Repeal of sentencing guidelines retroactive

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State court defendants looking for resentencing based on a court’s failure to consider the sentencing guidelines are out of luck.

The Wisconsin Court of Appeals held on Mar. 10 that the Legislature’s repeal of the guidelines is retroactive. So even if the sentencing court failed to fulfill its obligation to consider them, there is no remedy.

“Without sentencing guidelines, now it is impossible to order [the defendant] resentenced and to have the sentencing guidelines considered,” Judge Daniel P. Anderson wrote for the court. “Nothing we order can have any practical legal effect.”

In 2007, the Wisconsin Supreme Court decided State v. Grady, 2007 WI 81, 302 Wis.2d 80, 734 N.W.2d 364, mandating that effective Sept. 1, 2007, the record of all sentencing hearings must demonstrate that the court actually considered the guidelines.

On Oct. 3, 2008, Thomas H.L. Barfell was sentenced on one count of burglary. However, the sentencing court did not state on the record that it considered the sentencing guidelines for burglary.

Barfell appealed, and while the appeal was in progress, the Legislature repealed the statute that required consideration of the guidelines, sec. 973.017(2)(a). Barfell did not claim that the sentencing was excessive or defective in any other respect.

After ordering supplemental briefing on the effect of the repeal, the Court of Appeals held that the repeal was retroactive, and defendants sentenced from Sept. 1, 2007 through repeal are not entitled to resentencing, even though their sentencing hearings were defective.

The court concluded that sec. 973.017(2)(a) was a procedural law, rather than a substantive one which would establish the parties’ rights.

“The requirement did not establish a right running to Barfell, rather it was a procedural attempt to further the State’s goals.”

The court also noted that, at the time Barfell was sentenced, the sentencing commission had already been defunded by the Legislature. Thus, there was no sentencing commission to adopt guidelines, and no way for the sentencing court to carry out its duty under the statute.

As a result, even if Barfell were to be resentenced, there would be no guidelines for the court to consider.

Because the statute is a procedural one, rather that one that creates substantive rights, the court also rejected Barfell’s argument that the ex post facto clause prohibits retroactive application of the repeal.