterrence.
But the issue before us is not whether another parole eligibility date
would have been within the proper exercise of the court's discretion. The issue is whether the court properly exercised
its discretion in setting the date it did set.
The court imposed the most severe sentence possible when it set parole
eligibility for a date which will require Setagord to spend his life in prison. But we cannot say that the court erroneously
exercised its discretion in concluding that such a parole eligibility date was
necessary in order to deter others.
Setagord's
final argument is that the trial court demonstrated a "forsworn
inflexibility" because, at the resentencing, the court was intent on
achieving the same effect as the life without parole sentence which had been
reversed. The cases Setagord cites in
support of this argument are not resentencing cases, but rather cases in which
the trial court has indicated that it has a preconceived sentencing policy with
respect to certain types of cases, which it follows from defendant to
defendant. See, e.g., State
v. Martin, 100 Wis.2d 326, 302 N.W.2d 58 (Ct. App. 1981); State
v. Varnell, 153 Wis.2d 334, 450 N.W.2d 524 (Ct. App. 1989). These cases are not applicable.
Setagord's
first appeal challenged the court's statutory authority to impose a sentence of
life without parole, rather than setting a parole eligibility date itself or
leaving the determination to the parole commission. We agreed and remanded to the court for resentencing. Setagord, 187 Wis.2d at
343-45, 523 N.W.2d at 125-26. Nothing
in our opinion precluded the trial court from relying on its earlier reasoning
and conclusions in deciding whether it should set a parole eligibility date or
leave it to the parole commission and, if it chose the former, in deciding what
the parole eligibility date would be.
The trial court permitted additional argument and statements at the
resentencing. The record shows that the
court reviewed the record from the initial sentencing and was still persuaded
that Setagord must spend his life in prison, in spite of the additional
argument and statements of Setagord and his counsel and in spite of its further
reflection. Nothing in our earlier
decision precluded this result.
The
trial court applied the pertinent sentencing factors to the record and
explained its reasoning for the parole eligibility date it set. While we may not have reached the same
decision ourselves, given the deference we accord the sentencing court, we are
not persuaded that the sentence was unreasonable.
By
the Court.—Judgment affirmed.
Not recommended for
publication in the official reports.
No.
95-0207-CR(C)
GARTZKE,
P.J. (concurring). Setagord is guilty of taking a hostage,
party to a crime, contrary to §§ 939.05 and 940.305, Stats., a Class A felony, the penalty
for which is life imprisonment. Section
939.50(3)(a), Stats. The penalty is not imprisonment for life
with no possibility of parole. We
established that in Setagord's first appeal.
State v. Setagord, 187 Wis.2d 340, 523 N.W.2d 124 (Ct.
App. 1994).
Section
973.014(1), Stats., requires a
court when sentencing a person to life imprisonment to determine the person's
parole eligibility by choosing one of two options. The first option is to make the person eligible for parole under
§ 304.06(1), Stats. That option leaves parole to the discretion
of the parole commission, subject to statutory restrictions. The second option is to set a date for the
person's parole eligibility, provided that the date does not occur before the
earliest possible eligibility date calculated under § 304.06(1).
The
trial court deprived the parole commission of its power to grant parole under
§ 304.06, Stats., but I am
satisfied that this is within the trial court's discretion and that the trial
court did not erroneously exercise that discretion. For that reason, we must affirm.
However,
when we affirm a trial court's discretionary decision, that does not mean we
agree with or would have made the same decision. Hartung v. Hartung, 102 Wis.2d 58, 66, 306 N.W.2d
16, 20-21 (1981). As then Chief Justice
Heffernan said in State v. McConnohie, 113 Wis.2d 362, 370, 334
N.W.2d 903, 907 (1983):
The
concept of discretion is a review-constraining concept. In that sense:
"[T]o be invested with discretion means that the
trial judge has what might be termed a limited right to be wrong in the view of
the appellate court, without incurring reversal." M. Rosenberg, Appellate Review of Trial
Court Discretion, 79 FRD 173, 176 (1979).
In
my view, the wiser course would have been to set a parole date within
Setagord's life expectancy if that is possible in view of his earliest possible
eligibility date calculated under the statute.
Such a disposition should satisfy the need to protect society and deter
others.
Setagord
is a thirty-four-year-old male. He is
odious, dangerous and evil. But
dangerous and evil men can change.
Surely some thirty-four-year-old males will change and become fit for
rehabilitation, notwithstanding dim present prospects for that happening. The aging process alone may so debilitate a
prisoner as to make him rehabilitable.
And circumstances change.
Penology may advance so that prisoners once thought to be unredeemable
can nevertheless be safely released to society. However unlikely Setagord's present potential for rehabilitation,
the court ought not completely deprive the commission of its power to grant
parole. No court is prescient. No court can predict the future with
certainty.
It
now costs about $25,000 a year to keep a man in prison. If years from now the parole commission
decides that Setagord has been rehabilitated or is no longer dangerous, the
trial court's decision will nevertheless preclude the commission from saving
the state an unnecessary expense.
[1] Section 973.014, Stats., 1991-92, provided:
When a court
sentences a person to life imprisonment for a crime committed on or after July
1, 1988, the court shall make a parole eligibility determination regarding the
person and choose one of the following options:
(1) The person
is eligible for parole under s. 304.06(1).
(2) The person
is eligible for parole on a date set by the court. Under this subsection, the court may set any later date than that
provided in s. 304.06(1), but may not set a date that occurs before the
earliest possible parole eligibility date as calculated under s. 304.06(1).
Section
973.014(2), Stats., 1991-92, was
renumbered § 973.014(1)(b) by 1993 Wis. Act 289, § 11. 1993 Wis. Act 289, § 12 added this
subsection to § 973.014:
(2) When a
court sentences a person to life imprisonment under s. 939.62(2m), the court
shall provide that the sentence is without the possibility of parole.
We will
refer in this opinion to § 973.014(1)(b), Stats., rather than § 973.014(2), 1991-92.
[2] Section 939.62(2m)(b), Stats., provides for life imprisonment
for certain felony convictions where the defendant is a persistent repeater as
defined in § 939.62(2m)(a) and (b).
[3] The drafts of 1987 A.B. 8, and the Senate and
Assembly amendments contain the initials "B.F." We presume those initials refer to Bruce
Feustel and that he drafted these measures.