Klimas v. State

Citation75 Wis.2d 244,249 N.W.2d 285
Decision Date18 January 1977
Docket NumberNo. 75--242--CR,75--242--CR
CourtUnited States State Supreme Court of Wisconsin
PartiesAlvin C. KLIMAS, Plaintiff in Error, v. STATE of Wisconsin, Defendant in Error.

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

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:

'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 denying its modification must be affirmed.

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 discretion in imposing sentence. He relied upon the facts of record; and on the those facts, by a rational process, he arrived at a sentence determination that was consistent with the facts and the rationale employed. We decline to modify that sentence.

It is also asserted that the trial judge was required to credit toward the service of the sentence imposed the time spent in pre-trial confinement because of financial inability to make bail. It is asserted that defendant was in custody for one hundred thirty-nine days because of indigency.

We conclude that, henceforth, and in the instant case, all pre-sentence confinement because of indigency must be applied toward the diminution of the sentence imposed.

Heretofore, this court has held that, where the sentence imposed is the statutory maximum, the time spent in custody prior to conviction must be credited against the sentence when such time in custody is the result of financial inability to post bail. We have also held that, when the sentence imposed is less than the statutory maximum, the sentencing court, 'must, in exercising its discretion, take into consideration, in determining the length of sentence to be imposed, the time the defendant has spent in preconviction custody.' (Emphasis supplied.) Byrd v. State, 65 Wis.2d 415, 425, 222 N.W.2d 696 (1974).

In Byrd this court based its rationale in respect to both the maximum sentence and the less than maximum sentence upon the denial of equal protection to those financially unable to post bail. The failure to credit pre-trial time or pre-sentence time in custody as the result of indigency means that persons similarly situated except for financial means are subject to different periods of confinement for the same crime. An additional period of confinement is imposed upon the poor person.

The law recognizes the overriding need of the state to assure the production of criminal defendants at trial. That need of the state is enforced by confinement prior to trial or by imposition of bail terms that will assure the defendant's appearance at trial. Whether bail, once set, can be posted is dependent on the defendant's financial ability, but this implicit discrimination between the rich and the poor is tolerable in light of the state's overriding need to produce all defendants, rich or poor, at trial. Once the trial has been held, however, and the defendant found guilty, that particular overriding need of the state which may impel confinement prior to trial is at an end. There is...

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