State v. Gallion

• Decision Date: 10 October 2002
• Docket Number: No. 01-0051-CR.,01-0051-CR.
• Citation: 258 Wis.2d 473,2002 WI App 265,654 N.W.2d 446
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. Curtis E. GALLION, Defendant-Appellant.
• Court: Wisconsin Court of Appeals

258 Wis.2d 473

2002 WI App 265

654 N.W.2d 446

STATE of Wisconsin, Plaintiff-Respondent, v. Curtis E. GALLION, Defendant-Appellant.¹

No. 01-0051-CR.

Court of Appeals of Wisconsin.

Submitted on briefs October 5, 2001.

Decided October 10, 2002.

On behalf of the defendant-appellant, the cause was submitted on the briefs of Howard B. Eisenberg, Milwaukee.

On behalf of the plaintiff-respondent, the cause was submitted on the brief of Eileen W. Pray, assistant attorney general, and James E. Doyle, attorney general.

Before Vergeront, P.J., Dykman and Lundsten, JJ.

¶ 1. LUNDSTEN, J.

Curtis Gallion appeals a judgment convicting him of homicide by use of a motor vehicle with a prohibited alcohol concentration in violation of WIS. STAT. § 940.09(1)(b) (1997-98).² Gallion entered a guilty plea and was sentenced under truth-in-sentencing to twenty-one years of incarceration followed by nine years of extended supervision. Gallion asserts the sentencing court committed three errors: (1) the court violated Gallion's rights to procedural due process and equal protection of the law when it failed to provide adequate reasons for the specific sentence imposed under truth-in-sentencing; (2) the court considered two improper factors: the victim's good character and the contrast between Gallion's character and the character of his victim; and (3) the court imposed a sentence that is "too harsh" considering Gallion's age, history, and crime. We affirm on all issues.

Background

¶ 2. At about 1:30 a.m. on March 3, 2000, nineteen-year-old Curtis Gallion was drunk and was driving his car at a high rate of speed westbound on West Locust Street in Milwaukee. At the intersection of West Locust and 35th Street, Gallion ran a red light and broadsided another car traveling through the intersection on 35th Street. A reconstruction of the collision indicated that Gallion's car was traveling between forty-five and fifty-four miles per hour and made no attempt to slow or stop before impact. The collision caused extensive passenger-side damage to the car struck by Gallion's car. Vanessa Brown was in the front passenger seat of the other car, and the collision killed her. ¶ 3. Police officers were on the scene almost immediately. They found Gallion lying across the front seat of his car. Gallion's breath smelled strongly of alcohol, and a blood test within three hours of the collision showed his blood alcohol content was .237.

¶ 4. Gallion agreed to plead guilty to homicide by intoxicated use of a motor vehicle. Pursuant to the plea agreement, the district attorney recommended prison, but did not recommend any particular amount of incarceration. Following a lengthy sentencing hearing and extended comments by the sentencing court on Gallion's history, character, and the harm caused by his crime, the court sentenced Gallion under truth-in-sentencing to thirty years: twenty-one years in prison and nine years on extended supervision. On December 4, 2000, Gallion asked the sentencing court to modify his sentence, alleging an erroneous exercise of discretion. The court denied the motion.

Discussion

Whether Constitutional Considerations Require a New Approach to Sentencing Under Truth-in-Sentencing

[1]

¶ 5. Gallion argues that his rights to procedural due process and equal protection of the law were violated when the sentencing court failed to provide reasons for the specific sentence imposed. Gallion states he has a constitutional right to have the court explain why it imposed twenty-one years of incarceration rather than a shorter or longer period of incarceration, such as ten, fifteen, twenty, or twenty-five years. Gallion contends the reasons given by the sentencing court here were inadequate because they were general enough to support "virtually any sentence." ¶ 6. We are unsure whether Gallion is asserting that the requirements imposed on sentencing courts have long been constitutionally deficient. However, he clearly argues that, under truth-in-sentencing, it is constitutionally required that sentencing courts justify with great specificity the reason for the particular sentence imposed. Gallion speculates that Wisconsin appellate courts have consistently affirmed harsh sentences prior to truth-in-sentencing—sentences imposed without the sort of detailed explanation he demands— because appellate courts knew the "parole board was there to ameliorate sentence disparity or excessive sentences." He asserts that more demanding requirements must be imposed under truth-in-sentencing because now, "[i]f the judge says 21 years of confinement, the defendant will serve every day of that period unless the Governor (or death) commutes the sentence." This greater finality and certainty, Gallion reasons, requires that a sentencing court explain with specificity the reason behind the particular amount of time it chooses to impose.

¶ 7. The State acknowledges that truth-in-sentencing confers on sentencing courts significantly greater control over sentence length and thereby confers increased sentencing discretion, but the State argues there is no indication that the legislature intended to rein in judicial discretion. More to the point, the State contends, and we agree, that Gallion has failed to demonstrate that the existing rules governing sentencing discretion are unconstitutional when applied to sentences imposed under truth-in-sentencing.

¶ 8. Gallion acknowledges that cases such as McCleary v. State, 49 Wis. 2d 263, 282, 182 N.W.2d 512 (1971), and State v. Stubbendick, 110 Wis. 2d 693, 699, 329 N.W.2d 399 (1983), already require sentencing courts to state reasons for imposing a particular sentence. Nonetheless, he contends that with the advent of truth-in-sentencing, the bar must be raised. Gallion does not, however, support this claim with persuasive legal authority or reasoned argument.

¶ 9. In support of his contention that, under truth-in-sentencing, procedural due process requires a more detailed sentencing rationale, Gallion relies on two federal cases, United States ex rel. Scott v. Illinois Parole and Pardon Board, 669 F.2d 1185 (7th Cir. 1982), overruled on other grounds, Heidelberg v. Illinois Prisoner Review Board, 163 F.3d 1025 (7th Cir. 1998),

and Parker v. Corrothers, 750 F.2d 653 (8th Cir. 1984), for the proposition that a "decision maker must explain in more than boilerplate generalities why it concludes that the seriousness of the offense requires the deprivation of freedom." However, Wisconsin law already requires more than "boilerplate generalities." As stated long ago in McCleary, 49 Wis. 2d at 277:

[T]here must be evidence that discretion was in fact exercised. Discretion is not synonymous with decision-making. Rather, the term contemplates a process of reasoning. This process must depend on facts that are of record or that are reasonably derived by inference from the record and a conclusion based on a logical rationale founded upon proper legal standards. As we pointed out in State v. Hutnik (1968), 39 Wis. 2d 754, 764, 159 N.W.2d 733, ". . . there should be evidence in the record that discretion was in fact exercised and the basis of that exercise of discretion should be set forth."

Moreover, Gallion asserts that more specificity is required but does not articulate a new workable standard. How does a sentencing court explain why it is imposing twenty rather than fifteen years? We suspect Gallion has not offered a standard because the task is impossible. Sentencing decisions are not amenable to the sort of precise explanation Gallion seeks.

¶ 10. Gallion's combined due process and equal protection argument is similarly unavailing. Relying on Bush v. Gore, 531 U.S. 98 (2000), Gallion states: "Due Process and Equal Protection of Law under the Fourteenth Amendment to the United States Constitution require the adoption of `specific standards' so that all persons are dealt with fairly and equally." Gallion asserts: "If `specific standards' are required—as a matter of Due Process and Equal Protection—when counting ballots, a priori such standards should be applied to the deprivation of the most basic of human right— liberty." Bush, however, provides no support for Gallion's position. The determination of voter intent based on "marks or holes or scratches on an inanimate object, a piece of cardboard or paper," id. at 106, is a far cry from individualized sentencing. As the Bush Court explained, the "formulation of uniform rules to determine intent based on these recurring circumstances is practicable." Id. Individualized sentencing is much different; whatever the number of variables involved in ascertaining voter intent based on a cardboard or paper ballot, that number pales in comparison with the vast number of variables involved in sentencing.

¶ 11. Gallion asserts that some form of sentencing guidelines are "constitutionally required." He contends a constitutional sentence cannot be imposed if the sentencing court has no comparative "information on sentencing and incarceration practices." Gallion states that without comparative information, "sentencing in Wisconsin has become arbitrary and violative of Due Process and Equal Protection of Law."

¶ 12. We do not quarrel with the proposition that comparative data or sentencing guidelines provide helpful information to sentencing courts. But the question here is whether such information is constitutionally mandated. In this respect, Gallion has not provided anything approaching a convincing legal analysis. For example, although Gallion asserts that comparative information was constitutionally required before truth-in-sentencing, he does not provide any authority for that remarkable proposition. Also, Gallion's argument that comparative information is required under truth-in-sentencing is limited to the following: "This problem is all the more serious now that `truth in sentencing' has come to the State." Because Gallion does not present a developed legal argument...