State v. Paske
| Decision Date | 25 June 1991 |
| Citation | 163 Wis.2d 52,471 N.W.2d 55 |
| Parties | STATE of Wisconsin, Plaintiff-Respondent, v. Richard B. PASKE, Defendant-Appellant. 90-1105-CR, 90-1106-CR and 90-1107-CR. |
| Court | Wisconsin Supreme Court |
Mark G. Sukowaty and Sukowaty Law Office, Madison, on briefs, for defendant-appellant.
Sharon Ruhly, Asst. Atty. Gen., James E. Doyle, Atty. Gen., on briefs, for plaintiff-respondent.
This case is before the court on certification from the court of appeals pursuant to sec. 809.61, Stats.1987-88. Richard B. Paske appeals from a judgment, sentence, order on motion for post-conviction relief, and second amended judgment on three consolidated cases entered by the circuit court of Sheboygan County, the Honorable L. Edward Stengel, presiding, requiring Paske to serve a ninety-five year aggregate sentence for twenty burglary convictions.
Paske entered a "no contest" plea to the twenty burglaries, and the court "read-in" eight other burglaries. In addition, the twenty burglaries were subject to an increased penalty for habitual criminality. The circuit court reviewed Paske's presentence investigation, the sentencing guidelines score sheets, and considered Paske's rehabilitative prospects, the punishment, and deterrence. The circuit court imposed twenty consecutive five-year sentences for the burglaries, totaling 100 years, consecutive to Paske's present sentence he had been serving when he was arrested. 1
The parties briefed the issue of whether this court should adopt standards limiting the circuit court's discretion to impose consecutive sentences. The issue certified on appeal is: "whether Solem v. Helm, 463 U.S. 277, 103 S.Ct. 3001, 77 L.Ed.2d 637 (1983), modifies the Wisconsin test for determining whether a particular criminal sentence constitutes cruel and usual punishment." The Eighth Amendment to the United States Constitution provides:
Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.
We choose not to adopt limitations on consecutive sentencing, and conclude that the principles announced in Helm do not apply to the facts in the case before us.
The facts of this case are undisputed. On July 26, 1989, Paske entered a plea of "no contest" to twenty counts of burglary, 2 which he had committed between July 16, 1987, and February 3, 1989, in Sheboygan County. Eight other burglary charges were dismissed, but "read-in."
Sentencing took place on November 6, 1989, at which time the court determined that pursuant to sec. 939.50(3)(c), Stats.1987-88, 3 each burglary was subject to a fine not to exceed $10,000, or imprisonment not to exceed ten years, or both. At the time of the commission of the burglaries, Paske had a criminal history of forty-two prior adult felony convictions, dating as far back as 1963. Paske's counsel agreed with the court's finding that Paske was a repeat offender, as defined by sec. 939.62(2), Stats.1987-88. 4 With the repeater penalty enhancer, the maximum penalty for each burglary increased from ten years to sixteen years, making Paske subject to a total maximum sentence of 320 years for all twenty burglaries, sec. 939.62(1)(b), Stats.1987-88 "88. 5
The court stated that it reviewed the presentence investigation, which recommended that "Mr. Paske be sentenced to a long term in the Wisconsin Prison System." The court also reviewed the sentencing guidelines score sheets, which take into account the defendant's criminal history and the severity of the offenses. Each score sheets' matrix (one score sheet per burglary) recommended a total of sixty-eight to seventy-eight months confinement, with no probation. In addition, the court received and reviewed a letter from Mrs. Paske.
The district attorney proposed that Paske be given an aggregate consecutive sentence of two hundred and forty-four years, to be served consecutively with Paske's existing sentence. The district attorney took into account, among other things, that Paske was the "ringleader" of the burglaries, which also involved other individuals; the properties Paske burglarized included a church and a widow's residence while she was attending the funeral of her late husband; and that Paske had a prior lengthy record, which demonstrated his habitual criminality.
Paske's counsel proposed that Paske be given a twenty-five year aggregate sentence, consecutive to his present sentence. Paske's counsel took into account that Paske was forty-four years old at the time of sentencing, and if given a lengthy sentence, he would most likely die in prison; Paske voluntarily admitted his criminal behavior, contemporaneous with his arrest, and cooperated with the authorities; he did not use a weapon or threaten or physically harm any individuals during the course of his burglaries; Paske did not steal out of enjoyment in taking other people's money, but he stole to support his cocaine habit; and calling Paske a "ringleader" was a mischaracterization.
Paske himself testified that he was sorry for what he had done, and he apologized to the crime victims and his family.
The court stated:
I don't think I've seen anyone who is so bent on a criminal history or a life of crime as I do yourself, with perhaps the exception of one other individual.
* * * * * *
When one considers the rehabilitative prospects for a forty-year-old, year-old [sic] individual who began a life of crime in 1963 who has been sentenced to the Wisconsin State Prison System on numerous occasions for crimes, breaking and entering, burglary, felony theft, armed and masked robbery, false imprisonment, it is very hard for this Court to come up with some sort of program to provide for your rehabilitative needs that you have not already had an opportunity to participate in.
* * * * * *
[T]he court must focus on what is an appropriate punishment and what is an appropriate deterrence, and of those two, I don't think the deterrence is the most significant because, fortunately, in this community we do not see so many individuals that come before a Court with the life-long history of criminal behavior and so many offenses. So I think in many cases the deterrent effects may very well be lost because very few individuals will find themselves in a similar situation.
* * * * * *
When we're considering over twenty burglaries with eight read-ins, that loss, regardless how you characterize it, is significant as it exists amongst the community.
* * * * * * This court is satisfied that the only way we can provide for any possibility of your rehabilitation will be merely by virtue of longevity of incarceration. The only appropriate punishment is a lengthy sentence in the Wisconsin State Prison System. The only appropriate deterrent for you would be a similar lengthy sentence. I believe it is appropriate that each and every one of these offenses carry the same penalty and that will demonstrate to you, as I've indicated before, that each in the eyes of this Court and I believe in the eyes of this community are serious crimes and should be dealt with seriously.
* * * * * *
(Transcript of Proceedings, November 6, 1989, pp. 30-39).
After the above considerations, the court imposed its sentence on Paske:
This Court is satisfied that with respect to each of the twenty counts of burglary that you be sentenced to the Wisconsin State Prison System for an indeterminate term not to exceed five years on each count and that each count shall be consecutive and not concurrent. The sentences imposed by this Court shall be consecutive to the sentence you're presently serving.
On March 30, 1990, Paske moved for post-conviction relief, providing the court with "new factors" in support of modification of sentence. These "factors" were Paske's revised dates of parole eligibility, mandatory release, and maximum discharge, since the imposition of the 100 year sentence. Paske argued that his sentence "was running all the way into the twenty-second century" and that it would have a severe effect on him. He also argued that the circuit court gave too much deference to the parole board, and that the parole board does not have as much discretion as it formerly did. In addition, Paske argued that the circuit court abused its discretion for not providing adequate reasons for the sentence length; that it did not impose reasonable time limits on consecutive sentencing; and that Paske's sentence was disproportionate to his crimes.
By order dated May 4, 1990, the circuit court modified two of the five-year terms to be served concurrently with one another, but consecutive to the remaining counts, for a total aggregate term of ninety-five years, to be served concurrently with his pre-existing sentence. The court was satisfied that the interests of justice, the protection of the public, the rehabilitative needs of Paske, and the gravity of the offenses would be adequately served and addressed with the reduced sentence.
Paske appealed, and this court accepted the case on certification. The parties were permitted, by order of this court, to submit supplemental briefs on the issue certified and the issue concerning standards for consecutive sentences.
Paske argues first, that the circuit court abused its discretion in imposing an "excessive" ninety-five year sentence for the twenty burglaries. As this court stated in McCleary v. State, 49 Wis.2d 263, 278, 182 N.W.2d 512 (1971):
We have frequently stated that we will remand for sentencing or modify the sentence only when an abuse of discretion clearly appears. By this we mean that this court should review and reconsider an allegedly excessive sentence whenever it appears that no discretion was exercised in its imposition or discretion was exercised without the underpinnings of an explained judicial reasoning process. Where the judicial sentencing discretion is exercised on the basis of clearly irrelevant or improper factors, an abuse of...
To continue reading
Request your trial
-
State v. C. G. (In re Interest of C. G.)
...what is right and proper under the circumstances." See Ninham, 333 Wis. 2d 335, ¶85, 797 N.W.2d 451 (quoting State v. Paske, 163 Wis. 2d 52, 69, 471 N.W.2d 55 (1991) ). This is a "high" bar. United States v. Juvenile Male, 670 F.3d 999, 1010 (9th Cir. 2012). For perspective, "the [United St......
-
State v. Harbor
...exercises its discretion. Hegwood, 113 Wis.2d at 546, 335 N.W.2d 399; Franklin, 148 Wis.2d at 8, 434 N.W.2d 609; State v. Paske, 163 Wis.2d 52, 60, 471 N.W.2d 55 (1991). ¶ 38 Thus, to prevail, the defendant must demonstrate both the existence of a new factor and that the new factor justifie......
-
State v. Ninham
...and violate the judgment of reasonable people concerning what is right and proper under the circumstances.’ ” State v. Paske, 163 Wis.2d 52, 69, 471 N.W.2d 55 (1991) (quoting Pratt, 36 Wis.2d at 322, 153 N.W.2d 18). ¶ 86 Under these circumstances, we simply cannot say that Ninham's sentence......
-
State v. Robinson, 2011AP2833–CR.
...should grant substantial deference to the ... discretion that trial courts possess in sentencing convicted criminals.”); State v. Paske, 163 Wis.2d 52, 70, 471 N.W.2d 55 (“We will review sentencing for abuse of discretion.”); 7 Crim. Proc. § 27.5(e)(3d ed.) (“Sentencing decisions in many ju......