Reviewing original sentence transcript is optional

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A court is not required to read the original sentencing transcript in every reconfinement after revocation of extended supervision.

Instead, the court should be familiar with the case at issue, something that can be accomplished “in any number of ways.”

The May 1 holding by the Wisconsin Supreme Court overrules Court of Appeals’ precedent, which required lower courts to review the original transcript in every case. State v. Gee, 2007 WI App 32, 299 Wis.2d 518, 729 N.W.2d 424.

Clayborn L. Walker was convicted of armed robbery, and sentenced by Milwaukee County Circuit Court Judge Jean W. DiMotto to six years –- two years of initial confinement, and four years of extended supervision.

Just weeks after release to supervision, he violated the rules of release, and the Department of Corrections sought revocation.

At the revocation hearing, circuit court Judge John Franke ordered two years of reconfinement.

Walker then moved for post-conviction relief, arguing that the court failed to review the initial sentencing transcript.

Judge Franke stated that he could not recall whether he reviewed the original transcript or not, but stated that he had now reviewed it, and modification of the sentence was not warranted.

The Court of Appeals reversed in a published opinion, State v. Walker, 2007 WI App 142, 302 Wis.2d 735, 735 N.W.2d 582.

The Supreme Court granted review, and reversed the Court of Appeals, in a unanimous decision written by Judge Annette Kingsland Ziegler.

The court rejected the defendant’s argument, and the holding of the Court of Appeals in Gee, that it had created a per se rule that a circuit court must review the original sentencing transcript, in State v. Brown, 2006 WI 131, 298 Wis.2d 37, 725 N.W.2d 262.

At issue was the following paragraph in Brown: “The original sentencing transcript is an important source of information on the defendant that discusses many of the factors that circuit courts should consider when making a reconfinement decision. The original sentencing transcript is readily available for a circuit court to examine, and those portions that are considered by the court to be relevant should be mentioned.” Brown, at par. 38.

The court acknowledged that it emphasized the usefulness of the original transcript; however, it denied that it created a per se rule that the transcript must be read.

Ziegler wrote, “While it certainly may be good practice for the circuit court to review the sentencing transcript, it may not always be necessary, and therefore, we do not create a per se rule, but instead leave it to the trial court's discretion.”

Accordingly, the court overruled Gee to the extent that it created a per se rule.

The court directed, “the circuit court should be familiar with the particulars of the case at issue. That can be accomplished in any number of ways, and we acknowledge that this may differ from case to case.”

Analysis

Although the defendant lost in this case, the decision is actually beneficial to defendants.

In some cases, original transcripts are beneficial to defendants -– they may indicate that the government’s case was weak, that the offense was less serious than most, or contain a wealth of positive information about the defendant.

Unfortunately, they also almost invariably contain a statement from the defendant about how he has learned his lesson and won’t be appearing before the court again.

If the latter is present in the transcript, but little to none of the factors that the defendant would like the court to know, defense attorneys would prefer that the resentencing court doesn’t read the transcript.

This is in contrast to cases where a court withholds sentence and places the defendant on probation.

In those cases, the original transcript is almost always beneficial to the defendant -– the transcript will usually show why the underlying offense didn’t warrant prison.

In a revocation of extended supervision context, however, the original transcript will more likely show that the defendant should be in prison.

The court’s decision allows a defense attorney to fashion an argument, without necessarily having that albatross around his neck.