No deference to DOC

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The circuit court owes no deference to the recommendation of the Department of Cor-rections when sentencing a defendant after extended supervision has been revoked, the Wisconsin Supreme Court held on Dec. 19.

In 2001, John C. Brown was charged with armed robbery, but ultimately pleaded guilty to felony theft. Milwaukee County Circuit Court Judge Robert Crawford sentenced him to eight years: one year and seven months of initial confinement, and six years and five months of extended supervision.

Three months after release on extended supervision, Brown was arrested with .41 grams of cocaine, and his extended supervision was revoked.

At the reconfinement hearing, held before Judge David A. Hansher, the DOC recommended one year, 10 months, and 30 days of reconfinement.

Judge Hansher rejected the recommendation, and sentenced Brown to three years reconfinement, citing several factors: that he was selling cocaine despite having reconfinement hanging over his head; that he has a cocaine problem; and that he poses a risk to the community.

Hansher also stated, “The Department looks at this grid and comes up with these, I think, ludicrously low recommendations, and I think this is too low.”

Brown appealed, and the court of appeals affirmed in a published opinion, State v. Brown, 2006 WI App 44, 289 Wis.2d 691, 712 N.W.2d 899.

The Supreme Court accepted review, but also affirmed, in a decision by Justice N. Patrick Crooks.

Continuum

The court began by rejecting the conclusion of the court of appeals that the reconfinement hearing should be treated “as a continuum of [the original sentence],” citing State v. Wegner, 2000 WI App 231, par. 7, 239 Wis.2d 96, 619 N.W.2d 289.

The court noted that, in Wegner, the same judge who imposed the original sentence also imposed the reconfinement sentence, while in the case at bar, two different judges presided. Under such circumstances, the court concluded, there is no continuum.

Instead, the court stated it would review the circuit court’s decision for an erroneous exercise of discretion, and not reverse unless it is so excessive and unusual, and so disproportional “as to shock the public sentiment and violate the judgment of reasonable people.”

DOC Recommendation

However, the court agreed with the court of appeals that a judge imposing a reconfinement sentence owes no deference to the recommendation of the DOC.

The court noted that, although sec. 302.113(9)(at) requires the DOC to make a recommendation concerning reconfinement, the statute says nothing about how the court is to treat that recommendation.

The court noted that, at an original sentencing hearing, a court is not required to give deference to the DOC’s sentencing re-commendation in the presentence investigation, and is not required to explain its reasons for deviating from it.

Crooks wrote, “Since a reconfinement hearing is closely akin to a sentencing hearing, the DOC’s recommendation may be helpful and should be considered by a circuit court, but the court is not required to follow the DOC’s sentencing recommendation in making a reconfinement decision.”

Discretion

The court then agreed with the court of appeals that the circuit court adequately explained its basis for imposing three years of confinement, applying the same standards of review that govern initial sentences.

The State had argued that a circuit court need not provide any reasoned explanation for reconfinement decisions. However, the court held that, in light of need for a meaningful assessment of decisions that deprive persons of their liberty, a reasoned explanation is required, adopting the approach of the court of appeals in State v. Swiams, 2004 WI App 217, 277 Wis.2d 400, 690 N.W.2d 452.

Although giving broad discretion to circuit courts, the Supreme Court did issue guidance, discussing at length the standards previously employed by administrative law judges when revoking parole, before Truth-in-Sentencing: the nature and severity of the original offense; the client’s institutional conduct record; and the amount of incarceration necessary to protect the public from the risk of further criminal activity, taking into account the defendant’s conduct and the nature of the violation of terms and conditions during extended supervision.

To these, the court added: the defendant’s record, attitude, and capacity for rehabilitation; and the rehabilitative goals to be accomplished by imprisonment for the time period in question in relation to the time left on the violator’s original sentence.

Finally, the court stated that the original sentencing transcript should be reconsidered, and those portions that are relevant should be mentioned by the court on the record.

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Turning to the case at bar, the court upheld the reconfinement sentence.

Crooks wrote, “Brown’s procedural due process right was satisfied here. The circuit court articulated sufficient reasons for imposing three years of reconfinement for Brown … The court explained that Brown posed a risk to the community, if he were to be released in one year, ten months, and thirty days as recommended by the DOC, and that the DOC’s recommended time was insufficient to ‘send a message here.’ The circuit court further explained that Brown had a ‘cocaine problem.’ The circuit court came to the reasoned conclusion that ‘based upon all the facts and circumstances,’ three years was the appropriate amount of reconfinement time in Brown’s case.”
Accordingly, the court affirmed.

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David Ziemer can be reached by email.