Guidelines must be considered

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Effective Sept. 1, circuit courts will have to explicitly reference the applicable guideline when imposing sentence, under a June 29 decision by the Wisconsin Supreme Court.

Vincent T. Grady pleaded guilty to two counts of armed robbery with use of force, and was sentenced to 10 years for the first count, with 7 years confinement and 3 years extended supervision, and a consecutive 20-year sentence for the second, with 13 years confinement and 7 years extended supervision.

Although a sentencing guideline existed for armed robbery, the sentencing court did not refer to it. The record also did not include a guideline worksheet, and no one at the hearing, including the parties, mentioned the guideline for armed robbery.

Grady later moved for resentencing based on the court’s failure to consider the guidelines.

At the postconviction hearing, the court stated that, although there was no mention of it during the sentencing, she had considered the sentencing guideline, and denied the motion.

Grady appealed, but the court of appeals affirmed, concluding that sec. 973.017(10) precluded appellate review of a court’s failure to consider the guidelines. State v. Grady, 2006 WI App 188, 296 Wis.2d 295, 722 N.W.2d 760.

The Supreme Court granted review and affirmed, in a decision by Justice Jon P. Wilcox, but on different grounds.

The court first held that defendants can appeal a sentence based on failure to apply the guidelines.

Section 973.017(10) provides, in relevant part, “there is no right to appeal a court’s sentencing decision based on the court’s decision to depart in any way from any guideline.”

The court concluded that, although the statute precludes using a departure from the guidelines as a basis for appeal, nothing precludes an appeal based on the sentencing court’s failure to consider the guidelines at all.

The court noted that a previous decision of the court stated that appellate review is not precluded if the circuit court fails to consider the guidelines at all. State v. Speer, 176 Wis. 2d 1101, 1122-23, 501 N.W.2d 429 (1993).

However, that part of the decision was joined only by three justices, with three justices not joining that part, and one not participating. Thus, the language was not binding precedent.

Here, the court wrote, “Up to this point, there has not been a holding that sec. 973.017(10) or sec. 973.012 precluded appellate review of a circuit court’s consideration of an applicable sentencing guideline. In this case, the court is unanimous. Wisconsin Stat. Sec. 973.017(10) does not preclude appellate review to determine whether a circuit court considered a sentencing guideline.”

Turning to how a circuit court satisfies its obligation to consider the guidelines, the court found that consideration is mandatory, because sec. 973.017(2)(a) states that the court “shall consider” the applicable guideline.

Accordingly, the court concluded that the record of the sentencing hearing must demonstrate that the court actually considered them and stated so on the record. However, the court added that there are no “magic words” the court must state to satisfy its obligation.

In Grady’s case, there was nothing in the record at sentencing to demonstrate consideration of the guidelines, only the after-the-fact statements of the sentencing court at the post-conviction hearing that it did consider them.

The court concluded that this was sufficient in this case, but would not suffice in the future: “Hereafter, supplementing the record with evidence beyond the sentencing hearing will be insufficient.”

The court noted that, while the guidelines have existed for over 25 years, “there has been uncertainty about their use.”

Recognizing that its decision will require many circuit courts to change their sentencing practices, the court deferred effectiveness of the new rule until Sept. 1.

Finally, the court issued guidance to sentencing courts, stating that they are neither obligated to complete a sentencing worksheet, nor explain how the guideline fits the objectives of sentencing or how the guideline influences the sentence actually imposed.