Klimas v. State, No. 75--242--CR

• Court: United States State Supreme Court of Wisconsin
• Writing for the Court: HEFFERNAN
• Citation: 75 Wis.2d 244,249 N.W.2d 285
• Parties: Alvin C. KLIMAS, Plaintiff in Error, v. STATE of Wisconsin, Defendant in Error.
• Docket Number: No. 75--242--CR
• Decision Date: 18 January 1977

Page 285

249 N.W.2d 285 75 Wis.2d 244 Alvin C. KLIMAS, Plaintiff in Error,
v.
STATE of Wisconsin, Defendant in Error. No. 75--242--CR. Supreme Court of Wisconsin. Submitted on Briefs Oct. 7, 1976.
Decided Jan. 18, 1977.

Page 286

Howard B. Eisenberg, State Public Defender, for plaintiff in error.

[75 Wis.2d 245] Bronson C. La Follette, Atty. Gen., and David J. Becker, Asst. Atty. Gen., for defendant in error.

HEFFERNAN, Justice.

The plaintiff in error, Alvin C. Klimas, hereinafter defendant, after a jury trial was convicted of the second-degree murder of his wife, Janice Marie Klimas. He was sentenced on June 24, 1974, to a term of not more than twenty years in the Wisconsin State Prison. The trial court denied his motion to modify the sentence brought on the grounds that it was excessive and failed to credit the time prior to trial when defendant was in custody because of financial inability to post the required bail.

We conclude that the trial judge did not abuse his discretion in determining the term of the sentence. We also conclude that the trial judge was obliged to credit all of the time prior to sentencing spent in custody because of financial inability to post bail. We remand solely for the purpose of ascertaining whether indigency was the reason for failure to post bail and, if so, for the computation of the number of days that must mandatorily be applied as a credit toward satisfaction of the sentence.

As a threshold question, the state argues that the motion for sentence modification was untimely and, therefore, should not have been considered in the trial court and should not be considered on appeal. The record shows that trial counsel made no post-conviction motions, and it was only on appeal after the appointment of the State Public Defender that a motion for sentence modification was made--about eight months after the original sentence. The state relies upon the statement of this court in Hall v. State, 66 Wis.2d 630, 634, 225 N.W.2d 493, 495:

[75 Wis.2d 246] 'Hayes (Hayes v. State, 46 Wis.2d 93, 175 N.W.2d 625 (1970)) requires that such motion be made within ninety days from the date of sentencing. In this case the motion was made more than three years after sentencing. Thereafter, the motion was too late . . ..'

We have, however, held that the ninety-day period is not jurisdictional, but regulatory--that a challenge to a sentence may be made as a matter of right within the ninety-day period--and thereafter leave to challenge is a matter of court discretion. Farley v. State, 50 Wis.2d 113, 183 N.W.2d 33 (1971); State ex rel. Warren v. County Court of Shawano-Menominee County, 54 Wis.2d 613, 197 N.W.2d 1 (1972); Kutchera v. State, 69 Wis.2d 534, 230 N.W.2d 750 (1975).

In the trial court no objection was made by the state to the defendant's untimely motion, and it is at least arguable that any objection to the non-jurisdictional time limit has been effectively waived.

Also, under the facts of this case it was appropriated for the trial court to hear the motion for sentence modification. Defendant was sentenced on June 24, 1974. No motions were filed by trial counsel. The State Public Defender was misinformed of the date of sentence and assumed that the date for requesting sentence modification had passed prior to his appointment. In fact it had not, but the erroneous information accounts for the failure of the Public Defender to timely move for sentence modification. Under these circumstances we conclude that it was within the discretion of the trial court to entertain the motion, although the period of ninety days in which the motion could be brought as a matter of right had elapsed. The appeal fromthe order denying that motion is properly before us.

We conclude, however, that the trial judge did not abuse his discretion in imposing sentence, and the sentence and the order

Page 287

denying its modification must be affirmed.

[75 Wis.2d 247] In McCleary v. State,49 Wis.2d 263, 182 N.W.2d 512 (1971), this court held that sentencing was an act of judicial discretion, and unless the trial judge set forth the facts of record and the process of reasoning by which the sentence was determined, the sentence would be reversed as an abuse of discretion. This holding was subject to this court's duty to uphold the sentencing decision if the supporting facts were apparent in the record.

Three of the factors to be considered in exercising sentencing discretion were restated in Rosado v. State, 70 Wis.2d 280, 291, 234 N.W.2d 69, 74 (1975):

'. . . the gravity of the offense, the character of the offender (i.e., "rehabilitative needs of the defendant," McCleary, 49 Wis.2d p, 276, 182 N.W.2d 512), and the need for protection of the public.'

The Public Defender concedes that the trial judge considered each of these factors.

A review of the record shows that, at the sentencing, the trial judge recognized that the defendant suffered from mental and emotional problems. The judge pointed out that, were treatment the only purpose of sentencing, no custodial restraint would be appropriate. He stated, however, that additional factors were appropriate to be considered: Rehabilitation, punishment, and deterrence. At the hearing held on the motion to modify the sentence, the trial judge pointed out that he believed the sentence appropriate in light of the nature of the charge and the character of the defendant as revealed in the pre-sentence report and by psychiatric testimony. He stated also that he had considered the interests of society when he imposed a sentence that would deter others from committing similar offenses.

We concluded that the trial judge properly exercised his...