Hanson v. State, S

• Decision Date: 06 October 1970
• Docket Number: No. S,S
• Citation: 48 Wis.2d 203,179 N.W.2d 909
• Parties: John A. HANSON, Jr., Plaintiff in Error, v. STATE of Wisconsin, Defendant in Error. tate 6.
• Court: Wisconsin Supreme Court

Page 909

179 N.W.2d 909

48 Wis.2d 203

John A. HANSON, Jr., Plaintiff in Error, v. STATE of Wisconsin, Defendant in Error.

No. State 6.

Supreme Court of Wisconsin.

Oct. 6, 1970.

John Andrew Hanson, Jr., (hereinafter defendant) was convicted of theft, contrary to sec. 943.20(1)(a), Stats., the value of the property involved being less than $100. The information also alleged that the defendant had been convicted of a felony during the five year period immediately preceding the commission of the crime with which he was presently charged, specifically, that on October 11, 1965, defendant was convicted of four counts of forgery under sec. 943.38; and that defendant was therefore a repeater, as defined by sec. 939.62.

The theft was alleged to have occurred on April 14, 1968. On May 29, 1968, defendant pled guilty to the theft charge and acknowledged the prior convictions, as required by statute. A presentence investigation was ordered by the court and on June 7, 1968, defendant was sentenced to the state prison for an indeterminate term of not to exceed three years. Additional facts will be set forth hereinafter.

Thomas M. Anich, Ashland, for plaintiff in error; Lewis A. Posekany, Jr., Ashland, of counsel.

Robert W. Warren, Atty. Gen., William A. Platz and Mary V. Bowman, Asst. Attys. Gen., Madison William E. Chase, Dist. Atty., Ashland County, Ashland, for defendant in error.

CONNOR T. HANSEN, Justice.

The issues raised on this appeal relate to (1) imposition of sentences under sec. 939.62, Stats., 'Increased penalty for habitual criminality,' and (2) presentence reports.

Defendant was originally charged with burglary. The glass door in a store was found broken and two boxes of candy were missing from the shop. After a preliminary examination before the County Judge, defendant was bound over to trial in circuit court. Defendant stated that after leaving a tavern, he was walking down a street and fell against a store window. The window broke, he fell inside, and the next thing he remembered was carrying two boxes of candy bars, which he took back to his hotel room.

Thereafter the complaint was amended and an information filed charging the defendant with the theft and further alleging the information relating to his prior criminal record, pursuant to the provisions of sec. 939.62, Stats.

SENTENCE UNDER REPEATER STATUTE.

Defendant contends that the three year indeterminate sentence imposed constitutes cruel and unusual punishment in violation of the eighth amendment of the Constitution of the United States and of art. I, sec. 6 of the Wisconsin Constitution. Punishment imposed under statutes providing for increased penalties for habitual criminals or subsequent offenders does not in itself constitute cruel and unusual punishment. Graham v. West Virginia (1912), 224 U.S. 616, 32 S.Ct. 583, 56 L.Ed. 917; State v. Sullivan (1942), 241 Wis. 276, 5 N.W.2d 798. Defendant argues that the sentence in this case is unconstitutional in that it is disproportionate to the offense committed because of its excessive length. Although constitutional prohibition against cruel and unusual punishment is primarily aimed at the kind of punishment imposed rather than the length, when the duration of a sentence is greatly disproportionate to the offense committed it may constitute cruel and unusual punishment. The standard for determining whether a particular prison sentence constitutes cruel and unusual punishment because of its length is whether it is "so excessive and unusual, and so disproportionate to the offense committed, as to shock public sentiment and violate the judgment of reasonable people concernign what is right and proper under the circumstances." State v. Pratt (1967), 36 Wis.2d 312, 322, 153 N.W.2d 18, 22.

The theft offense of which defendant was convicted carries a six month maximum sentence. However, because the defendant was convicted of four counts of forgery in October, 1965, he was a repeater as defined by sec. 939.62(2), Stats. Sec. 939.62(1)(a) provides that where the present conviction is one for which the maximum sentence is one year or less, the sentence may be increased to three years where the defendant is a repeater. Thus the sentence imposed on defendant was the statutory maximum.

A trial judge clearly has discretion in determining the length of a sentence within the permissible range set by statute. The standard by which cruel and unusual punishment is determined does not preclude a sentence within the permissible statutory range from constituting cruel and unusual punishment and thus a reversible abuse of discretion on the part of the trial judge. However, this court has stated many times that review of a sentence of a lower court is guided by a strong policy against interference with the lower court's discretion. Cheney v. State (1969), 44 Wis.2d 454, 468, 171 N.W.2d 339, 174 N.W.2d 1; Finger v. State (1968), 40 Wis.2d 103, 111, 161 N.W.2d 272.

Defendant argues that imposition of the maximum three year sentence under sec. 939.62(1)(a), Stats., because the present offense only involves theft of two boxes of candy, is cruel and unusual. We do not agree. Defendant's sentence was not imposed solely because of the instant theft, but also because of the defendant's prior felonious criminal conduct.

In Block v. State (1968), 41 Wis.2d 205, 212, 213, 163 N.W.2d 196, 200, this court reviewed a sentence imposed under sec. 939.62(1)(a), Stats., on a defendant convicted of disorderly conduct and stated:

'We consider there is no merit in the argument that the sentence imposed was an abuse of discretion. * * * (I)t must be remembered the repeater statute was passed for the very purpose of increasing the punishment of those persons who do not learn their lesson or profit by the lesser punishment given for their prior violations of the criminal laws.'

The trial court did not abuse its discretion in imposing the maximum sentence under the repeater statute.

The defendant also alleges sec. 939.62(1), Stats., is unconstitutional as arbitrary and unreasonable on its face. This assertion must be based upon possible sentences that could be imposed under subsections (a), (b) and (c). It is argued that if the present crime provides for a maximum term of one year, the offender could be sentenced to a longer term than if the present offense were a felony. This argument speaks in terms of various possible sentences that could be imposed under the repeater statutes and not in terms of maximum additional increments of sentence. The fact that such a possibility exists does not make the statute arbitrary and unreasonable.

The maximum sentences established by the statute are not unreasonable and arbitrary, and all increases in sentences imposed under the repeater statute are discretionary with the trial judge within the maximum limits. It does not follow that the statute is unreasonable and arbitrary on its face simply because different results may be reached in its application.

PRESENTENCE REPORT.

In raising this issue, the defendant argues that the use of the presentence report by the trial court deprived him of his constitutional right to due process and to be confronted by the witnesses against him.

The constitutionality of the use of presentence reports was upheld by the United States Supreme Court in Williams v. New York (1949), 337 U.S. 241, 69 S.Ct. 1079, 93 L.Ed. 1337. This court has likewise rejected the contention that the use of a presentence deprived the defendant of his constitutional rights.

'In relying upon the right of confrontation, defendant overlooks the distinction between the determination of guilt and the exercise of the court's discretion as to probation or extent of punishment. The right 'to meet the witnesses face to face' guaranteed by Art. I, sec. 7, Wis.Const., and the standards of fair trial embraced within the concept of due process of law in the XIVth Amendment, U.S.Const., must be fully respected where the question for consideration is the guilt or innocence of the accused. Once the defendant has been found guilty, he is 'subject to whatever loss of liberty the legislature has prescribed for his crime.' State ex rel. Volden v. Haas (1953), 264 Wis. 127, 130, 58 N.W.2d 577, 578. That consideration by the court of a confidential report of presentence investigation does not violate a defendant's constitutional rights was settled for Wisconsin in the Volden Case and settled with respect to the due-process clause in Williams v. New York (1949), 337 U.S. 241, 69 S.Ct. 1079, 93 L.Ed. 1337.' State v. Carli (1957), 2 Wis.2d 429, 440b, 86 N.W.2d 434, 87 N.W.2d 830, 831.

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