State v. Grindemann

Decision Date18 April 2002
Docket NumberNo. 01-0542-CR.,01-0542-CR.
Citation255 Wis.2d 632,2002 WI App 106,648 N.W.2d 507
PartiesSTATE of Wisconsin, Plaintiff-Appellant, v. Michael A. GRINDEMANN, Defendant-Respondent.
CourtWisconsin Court of Appeals

On behalf of the plaintiff-appellant, the cause was submitted on the briefs of Christian R. Larsen, assistant attorney general, and James E. Doyle, attorney general.

On behalf of the defendant-respondent, the cause was submitted on the brief of Leonard D. Kachinsky of Kachinsky & Petit Law Offices, Neenah.

Before Dykman, Roggensack and Deininger, JJ.

¶ 1. DEININGER, J.

The State of Wisconsin appeals an order which modified Michael Grindemann's forty-four-year sentence to "time served" and placed him on probation. The State contends that Grindemann failed to present a "new factor" that would warrant a reduction of his sentence, and that the trial court erred in concluding the State had breached the "spirit" of its plea agreement with Grindemann. The State also asserts that the court did not erroneously exercise its discretion when it originally imposed Grindemann's sentence, but that it did so in deciding to modify the sentence.

¶ 2. We first conclude that it was improper for the court to grant Grindemann's motion without first requesting a response from the State or conducting a hearing on the motion. We also agree with the State that the trial court's altered view of certain evidence presented at Grindemann's original sentencing hearing is not a "new factor," and we conclude that Grindemann's assertion of a breach of the plea agreement comes too late. Finally, we conclude that the record discloses no erroneous exercise of discretion by the court when it originally imposed sentence, and further, that the originally imposed sentence was not unduly harsh or unconscionable. Accordingly, we reverse the appealed order.

BACKGROUND

¶ 3. Grindemann pled guilty to eleven counts of second-degree sexual assault. The court sentenced him to eleven consecutive four-year prison terms. The offenses to which Grindemann pled were consolidated from three counties, and they involved sexual contact or intercourse with boys between the ages of twelve and sixteen years. Pursuant to a plea agreement, seven additional counts were dismissed but read in at sentencing.

¶ 4. Grindemann testified at the sentencing hearing that he had been "a victim of homosexual contact by another when [he was] a child." This had occurred when Grindemann was ten or eleven, and it involved sexual contacts initiated by an older classmate with whom, according to Grindemann's testimony, "a homosexual relationship developed." Grindemann further explained that at the time of these sexual experiences he "was a youngster that was eager to learn what [the older boy] had to teach." The fact of this early homosexual activity was also discussed in psychiatric and psychological reports that were provided to the court at sentencing. During argument, Grindemann's counsel labeled the events "an early traumatic experience" in Grindemann's life.

¶ 5. In addition to dismissing and reading in seven other counts for consideration at sentencing, the State had agreed to recommend "30 years or less" of imprisonment. The State did in fact recommend a sentence totaling thirty years. During the prosecutor's sentencing argument, however, he said that the offenses before the court were potentially "the tip of the iceberg," noting that at least with respect to the Waushara County charges, only one count per victim was charged and that "there are many other incidents that occurred in Waushara County involving the same boys." Defense counsel objected to the comment, claiming there was "not evidence ... properly before the court" for the prosecutor's assertion. The court sustained the objection and admonished the prosecutor to "[b]e more cautious" in his comments.

¶ 6. Defense counsel's recommendation at sentencing, supported by a defense psychiatrist and several character witnesses, was for concurrent four-year sentences on each of eight counts, together with a consecutive ten-year term of probation on the remaining counts. The author of the pre-sentence investigation recommended a prison term of twelve to fifteen years.

¶ 7. In imposing sentence, the court expressly considered Grindemann's character, the gravity of his offenses and the need for protection of the public. The court indicated its awareness that Grindemann had no prior criminal offenses of any kind; that he was a college graduate, a teacher and married; and that he had the support of his family as well as numerous persons in the community. With respect to Grindemann's childhood sexual experience, the court said that "sexual deviancy on your part commenced when you are ten or eleven years old." The court also noted that despite Grindemann's "good traits," he was apparently unable to "distinguish between harmless adult-child communication and association and seriousness of sexual involvement" with the teenage boys. The court expressed its concern over Grindemann's partial rationalization of his actions as providing sex education to the victims, as opposed to seeking his own sexual gratification.

¶ 8. With respect to the offenses, the court noted that there were at least seven victims, and that the conduct had occurred over a period of almost two years. The court also noted that the legislature had provided a maximum penalty often years for each count, and thus Grindemann faced a potential 110 years of imprisonment. The court acknowledged that the offenses did not involve violence, force or threats to the victims, but stated that, in its opinion, "the crime of sexual assault of a male or female child is one of [the] most reprehensible acts an adult can commit," and that the conduct was "an aggravated situation, because of the repetition of these acts."

¶ 9. The court imposed eleven consecutive four year terms and entered a judgment of conviction on July 31, 1985. Grindemann filed a motion for sentence reduction the following January. At the hearing on this motion, Grindemann's post conviction counsel argued that the original sentence was excessive, noting that Grindemann's parole eligibility on the sentence would be similar to that of a person convicted of first-degree murder. He also compared the forty-four-year sentence to the maximum of forty years which could have been imposed at the time for a person who committed two second-degree homicides. Grindemann specifically requested a reduction to what was recommended by the pre-sentence investigation author, twelve to fifteen years in prison, or a term between that recommendation and the State's request for a thirty-year prison sentence. The State opposed the motion.

¶ 10. In ruling on the motion, the court noted that although it could reduce the sentence if it concluded its original sentence was unduly harsh or unconscionable, "I have difficulty finding viable reasons that I can cite on the record as to why the sentence should be reduced." The court said that it had given the matter "a tremendous amount of thought at the time I imposed sentence," and that it could have imposed consecutive sentences of ten years each, instead of four years each. The court also pointed out that there had been "no testimony at this hearing to suggest that the conscience of the public has been shocked by this sentence ... or the judgment of reasonable people have been violated." Accordingly, the court denied the motion.

¶ 11. Grindemann, represented by a different attorney, filed a second "motion to modify sentence" in January 1990. In support of this motion, Grindemann's counsel asserted that a change in certain executive clemency procedures constituted a "new factor." At the hearing on the motion, Grindemann's counsel said that he did "not feel the court did not act within its discretion" in imposing the original sentence. Counsel also acknowledged that the court "could have sentenced him to ten years on each of the counts, and sentenced him to 110 years, and frankly, Your Honor, I don't think any appellate court would have overturned that decision." Because the "Clemency Board" had recently changed its procedures so as not to entertain requests for sentence commutation until parole eligibility had been attained, Grindemann's counsel requested the court to modify the sentence so as to permit an immediate clemency filing. Specifically, Grindemann sought a reduction to three years on each count, which would produce parole eligibility in "eight plus years as opposed to eleven years."

¶ 12. The State again opposed any modification of Grindemann's sentence, arguing that the change in clemency procedures was not a "new factor" under controlling case law, given that the court had not considered or relied upon executive clemency procedures at the time of sentencing. The court agreed and denied Grindemann's motion. In doing so, the court cited case law holding that a change in parole policy was not a new factor. It concluded that, by analogy, a change in clemency procedure was also not a new factor, stating "at the time that Mr. Grindemann was sentenced, I honestly didn't even think about Executive Clemency."

¶ 13. Grindemann filed a third sentence modification motion on May 11, 1994. The circuit court, how ever, denied the motion without a hearing, stating in a letter to Grindemann's counsel "it appears to me that the averments made fail to state a claim upon which the relief sought may be allowed. Accordingly, I see little reason to allow time on the court calendar for same."2

¶ 14. Grindemann again filed a motion to modify his sentence on December 28, 1999. This fourth motion, filed pro se, was grounded on: (1) an alleged new factor; (2) the State's alleged breach of the "spirit of the plea agreement"; (3) the sentencing court's failure to properly exercise its discretion; and (4) an assertion that the sentence imposed was unduly...

To continue reading

Request your trial
113 cases
  • State v. Pal
    • United States
    • Wisconsin Supreme Court
    • 28 Abril 2017
    ...exercise of discretion." State v. Cummings , 2014 WI 88, ¶45, 357 Wis.2d 1, 850 N.W.2d 915 (emphasis omitted) (quoting State v. Grindemann , 2002 WI App 106, ¶30, 255 Wis.2d 632, 648 N.W.2d 507 ). Pursuant to this standard, "[w]e will not set aside a discretionary ruling of the trial court ......
  • Gabler v. Crime Victims Rights Bd.
    • United States
    • Wisconsin Supreme Court
    • 27 Junio 2017
    ...of a judgment of a conviction and is not grounds for any court to reverse or modify a judgment of conviction or sentence.See State v. Grindemann , 2002 WI App 106, ¶ 19 n.5, 255 Wis.2d 632, 648 N.W.2d 507 (State conceded that failure to conform to statutory provisions governing crime victim......
  • State v. Robinson, 2011AP2833–CR.
    • United States
    • Wisconsin Supreme Court
    • 10 Junio 2014
    ...made clear that a court should not increase a sentence on ‘ “reflection” alone.’ [Scott, 64 Wis.2d] at 59, 218 N.W.2d 350.”); State v. Grindemann, 2002 WI App 106, ¶ 21, 255 Wis.2d 632, 648 N.W.2d 507 (overturning a circuit court's change in a sentence because “it may not reduce a sentence ......
  • State v. Cummings
    • United States
    • Wisconsin Supreme Court
    • 24 Julio 2014
    ...conclusion that a sentence it imposed was not unduly harsh and unconscionable for an erroneous exercise of discretion.’ ” State v. Grindemann, 2002 WI App 106, ¶ 30, 255 Wis.2d 632, 648 N.W.2d 507 (emphasis in original) (quoting State v. Giebel, 198 Wis.2d 207, 220, 541 N.W.2d 815 (Ct.App.1......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT