State v. Grady, 2005AP2424-CR.

• Citation: 734 N.W.2d 364,2007 WI 81
• Decision Date: 29 June 2007
• Docket Number: No. 2005AP2424-CR.,2005AP2424-CR.
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. Vincent T. GRADY, Defendant-Appellant-Petitioner.
• Court: United States State Supreme Court of Wisconsin

734 N.W.2d 364

2007 WI 81

STATE of Wisconsin, Plaintiff-Respondent, v. Vincent T. GRADY, Defendant-Appellant-Petitioner.

No. 2005AP2424-CR.

Supreme Court of Wisconsin.

Argued March 7, 2007.

Decided June 29, 2007.

For the defendant-appellant-petitioner there were briefs and oral argument by Donna L. Hintze, Assistant State Public Defender.

For the plaintiff-respondent the cause was argued by Eileen W. Pray, Assistant Attorney General, with whom on the brief was J.B. Van Hollen, Attorney General.

¶ 1 JON P. WILCOX, J

This is a review of a published court of appeals decision, State v. Grady, 2006 WI App 188, 296 Wis.2d 295, 722 N.W.2d 760. The court of appeals affirmed an order of the Milwaukee County Circuit Court, Jean W. DiMotto, Judge, which denied a post-conviction motion for resentencing by Vincent T. Grady (Grady).

¶ 2 This appeal presents two issues. First, does Wis. Stat. § 973.017(10)(2003-04)¹ preclude appellate review of a circuit court's consideration of a sentencing guideline pursuant to Wis. Stat. § 973.017(2)(a)?² We hold that § 973.017(10) does not prevent review of a circuit court's consideration of an applicable sentencing guideline. Second, how does a circuit court satisfy its § 973.017(2)(a) obligation to consider an applicable sentencing guideline? We hold that a circuit court satisfies its § 973.017(2)(a) obligation when the record of the sentencing hearing demonstrates that the court actually considered the sentencing guidelines and so stated on the record.

¶ 3 In this case, the record of the postconviction motion hearing reveals that the sentencing judge considered the applicable guideline during the sentencing hearing. Hereafter, supplementing the record with evidence beyond the sentencing hearing will be insufficient. For sentencing hearings occurring after September 1, 2007, a circuit court satisfies its § 973.017(2)(a) obligation when the record of the sentencing hearing demonstrates that the court actually considered the sentencing guidelines and so stated on the record. Accordingly, we affirm the court of appeals.

I

¶ 4 On November 22, 2004, a sentencing hearing occurred for Grady. Grady had pleaded guilty to two counts of party to a crime pursuant to Wis. Stat. § 939.05 for armed robbery with use of force under Wis. Stat. § 943.32(2). Grady committed the offenses on November 12, 2003, making § 973.017(2)(a) applicable. A sentencing guideline also existed for armed robbery at the time.

¶ 5 Grady pleaded guilty to the charges as part of a plea agreement. The State in turn dismissed the one count of conspiracy to commit armed robbery pursuant to Wis. Stat. § 939.31. As part of the plea agreement negotiations, Grady refused a deal that would have required him to testify at one of his accomplice's trials. The accomplice he refused to testify against was his uncle.

¶ 6 At the sentencing hearing, Milwaukee County Circuit Court Judge Jean W. DiMotto gave a detailed explanation of her reasoning for imposing Grady's sentence. She emphasized that Grady's character and prior criminal record did not warrant placing him on probation. Grady had already been placed under supervision on two occasions and both times subsequently committed armed robbery. The judge also concluded that Grady had consistently minimized the danger of his activities and criminality.

¶ 7 Judge DiMotto noted the degree of force used during the latest armed robberies. Grady's accomplices brandished a semi-automatic handgun, barricaded employees of the targeted restaurant in a cooler, and struck the manager in the head. The judge assessed the harm caused to the victims and the role Grady played in the offenses.

¶ 8 Judge DiMotto also discussed factors that warranted Grady receiving a longer sentence. Grady refused to testify against an accomplice, unlike another accomplice who agreed to testify. Grady also had worked at one of the targeted restaurants. Even though he knew the employees that would be terrorized by the crime, he played a pivotal role in it. Additionally, he participated despite knowing that his accomplices had already murdered an employee during an attempted robbery of another restaurant only six days earlier.

¶ 9 Judge DiMotto explained that the goals of rehabilitation, punishment, protection, and deterrence were better served through confinement. Based on the seriousness of the charges and what Grady did, the judge imposed a ten-year sentence for the first count of armed robbery, party to a crime, with seven years confinement and three years extended supervision. The judge also imposed a 20-year consecutive sentence for the second count of armed robbery, party to a crime, with 13 years confinement and 7 years extended supervision.

¶ 10 During the sentencing hearing, Judge DiMotto did not refer to the applicable sentencing guideline. The record also does not include a completed sentencing guideline worksheet. No one at the sentencing hearing, including the parties, mentioned the sentencing guideline for armed robbery.

¶ 11 Grady later filed a postconviction motion seeking resentencing on the grounds that the trial court erroneously exercised its discretion by failing to consider the sentencing guideline for armed robbery. During the hearing on the motion, Judge DiMotto stated on the record that she had considered the sentencing guideline during the initial sentencing hearing. She recognized that she had failed to mention it at the time, but she compared the oversight to a scrivener's error. In a written order, Judge DiMotto stated that "the court considered the sentencing guidelines without explicitly identifying that fact and it is clearly apparent from the record that the court did so." Accordingly, the judge denied Grady's motion.

¶ 12 The court of appeals affirmed the trial court judgment and order. The court of appeals concluded that Wis. Stat. § 973.017(10) precluded appellate review of a sentencing court's failure to consider sentencing guidelines. Grady, 296 Wis.2d 295, ¶ 1, 722 N.W.2d 760. Citing State v. Halbert, 147 Wis.2d 123, 131, 432 N.W.2d 633 (Ct.App.1988), the court of appeals ruled that Grady could not appeal his sentence even if the sentencing court failed to consider the applicable sentencing guideline.³ Grady, 296 Wis.2d 295, ¶ 5, 722 N.W.2d 760.

¶ 13 Grady petitioned for review by this court, which we granted.

II

¶ 14 The issues presented in this case both involve statutory interpretation.⁴ To determine whether an appellate court may review a circuit court's consideration of an applicable sentencing guideline we must interpret § 973.017(10). To determine how a sentencing court satisfies its obligation to consider any applicable sentencing guideline, we must interpret § 973.017(2)(a). Statutory interpretation presents a question of law that we review de novo. State v. Stenklyft, 2005 WI 71, ¶ 7, 281 Wis.2d 484, 697 N.W.2d 769.

¶ 15 Our goal in interpreting statutory provisions is to give effect to the intent of the legislature, which we assume is expressed in the text of the statute. State ex rel. Kalal v. Cir. Ct. for Dane County, 2004 WI 58, ¶ 44, 271 Wis.2d 633, 681 N.W.2d 110. To this end, absent ambiguity in a statute, we do not resort to extrinsic aids of interpretation and instead apply the plain meaning of the words of a statute in light of its textually manifest scope, context, and purpose. Id., ¶¶ 45-46, 681 N.W.2d 110. A statute is ambiguous if it is susceptible to more than one reasonable understanding. Id., ¶ 47, 681 N.W.2d 110. If a statute is ambiguous, we may examine extrinsic sources in order to guide our interpretation. Id., ¶ 50, 681 N.W.2d 110.

A. Review of a Court's Consideration of a Sentencing Guideline

¶ 16 We first address whether Wis. Stat. § 973.017(10) precludes appellate review of a circuit court's consideration of an applicable sentencing guideline pursuant to Wis. Stat. § 973.017(2)(a). Wisconsin Stat. § 973.017(10) provides the following:

(10) USE OF GUIDELINES; NO RIGHT OR BASIS FOR APPEAL. The requirement under sub. (2)(a) that a court consider sentencing guidelines adopted by the sentencing commission or the criminal penalties study committee does not require a court to make a sentencing decision that is within any range or consistent with a recommendation specified in the guidelines, and there is no right to appeal a court's sentencing decision based on the court's decision to depart in any way from any guideline.

The plain language of the statute begins by clarifying that § 973.017(2)(a) does not require that a circuit court impose a sentence that falls within the range provided by an applicable sentencing guideline.

¶ 17 After clarifying that § 973.017(2)(a) does not require a circuit court to impose a certain sentence, § 973.017(10) provides that "there is no right to appeal a court's sentencing decision based on the court's decision to depart in any way from any guideline." Accordingly, a circuit court's departure from an applicable sentencing guideline does not provide a defendant with grounds for appeal.

¶ 18 Nothing in the language of § 973.017(10) suggests that a circuit court's failure to consider an applicable sentencing guideline pursuant to § 973.017(2)(a) is not a valid grounds for appeal. Therefore, we conclude that like the other provisions of Wis. Stat. ch. 973 that establish obligations for circuit courts during sentencing, an appellate court may review whether or not a circuit court satisfied its § 973.017(2)(a) obligation.⁵

¶19 The court of appeals did not interpret § 973.017(10) as we have. A distinct interpretation of the statute's language did not cause the difference. Rather, the difference arises because the court of appeals concluded that previous holdings of appellate courts had provided an interpretation of similar statutory language and the legislature had enacted § 973.017(2)(a) with knowledge of that interpretation. Grady, 296 Wis.2d 295, ¶ 5, 722 N.W.2d 760. Therefore, the court of appeals...