On Point

This case presents a rare situation: A lawyer boldly asking: “But what if literally everyone is wrong about this?” Here’s the intro paragraph to the certification:

This case presents the opportunity to clarify and develop an important area of the law that is implicated in every criminal case that results in a conviction: the factors that circuit courts must consider when sentencing criminal defendants, and the extent to which a court’s consideration of those factors must be explicitly stated on the record.

(p.1).

As COA notes, pre-TIS caselaw in Wisconsin identified three primary factors to be considered at sentencing but those cases are not consistent in the terminology used:

Some courts identified the primary factors as “the gravity of the offense, the character and rehabilitative needs of the defendant, and the need for protection of the public.” . . . . Other courts identified the primary factors as “the gravity of the offense, the character of the offender, and the need for protection of the public.” . . . .  And some courts addressed the concepts of character and rehabilitative needs as if they were one and the same. . . .” (lengthy in text citations omitted).

(p.2).

However, when the legislature enacted § 973.017(2), it codified the third factor as “the rehabilitative needs of the defendant.” (Id.). While this might be taken as a clear legislative signal that the focus had shifted from “character” to rehabilitative needs,” (especially given that TIS explicitly requires the Court to anticipate a person’s rehabilitative needs, generally) it appears that no one noticed the change. In fact, even the seminal Gallion decision, in COA’s telling, appears to have “conflated” character with rehabilitative needs without clearly noting the legislative shift. COA notes that many courts continue to state that character is a primary sentencing consideration and are often inconsistent in their treatment of rehabilitative needs. In part, this is because the special materials in the jury instructions have not been substantially revised since 1999 and therefore fail to note the change in statutory language.

Here, Selerski–apparently the first person to ever do so–noted the inconsistency and, using the plain statutory text–which commands that the court “shall consider” rehabilitative needs–moved for resentencing. The State, however, has advanced the position that rehabilitation is “secondary” to the three primary sentencing factors. Given that the large body of  case law, the special materials, and potentially thousands of oral sentencing decisions are, as COA acknowledges, arguably inconsistent with the plain text, it asks COA to accept the certification and clarify this important issue.

In addition, the certification also presents another important issue that should interest all appellate litigators: the tension between, on the one hand, requirements mandating consideration on-the-record of specific sentencing factors and, on the other, the body of case law permitting a court to nevertheless “search the record” for merely implied consideration of these factors. As the State argues that rehabilitation was implicitly considered here, COA likewise asks for clarification of this topic, as well.

So what does this mean? Does every sentencing transcript that does not explicitly mention “rehabilitative needs” now present a meritorious appeal? Do the jury instructions, bench books, and attorney check lists all need to be updated? Is the sky falling? We don’t know! Stay tuned to find out.