973.017(6m)(6m) Aggravating factors; domestic abuse in presence of a child. 973.017(6m)(a)1.1. “Child” means an individual who has not attained the age of 18 years. 973.017(6m)(b)(b) When making a sentencing decision concerning a person convicted of a crime that involves an act of domestic abuse, the court shall consider as an aggravating factor the fact that the act was committed in a place or a manner in which the act was observable by or audible to a child or was in the presence of a child and the actor knew or had reason to know that the act was observable by or audible to a child or was in the presence of a child. 973.017(7)(7) Aggravating factors; homicide or injury by intoxicated use of a vehicle. When making a sentencing decision concerning a person convicted of a violation of s. 940.09 (1) or 940.25 (1), the court shall consider as an aggravating factor the fact that, at the time of the violation, there was a minor passenger under 16 years of age or an unborn child in the person’s motor vehicle. 973.017(8)(8) Aggravating factors; controlled substances offenses. 973.017(8)(a)1.1. In this paragraph, “precinct” means a place where any activity is conducted by a prison, jail, or house of correction. 973.017(8)(a)2.2. When making a sentencing decision concerning a person convicted of violating s. 961.41 (1) or (1m), the court shall consider as an aggravating factor the fact that the violation involved delivering, distributing, or possessing with intent to deliver or distribute a controlled substance or controlled substance analog to a prisoner within the precincts of any prison, jail, or house of correction. 973.017(8)(a)3.3. When making a sentencing decision concerning a person convicted of violating s. 961.65, the court shall consider as an aggravating factor the fact that the person intended to deliver or distribute methamphetamine or a controlled substance analog of methamphetamine to a prisoner within the precincts of any prison, jail, or house of correction. 973.017(8)(b)(b) Distribution or delivery on public transit vehicles. When making a sentencing decision concerning a person convicted of violating s. 961.41 (1) or (1m), the court shall consider as an aggravating factor the fact that the violation involved delivering, distributing, or possessing with intent to deliver or distribute a controlled substance included in schedule I or II or a controlled substance analog of any controlled substance included in schedule I or II and that the person knowingly used a public transit vehicle during the violation. 973.017(8)(c)(c) Distribution or delivery of methamphetamine on public transit vehicles. When making a sentencing decision concerning a person convicted of violating s. 961.65, the court shall consider as an aggravating factor the fact that the person intended to deliver or distribute methamphetamine or a controlled substance analog of methamphetamine and that the person knowingly used a public transit vehicle during the violation. 973.017(9)(9) Aggravating factors not an element of the crime. The aggravating factors listed in this section are not elements of any crime. A prosecutor is not required to charge any aggravating factor or otherwise allege the existence of an aggravating factor in any pleading for a court to consider the aggravating factor when making a sentencing decision. 973.017(10m)(10m) Statement of reasons for sentencing decision. 973.017(10m)(a)(a) The court shall state the reasons for its sentencing decision and, except as provided in par. (b), shall do so in open court and on the record. 973.017(10m)(b)(b) If the court determines that it is not in the interest of the defendant for it to state the reasons for its sentencing decision in the defendant’s presence, the court shall state the reasons for its sentencing decision in writing and include the written statement in the record. 973.017 AnnotationUnder sub. (10m), a circuit court must state the reasons for its sentencing decision on the record. Under the erroneous exercise of discretion standard, the circuit court’s determination will be upheld on appeal if it is a reasonable conclusion, based upon a consideration of the appropriate law and facts of record. State v. Salas Gayton, 2016 WI 58, 370 Wis. 2d 264, 882 N.W.2d 459, 13-0646. 973.017 AnnotationThe circuit court’s obligation to consider a required factor under sub. (2) (ad) to (ak) on the record is distinct from the court’s discretion to determine the factor’s appropriate weight once the court has considered all factors. While a court may, in the proper exercise of discretion, decide to give a required factor little or no weight, the court may not decide to not consider a required factor at all. State v. Bolstad, 2021 WI App 81, 399 Wis. 2d 815, 967 N.W.2d 164, 21-0049. 973.017 AnnotationA circuit court erroneously exercises its sentencing discretion when it actually relies on clearly irrelevant or improper factors. Accordingly, a defendant challenging the defendant’s sentence must prove by clear and convincing evidence that: 1) the challenged factor is irrelevant or improper; and 2) the circuit court actually relied on that factor. Under the improper-factor prong, sentencing factors are proper when they inform valid sentencing objectives including the protection of the community, punishment of the defendant, rehabilitation of the defendant, and deterrence to others. A circuit court may properly entertain a general predisposition, based upon the court’s criminal sentencing experience, so long as that predisposition is not so specific or rigid that it ignores the particular circumstances of the individual offender. Under the actual-reliance prong, the appeals court reviews the sentencing transcript as a whole and assesses any allegedly improper comments within that context. A defendant will fall short of proving actual reliance if the transcript lacks clear and convincing evidence that the factor was the sole cause of a harsher sentence. A defendant will also fail to show actual reliance if a reference to a challenged factor bears a reasonable nexus to a relevant, proper factor. State v. Dodson, 2022 WI 5, 400 Wis. 2d 313, 969 N.W.2d 225, 18-1476. 973.017 AnnotationWhile a defendant has a due process right to be present at the sentencing, it does not necessarily follow that due process requires that the defendant be present when the sentencing court provides its reasons for its sentencing decision, particularly when the court is required to make the written statement of its sentencing rationale a part of the record and thus available to the defendant. At the point at which the court provides the rationale for the sentence imposed, the defendant has no further opportunity to contribute to the court’s decision. In this case, the process in sub. (10m) (b), which allows the court to state the reasons for its sentencing decision in writing, was not unconstitutional as applied to the defendant. State v. McReynolds, 2022 WI App 25, 402 Wis. 2d 175, 975 N.W.2d 265, 21-0943. 973.02973.02 Place of imprisonment when none expressed. Except as provided in s. 973.032, if a statute authorizes imprisonment for its violation but does not prescribe the place of imprisonment, a sentence of less than one year shall be to the county jail, a sentence of more than one year shall be to the Wisconsin state prisons and the minimum under the indeterminate sentence law shall be one year, and a sentence of one year may be to either the Wisconsin state prisons or the county jail. In any proper case, sentence and commitment may be to the department or any house of correction or other institution as provided by law or to detention under s. 973.03 (4). 973.02 AnnotationThe legislature is presumed to have been aware of many existing statutes carrying sentences of one year or less with no place of confinement specified when it enacted the predecessor to this section as ch. 154, laws of 1945. State ex rel. McDonald v. Circuit Court, 100 Wis. 2d 569, 302 N.W.2d 462 (1981). 973.02 AnnotationCriminal defendants who receive consecutive sentences that in the aggregate exceed one year, but individually are all less than one year, should be incarcerated in county jails rather than the Wisconsin prison system. 78 Atty. Gen. 44. 973.03(1)(1) If at the time of passing sentence upon a defendant who is to be imprisoned in a county jail there is no jail in the county suitable for the defendant and no cooperative agreement under s. 302.44, the court may sentence the defendant to any suitable county jail in the state. The expenses of supporting the defendant there shall be borne by the county in which the crime was committed.