*1 Plaintiff-Respondent, Wisconsin, State
v. Defendant-Appellant- Patty E. Jorgensen, Petitioner.
Supreme Court 18, 2003. Decided argument February Oral No. 01-2690-CR. July
2003 WI 318.) (Also N.W.2d reported *4 were there defendant-appellant-petitioner For the Vetzner, Bennett and oral Charles argument briefs state defender. public assistant argued the cause was
For plaintiff-respondent Wren, attorney general, G. assistant by Christopher attorney E. Doyle, was whom on brief James with general. of an WILCOX, J. is a review E This JON v. Jor- decision, State appeals court of
unpublished *5 (Wis. gensen, unpublished slip op. 01-2690-CR, No. Ct. 2002),1 App. appeals June of which court judgment denying affirmed of conviction and order postconviction by County motion entered the Dane Judge. Court, Ebert, Circuit Steven D. defendant, Patty Jorgensen, appeals contends court affirming operating her erred in conviction for a motor intoxicated, vehicle while offense, fourth and the denial postconviction of her motion. She now seeks relief from ground sentencing this court on the that the by established the Fifth Judicial District certain "operating while intoxicated" offenses under the au- § thority 346.65(2m)(a), of Wis. Stat. are unconstitu- Jorgensen tional. claims the circuit court violated her rights process equal protection by to due laws relying upon by the local authorized 346.65(2m)(a). § guidelines operate She asserts the disparity only increase based on the geographic Jorgensen location the offense. further upon by claims that relied the authority granted by legislature exceed § guidelines, and that the face, on their inapplicable are to her. sentencing guidelines
¶ 2. We hold that the estab- by by lished Judicial Fifth District are authorized 346.65(2m)(a). § Wis. Stat. We further conclude that plain language 346.65(2m)(a), § under the the sen- tencing apply only to Wis. Stat. 346.63(l)(b), § 346.63(l)(a), not Wis. Stat. under 752.31(2)(f) (1999-2000), Pursuant Stat. this judge case was decided appeals, one at the court of rather judge than a three panel. subsequent
All references to the Wisconsin Statutes are to the 1999-2000 version unless otherwise indicated. However, because cir- sentenced. was
which *6 great discre- of have a amount cuit courts sentencing guidelines tion, find that reference to we 346.63(l)(a) § That case not constitute error. in a being does Jorgensen sen- case, such as a defendant 346.63(l)(a) § may potentially be sen- tenced under sentencing guidelines referring by a to the tenced court 346.63(l)(b). § Therefore, for we must ad- established Jorgensen's argument are that these dress appeals' agree with the unconstitutional. We sentencing guidelines are constitu- that the conclusion accordingly, and, we affirm. tional
I. BACKGROUND following appeal, purposes For of this 3. early morning dispute. hours of in In the not facts are May Jorgensen in her vehicle 1999, a found witness police. Re- summoned a near his home and in ditch Jorgensen asleep sponding driver's found officers sobriety Jorgensen field tests failed of her vehicle. seat police, arrested for and she was administered Subsequent operating blood a vehicle while intoxicated. Jorgensen's testing content blood alcohol showed was .276. violating Jorgensen charged Wis. was with 346.63(l)(b).2 346.63(1)(a) § § She Stat.
Stat. many stipulated right jury her to a trial. She utilized 346.63(1) part: pertinent provides, § Wisconsin Stat. person may operate a vehicle drive or motor while: No (a) intoxicant, a controlled sub- influence of an Under the any stance, analog of an or combination a controlled substance intoxicant, and a controlled substance a controlled substance any drug degree analog, to a which under the influence of other safely driving, incapable or under him or renders her only remaining jury of the facts and issue Jorgensen determination whether not was or was the person operating the vehicle. At trial, person driving. claimed that another was n ¶ A5. jury Jorgensen guilty operating found a while vehicle under the influence of an intoxicant (OWI) 346.63(l)(a) violation Wis. Stat. and of operating having prohibited vehicle motor while (PAC) blood alcohol concentration in violation of Wis. 346.63(l)(b), Stat. either of which would constitute "operating her fourth under the influence" offense. 346.63(l)(c) ¶ 6. Section of the Wisconsin Stat- provides although may utes a defendant be charged prosecuted PAC, for both OWI and viola- *7 346.63(l)(a) (b), §§ respectively, tions of and a defen- may dant not be "convicted" and sentenced for both charges OWI and PAC if the arise out the of same "[i]f person or Rather, incident occurrence. the is found (a) (b) guilty pars, arising both of and for acts out of the single same incident occurrence, or there shall abe purposes sentencing purposes conviction for and for counting 343.30(lq) convictions under ss. and 346.63(l)(c). § Jorgensen's judg- 343.305." Wis. Stat. ment of conviction was on entered the count, OWI 346.63(l)(a). § sentencing guidelines The issue, at the "Fifth Sentencing Judicial District Guidelines," OWI were Judge established the Chief of the Fifth Judicial authority granted by legislature District under the 346.65(2m)(a).3 in Wis. Stat. For a fourth offense such any drag degree combined influence anof intoxicant and other ato incapable safely driving; which him her renders or or (b) person prohibited The has a alcohol concentration. provides: Wisconsin Stat. provided in a table here, are one as the correspond- to and factors consider format include sentencing ing head- The horizontal recommendations. ings "Minimum Driv- Levels," are: "BAC on the table Driving "Aggravated ing or Accident Accident," and No specific guideline Injury Driving Bad Record." sentencing provided that for in this case relevant a blood alcohol content offense, a with fourth defendant periods of with .20 incarceration level of or above faces days year, days ranges one and 90 to 150 spe- depending upon of the court's determination surrounding the offense. cific circumstances sentencing September 7, 2000, both the on 8. At arguments prosecutor made based and defense counsel noting Explicitly guide- sentencing guidelines. on these eight- requested to nine- an factors, line State dispute appli- did not Defense counsel month sentence. Jorgensen's Rather, at the time. cation of the argued provisions guideline counsel noted appropriate under was more a three-month sentence hearing arguments, the After these the circumstances. referencing explicitly court, circuit jail. guidelines, to seven months in sentenced (2) for a violation of s. imposing In under sub. a sentence (5) therewith, 346.63(l)(b) conformity a local or or ordinance aggravating and consider the review the record and shall *8 person's level blood mitigating the matter. If the of factors in known, level as the court shall consider that level is alcohol judge sentencing. each administra- The factor chief of judge's adopt guidelines, author- under the shall tive district chief 70.34, ity adopt SCR the consideration local rules under of for mitigating aggravating and factors. added.) argues that the that the defendant (Emphasis We note District exceed the by the Fifth Judicial guidelines established granted by this statute. authority
165 Jorgensen postconviction ¶ 9. filed a motion grounds, including relief on several the issue now erroneously court, before this whether the circuit court upon sentencing guidelines relied local because 346.65(2m)(a), authorizing statute, is unconstitu- tional. circuit court denied the motion. Jorgensen appealed judgment ¶ 10. from both the denying of conviction and the order her motion for postconviction again relief. She claimed that the sen- tencing Upon by relied the circuit court were appeals unconstitutional.4 The court affirmed holding court, circuit the circuit did not Jorgensen's process equal protection violate rights by using due sentencing guidelines.
the local On accepted Jorgensen's peti- 21, 2002, October this court tion for review.
II. OF STANDARD REVIEW question ¶ 11. The before this court is whether using the circuit court erred in the Fifth Judicial sentencing guidelines Jorgensen. District to sentence We review the circuit court's exercise discretion in sentencing Jorgensen. specifically, More we look at the legal bases for the circuit court's determina- tion. Sentencing discretionary
¶ 12. within falls authority McCleary State, the circuit court. v. 49 Wis. (1971); 2d 263, 277, Eckola, N.W.2d State v. App 295, 2001 WI 2dWis. 638 N.W.2d903. 4 appealed also ruling the circuit court's on counsel, issue of ineffective assistance of but that issue has not been is, raised as part appeal therefore, this not ad dressed. *9 with the it "will not interfere has held that
This court sentencing circuit unless the decision circuit court's erroneously v. its discretion." State exercised court 418-19, 912 Lechner, 392, 576 N.W.2d 217 2dWis. (1998); ¶ 276, 4. The Eckola, 2d also 249 Wis. see erroneously if the exercises its discretion circuit on error of law. State based an exercise of discretion is ¶ 986, 2d 637 Davis, 136, 28, 248 Wis. v. 2001 WI 763, 159 Hutnik, 754, 2d 62; v. 39 Wis. N.W.2d State (1968). N.W.2d733 reviewing
¶ court's In the circuit 13. interpret case, must also in this we determination 346.65(2m)(a). Statutory interpretation provisions of Burg Co., Ins. de v. Cincinnati Cas. is reviewed novo. The ¶ 880. 76, 15, 36, 254 2d 645 N.W.2d 2002 WI Wis. statutory interpretation step is look at first language Id., of the statute. 16. sentencing guidelines If we find that by do not exceed the Fifth Judicial District
established authority granted legislature in Wis. Stat. 346.65(2m)(a), analysis on the consti- focus must constitutionality tutionality of a of that statute. question de court reviews of law which this statute McManus, 129, 447 113, 2d v. 152 Wis. novo. State (1989); Tesmer, Employers Co. v. Health Ins. 654 N.W.2d 1991). (Ct. App. 469 203 733, 737, 161 2d N.W.2d Wis. party presumed constitutional, and the are Statutes challenge bringing burden bears the constitutional beyond a rea- proving the statute unconstitutional (internal McManus, Wis. 2d at 129 sonable doubt. County, omitted); Stanhope 2d 90 Wis. v.Brown citation (1979); Hanson, 182 v. State 280 N.W.2d (Ct. 1994); App. 481, 485, 2d 513 N.W.2d *10 Employers Health, 2d at If 737. there is no suspect " right classification or fundamental involved, obligation
'it is the
construct,
court's
to locate or to
if
possible,
might
a rationale that
have influenced the
legislature
reasonably upholds
legislative
and that
the
Bailey,
determination.1"
v.
Tomczak
2d 245,
218 Wis.
(1998) (internal
omitted);
264, 578 N.W.2d166
citation
("
McManus, 152 Wis. 2d at
'If
the court can
any
legislation
conceive
on
facts
which the
could rea
sonably
legislation
it
based,
be
hold
must
the
constitu
") (quoting
Strykowski Wilkie,
tional.1
State ex rel.
v.
(1978));
Wis. 2d
III. ANALYSIS ¶ 15. This case centers around the constitutional- ity sentencing guidelines promulgated under the 346.65(2m)(a). authority § Jorgensen of Wis. Stat. ar- gues that these her violate state and federal rights process equal protec- constitutional to due they sentencing dispar- tion of the law because increase ity geographic alleged on the basis of the location of Jorgensen preliminary offense. also raises two related argues by issues. She that established authority granted the Fifth Judicial District exceed through guide- Wis. Stat. and that the applicable lines, face, on their are not her case. We address these issues first. Because we conclude that the § 346.65(2m)(a), were authorized under reference to the error, was not and that there guidelines, we affirm the court for the basis is rational Finally, Jorgensen appeals' even asserts that decision. sentencing guidelines constitutional, we if we find the abrogate supervisory powers use of our should utilize guidelines. decline to do so. We Statutory Authority A. sentencing guide- argues that the by Fifth District exceed Judicial
lines established legislature granted authority 346.65(2m)(a). legislature argues did not that the She *11 of with recommendations creation mandate sentencing ranges. points specific to She sentences or of 346.65(2m)(a), perti- § language states, which the judge judicial part: each adminis- "The chief nent adopt . for consid- . . the shall trative district mitigating aggravating factors." and eration legislature Jorgensen suggests did intend the not that appro- go beyond creating a list of to for the districts mitigating priate aggravating factors consider- and ation. suggests hand, that State, on the other 17. The 346.65(2m)(a) upon merely
§ minimum which sets expounded judges judicial have districts of various chief agree appropriate by adding sentence. We to an link language nothing perspective. We see with this aggravating linking prohibits from the districts that appropriate mitigating an sentence factors with and range under allowed broader sentences within the § chief mandates that Section 346.65. authority up judges under on their based set (2000). "[e]ach provides chief This rule SCR 70.34 judge may adopt additional local rules not in conflict with the uniform administrative rules." SCR legislature required 70.34. The authorized and chief judges up guidelines aggra- to set for consideration of vating mitigating As discern, factors. far as we can nothing prevent judges taking there is to chief from step appropriate an extra to link these factors with ranges. sentence legisla-
¶ 18. This court has found that "when the granted authority ture has impose court the range, legislature sentences within a certain given has the court discretion to determine where in range Setagord, a sentence should fall." v. State (1997) (citation 397, 418, 2d N.W.2d omitted). essentially judges That is what chief have They up done here. have created that match appropriate statutory ranges sentences within the aggravating mitigating factors. doWe not find this inappropriate. Applicability
B. of the Guidelines parties'
¶ 19. The briefs to this court raise the issue that was sentenced under Wis. Stat. 346.63(l)(b). 346.63(l)(a), appears not Wis. Stat. It that this issue was not raised before either the circuit *12 appeals. or court the court of Instead, the record parties appeared rely upon indicates that all to the applicability guidelines appeal of the until the to this Jorgensen attempts argument court. now to use the to emphasize point application her that of these inappropriate. Arguably, any her to was she has waived complaint application wrong the about the statute to appropriate Nonetheless, her case. we it find to discuss agrees Jorgensen the issue because the State that was 170 wrong of the section statute under sentenced standing deprives Jorgensen to that the error asserts argue guidelines. unconstitutionality of the Jorgensen ¶ asserts that lacks 20. The State challenge standing to to raise a constitutional inap- sentencing guidelines because the are plicable which she was sentenced. to the section under judge acknowledges upon the that the relied The State only person suggests guidelines, sentenced that a but mentioned in Wis. Stat. the relevant section under 346.63(l)(b) stand- Stat. —has —Wis. challenge. ing ar- make The State to a constitutional Jorgensen gues best, at claim that could, that upon was an erroneous court's reliance exercise discretion. agree argument the State's do not with We standing. Olsen, 12, 278 2d In Mast v. 89 Wis.
on (1979), party "A has stand- 205 this court held: N.W.2d ing challenge a if that causes statute statute injury party personal party a stake in fact and the has find that if the circuit of the action." We in the outcome sentencing guidelines, upon then local relied court injured assuredly arguably has been has personal are or stake in whether not constitutional. standing of the reasons the rule 22. One adjudicate rights constitutional not
that courts "should
unnecessarily."
n.2,
Fisher,
211 Wis. 2d
State v.
(Ct.
1997)
App.
(quoting Mast, 89 Wis.
565 N.W.2d565
16).
Schwittay
Sheboygan Falls Mutual
2d
In
v.
at
App 140, ¶
Co.,
n.3,
Wis. 2d
2001 WI
Insurance
appeals found that
772, the court of
385, 630 N.W.2d
[the
does]
standing
requiring
also "assures
it is essential
issue unless
not decide constitutional
*13
[it]."
the determination of
Here,
the case before
the
necessarily inappro
State has conceded that it was not
priate
for the circuit court to refer to the
guidelines. Circuit
are
courts
allowed wide discretion in
sentencing.
McQuay,
129,
See State v.
154
2d 116,
(1990);
State,
¶ 24. The
do not
the circuit court's
upon
sentencing guidelines.5
reliance
We find the
rely,
record indicates that the
did,
circuit court
in fact,
5 Jorgensen
argues,
must,
as she
the circuit court
upon
guidelines.
relied
If the
rely
circuit court did not
upon
sentencing,
clearly
would
lack
standing
claim,
to make a constitutional
because there would be
Olsen,
v.
See Mast
injury.
12, 16,
no
89 Wis. 2d
relevant statutes. We have established that the circuit degree, upon provi- relied, at least to some guidelines. sions of the Section of the Wisconsin Statutes authorized the creation of sentenc- ing guidelines pro- for certain offenses. That section entirety: vides, in its (2) In imposing a sentence under sub. a violation 346.63(l)(b) (5) s. or or a local ordinance in
of mity confor- therewith, the court shall review the record and consider the aggravating and mitigating factors If matter. person's level of the blood alcohol level is known, the court shall consider that level as a factor in sentencing. judge The chief of each administra- *15 tive district adopt guidelines, shall under the chief judge's authority adopt to local rules 70.34, under SCR for the consideration of aggravating and mitigating factors. 346.65(2m)(a) added). § (emphasis plain Stat.
language of
sentencing
the statute makes clear that the
only applicable
are
to convictions under Wis.
346.63(1)(b)
346.63(5).
§
§
Stat.
or Wis. Stat.
¶
Jorgensen
26. The record here shows that
was
346.63(l)(b)
§
not sentenced under either
or Wis. Stat.
346.64(5).
§
346.63(l)(a).
§
She was sentenced under
party
disputed
Neither
has
that
and,
issue
in fact, both
upon
making
arguments
relied
it in
their
to this court.
Jorgensen
charged
It is true that
was
with and found
guilty by
346.63(l)(a)
jury
violating
§§
a
both
(l)(b).
provisions
Nevertheless, under the
of Wis. Stat.
§ 346.63(l)(c), only
could
be convicted sentenced under one of these subsections. The circuit
346.63(l)(a).
§
court sentenced her under
legislature
specified
guide-
27. Since the
that
sentencing
lines were to be established for use in
under
174
346.63(l)(a),
346.63(l)(b),
§
§
circuit
should
not
courts
(l)(a)
guidelines by
apply
to
convictions.6
rote
not
exercising
agree
in the
that in
its broad discretion
We
sentencing
sentencing,
may
to the
a court
refer
area
guidelines
sentencing
for
offenses in
defendant
PAC
are similar and one
of OWL These violations
convicted
argue
cannot
to
relevant
one offense
factors
for the
not a relevant consideration
are
strong
As this
has noted:
"Wisconsinhas a
other.
provided
public policy
sentencing court be
with
that the
Guzman,
2d
all relevant information." State v.
166 Wis.
(1992). Although
policy
592, 480
this
577,
N.W.2d
up
typically
about
comes
in the context of information
equal
applies
to
defendant,
it
with
force
we believe
Thus,
law.
it is not error for a circuit court
relevant
under
refer
authorized
§
sentencing a defendant under
when
346.63(l)(a).
legislature
has
However, because the
guide-
specifically delineated the offense to which the
inappropriate
apply,
court to
it
circuit
lines
simply apply
for its
the sole basis
as
346.63(l)(a)
in a
case.7
sentence
addition,
discretionary,
not
In
note
these are
we
Smart,
15,
v.
WI
State
mandatory, guidelines.
App
("The
not
are
Wis. 2d
In brief to appendix to her this Fourth, sentencing guidelines Eighth, from of the related copies All entitled guidelines Fifth Judicial of these are and Districts. Sentencing of a misnomer This is somewhat "OWI Guidelines." § 346.63 suggest be Stat. that we should clarified. Wisconsin Equal C. Protection and Due Process sentencing guide- 28. We have found that the authority granted by legis- lines do not exceed the 346.65(2m)(a) §in may lature and that a circuit court guidelines refer to the as a relevant factor in 346.63(l)(a). § findings under These leave us with the § issue of whether itself violates Jorgensen's rights process constitutional to due and equal protection of the laws under both the state and federal constitutions.8 "This court has held the due process equal protection and clauses of the Wisconsin many deals with "operating under the influence" offenses. (l)(a) Violations of subsection of that statute are often referred to as "OWI" (l)(b), offenses. case, Subsection as clarified this refers to violations operating a vehicle having while prohibited concentration, blood alcohol sometimes known as "PAC" Titling guidelines violations. "OWISentencing Guide- suggests lines" that the refer to all the offenses under § 346.63 and none of the appear to include an explanation that the guidelines only apply to Wis. Stat. 346.63(l)(b) (5). §§ Courts interpret could even guide- 346.63(l)(a)— apply only lines to to offenses under Wis. Stat. so-called OWI offenses. opinion This clarify is intended to these interpretations are incorrect. only apply to 346.63(l)(b) sentencing for (5), §§ convictions under al- though we acknowledge that may refer to the ^ as a relevant factor in sentencing under Wis. Stat. 346.63(l)(a). Xiy Article Section of the United States Constitution provides, pertinent part: deprive any person life, liberty, No State shall. .. property, or process law; deny any without due person nor within its
jurisdiction equal protection of the laws. I, Article Section 1 of the Wisconsin provides, Constitution pertinent part: *17 equivalents are the substantial of their Constitution respective clauses in the federal constitution." Mc Joseph Manus, State, 130; 152 2d at see also E.G. v. App ¶ n.4, 481, 2d 29, 5 240 Wis. 623 N.W.2d WI (2000). sentencing Jorgensen argues guide- ¶ 29. that the rights her constitutional because the vari- lines violate judicial thus, have different ous districts may different sentences based on defendants receive Jorgensen asserts that where the crime was committed. particular the location of an offense within a district legitimate sentencing Jorgensen factor. asserts not presumption entitled to a that the are not constitutionality did not au- because by type guidelines promulgated the Fifth thorize the argues contrast, In Judicial District. State sentencing there is a rational basis for the because being a dis- reduction —that parity guidelines are con- districts —the within stitutional. agree analysis employed
¶ 30. We with appeals and in the case of State v. court of this case App Smart, 2d 2002 WI 257 Wis. N.W.2d nearly cases, In the consti- 429, a identical case. both tutionality upheld. of the was argue any that there is does not right suspect here and fundamental involved class or appeals, agree, appears did at court of as she Jorgensen, appropriate. See No. a rational basis test is slip op. unpublished 01-2690-CR, at 30. The United Supreme Chapman States, v. United Court, States people equally independent, and have certain free and All are born life, liberty pursuit rights; among these are and the inherent happiness .... *18 (1991), interpre- supports an 453, such
500 U.S. 464-65 Chapman held a funda- claims here. that tation of the right a in this context and that mental is not involved appropriate: rational basis test is preliminarily that the They argue [the defendants] liberty a right deprivations to be free from as result fundamental, arbitrary is and therefore sentences may only if statutory provision upheld at issue be a interest in the clas- compelling the Government has subjected have question. sification in But we never analysis, truncated process criminal to this sort of Every person has a fundamen- we decline to do so now. right liberty tal to in the sense that the Government guilt may punish proves not him unless and until it his beyond a reasonable doubt at a criminal trial conducted guaran- constitutional accordance relevant with person eligible But has so convicted is tees. for, a who been may impose, punishment whatever is offense, by long for his so as that authorized statute unusual, penalty long is cruel and and so as the not arbitrary that penalty is not based on an distinction the Due Process Clause of the Fifth would violate context, argument In ... an on Amendment. this based argument equal protection essentially duplicates an process. based on due
Chapman,
(emphasis
original)
which a difference in afforded." (internal omitted); McManus, citations see also long creating Wis. 2d at 130-31. So as a statute "rationally legislative classification is related to a valid objective," right it does not violate constitutional equal protection. Id. Similarly, appeals
¶ 33. the court of has held that process "protectD people due from substantive serves ... state conduct 'shocks the conscience or inter- rights concept implicit in feres with of ordered *19 liberty.'" (quoting Joseph Smart, ¶ 713, 257 2d 11 Wis. 13). ¶ E.G., The 481, 240 Wis. 2d court there found that right implicated, unless a fundamental is "a statute will generally process challenge a due if survive substantial rationally government legitimate it is related to a 131). (citing McManus, interest." Id. 152 Wis. 2d at disagree Jorgensen's argument ¶ 34. We with that presumption the statute is not entitled to a tionality. of constitu- already We have found that the authority granted not exceed the in do 346.65(2m)(a). Thus, issue becomes constitu- tionality of the itself. It statúte has been well-settled presumed party and a that statutes are constitutional challenging constitutionality a of statute must beyond prove statute unconstitutional reasonable ("We begin Stanhope, 90 at doubt. See Wis. 2d 837 with principle repeatedly by stated this court and the Supreme legislative United Court that all acts States ..."); presumed Milwaukee are constitutional. see also DHSS, 79, 98-99, 2d Brewers Baseball Club v. 130 Wis. (1986). Consequently, apply 254 we will N.W.2d constitutionality presumption of in our examination guidelines promul- and the Wis. Stat. gated thereunder. in
¶
asserts,
did the defendant
as
35.
Village
Smart,
in
v.
that this court's decision Nankin
Shorewood,
92,
86,
245 Wis. 2d
630 N.W.2d
2001 WI
Supreme
decision in
States
Court
141, and the United
(2000),
argument
support
Gore,
her
crease
but
provided
Instead,
an
no evidence of such
effect.
she has
appeals
in Smart concedes
she asserts that the court
point,
acknowledgement
with its
that the statute
people"
might
"creates different classes of
that
be sub-
ject
Smart,
to different standards. See
257 Wis. 2d
disagree
¶ 6. We
with
fact,
this assertion. In
as this
recognized: "Equal protection
deny
court has
does not
power
persons
jurisdiction
a state the
to treat
within its
differently; rather the state retains broad discretion to
long
create classifications so
as the classifications have
a
McManus,
reasonable basis."
¶ 39. We different judicial may disparity. the various districts lead to some perfect sentencing disparity It is not a solution to the problem. However, under a rational test, basis it need perfect only step not be right solution. It must abe in the by appeals direction. As noted the court of Smart, 2d 713, 7: argues guideline
Smart scheme does not bear a relationship rational objective to the of reducing dis- parity actually increases it allowing each develop district to their agree own standards. While we may the statute way not be the best to reduce drunk driving sentencing disparity, a rational basis inquiry require does not perfection. only question Our whether the relationship statute bears some to advanc- ing goal. By It mandating does. the creation of judicial districts, within attempts statute sentencing disparity to reduce within those districts. While statewide would perhaps be more equitable, requirement legislature there is no choose the wisest or most reducing effective means of disparity. statutory addition,
In
this court has held: "The fact a
inequity.
classification
results
some
. . does not
provide
grounds
invalidating
legislative
sufficient
McManus,
enactment."
¶ does 40. acknowledged in guidelines As this court a whole. as Speer, 1124, 1101, 501 N.W.2d 176 Wis. 2d v. State (1993), sentencing guidelines "the exercise that allow by providing reducing judicial variance discretion while guideline commit offenders who for similar sentences omitted.) (Citation dis We offenses," are valid. similar agree sentencing guidelines Jorgensen that with do not fit Wis. Stat. established under appeals' agree state the court with that mold. We might guidelines be in Smart that statewide ment equivalent acknowledgement not the is better, but that guidelines district-by-district a determination ¶ disparity. Smart, Rather, 2d 257 Wis. increase appeals persuaded, in both the court of as was we are district-by-district sen case, that the Smart and this tencing guidelines operate here in fact at issue disparity administrative dis within reduce guidelines Smart, 2d 9. Such 257 Wis. tricts. See completely the evil of eliminate do not disparity, pointed appeals case this as the court but having comparison "[T]he proper no is between out, district-by-district guidelines." having guidelines op. slip unpublished Jorgensen, at 01-2690-CR, No. having comparison some clear that makes 29. That none at all. better than districts are within points brief, here in its out As the State district-by- position argue appears equal protection and due violate district system process, not. does without but 12) illogical position (Resp't and we Br. at Such accept reject fulfill Instead, that these it. we sentencing disparity by reducing rational basis test judicial districts. within *22 Accordingly, appeals'
¶ 41. we affirm the court of Sentencing guide- determination that the Fifth District by lines authorized Wis. Stat. are con- stitutional. Supervisory
D. Powers argument, Jorgensen suggests In a final even if this court finds constitutional —which we do—this court should still guidelines exercising supervisory pow- invalidate the its ers over the state courts. We decline this invitation. In finding these constitutional, we have deter- although mined that such do not eliminate disparity, they up all were authorized and set for the purpose eliminating of, and succeed some of the disparity that has existed within the state impede authority such, districts. As we will not granted judges to chief of the circuit courts or the discretion of the circuit courts themselves sentenc- (cid:127) ing. previous
¶ 43. This court has declared on
occa
unwillingness
unnecessarily upon
sions an
to intrude
the discretion of circuit courts in the realm of sentenc
ing.
Felony Sentencing Guidelines,
In See
re
120 Wis. 2d
(1984).
Felony
198, 200-202,
In
IV CONCLUSION foregoing reasons, affirm the we 44. For the appeals find that of the court decision sentencing guidelines Fifth Judicial established *23 equal protection Jorgensen's or violate District do not rights. process due appeals
By the court of decision of the Court.—The is affirmed.
¶ ABRAHAMSON, CHIEF JUS- S. 45. SHIRLEY (dissenting). that Wis. Stat. I conclude TICE 346.65(2m)(a) § in- The statute unconstitutional. is driving sentencing disparity drunk offenses creases judicial districts of the administrative across legislature for the to state, no rational basis exists judicial differently upon dis- based treat offenders Moreover, committed. in the offense was trict which legislature's judges delegation authority chief to the of sentencing guide- judicial create OWI of district to each powers may separation doctrine. of lines violate I—I 346.65(2m)(a) § ¶ directs the 46. Wisconsin Stat. judicial judge district" to administrative chief of "each aggravating "adopt of for the consideration judge's mitigating the chief author- factors" under legis- ity "adopt 70.34."1The rules under SCR to local gives be consis- no direction that lature judicial judicial all districts or even that across tent mitigating aggravating and consider the same districts factors. statute, face, on envisions Thus, the its judicial
sentencing guidelines that varies from scheme system judicial in creates a which district. It district vary any characteristic of the not sentences because geographic offense, of the or the but because offender place. the court of the offense took As location which appeals classes noted, creates different has "the statute driving persons people. while It makes convicted subject judicial district the influence one under potentially standards from those different districts."2 other majority opinion the sen- understates 48. The 346.65(2m)(a) § tencing disparity created Stat. "having in the different when it admits disparity."3 judicial may to some lead various districts disparity as districts in sentences between 346.65(2m)(a) In v. dramatic.4 State a result added). 70.34 SCR (emphasis Wis. Stat. develop shall uniform director of state courts provides: "The judge may adopt Each chief for trial court administration. rules *24 judicial with the uniform rules not conflict additional local are not argues guidelines that the rules." No one administrative 70.34, under but it seems judicial rules administrative local they arguable that are not. 2 713, Smart, 240, 6, 257 Wis. 2d State v. App 2002 WI ¶ 429. 652 N.W.2d 3 Majority op., 39. ¶ 4 guidelines create Indeed, multiple arguable it that is A Judicial Conference none existed before. huge disparity where 185 App Smart, ¶ 240, 4, 713, 2002 WI 257 Wis. 2d appeals explained N.W.2d the court of maximum sentence for a defendant's third offense OWI ranged days days, depending conviction from 45 to 120 on the district.5 range possible judi-
¶ 49. The sentences across cial districts for a defendant convicted of fourth offense present OWI, like the defendant in the case, is no less startling. only One need look at the created by the three I districts have attached hereto to see disparity. presented by These were and dis- parties cussed in this case. Eighth person's In 50. Judicial a District (with aggravated
fourth offense
OWI conviction
a blood
"accident")
resulting
subject
alcohol level of .276 and
is
150-day
to
provide
flat
sentence.6 The district
sentencing judge
no direction for a
to consider
aggravating mitigating
additional
or
factors.
person's
In
District,
the Fourth Judicial
(with
aggravated
fourth offense
OWI conviction
a .276
"accident")
subject
resulting
blood alcohol level and
jail,
days
though
a flat sentence of 105
committee concluded in a
report
there was no
unjustified disparity
in Wisconsin courts. Matter
Guidelines,
Implementation
Felony Sentencing
113 Wis. 2d
(1983).
689, 693,
5 Smart, 2dWis. 4:¶ jail guideline [T]he ninth district's [the defendant's] time days, except January August offense is 120 between 2001 and 2001, when it was ten months. Had he been convicted of the same judicial districts, likely [the defendant] crime in other would have jail district, received a much shorter term. In the tenth guideline days; eighth, seventy-five days; is 110 in the and in the fourth, forty-five days. 6 The defendant would also face a $1654.00 fine have his or her license revoked for 36 months. *25 "mitigating
permit factors" the to consider as a court ability pay offense, and since the to conduct defendant's consequences victim, and the defendant to by cooperation the defendant. whether there was (where the ¶ District In the Fifth Judicial 52. convicted), according guidelines, the to defendant was ranging possible person from 90 sentence faces same guidelines proposing days year. Despite this one give range, Judicial District the Fifth wide deciding where to the circuit court no directions range. given place within this broad defendant Wis. Stat. of the matter is that The truth 53. 346.65(2m)(a) potential by design, § created the has, similarly sentencing disparity significant situated who are similar circumstances under similar offenders solely upon geography, public to the based threats disparity and across from district to district to pass. state has come II majority opinion concludes The disparate legislature's to create decision judi- judicial district to administrative from constitutional scru- survives administrative district cial exclusively focusing reframing tiny by on the issue and judicial disparity district. within each the decreased disparity majority opinion cre- that the contends 346.65(2m)(a) constitutional ated Wis. Stat. among disparity for the a rational basis because namely conceived, can be districts adopted operate under to reduce sen- *26 judicial tencing disparity within districts.7 purpose ¶ 55. The law at issue is to elimi- disparity objective decreasing nate disparity sentences. The possible
is to the to ensure extent that simi- larly similarly. situated offenders will be sentenced imposition Thus the of a criminal sentence must be gravity offense, based on "the of the the character of the protection public."8 offender need and the for the of the "Sentencing disparities justified by that are not differ- among ences offenses or offenders are unfair both to public. unjusti- and to the A offenders sentence that is fiably high compared similarly to sentences for situated clearly offenders is unfair to offender; a sentence unjustifiably just plainly that is low is as unfair to the public."9 Sentencing guidelines "designed
¶ 56. are to allow judicial the exercise of discretion to consider of- public reducing fense, the offender and the while vari- by providing guideline ance sentences for similar of- Sentencing fenders who commit similar offenses."10 goal do not achieve this when offenders who commit similar offenses under similar circumstances .present dangers public similar to the are not similarly. sentenced
7
("we
Majority op.,
accept
40
that these
fulfill
by reducing
rational basis test
sentencing disparity within
districts").
judicial
566,
Ogden,
State v.
199 Wis. 2d
¶
is, in
58. The
"rational basis"
begs
question
the
fact, irrational. It
to conclude that
reducing disparate
has a rational basis of
sen-
statute
tencing
by reducing disparity
in
within each
the State
judicial
disparate sentencing
not
district. The issue of
is
disparate
offenders
treatment of similar
within
about
disparate
parts
treat-
different
of the state
about
but
majority
of
across the state.
ment
similar offenders
why
opinion
explains
district
classi-
never
germane
purpose
eliminating
to the
dis-
fication
sentencing.12
parity 11
Shorewood,
92,
39,
WI
245
Village
¶
Nankin v.
2001
86,
(quoting Aicher v. Wis. Patients
2d
Wis. Fund, 99, 98, 58, 2d N.W.2d Comp. 2000 WI 849). attaching judicial adminis map showing
12 Iam also might map that while these districts trative districts. The shows they do trial court administration purposes make sense for in OWI necessarily purposes for of differences make sense not sentencing. geographical
¶ 59. The unit in which to determine disparity sentencing for similar offenders is the state aas whole. The offenders have violated a state criminal describing against people statute an offense of the merely against Wisconsin, State of not an offense people particular county of a or administrative district. guideline system Yet the statute mandates a in which offenders who have similar characteristics are sen- tenced to the same state institutions but for different periods, time with the determinative issue not the geogra- of the characteristics offender and offense but (the phy administrative district in which the offense occurred).13 Although majority opinion dismisses Village
Nankin v.
Shorewood,
¶ The "rational" basis 61. by guide- analysis that not the this is saved declaration merely imperfect system a is an solution that is line right disparity "step in in the direction."14 Decreases judicial within the in district cannot save increase disparate for fourth OWI offenders sentences offense program legislatively mandated that across the state. A geo- disparate guidelines from one fosters graphical creates cannot area to another be viewed in the State eliminating disparity right step in the direction of as a sentencing in the State Wisconsin.15 majority opinion's is ¶ The "rational" basis 62. asserting scheme not saved also orders under Stat. created guidelines," "permissive not man- districts establish might datory guidelines. argument be made that The permissive a are circuit because offender and the circumstances must examine each suggested the offense addition accordingly uniformity the state. This is across there reasoning premise guidelines are rests that the on basically each of little because irrelevant or relevance ultimately free its discretion circuit court must exercise guidelines. of the opinion majority resting on this If 63. squarely
reasoning, majority's thinking contradicts argument fosters rational statute its own basis 14Majority op., county county might adopt judges or district legislatively This from guidelines. is different permissive wide district guidelines. mandated *29 disparity
the elimination of within each district. The majority opinion argue cannot that Wis. Stat. guidelines is constitutional because the disparity judicial decrease within each if district it also arguing constitutionality that the statute's rests on obligation the fact that each circuit court has no guidelines impose follow the and is free to whatever sentence it concludes fits the offender, offense, and public safety. (and Clearly legislature
¶ 64. judges) the chief guidelines intend circuit courts to adhere to the to the possible guidelines extent and want the to have an sentencing. guidelines effect on Otherwise the are an futility.16 experience exercise in Furthermore, our with they very demonstrates that are influential ordinarily and that circuit courts follow them or, at a starting point. minimum, use them as a sentencing guidelines place The OWI in the various districts do not reflect a movement towards greater sentencing uniformity similarly statewide situated offenders who commit similar offenses and are similarly dangerous public. to the reflect greater disparity movement towards from district to district with differences solely geographical based on considerations. Because disparate there is no rational basis for sentences based 16As this court explained: "The advisory committee could hardly expect the use sentencing guidelines to reduce vari ance and dispel any perception unequal treatment in sen tencing if it did not judges intend that follow the impose sentence guideline within the matrix ranges, except in cases where aggravating mitigating or circumstances dictate otherwise." Matter Implementation Felony Sentencing Guidelines, 113 Wis. 2d at 697. upon occurred, offense district which the *30 is I conclude the statute unconstitutional.
i—II—I hH opinion ig- Finally, majority completely ¶ 66. the 346.65(2m)(a) possibility that nores the Wis. Stat. separation it of because violates unconstitutional 3(1) powers of VII, Section doctrine. Article Wiscon- supreme shall states that "the court sin Constitution authority superintending and over have administrative all courts." 3(1)
¶ makes VII, Section it "incum- 67. Article legislature and to exercise both deference on bent legislating impinge upon in areas that restraint when authority."17 [court's] of Stat. this enactment Wis. a lack of demonstrates deference both legislature on of the and a lack of restraint behalf and authority supervise arguably impinges to on our judges chief of the the circuit courts and administer state. clear becomes when 68. This conclusion sentencing guidelines
history adoption is set adopt expressly refused an to forth. In this requiring pilot program use, to circuit courts 18-month felony sentencing guide- according discretion, to their Advisory developed by Committee for lines Project.18 Sentencing Felony A Guidelines Wisconsin "remedy sentencing goal an was to of the imposed by unjustifiable disparity of sentences Wiscon- 17 Holmes, 75-76, v. State 106 Wis. 2d N.W.2d (1982) (Coffey, J., concurring). Felony Sentencing Guide Implementation Matter of
lines,
sin trial for like offenses,"19 but the court noted report advisory that the 1983 of the committee stated unjustified disparity sentencing "that there is no Wisconsin courts."20 The court concluded that an al- leged public perception sentencing disparity does not justify guidelines. The court further concluded that it is legislature, for the not the court, to "decide whether [judicial discretion] closely should be more circum- scribed."21 year legislature 69. One later, the enacted a giving express authority pro-
statute this court the mulgate sentencing guidelines rules for to be used Wisconsin courts.22 This court act, refused to however, according authority promul- to the statute the gate sentencing guidelines passed to a com- *31 Department mission attached to the Wisconsin of Ad- explained ministration. The court its refusal this time by stating existing sentencing system was accomplishing goal consistency and that it was legislative judicial for the branch, not the branch, to sentencing decide the extent to which discretion should accomplish goal be limited consistency sentencing: criminal legislature
The considers it most appropriate that this promulgate court rules for sentencing guidelines be- cause it sees a direct relation between the establish- ment of the guidelines and the judicial exercise of discretion. disagree; We it precisely is because the determination of what constitutes an appropriate sen- particular tence in a case involves the exercise of 19 Id. at 693.
20 Id.
21Id. at 695. 22In the Matter Jud. Felony Admin. Sentencing Guide lines, (1984). 2d 353 N.W.2d793 promulgate guide- we decline to judicial discretion that thereby encroach on that discretion.23 lines and 346.65(2m)(a), enacting By 70. Wis. Stat. legislature this court's decision not circumvents legislature requires sentencing guidelines. adopt (whom appointed judges has as this court circuit districts) district-by- judges a to do on chief already do this court has refused to level what district adopting scale, a statewide because on guidelines judicial, legislative, not function. foregoing I reasons, For dissent. 23Id. at 203-04.