A fine that an offender has the ability to pay may satisfy sentencing objectives the trial court has found to be material and relevant to the particular defendant. A trial court is not required to explain the reason for a specific amount of a fine, but some explanation of why the court imposes a fine is required. If the sentencing court intends to impose a fine, the court must determine at the time of sentencing whether a defendant has the ability to pay a fine during the total sentence. The standard for imposing a fine, which is part of the punishment, should require no less consideration of the defendant's ability to pay than is required as part of an order of restitution. State v. Ramel, 2007 WI App 271
, 306 Wis. 2d 654
, 743 N.W.2d 502
. See also State v. Vesper, 2018 WI App 31
, 382 Wis. 2d 207
, 912 N.W.2d 418
The circuit court had the authority to order the defendant to reimburse his mother for forfeited bail his mother paid, either as restitution or as a condition of extended supervision. State v. Agosto, 2008 WI App 149
, 314 Wis. 2d 385
, 760 N.W.2d 415
Sections 302.113 (4), 973.01, and 973.15 establish that consecutive periods of extended supervision are to be served consecutively, aggregated into one continuous period, so that revocation of extended supervision at any time allows revocation as to all consecutive sentences. State v. Collins, 2008 WI App 163
, 314 Wis. 2d 653
, 760 N.W.2d 438
Due process requires that vindictiveness against a defendant for having successfully attacked his or her first conviction play no part in the sentence received after a new trial. When a judge imposes a more severe sentence upon a defendant after a new trial, the reasons for doing so must be free from a retaliatory motive. Because retaliatory motives can be complex and difficult to prove, the U.S. Supreme Court has found it necessary to presume an improper vindictive motive, which also applies when a defendant is resentenced following a successful attack on an invalid sentence. However, the presumption stands only when a reasonable likelihood of vindictiveness exists. A new sentence that is longer than the original sentence that implements the original dispositional scheme is not tainted by vindictiveness. State v. Sturdivant, 2009 WI App 5
, 316 Wis. 2d 197
, 763 N.W.2d 185
A sentencing court may consider uncharged and unproven offenses and facts related to offenses for which the defendant has been acquitted. Sentencing courts are obliged to acquire full knowledge of the character and behavior pattern of the defendant before imposing sentence. State v. Prineas, 2009 WI App 28
, 316 Wis. 2d 414
, 766 N.W.2d 206
A court may certainly tell a defendant what could happen if his or her extended supervision is revoked. But telling a defendant what will happen imperils the defendant's due process right to an impartial judge at a reconfinement hearing. State v. Goodson, 2009 WI App 107
, 320 Wis. 2d 166
, 771 N.W.2d 385
A defendant has a constitutional due process right not to be sentenced on the basis of race or gender. The defendant has the burden to prove that the circuit court actually relied on race or gender in imposing its sentence. The standard of proof is clear and convincing evidence. The defendant must provide evidence indicating that it is highly probable or reasonably certain that the circuit court actually relied on race or gender when imposing its sentence. A reasonable observer test is rejected. State v. Harris, 2010 WI 79
, 326 Wis. 2d 685
, 786 N.W.2d 409
A sentencing court did not violate the 4th amendment or Article I, s. 11, by setting a condition of extended supervision that allows any law enforcement officer to search the defendant's person, vehicle, or residence for firearms, at any time and without probable cause or reasonable suspicion. While the condition that the circuit court imposed may have impinged on constitutional rights, it did not violate them as the circuit court made an individualized determination, pursuant to the court's authority under sub. (5), that the condition was necessary based on the facts in this case involving violence, threats, and a firearm. State v. Rowan, 2012 WI 60
, 341 Wis. 2d 281
, 814 N.W.2d 854
The suggestion that dismissed charges not be considered in sentencing is not reasonable. It is better practice for the court to acknowledge and discuss dismissed charges, if they are considered by the court, giving them appropriate weight and describing their relationship to a defendant's character and behavioral pattern, or to the incident that serves as the basis for a plea. The defendant should be given an opportunity to explain or dispute these charges. State v. Frey, 2012 WI 99
, 343 Wis. 2d 358
, 817 N.W.2d 436
In the context of interpreting plea bargains under contract law, dismissed charges do not have a static meaning. They are a product of the parties' negotiations and they mean what the parties intend them to mean. The one exception is that a plea agreement involving one or more dismissed charges cannot limit what the judge may consider at sentencing. Such agreements are contrary to public policy. The term “dismissed outright" should be discontinued. Instead, plea bargains should pin down whether a district attorney is agreeing not to prosecute a dismissed charge. State v. Frey, 2012 WI 99
, 343 Wis. 2d 358
, 817 N.W.2d 436
teaches that a defendant is entitled to resentencing if the defendant meets the following two-pronged test: 1) the defendant shows that the information at the original sentencing was inaccurate; and 2) the defendant shows that the court actually relied on the inaccurate information at sentencing. Whether the circuit court actually relied on the incorrect information at sentencing turns on whether the circuit court gave “explicit attention" or “specific consideration" to the inaccurate information, so that the inaccurate information “formed part of the basis for the sentence." Upon determining that a circuit court actually relied upon inaccurate information at sentencing the reviewing court applies a harmless error analysis. State v. Travis, 2013 WI 38
, 347 Wis. 2d 142
, 832 N.W.2d 491
The court's invocations of a religious deity during sentencing were ill-advised. However, not every “ill-advised word" will create reversible error. The transcript reflects that the court's offhand religious references addressed proper secular sentencing factors. The judge's comments did not suggest the defendant required a longer sentence to pay religious penance. State v. Betters, 2013 WI App 85
, 349 Wis. 2d 428
, 835 N.W.2d 249
Sub. (2) (c) 1. is not applicable to misdemeanors. Whereas for a felony, an enhancement lengthens the otherwise applicable “maximum term of confinement in prison," for a misdemeanor, an enhancement transforms the misdemeanor sentence into a sentence to the state prisons, which then must be bifurcated. Because no “maximum term of confinement in prison" exists for a misdemeanor until the enhancement is applied, once it is applied, it cannot be applied again. State v. Lasanske, 2014 WI App 26
, 353 Wis. 2d 280
, 844 N.W.2d 417
The limitation under s. 343.30 (5) that no court may suspend or revoke an operating privilege except as authorized by statute precludes not only restrictions on obtaining a physical license document, but also on the privilege to operate a vehicle. A court's broad authority to fashion appropriate conditions of extended supervision is limited by the provisions of s. 343.30 concerning suspension and revocation of operating privileges by the courts. State v. Hoppe, 2014 WI App 51
, 354 Wis. 2d 219
, 847 N.W.2d 869
Although a sentencing court may not constitutionally impose a sentence based on national origin, the court may consider a defendant's relevant illegal conduct related to immigration without denying the defendant due process of law. In this case, the court did not deny the defendant due process in the form of reliance on an improper sentencing factor when the court mentioned the defendant's immigration status as a minor aspect of the court's comprehensive evaluation of the defendant's character. State v. Salas Gayton, 2016 WI 58
, 370 Wis. 2d 264
, 882 N.W.2d 459
A sentencing court may consider a Correctional Offender Management Profiling for Alternative Sanctions (COMPAS) risk assessment at sentencing without violating a defendant's right to due process if the risk assessment is used properly with an awareness of the limitations and cautions set forth in the opinion. Risk scores may not be used to determine 1) whether an offender is incarcerated; or 2) the severity of the sentence. Additionally, risk scores may not be used as the determinative factor in deciding whether an offender can be supervised safely and effectively in the community. Any Presentence Investigation Report (PSI) containing a COMPAS risk assessment must contain a written advisement listing those limitations and informing sentencing courts of certain cautions set forth in the opinion. State v. Loomis, 2016 WI 68
, 371 Wis. 2d 235
, 881 N.W.2d 749
Sentencing courts have wide discretion and may impose any conditions of probation or supervision that appear to be reasonable and appropriate. The sentencing court was entitled to err on the side of caution — for the sake of the defendant and the community — and rely upon the investigating officers' representation that the defendant had a substance abuse history over the representation of the defendant's counsel that the defendant did not have a substance abuse problem because he had some “clean drug screens” while on supervision and because counsel personally was not aware of a substance abuse problem. State v. Davis, 2017 WI App 55
, 377 Wis. 2d 678
, 901 N.W.2d 488
In addition to the 3 main factors a circuit court must consider in determining a defendant's sentence, the circuit court also may consider secondary factors, including: 1) past record of criminal offense; 2) history of undesirable behavior pattern; 3) defendant's personality, character, and social traits; 4) result of presentence investigation; 5) vicious or aggravated nature of the crime; 6) degree of defendant's culpability; 7) defendant's demeanor at trial; 8) defendant's age, educational background, and employment record; 9) defendant's remorse, repentance, and cooperativeness; 10) defendant's need for close rehabilitative control; 11) the rights of the public; and 12) the length of pretrial detention. State v. Williams, 2018 WI 59
, 381 Wis. 2d 661
, 912 N.W.2d 373
A defendant's failure to express remorse can be used at sentencing only if it is one among other factors and if it receives no undue consideration. State v. Pico, 2018 WI 66
, 382 Wis. 2d 273
, 914 N.W.2d 95
, 579 U.S. ___, 136 S. Ct. 2160
, it is impermissible to impose criminal penalties for refusing to submit to a warrantless blood draw. A lengthier jail sentence is a criminal penalty. Therefore, the circuit court in this case violated Birchfield
by explicitly subjecting the defendant to a more severe criminal penalty because the defendant refused to provide a blood sample absent a warrant. State v. Dalton, 2018 WI 85
, 383 Wis. 2d 147
, 914 N.W.2d 120
Truth-In-Sentencing Comes to Wisconsin. Brennan & Latorraca. Wis. Law. June 2000.
Fully Implementing Truth-In-Sentencing. Hammer & Latorraca. Wis. Law. Nov. 2002.
Indeterminate sentence; Wisconsin state prisons. 973.013(1)(a)
If imprisonment in the Wisconsin state prisons for a term of years is imposed, the court may fix a term less than the prescribed maximum. The form of such sentence shall be substantially as follows: “You are hereby sentenced to the Wisconsin state prisons for an indeterminate term of not more than .... (the maximum as fixed by the court) years."
Except as provided in s. 973.01
, the sentence shall have the effect of a sentence at hard labor for the maximum term fixed by the court, subject to the power of actual release from confinement by parole by the department or by pardon as provided by law. If a person is sentenced for a definite time for an offense for which the person may be sentenced under this section, the person is in legal effect sentenced as required by this section, said definite time being the maximum period. A defendant convicted of a crime for which the minimum penalty is life shall be sentenced for life.
Upon the recommendation of the department, the governor may, without the procedure required by ch. 304
, discharge absolutely, or upon such conditions and restrictions and under such limitation as the governor thinks proper, any inmate committed to the Wisconsin state prisons after he or she has served the minimum term of punishment prescribed by law for the offense for which he or she was sentenced, except that if the term was life imprisonment, 5 years must elapse after release on parole or extended supervision before such a recommendation can be made to the governor. The discharge has the effect of an absolute or conditional pardon, respectively.
Female persons convicted of a felony may be committed to the Taycheedah Correctional Institution unless they are subject to sub. (3m)
If a person who has not attained the age of 18 years is sentenced to the Wisconsin state prisons, the department shall place the person at a juvenile correctional facility or a secured residential care center for children and youth, unless the department determines that placement in an institution under s. 302.01
is appropriate based on the person's prior record of adjustment in a correctional setting, if any; the person's present and potential vocational and educational needs, interests and abilities; the adequacy and suitability of available facilities; the services and procedures available for treatment of the person within the various institutions; the protection of the public; and any other considerations promulgated by the department by rule. The department may not place any person under the age of 18 years in the correctional institution authorized in s. 301.16 (1n)
. This subsection does not preclude the department from designating an adult correctional institution, other than the correctional institution authorized in s. 301.16 (1n)
, as a reception center for the person and subsequently transferring the person to a juvenile correctional facility or a secured residential care center for children and youth. Section 302.11
and ch. 304
apply to all persons placed in a juvenile correctional facility or a secured residential care center for children and youth under this subsection.
If information under s. 972.15 (2m)
has been provided in a presentence investigation report, the court shall consider that information when sentencing the defendant.
The sentencing judge shall state for the record, in the presence of the defendant, the reasons for selecting the particular sentence imposed or, if the sentencing judge considers it in the interest of the defendant not to state reasons in the presence of the defendant, shall prepare a statement for transmission to the reviewing court as part of the record. McCleary v. State, 49 Wis. 2d 263
, 182 N.W.2d 512
It was not a denial of equal protection to sentence a defendant to 4 years' imprisonment, although other persons involved, all minors, received lesser or no punishment. State v. Schilz, 50 Wis. 2d 395
, 184 N.W.2d 134
An abuse of discretion, as it relates to sentencing procedures, will be found only if there is no rational basis for the imposition of the sentence or the rationale is not articulated in, or inferable from, the record, or if discretion is exercised on the basis of clearly irrelevant or improper factors. Davis v. State, 52 Wis. 2d 697
, 190 N.W.2d 890
The seriousness of the offense is a proper criterion for imposing a maximum sentence. While warehousing dangerous individuals is not the sole purpose for imposing long prison terms, it is a legitimate factor for a trial court to consider. Bastian v. State, 54 Wis. 2d 240
, 194 N.W.2d 687
A prison sentence is reduced to reflect days of pretrial incarceration during which the defendant was unable to raise bail because of indigency. Wilkins v. State, 66 Wis. 2d 628
, 225 N.W.2d 492
A defendant's change in attitude or rehabilitative progress subsequent to sentencing is a factor to be considered in determining parole but is not a proper consideration upon which a trial court might base a reduction of sentence. State v. Wuensch, 69 Wis. 2d 467
, 230 N.W.2d 665
Although evidence concerning incidents of sexual activity abroad was relevant as to defendant's character and admissible at the sentencing hearing, the trial court abused its discretion by punishing the defendant not only for the crime of which he stood convicted, but for the events that occurred outside Wisconsin, as indicated by the fact that both sentencing hearings were devoted largely to these foreign incidents. Rosado v. State, 70 Wis. 2d 280
, 234 N.W.2d 69
The trial court exceeded its jurisdiction by specifying conditions of incarceration. State v. Gibbons, 71 Wis. 2d 94
, 237 N.W.2d 33
A plea bargain agreement by law enforcement officials not to reveal relevant and pertinent information to the sentencing judge was unenforceable as being against public policy. Grant v. State, 73 Wis. 2d 441
, 243 N.W.2d 186
Chronic offenses of theft by fraud by promising to marry several persons provided a rational basis for a lengthy sentence. Lambert v. State, 73 Wis. 2d 590
, 243 N.W.2d 524
A sentencing judge does not deny due process by considering pending criminal charges in determining a sentence. The scope of judicial inquiry prior to sentencing is discussed. Handel v. State, 74 Wis. 2d 699
, 247 N.W.2d 711
A defendant's refusal to name accomplices was properly considered by the sentencing judge. Because the defendant had pleaded guilty to the crime, self-incrimination would not have resulted from the requested cooperation. Holmes v. State, 76 Wis. 2d 259
, 251 N.W.2d 56
Courts may correct formal or clerical errors or an illegal sentence at any time. Krueger v. State, 86 Wis. 2d 435
, 272 N.W.2d 847
The double jeopardy clause did not bar prosecution of a charge after it was considered as evidence of character in sentencing the defendant on a prior unrelated conviction. State v. Jackson, 110 Wis. 2d 548
, 329 N.W.2d 182
Increasing a sentence following the vacation of a bargained for no contest plea did not violate due process. The test for judicial vindictiveness is discussed. State v. Stubbendick, 110 Wis. 2d 693
, 329 N.W.2d 399
An 80-year sentence for a first-time sexual offender was not an abuse of discretion. State v. Curbello-Rodriguez, 119 Wis. 2d 414
, 351 N.W.2d 758
(Ct. App. 1984).
An unambiguous sentence pronounced orally and recorded in the sentencing transcript controls over the written judgment of conviction. State v. Perry, 136 Wis. 2d 92
, 401 N.W.2d 748
The sentencing court does not abuse its discretion by considering a victim's statements and recommendations. State v. Johnson, 158 Wis. 2d 458
, 463 N.W.2d 352
(Ct. App. 1990).
The primary factors to be considered in exercising discretion in sentencing are: 1) the gravity of the offense; 2) the rehabilitative needs of the defendant; and 3) the protection of the public. State v. Paske, 163 Wis. 2d 52
, 471 N.W.2d 55
Due process does not require the presence of counsel at a presentence investigation interview of the defendant. State v. Perez, 170 Wis. 2d 130
, 487 N.W.2d 630
(Ct. App. 1992).
Whether a particular factor will be considered as a mitigating or aggravating factor will depend on the particular defendant and case. State v. Thompson, 172 Wis. 2d 257
, 493 N.W.2d 729
(Ct. App. 1992).
The trial court's possible consideration at sentencing of the defendant's culpability in a more serious offense, although the jury convicted on a lesser included offense, was not error. State v. Marhal, 172 Wis. 2d 491
, 493 N.W.2d 758
(Ct. App. 1992). See also State v. Bobbitt, 178 Wis. 2d 11
, 503 N.W.2d 11
(Ct. App. 1993).
No specific burden of proof is imposed as to read-in offenses that bear upon sentencing; all sentencing is under the standard for judicial discretion. State v. Hubert, 181 Wis. 2d 333
, 510 N.W.2d 799
(Ct. App. 1993).
A sentencing court may consider a defendant's religious beliefs and practices only if a reliable nexus exists between the defendant's criminal conduct and those beliefs and practices. State v. Fuerst, 181 Wis. 2d 903
, 512 N.W.2d 243
(Ct. App. 1994).
If an oral pronouncement is ambiguous, it is proper to look to the written judgment to ascertain a court's intent in sentencing. An omission in the oral pronouncement can create an ambiguity. State v. Lipke, 186 Wis. 2d 358
, 521 N.W.2d 444
(Ct. App. 1994).
Under s. 973.013 [now sub. (1)], life imprisonment without parole is not an option. State v. Setagord, 187 Wis. 2d 339
, 523 N.W.2d 124
(Ct. App. 1994).
A trial court in exercising sentencing discretion is not prohibited from entertaining general predispositions based on experience, but the judge's predispositions may never be so specific as to ignore the particular circumstances of the individual offender. State v. Ogden, 199 Wis. 2d 566
, 544 N.W.2d 574
A defendant who requests resentencing must show that specific information was inaccurate and that the court relied on it. When facts stated in a presentence report are not challenged at sentencing, the sentencing judge may appropriately consider them. State v. Mosley, 201 Wis. 2d 36
, 547 N.W.2d 806
(Ct. App. 1996), 95-1340
A court must consider 3 primary factors in exercising discretion in sentencing: 1) the gravity of the offense; 2) the character of the offender; and 3) the need to protect the public. Remorse is an additional factor that may be considered. State v. Rodgers, 203 Wis. 2d 83
, 552 N.W.2d 123
(Ct. App. 1996), 95-2570
. For enumeration of other additional factors that may be considered, see State v. Barnes, 203 Wis. 2d 132
, 552 N.W.2d 857
(Ct. App. 1996), 95-1831
A defendant is automatically prejudiced when the prosecutor materially and substantially breaches a plea agreement. New sentencing is required. State v. Smith, 207 Wis. 2d 258
, 558 N.W.2d 379
When resentencing a defendant, a court should consider all information relevant about a defendant, including information not existing or not known when sentence was first passed. State v. Carter, 208 Wis. 2d 142
, 560 N.W.2d 256
A marital relationship between a case's prosecutor and the presentence report writer was sufficient to draw the objectivity of the report into question. It was error not to strike the report. State v. Suchocki, 208 Wis. 2d 509
, 561 N.W.2d 332
(Ct. App. 1997), 96-1712
Evidence of unproven offenses involving the defendant my be considered in sentencing decisions, as the court must consider whether the crime is an isolated act or part of a pattern of conduct. State v. Fisher, 211 Wis. 2d 665
, 565 N.W.2d 565
(Ct. App. 1997), 96-1764
A defendant's argument that his sentence was excessive in relation to other sentences for similar crimes committed in the same county was without merit. There is no requirement that persons convicted of similar offenses must receive similar sentences. State v. Lechner, 217 Wis. 2d 392
, 576 N.W.2d 912
That a conviction followed an Alford
plea did not prevent requiring the defendant, as a condition, to complete a treatment program that required acknowledging responsibility for the crime which resulted in the conviction. The imposition of the condition did not violate the defendant's due process rights. There is nothing inherent in an Alford
plea that gives a defendant any rights as to punishment. State ex rel. Warren v. Schwarz, 219 Wis. 2d 615
, 579 N.W.2d 698
When a victim's criminal record supports a defendant's version of a crime, the gravity of which crime is a sentencing factor, the criminal record should be admitted as evidence at the defendant's sentencing hearing. State v. Spears, 227 Wis. 2d 495
, 596 N.W.2d 375
Proper sentencing discretion can exist without delineation of sentencing factors; what is required is consideration of the sentencing factors (see the note to Rodgers)
. When the same judge presides at sentencing after probation revocation and the original sentencing, the judge does not have to restate the reasons supporting the original sentencing, which is implicitly adopted. State v. Wegner, 2000 WI App 231
, 239 Wis. 2d 96
, 619 N.W.2d 289
It is entirely reasonable that a competency examination designed to address a defendant's ability to understand the proceedings and assist counsel may also address issues of future dangerousness, which a court may reasonably consider when gauging the need for public protection in setting a sentence. State v. Slagoski, 2001 WI App 112
, 244 Wis. 2d 49
, 629 N.W.2d 50
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 (5) (a) 1.
, or 4.
, 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: