When a plea agreement indicates that a recommendation was to be for concurrent sentences and consecutive sentences were recommended, without correction at the sentencing hearing, there is a material and substantial breach of the agreement. Absent an objection, the right to directly appeal is waived and the defendant is entitled to a remedy for the breach only if there was ineffective assistance of counsel, the remedy for which is allowing the withdrawal of the plea or specific performance of the agreement. State v. Howard, 2001 WI App 137
, 246 Wis. 2d 475
, 630 N.W.2d 244
The exercise of sentencing discretion requires the court to exercise its discretion to create a sentence within the range provided by the legislature that reflects the circumstances of the situation and the particular characteristics of the offender. The court must consider the gravity of the offense, the offender's character and the public's need for protection. The weight given to any factor is left to the trial court's discretion. State v. Steele, 2001 WI App 160
, 246 Wis. 2d 744
, 632 N.W.2d 112
In sentencing after probation revocation, if the judge did not preside at the original sentencing, the judge must be able to rely upon the entire record, including comments at the first sentencing. When the record at the second sentencing reflected no recognition by the second judge of trial testimony, the presentence investigation report, or the trial judge's comments on the severity of the offense, the sentence could not stand. State v. Reynolds, 2002 WI App 15
, 249 Wis. 2d 798
, 640 N.W.2d 140
A court's correction of an invalid sentence by increasing the punishment does not constitute double jeopardy; the initial sentence being invalid, the second sentence is the only valid sentence imposed. An increased sentence is permissible at resentencing only when it is based upon a desire to implement the original dispositional scheme from the first sentencing and when the initial conviction and sentence are invalid, the resentencing court has no new information or newly known information, and the resentencing court seeks to impose a greater sentence. State v. Helm, 2002 WI App 154
, 256 Wis. 2d 285
, 647 N.W.2d 405
In fixing a sentence within statutory limits, the judge may consider the defendant's false testimony observed by the judge during trial. United States v. Grayson, 438 U.S. 41
The Lodestar of Personal Responsibility. Brennan. 88 MLR 365 (2004).
Appellate sentence review. 1976 WLR 655. (1983).
Sentence for certain serious felonies; parole eligibility determination. 973.0135(1)(a)
"Prior offender" means a person who meets all of the following conditions:
The person has been convicted of a serious felony on at least one separate occasion at any time preceding the serious felony for which he or she is being sentenced.
The person's conviction under subd. 1.
remains of record and unreversed.
As a result of the conviction under subd. 1.
, the person was sentenced to more than one year of imprisonment.
Any felony under s. 940.09 (1)
, 1999 stats., s. 943.23 (1m)
, 1999 stats., s. 948.35 (1) (b)
, 1999 stats., or s. 948.36
, 1999 stats., s. 940.01
, 940.09 (1c)
, 940.19 (5)
, 940.195 (5)
, 940.225 (1)
, 941.327 (2) (b) 4.
, 943.10 (2)
, 943.23 (1g)
, 943.32 (2)
, 946.43 (1m)
, 948.02 (1)
, 948.03 (2) (a)
, or 948.30 (2)
A crime at any time under federal law or the law of any other state or, prior to April 21, 1994, under the law of this state that is comparable to a crime specified in subd. 1.
Except as provided in sub. (3)
, when a court sentences a prior offender to imprisonment in a state prison for a serious felony committed on or after April 21, 1994, but before December 31, 1999, the court shall make a parole eligibility determination regarding the person and choose one of the following options:
The person is eligible for parole on a date set by the court. Under this paragraph, the court may not set a date that occurs before the earliest possible parole eligibility date as calculated under s. 304.06 (1)
and may not set a date that occurs later than two-thirds of the sentence imposed for the felony.
A person is not subject to this section if the current serious felony is punishable by life imprisonment.
If a prior conviction is being considered as being covered under sub. (1) (b) 4.
as comparable to a felony specified under sub. (1) (b) 1.
, the conviction may be counted as a prior conviction under sub. (1) (a)
only if the court determines, beyond a reasonable doubt, that the violation relating to that conviction would constitute a felony specified under sub. (1) (b) 1.
if committed by an adult in this state.
Sentence of life imprisonment; parole eligibility determination; extended supervision eligibility determination. 973.014(1)(1)
Except as provided in sub. (2)
, when a court sentences a person to life imprisonment for a crime committed on or after July 1, 1988, but before December 31, 1999, the court shall make a parole eligibility determination regarding the person and choose one of the following options:
The person is eligible for parole on a date set by the court. Under this paragraph, 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)
The person is not eligible for parole. This paragraph applies only if the court sentences a person for a crime committed on or after August 31, 1995, but before December 31, 1999.
Except as provided in sub. (2)
, when a court sentences a person to life imprisonment for a crime committed on or after December 31, 1999, the court shall make an extended supervision eligibility date determination regarding the person and choose one of the following options:
The person is eligible for release to extended supervision after serving 20 years.
The person is eligible for release to extended supervision on a date set by the court. Under this subdivision, the court may set any later date than that provided in subd. 1.
, but may not set a date that occurs before the earliest possible date under subd. 1.
The person is not eligible for release to extended supervision.
When sentencing a person to life imprisonment under par. (a)
, the court shall inform the person of the provisions of s. 302.114 (3)
and the procedure for petitioning under s. 302.114 (5)
for release to extended supervision.
A person sentenced to life imprisonment under par. (a)
is not eligible for release on parole.
When a court sentences a person to life imprisonment under s. 939.62 (2m) (c)
, the court shall provide that the sentence is without the possibility of parole or extended supervision.
The denial of presentence confinement credit when parole was established under sub. (2) [now sub. (2) (b)] was constitutional. State v. Chapman, 175 Wis. 2d 231
, 499 N.W.2d 223
(Ct. App. 1993).
Sub. (1) (b) [now sub. (2) (b)] allows a circuit court to impose a parole eligibility date beyond a defendant's expected lifetime. State v. Setagord, 211 Wis. 2d 397
, 565 N.W.2d 506
A trial court sentencing a defendant under sub. (1) (b) [now sub. (2) (b)], exercising its discretion, may or may not give credit for presentence incarceration. State v. Seeley, 212 Wis. 2d 75
, 567 N.W.2d 897
(Ct. App. 1997), 96-1939
Parole eligibility is not a statutorily or constitutionally necessary component of a valid plea colloquy in a case in which a life sentence is imposed. State v. Byrge, 225 Wis. 2d 702
, 594 N.W.2d 388
(Ct. App. 1999), 97-3217
Special disposition. 973.015(1)(a)
Subject to par. (b)
and except as provided in par. (c)
, when a person is under the age of 25 at the time of the commission of an offense for which the person has been found guilty in a court for violation of a law for which the maximum period of imprisonment is 6 years or less, the court may order at the time of sentencing that the record be expunged upon successful completion of the sentence if the court determines the person will benefit and society will not be harmed by this disposition. This subsection does not apply to information maintained by the department of transportation regarding a conviction that is required to be included in a record kept under s. 343.23 (2) (a)
The court shall order at the time of sentencing that the record be expunged upon successful completion of the sentence if the offense was a violation of s. 942.08 (2) (b)
, or (d)
, and the person was under the age of 18 when he or she committed it.
No court may order that a record of a conviction for any of the following be expunged:
A Class I felony, if the person has, in his or her lifetime, been convicted of a prior felony offense, or if the felony is a violent offense, as defined in s. 301.048 (2) (bm)
, or is a violation of s. 948.23 (1) (a)
A person has successfully completed the sentence if the person has not been convicted of a subsequent offense and, if on probation, the probation has not been revoked and the probationer has satisfied the conditions of probation. Upon successful completion of the sentence the detaining or probationary authority shall issue a certificate of discharge which shall be forwarded to the court of record and which shall have the effect of expunging the record. If the person has been imprisoned, the detaining authority shall also forward a copy of the certificate of discharge to the department.
An expunged conviction is not admissible to attack a witness's credibility. State v. Anderson, 160 Wis. 2d 435
, 466 N.W.2d 681
(Ct. App. 1991).
This section does not require law enforcement agencies or prosecutors to destroy records relating to an expunged conviction, nor does it prohibit courts from considering the facts underlying an expunged conviction in sentencing in another case. State v. Leitner, 2002 WI 77
, 253 Wis. 2d 449
, 646 N.W.2d 341
"Expunge" under this section means to strike or obliterate from the record all references to the defendant's name and identity. 67 Atty. Gen. 301.
Circuit courts do not possess inherent powers to expunge or destroy conviction records. 70 Atty. Gen. 115.
Bifurcated sentences; use of guidelines; consideration of aggravating and mitigating factors. 973.017(1)(1)
In this section, "sentencing decision" means a decision as to whether to impose a bifurcated sentence under s. 973.01
or place a person on probation and a decision as to the length of a bifurcated sentence, including the length of each component of the bifurcated sentence, the amount of a fine, and the length of a term of probation.
(2) General requirement.
When a court makes a sentencing decision concerning a person convicted of a criminal offense committed on or after February 1, 2003, the court shall consider all of the following:
Any applicable mitigating factors and any applicable aggravating factors, including the aggravating factors specified in subs. (3)
(3) Aggravating factors; generally.
When making a sentencing decision for any crime, the court shall consider all of the following as aggravating factors:
The fact that the person committed the crime while his or her usual appearance was concealed, disguised, or altered, with the intent to make it less likely that he or she would be identified with the crime.
The fact that the person committed the crime using information that was disclosed to him or her under s. 301.46
The fact that the person committed the crime for the benefit of, at the direction of, or in association with any criminal gang, as defined in s. 939.22 (9)
, with the specific intent to promote, further, or assist in any criminal conduct by criminal gang members, as defined in s. 939.22 (9g)
The fact that the person committed the felony while wearing a vest or other garment designed, redesigned, or adapted to prevent bullets from penetrating the garment.
Subject to subd. 2.
, the fact that the person committed the felony with the intent to influence the policy of a governmental unit or to punish a governmental unit for a prior policy decision, if any of the following circumstances also applies to the felony committed by the person:
The person caused bodily harm, great bodily harm, or death to another.
The person caused damage to the property of another and the total property damaged is reduced in value by $25,000 or more. For the purposes of this subd. 1. b.
, property is reduced in value by the amount that it would cost either to repair or to replace it, whichever is less.
The person used force or violence or the threat of force or violence.
In this subdivision, "labor dispute" includes any controversy concerning terms, tenure, or conditions of employment or concerning the association or representation of persons in negotiating, fixing, maintaining, changing, or seeking to arrange terms or conditions of employment, regardless of whether the disputants stand in the proximate relation of employer and employee.
b. Subdivision 1.
does not apply to conduct arising out of or in connection with a labor dispute.
(4) Aggravating factors; serious sex crimes committed while infected with certain diseases. 973.017(4)(a)1.
"HIV" means any strain of human immunodeficiency virus, which causes acquired immunodeficiency syndrome.
"Sexually transmitted disease" means syphilis, gonorrhea, hepatitis B, hepatitis C, or chlamydia.
"Significantly exposed" means sustaining a contact that carries a potential for transmission of a sexually transmitted disease or HIV by one or more of the following:
Transmission, into a body orifice or onto mucous membrane, of blood; semen; vaginal secretions; cerebrospinal, synovial, pleural, peritoneal, pericardial, or amniotic fluid; or other body fluid that is visibly contaminated with blood.
Exchange, during the accidental or intentional infliction of a penetrating wound, including a needle puncture, of blood; semen; vaginal secretions; cerebrospinal, synovial, pleural, peritoneal, pericardial, or amniotic fluid; or other body fluid that is visibly contaminated with blood.
Exchange, into an eye, an open wound, an oozing lesion, or other place where a significant breakdown in the epidermal barrier has occurred, of blood; semen; vaginal secretions; cerebrospinal, synovial, pleural, peritoneal, pericardial, or amniotic fluid; or other body fluid that is visibly contaminated with blood.
When making a sentencing decision concerning a person convicted of a serious sex crime, the court shall consider as an aggravating factor the fact that the serious sex crime was committed under all of the following circumstances:
At the time that he or she committed the serious sex crime, the person convicted of committing the serious sex crime had a sexually transmitted disease or acquired immunodeficiency syndrome or had had a positive HIV test.