Nov. 4, 2021 – A trial judge committed legal error when she sentenced a man to a five-year prison term for attempted robbery with threat of force without considering the gravity of the offense.

Randy L. Bolstad will be resentenced in Lafayette Circuit Court under an opinion issued by Court of Appeals District IV. The court in State v. Bolstad, 2021 AP49-CR (Oct. 28, 2021), held that when a trial court sentences a criminal defendant, the record must include discernible evidence that the judge considered each of three factors established by the supreme court and codified in statute.

Bolstad entered an Alford plea to a change of attempted robbery with threat of force in February 2017. During the plea colloquy, Bolstad’s lawyer told the judge that his client was having a hard time managing his mental illness and was struggling with substance abuse. The judge sentenced Bolstad to three years of probation.

The court revoked Bolstad’s probation in 2018. In March 2019, the judge held a sentencing hearing after revocation. During the hearing, the only mention the judge made of Bolstad’s offense was stating: “I am left with sentencing you on the crime that I sentenced you on two years ago.”

The rest of the judge’s remarks concerned Bolstad’s failure to comply with the conditions of his probation, her determination that Bolstad could not be managed in the community, and exhortations regarding Bolstad’s capacity to help himself with his substance abuse problems.

Discretion and its Limits

The appellate court’s review of the trial judge’s sentencing decision was limited to determining whether she had erroneously exercised her discretion, wrote Judge Joanne Kloppenburg for a three-judge panel.

A trial court’s exercise of discretion in sentencing, she noted, must be supported by facts that either appear in the record or are reasonably derived by inferences from the record, under McCleary v. State, 49 Wis. 2d, 263, 277, 182 N.W.2d 512 (1971). It must also be supported by a conclusion arrived at by a logical rationale, with that rationale based upon proper legal standards.

Under State v. Gallion, 2004 WI 42, 270 Wis. 2d 535, 678 N.W.2d 197, there is a strong policy against interfering with a trial judge’s sentencing discretion, wrote Kloppenburg. But that discretion is exercised in error if it applies the wrong legal standard.

Judge Kloppenburg explained that a circuit court must consider the following factors when sentencing a defendant:

• The protection of the public;

• The gravity of the offense;

• The defendant’s rehabilitation needs.

The factors have been codified at Wis. Stat. section 973.017(2).

Kloppenburg noted that a trial judge has discretion as to how much weight he or she gives each factor and may base the sentence upon any or all of the factors. The trial judge must detail in the record his or her reasons for imposing a sentence, to show that the exercise of his or her discretion was proper.

No Evidence in Record

The appellate panel held that the trial judge’s exercise of discretion in sentencing Bolstad was erroneous because there was no evidence in the record that she’d considered the gravity of Bolstad’s underlying offense.

The trial judge’s only mention of Bolstad’s offense was an oblique one: “I am left with sentencing you on the crime that I sentenced you on two years ago.” That wasn’t sufficient, Kloppenburg wrote.

“The circuit court did not identify that crime, mention any facts relating to that crime, or refer in any way to the court’s consideration of the gravity of his criminal conduct. To the extent that the court’s reference to ‘the crime that I sentenced you to two years ago’ may reflect an acknowledgment of the legal elements of that crime, that is not the same as considering the gravity of the offense.”

The trial judge wasn’t required by Gallion to use the phrase “gravity of the offense” in her sentencing determination, Kloppenburg wrote. After all, the supreme court in Gallion was concerned about the habit of trial judges, in the wake of the McCleary decision, reciting the wording of the sentencing factors and relying on implied reasoning to determine sentences instead of explaining those determinations on the record.

“However, it must be discernible from the sentencing transcript that the court considered the required factors, including gravity of the offense,” Kloppenburg wrote. “We see nothing in the record from which we can discern that the circuit court considered the gravity of the underlying offense here.”

The state argued that under State v. Odom, 2006 WI App 145, 294 Wis. 2d 844, 720 N.W.2d 695, a trial court judge could permissibly consider only one or two of the factors.

In Odom, the court held that “[t]he weight given each of [the required] factors lies within the [circuit] court’s discretion, and the court may base the sentence on any or all of them.”

That state’s reading of Odom was misplaced, Kloppenburg wrote.

“To reiterate, the circuit court’s obligation to consider a required factor on the record is distinct from the court’s discretion to determine its appropriate weight once the court has considered all factors. While a court may, in the proper exercise of discretion, decide to give a required factor little or no weight, it may not decide to not consider a required factor at all.”