State v. Borrell, s. 90-2241-C
| Decision Date | 03 January 1992 |
| Docket Number | 90-2332-CR,Nos. 90-2241-C,s. 90-2241-C |
| Citation | 482 N.W.2d 883,167 Wis.2d 749 |
| Parties | STATE of Wisconsin, Plaintiff-Respondent, v. Lazaro BORRELL, Defendant-Appellant. d STATE of Wisconsin, Plaintiff-Respondent, v. Charles L. SMITH, Defendant-Appellant. . Oral Argument |
| Court | Wisconsin Supreme Court |
For the defendant-appellant, Lazaro Borrell, there were briefs by Robert R. Henak, Dean A. Strang and Shellow, Shellow & Glynn, S.C., Milwaukee and oral argument by Mr. Henak.
For the defendant-appellant, Charles L. Smith, there was a brief and oral argument by Donna L. Hintze, assistant state public defender.
For the plaintiff-respondent the cause was argued by Sally L. Wellman, Asst. Atty. Gen., with whom on the briefs was James E. Doyle, Atty. Gen.
This case involves the constitutionality of sec. 973.014, Stats. 1987-88, 1 as it affects the parole eligibility date of persons sentenced to life imprisonment. In separate cases, the circuit court denied the defendants' post-conviction motions for resentencing and held that sec. 973.014 was constitutional. The defendants appealed the decisions of the circuit court. The court of appeals (District I) consolidated the two cases and certified them to us. We accepted the certification pursuant to sec. (Rule) 809.61, Stats.
On this appeal, the constitutionality of sec. 973.014, Stats., is challenged on five separate grounds: namely, that it violates the separation of powers doctrine, due process protections, effective assistance of counsel assurances, prohibitions against cruel and unusual punishment, and the right to a meaningful appeal. We hold that sec. 973.014 is constitutional in all respects. The defendants also raise additional issues that are specific to each of their particular cases.
The relevant facts are not in dispute. On September 19, 1988, Lazaro Borrell was charged with first-degree murder, party to a crime, in violation of secs. 939.05 and 940.01, Stats. 1985-86, 2 and armed robbery, party to a crime, in violation of secs. 939.05, and 943.32(1)(a), Stats. 1985-86. 3 The charges resulted from an armed robbery at Savla's Boutique, a Milwaukee jewelry store, on September 8, 1988. During the course of the armed robbery, a jewelry salesman began struggling with one of Borrell's companions. Borrell fired a warning shot into the ceiling. When the two continued to struggle, Borrell walked within three feet of the salesman and fatally shot him in the back with a sawed-off shotgun.
A jury found Borrell guilty of both the first-degree murder and the armed robbery. Circuit Judge Laurence Gram, Jr., sentenced Borrell to life imprisonment with no parole eligibility until January 1, 2025, for the first-degree murder conviction. He also sentenced Borrell to a consecutive twenty-year prison term for the armed robbery conviction. Judge Gram explained that Borrell's sentence and parole eligibility date was based on the brutality of the crime, the failure of the defendant to show remorse, and, most importantly, the need to protect the community. Borrell moved for post-conviction relief on the basis that sec. 973.014, Stats., which allows the circuit court to set a parole eligibility date, was unconstitutional. Judge Gram denied Borrell's post-conviction motion and held that sec. 973.014 was constitutional.
On March 13, 1989, Charles Smith was charged with first-degree intentional homicide in violation of sec. 940.01, Stats. 1989-90. 4 The charge was the result of an incident where Smith entered the photo studio at a Sears store and fatally shot his wife, Vicki Smith, in the head five times at very close range. Evidence was presented at the trial that Smith was under the influence of the drug mescaline at the time he shot his wife. Dr. Edward Rubin, a licensed psychologist, testified as to the effects of mescaline. However, Circuit Judge Michael Skwierawski would not permit Dr. Rubin to give an opinion on whether Smith, in fact, formed the requisite intent to kill his wife, believing that such determination was best left to the jury.
A jury convicted Smith of first-degree intentional homicide. Judge Skwierawski imposed a mandatory life sentence and ordered Smith eligible for parole after sixteen years imprisonment. Judge Skwierawski explained that Smith's sentence and parole eligibility date were based on four factors: the gravity of the offense, Smith's apparent mental illness, Smith's age, and the need to protect the community. Smith moved for post-conviction relief on the basis that sec. 973.014, Stats., was unconstitutional. Judge Skwierawski denied Smith's post-conviction motion and held that sec. 973.014 was constitutional.
Both Borrell and Smith appealed the decisions of the circuit court. Their cases were consolidated by the court of appeals and certified to this court. We accepted the certification and now affirm the decisions of the circuit court.
The defendants in this case challenge the constitutionality of sec. 973.014, Stats., on several grounds: namely, that it violates the separation of powers doctrine, due process protections, effective assistance of counsel assurances, prohibitions against cruel and unusual punishment, and the right to a meaningful appeal.
The constitutionality of a statute is a question of law which we review independent of the decisions by the lower courts. State v. Holmes, 106 Wis.2d 31, 41, 315 N.W.2d 703 (1982). A statute is presumed to be constitutional. State v. Unnamed Defendant, 150 Wis.2d 352, 364-65, 441 N.W.2d 696 (1989). The burden of establishing the unconstitutionality of a statute is on the person attacking it, who must overcome the strong presumption in favor of its validity. Id. In this case, the defendants shoulder the burden of establishing that sec. 973.014, Stats., is unconstitutional. We shall address each issue presented by the defendants separately.
First, the defendants argue that sec. 973.014, Stats., shifts the legislative power of making public policy to the judiciary in violation of the separation of powers doctrine. They contend that establishing a parole eligibility date is a public policy determination which involves the consideration of community standards. The defendants conclude, therefore, that the failure of the legislature to include any standards in sec. 973.014 constitutes an impermissible delegation of determining public policy to the judiciary.
The separation of powers doctrine is not expressly set forth in the Wisconsin Constitution but rather is embodied in the provisions that vest legislative, executive and judicial powers in three separate branches of government. Unnamed Defendant, 150 Wis.2d at 360, 441 N.W.2d 696. The legislative power is vested in the senate and the assembly by virtue of art. IV, sec. 1 of the Wisconsin Constitution. The executive power is vested in the governor and lieutenant governor by virtue of art. V, sec. 1. The judicial power is vested in the courts by virtue of art. VII, sec. 2.
Recently, in Unnamed Defendant, this court cogently explained the operation and purpose of this doctrine:
Separation of powers prevents one branch of government from exercising the powers granted to other branches. Davis v. Village of Menasha, 21 Wis. 497 (1867); Thoe v. Chicago M. & S.P.R. Co., 181 Wis. 456, 195 N.W. 407 (1923). Not all governmental powers, however, are exclusively committed to one branch of government by the Wisconsin Constitution. Rules of Court Case, 204 Wis. 501, 514, 236 N.W. 717 (1931). Those powers which are not exclusively committed may be exercised by other branches. Id. In areas of shared power, however, one branch of government may exercise power conferred on another only to an extent that does not unduly burden or substantially interfere with the other branch's essential role and powers. State v. Holmes, 106 Wis.2d 31, 44, 315 N.W.2d 703 (1982). The doctrine serves to maintain the balance between the three branches, preserve their independence and integrity, and to prevent the concentration of unchecked power in the hands of one branch. [State v.] Washington, 83 Wis.2d 808 at 826 [266 N.W.2d 597 (1978) ].
Unnamed Defendant, 150 Wis.2d at 360-61, 441 N.W.2d 696. Our inquiry requires us to apply these principles to the parole eligibility date determination under sec. 973.014, Stats.
A person convicted of a crime has no legal or constitutional right or entitlement to parole. Any rights that a convicted defendant has with respect to parole are only those rights created by the legislature as a matter of grace or favor. State ex rel. Johnson v. Cady, 50 Wis.2d 540, 545, 185 N.W.2d 306 (1971); Tyler v. State Dep't of Public Welfare, 19 Wis.2d 166, 175, 119 N.W.2d 460 (1963). Any such right exists only to the extent that the legislature provides. The legislature not only can specify when a person convicted of a particular crime may be eligible for parole but can also disallow or abolish the right to parole for any or all crimes.
The parole eligibility date determination is dependent upon the length of the sentence imposed by the sentencing court. The sentence imposed in each case should recognize the minimum amount of custody or confinement that is consistent with the need to protect the public, the gravity of the offense and the rehabilitative needs of the convicted defendant. McCleary v. State, 49 Wis.2d 263, 276, 182 N.W.2d 512 (1971). Under Wisconsin's system of indeterminate sentencing, the convicted defendant is generally eligible for parole release after serving 25 percent of his or her sentence. Section 304.06(1)(b), Stats. This arrangement causes the particular sentence imposed to be determinative of the defendant's parole eligibility date. In situations where, as here, the defendant is convicted of more than one offense, the sentencing court possesses the ability to impose upon the defendant consecutive rather than concurrent sentences. Where consecutive sentences are imposed, the...
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