State v. Gallion

Decision Date15 April 2004
Docket NumberNo. 01-0051-CR.,01-0051-CR.
PartiesSTATE of Wisconsin, Plaintiff-Respondent, v. Curtis E. GALLION, Defendant-Appellant-Petitioner.
CourtWisconsin Supreme Court

For the defendant-appellant-petitioner there were briefs and oral argument by Randall E. Paulson, assistant state public defender.

For the plaintiff-respondent the cause was argued by Eileen W. Pray, assistant attorney general, with whom on the briefs was Peggy A. Lautenschlager, attorney general.

An amicus curiae brief was filed by Robert R. Henak and Henak Law Office, S.C., Milwaukee, on behalf of Counsel for Wisconsin Association of Criminal Defense Lawyers.

An amicus curiae brief was filed by Walter J. Dickey, David E. Schultz, and Michael E. Smith, University of Wisconsin Law School, and oral argument by Walter J. Dickey.



In all Anglo-American jurisprudence a principal obligation of the judge is to explain the reasons for his actions. His decisions will not be understood by the people and cannot be reviewed by the appellate courts unless the reasons for decisions can be examined. It is thus apparent that requisite to a prima facie valid sentence is a statement by the trial judge detailing his reasons for selecting the particular sentence imposed.

McCleary v. State, 49 Wis. 2d 263, 280-81, 182 N.W.2d 512 (1971).

¶ 2. Those words are as true today as they were when they first appeared in McCleary. Yet, sentencing courts have strayed from the directive. Instead, for some, merely uttering the facts, invoking sentencing factors, and pronouncing a sentence is deemed sufficient. Such an approach confuses the exercise of discretion with decision-making.

[2, 3]

¶ 3. As the McCleary court instructed, evidence of the exercise of discretion must be set forth on the record: "there must be evidence that discretion was in fact exercised. Discretion is not synonymous with decision-making. Rather, the term contemplates a process of reasoning." Id. at 277.

[4, 5]

¶ 4. Now, in the wake of truth-in-sentencing legislation, we reinvigorate the McCleary directive that the exercise of sentencing discretion must be set forth on the record. Although we do not change the appellate standard of review, appellate courts are required to more closely scrutinize the record to ensure that "discretion was in fact exercised and the basis of that exercise of discretion [is] set forth." Id.

¶ 5. The legislature well recognized that explaining the reasons for the particular sentence should not be optional for the circuit court under truth-in-sentencing. It codified the requirement adopted in McCleary by enacting Wis. Stat. § 973.017(10m) (2001-02): "Statement of reasons for sentencing decision. (a) The court shall state the reasons for its sentencing decision and . . . shall do so in open court and on the record."1

¶ 6. In this opinion, we examine the process of reasoning which demonstrates the proper exercise of sentencing discretion. Having emphasized that our precedent and the legislature both mandate that the exercise of sentencing discretion be set forth on the record, we turn to the facts of this case.

¶ 7. Curtis Gallion seeks review of a published court of appeals' decision that affirmed a judgment convicting him of homicide by intoxicated use of a motor vehicle.2 He asserts that the circuit court erroneously exercised its discretion in failing to provide an adequate explanation for the sentence given, citing McCleary. Essentially, Gallion advances that the basic prerequisites for the sound exercise of discretion must be reexamined in light of the changes brought by truth-in-sentencing legislation.3 In addition, he contends that the circuit court erred in placing undue emphasis on the character of the victim and imposing a sentence that is harsh and excessive.

¶ 8. We agree that truth-in-sentencing provides an impetus for this court to reexamine the basic requirements for the sound exercise of discretion. Accordingly, we reaffirm the sentencing standards established in McCleary and determine that the application of those standards, demonstrating the exercise of discretion, must be set forth on the record for future cases.4

¶ 9. Further, we determine that the circuit court provided an adequate explanation for the sentence given, used relevant information regarding the character of the victim, and imposed a sentence that was neither unduly harsh nor excessive. In essence, we conclude that the circuit court did not erroneously exercise its discretion. Therefore, we affirm the court of appeals.


¶ 10. On March 3, 2000, at about 1:30 a.m., Gallion was drunk and driving his car at a high rate of speed in Milwaukee. He ran a red light and collided with another vehicle, crashing into its side. Vanessa Brown, a passenger in the other car, was killed by the collision. A blood test, taken within three hours of the accident, revealed Gallion's blood alcohol content to be .237, nearly two-and-a-half times the legal limit.

¶ 11. Two months later, Gallion entered a plea of guilty to homicide by intoxicated use of a motor vehicle.5 Pursuant to this plea, the State agreed to recommend prison, but leave the length of confinement for the circuit court to determine. A presentence investigation was ordered, and the presentence writer recommended a sentence of 13 to 16 years in prison followed by 5 to 7 years of extended supervision.

¶ 12. At sentencing, the circuit court heard testimony from Brown's mother, father, teacher, and employer. The court also received several letters from her relatives and associates. Both the witnesses and writers addressed Brown's admirable qualities along with the impact her death had on their lives.

¶ 13. In a lengthy explanation, covering 20 pages of transcript, the circuit court referenced relevant facts and discussed sentencing factors. The court addressed: (1) the gravity of the offense, (2) the character and rehabilitative needs of Gallion, and (3) the need to protect the community. It then sentenced Gallion to 21 years of confinement followed by 9 years of extended supervision. The maximum penalty for the offense was 40 years of confinement, followed by 20 years of extended supervision.

¶ 14. Gallion subsequently moved to modify his sentence, alleging an erroneous exercise of discretion. He asserted that the circuit court's sentence was arbitrary in that it failed to explain the length it imposed. Gallion further argued that the court accorded too much weight to Brown's character and had increased the sentence because his character compared unfavorably to hers.

¶ 15. The circuit court denied Gallion's motion. In doing so, it concluded that its sentencing remarks provided ample basis for its exercise of discretion. The court also explained that it was "obliged to consider all aspects of the defendant's crime, including the character of the victim and the impact of the defendant's crime on the people who were close to her, as relevant to the gravity of the offense." The court then concluded that it was "allowed by law to sentence the defendant to a maximum of 60 years for this offense and was only required to consider the relevant sentencing factors in determining an appropriate sentence within the exercise of its discretion."

¶ 16. The court of appeals agreed with the circuit court's decision. It rejected Gallion's argument that more specificity was required of the circuit court at sentencing. State v. Gallion, 2002 WI App 265, ¶ 9, 258 Wis. 2d 473, 654 N.W.2d 446. The court further determined that "the sentencing court considered Vanessa Brown's character in the context of assessing crime severity and did not punish Gallion simply because Brown was an extraordinary person." Id., ¶ 20. It noted that Gallion "[had] not met his burden of showing that the court imposed a more harsh sentence because of that contrast [of character]." Id., ¶ 24 (emphasis in original). Upon reviewing the circumstances surrounding the sentence, the court concluded that the sentence imposed was not "so excessive and unusual and so disproportionate to the offense committed as to shock public sentiment . . . ." Id., ¶ 41 (citations omitted).


[6, 7]

¶ 17. It is a well-settled principle of law that a circuit court exercises discretion at sentencing. McCleary, 49 Wis. 2d at 277. On appeal, review is limited to determining if discretion was erroneously exercised. See id. at 278. When discretion is exercised on the basis of clearly irrelevant or improper factors, there is an erroneous exercise of discretion. Id.


¶ 18. On review, "[i]n any instance where the exercise of discretion has been demonstrated, [the appellate court] follows a consistent and strong policy against interference with the discretion of the trial court in passing sentence." Id. at 281. See also In re Felony Sentencing Guidelines, 120 Wis. 2d 198, 203, 353 N.W.2d 793 (1984)

. "[S]entencing decisions of the circuit court are generally afforded a strong presumption of reasonability because the circuit court is best suited to consider the relevant factors and demeanor of the convicted defendant." State v. Borrell, 167 Wis. 2d 749, 781, 482 N.W.2d 883 (1992) (citing State v. Harris, 119 Wis. 2d 612, 622, 350 N.W.2d 633 (1984)). "Appellate judges should not substitute their preference for a sentence merely because, had they been in the trial judge's position, they would have meted out a different sentence." McCleary, 49 Wis. 2d at 281.6

¶ 19. The McCleary court summarized the reasoning process necessary to facilitate appellate review:

[T]he term [discretion] 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.

Id. at 277.


¶ 20. As indicated, the seminal case for sentencing in Wisconsin is ...

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