State v. Schilz

• Decision Date: 02 March 1971
• Docket Number: No. S,S
• Citation: State v. Schilz, 50 Wis.2d 395, 184 N.W.2d 134 (Wis. 1971)
• Parties: STATE of Wisconsin, Respondent, v. Michael J. SCHILZ, Appellant. tate 124.
• Court: Wisconsin Supreme Court

Page 134

184 N.W.2d 134

50 Wis.2d 395

STATE of Wisconsin, Respondent, v.Michael J. SCHILZ, Appellant.

No. State 124.

Supreme Court of Wisconsin.

March 2, 1971.

This is an appeal from a judgment of conviction and an order denying postconviction relief.Schilz was charged with having sexual intercourse with a minor, in violation of sec. 944.10(1), Stats.He waived the right of trial by jury and, following a trial to the court, he was found guilty.

The testimony indicated that the defendant attended a beer party at a residence with a number of other young men and women.The victim of the sexual attack was a sixteen-year-old girl.

According to the testimony at trial, Bob _ _ took the girl to a bedroom and told her she was to have sexual intercourse with Michael Schilz.When she refused, Bob slapped her several times, cutting her face.After Bob left the bedroom, Schilz went into the room, and the girl refused to have intercourse.Bob returned and struck the girl several times and then, according to the complaining witness, Schilz returned and had sexual relations with her.There was testimony that she had intercourse with three other young men on the same evening and that Bob beat her into submission each time.The defendant, who was eighteen years old at the time, testified that he was at the party and admitted that he was in the bedroom and talked with the victim.At trial he denied having sexual intercourse with her.He was found guilty by the court and sentenced to an indeterminate term of not more than four years.

This appeal is taken not on the question of guilt or innocence, since on motions after verdict Schilz admitted the charge, but only upon the assertion that the trial judge abused his discretion in sentencing the defendant and, in addition, that the defendant had been denied an opportunity to enter into a plea bargain with the prosecutor.

Robert J. Lerner, Milwaukee, for appellant.

Robert W. Warren, Atty. Gen., Madison, E. Michael McCann, Dist. Atty., Michael Malmstadt, Asst. Dist. Atty., Milwaukee County, Milwaukee, for respondent.

HEFFERNAN, Justice.

The record indicates that the defendant at the time of trial was nineteen years old.He admitted that he had been convicted of juvenile crime and also that he had had more than one misdemeanor conviction as an adult.No request for a presentence investigation was made.Before sentencing, the trial judge stated:

'His answers were sarcastic to the District Attorney and in this Court's opinion, he is a deliberate, bold faced liar and will be treated as such by this Court.His address tomorrow will be the Wisconsin Reformatory for Men.'

The trial judge then asked the defendant if he wished to say anything before sentence was imposed.The defendant responded that he was sorry for what he had done and that he did not want to go to jail.The judge stated:

'Son, you have been involved with a gang who attacked this girl and this will not be tolerated at any time.You impress me as being a wise smart alec as you sat up here, and with your gang you attacked this young girl and thought it was really smart and you were really beyond the law to have your friend beat her up two or three times so you could attack her.'

On postconviction motions it was stipulated that one of the other young men who was involved in this incident was never apprehended.Juvenile jurisdiction was waived in regard to another and he was charged in the Milwaukee circuit court and, after a plea of guilty on a reduced charge of fornication, was fined $200 and sentenced to six months in the county jail.Another defendant, aged seventeen, who was on juvenile parole at the time, was continued on parole and was not referred to court for further proceedings.The boy Bob who allegedly slapped and cut the victim was on juvenile parole at the time and he was not referred to any court for his role in the alleged crime.Another of the boys was charged with battery, was convicted, and received a suspended sentence.

At the postconviction hearing the defendant admitted that he had had intercourse with the girl and that he had testified falsely at his trial.He testified that, had there been a lesser charge, he would have pleaded guilty.Following the motions and in response to the arguments of the defendant's attorney, the trial judge stated:

'And I wonder, Mr. Lerner, if you were sitting on the bench, if you would not feel the same way, to protect a young, innocent sixteen-year-old girl and to protect society from this pack of animals, and I wonder if you would not feel different if it was your sister or your mother or someone who you knew who was attacked by these animals.'

The previous sentence of an indeterminate term of four years was reaffirmed by the trial judge, who stated:

'I have an obligation to society and to that little girl; and this young man--I am using the term loosely--conducted himself as a raving maniac--an animal--and saw that this girl was beat up twice so that she would submit to him.If I made an error, it was in not making the sentence five years.

Since State v. Tuttle(1963), 21 Wis.2d 147, 124 N.W.2d 9, we have recognized that this court has the power to review sentences to determine whether an abuse of discretion has occurred.However, there is a strong policy against interference with the trial court's sentencing discretion, and on review this court will reverse or modify the sentence only when there has been a clear abuse of discretion.McCleary v. State(1971), 49 Wis.2d 263, 182 N.W.2d 512;Riley v. State(1970), 47 Wis.2d 801, 177 N.W.2d 838;Cheney v. State(1969), 44 Wis.2d 454, 171 N.W.2d 339, 174 N.W.2d 1.

In McCleary v. State, supra, 49 Wis.2d page 277, 182 N.W.2d page 519, we said that review of a sentence is like review of any other discretionary matter.First, there must be evidence that discretion was in fact exercised.We said:

'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.'

In the instant case, the defendant contends that the failure of the trial judge to order a presentence investigation establishes a failure by the judge to exercise discretion based on the facts in the record or reasonably inferable therefrom.The American Bar Association Standards Relating to Sentencing Alternatives and Procedures (Approved Draft, 1968), p. 200, sec., 4.1(b), states:

'The court should explicitly be authorized by statute to call for such an investigation and report in every case.The statute should also provide that such an investigation and report should be made in every case where incarceration for one year or more is a possible disposition, where the defendant is less than (21) years old, or where the defendant is a first offender, unless the court specifically orders to the contrary in a particular case.'

The value of the presentence investigation and report is well recognized by experts in the field of corrections.In a recent study, the President's Commission on Law Enforcement and Administration of Justice concluded:

'In the vast majority of cases * * * the judge's exposure to a defendant is far too cursory to give an adequate impression of his character and background for determination of the best correctional treatment for him.'Task Force Report: Corrections, p. 18(1967).

The presentence investigation and report are not only invaluable in reaching a sound sentencing decision, they are also important sources of information upon which decisions concerning the institutional handling of the defendant, parole of the defendant, and revocation of parole are based.President's Commission, supra, andAmerican Bar Association Standards Relating to Sentencing Alternatives and Procedures, pp. 204, 205, sec. 4.1, comment b. The American Bar Association committee impliedly recognizes that, in cases where the issue of guilt is disposed of by trial, the judge has more information on which to base the sentence then he does in cases involving guilty pleas.Nevertheless, the committee recommends that a presentence investigation be held in either type of case.

'The point, in any event, is that serious consequences turn on the correct resolution of the sentencing decision, and it is sheer folly to attempt such a decision without more information that is typically provided by the guilt determining process.'American Bar Association Standards Relating to Sentencing Alternatives and Procedures, p. 205, sec. 4.1, comment b.

In the instant case the trial judge sentenced Schilz without the benefit of a presentence report.However, the judge had the benefit of much of the information that would normally be contained in such report.He knew the defendant's age, his educational record, and his employment performance.He knew that he had been convicted of juvenile offenses and that he had been convicted of multiple misdemeanors as an adult.He was able to judge the defendant's demeanor on the witness stand.The details of the crime and the facts that showed the heinousness of the defendant's conduct were fully of record.The trial revealed the defendant's degree of culpability.

While the defendant has been charged only with sexual intercourse with a minor, the evidence is abundant that this was not an act consented to by the child.On the contrary, there were repeated applications of overwhelming force which makes the act here involved akin to a forcible rape, although the defendant was only the beneficiary of the force and not the perpetrator of it.Certainly, the record indicates a high degree of culpability, which would authorize a trial judge to...