State v. Patty E. Jorgensen

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2003 WI 105 SUPREME COURT CASE NO.: OF WISCONSIN 01-2690-CR COMPLETE TITLE: State of Wisconsin, Plaintiff-Respondent, v. Patty E. Jorgensen, Defendant-Appellant-Petitioner. REVIEW OF A DECISION OF THE COURT OF APPEALS Reported at: 256 Wis. 2d 1047, 650 N.W.2d 322 (Ct. App. 2002-Unpublished) OPINION FILED: SUBMITTED ON BRIEFS: ORAL ARGUMENT: February 18, 2003 SOURCE OF APPEAL: COURT: COUNTY: JUDGE: Circuit Dane Steven D. Ebert JUSTICES: CONCURRED: DISSENTED: NOT PARTICIPATING: July 11, 2003 ABRAHAMSON, C.J., dissents (opinion filed). ATTORNEYS: For the defendant-appellant-petitioner there were briefs and oral argument by Charles Bennett Vetzner, assistant state public defender. For the plaintiff-respondent the cause was argued by Christopher G. Wren, assistant attorney general, with whom on the brief was James E. Doyle, attorney general. 2003 WI 105 NOTICE This opinion is subject to further editing and modification. The final version will appear in the bound volume of the official reports. No. 01-2690-CR (L.C. No. 99 CT 1250) STATE OF WISCONSIN : IN SUPREME COURT State of Wisconsin, FILED Plaintiff-Respondent, JUL 11, 2003 v. Patty E. Jorgensen, Cornelia G. Clark Clerk of Supreme Court Defendant-Appellant-Petitioner. REVIEW of a decision of the Court of Appeals. ¶1 JON P. WILCOX, J. Affirmed. This is a review of an unpublished court of appeals decision, State v. Jorgensen, No. 01-2690-CR, unpublished slip op. (Wis. Ct. App. June 27, 2002),1 in which the court of appeals affirmed a judgment of conviction and order denying a postconviction motion entered Circuit Court, Steven D. Ebert, Judge. by the Dane County The defendant, Patty Jorgensen, contends that the court of appeals erred in affirming 1 Pursuant to Wis. Stat. § 752.31(2)(f) (1999-2000), this case was decided by one judge at the court of appeals, rather than a three judge panel. All subsequent references to the Wisconsin Statutes are to the 1999-2000 version unless otherwise indicated. No. 01-2690-CR her conviction for operating a motor vehicle while intoxicated, fourth offense, and the denial of her postconviction motion. She now seeks relief from this court on the ground that the sentencing guidelines established by the Fifth Judicial District for certain authority "operating of while intoxicated" Wis. Stat. § 346.65(2m)(a), offenses are under the unconstitutional. Jorgensen claims the circuit court violated her rights to due process and equal protection of the laws by relying upon the local guidelines authorized by § 346.65(2m)(a). guidelines only on operate the to increase geographic further claims that the exceed the location and of guidelines authority § 346.65(2m)(a) disparity granted that the in She asserts the sentencing the offense. relied upon by the guidelines, on based Jorgensen by the court legislature their in face, are inapplicable to her. ¶2 the We hold that the sentencing guidelines established by Fifth Judicial District Wis. Stat. § 346.65(2m)(a). plain language apply of only authorized by We further conclude that under the § 346.65(2m)(a), to are the sentencing guidelines Wis. Stat. § 346.63(1)(b), not Wis. Stat. § 346.63(1)(a), under which Jorgensen was sentenced. However, because circuit courts have a great amount of sentencing discretion, we find that reference to the sentencing guidelines in a § 346.63(1)(a) case does not constitute error. That being the case, a defendant such as Jorgensen sentenced under § 346.63(1)(a) referring to may the potentially sentencing 2 be sentenced guidelines by a court established No. for § 346.63(1)(b). Therefore, we must address Jorgensen's argument that these guidelines are unconstitutional. with the court of appeals' conclusion that the 01-2690-CR We agree sentencing guidelines are constitutional and, accordingly, we affirm. I. ¶3 BACKGROUND For purposes of this appeal, the following facts are not in dispute. In the early morning hours of May 21, 1999, a witness found Jorgensen in her vehicle in a ditch near his home and summoned police. Responding officers found Jorgensen asleep in the driver's seat of her vehicle. Jorgensen failed field sobriety tests administered by the police, and she was arrested for operating a vehicle while intoxicated. Subsequent blood testing showed that Jorgensen's blood alcohol content was .276. ¶4 Jorgensen was Wis. Stat. § 346.63(1)(a) and charged violating Wis. Stat. § 346.63(1)(b).2 utilized her right to a jury trial. 2 with She She stipulated to many of Wisconsin Stat. § 346.63(1) provides, in pertinent part: No person may drive or operate a motor vehicle while: (a) Under the influence of an intoxicant, a controlled substance, a controlled substance analog or any combination of an intoxicant, a controlled substance and a controlled substance analog, under the influence of any other drug to a degree which renders him or her incapable of safely driving, or under the combined influence of an intoxicant and any other drug to a degree which renders him or her incapable of safely driving; or (b) The concentration. person has 3 a prohibited alcohol No. 01-2690-CR the facts and the only issue remaining for jury determination was whether vehicle. or not Jorgensen was the person operating the At trial, Jorgensen claimed that another person was driving. ¶5 A jury found Jorgensen guilty of operating a vehicle while under the influence of an intoxicant (OWI) in violation of Wis. Stat. § 346.63(1)(a) and of operating a motor vehicle while having a violation prohibited of blood alcohol concentration Wis. Stat. § 346.63(1)(b), either of (PAC) which in would constitute her fourth "operating under the influence" offense. ¶6 Section 346.63(1)(c) of the Wisconsin Statutes provides that although a defendant may be charged and prosecuted for both OWI and PAC, violations of §§ 346.63(1)(a) and (b), respectively, a defendant may not be "convicted" and sentenced for both incident OWI and PAC or if occurrence. the charges Rather, arise "[i]f the out of person the is same found guilty of both pars. (a) and (b) for acts arising out of the same incident or occurrence, there shall be a single conviction for purposes convictions of sentencing under and ss. Wis. Stat. § 346.63(1)(c). for purposes 343.30(1q) and of counting 343.305." Jorgensen's judgment of conviction was entered on the OWI count, § 346.63(1)(a). ¶7 The sentencing guidelines at issue, the "Fifth Judicial District OWI Sentencing Guidelines," were established by the Chief Judge of the Fifth Judicial District under the authority granted by the 4 legislature in No. Wis. Stat. § 346.65(2m)(a).3 01-2690-CR For a fourth offense such as the one here, the guidelines are provided in a table format and include factors recommendations. "BAC Levels," to The consider and horizontal "Minimum Driving No corresponding headings sentencing on the table Accident," and "Aggravated Driving Accident or Injury Bad Driving Record." are: The specific guideline relevant to sentencing in this case provided that for a fourth offense, a defendant with a blood alcohol content level of .20 or above faces periods of incarceration with ranges of 60 to 150 days and 90 days to one year, depending upon the court's determination of the specific circumstances surrounding the offense. ¶8 At sentencing on September 7, 2000, both the prosecutor and defense counsel made arguments based on these 3 Wisconsin Stat. § 346.65(2m)(a) provides: In imposing a sentence under sub. (2) for a violation of s. 346.63(1)(b) or (5) or a local ordinance in conformity therewith, the court shall review the record and consider the aggravating and mitigating factors in the matter. If the level of the person's blood alcohol level is known, the court shall consider that level as a factor in sentencing. The chief judge of each judicial administrative district shall adopt guidelines, under the chief judge's authority to adopt local rules under SCR 70.34, for the consideration of aggravating and mitigating factors. (Emphasis added.) We note that the defendant argues that the guidelines established by the Fifth Judicial District exceed the authority granted by this statute. 5 No. sentencing guidelines. State requested an 01-2690-CR Explicitly noting guideline factors, the eight- to nine-month sentence. Defense counsel did not dispute application of the guidelines at the time. Rather, provisions and appropriate arguments, Jorgensen's argued under the that the counsel a noted three-month circumstances. circuit court, the guideline sentence After explicitly was hearing more these referencing the sentencing guidelines, sentenced Jorgensen to seven months in jail. ¶9 Jorgensen filed a motion for postconviction relief on several grounds, whether the including circuit the court issue now erroneously before this court, relied upon local sentencing guidelines because § 346.65(2m)(a), the authorizing statute, is unconstitutional. The circuit court denied the judgment of motion. ¶10 Jorgensen appealed from both the conviction and the order denying her motion for postconviction relief. She again claimed that the sentencing guidelines relied upon by the circuit court were unconstitutional.4 The court of appeals affirmed the circuit court, holding that the circuit court did not violate Jorgensen's due process and equal protection rights by using the local sentencing guidelines. On October 21, 2002, this court accepted Jorgensen's petition for review. 4 Jorgensen also appealed the circuit court's ruling on the issue of ineffective assistance of counsel, but that issue has not been raised as part of this appeal and is, therefore, not addressed. 6 No. II. ¶11 court 01-2690-CR STANDARD OF REVIEW The question before this court is whether the circuit erred in using the Fifth Judicial guidelines to sentence Jorgensen. exercise of discretion in District sentencing We review the circuit court's sentencing Jorgensen. More specifically, we look at the legal bases for the circuit court's sentencing determination. ¶12 Sentencing falls within the discretionary authority of the circuit court. McCleary v. State, 49 Wis. 2d 263, 277, 182 N.W.2d 512 (1971); State v. Eckola, 2001 WI App 295, ¶4, 249 Wis. 2d 276, 638 N.W.2d 903. not interfere with the This court has held that it "will circuit court's sentencing decision unless the circuit court erroneously exercised its discretion." State v. Lechner, 217 Wis. 2d 392, 418-19, (1998); see also Eckola, 249 Wis. 2d 276, ¶4. erroneously exercises its discretion discretion is based on an error of law. if 576 N.W.2d 912 The circuit court the exercise of State v. Davis, 2001 WI 136, ¶28, 248 Wis. 2d 986, 637 N.W.2d 62; State v. Hutnik, 39 Wis. 2d 754, 763, 159 N.W.2d 733 (1968). ¶13 In reviewing determination provisions of in 254 circuit case, we § 346.65(2m)(a). reviewed de novo. ¶15, this the must court's also Statutory sentencing interpret interpretation the is Burg v. Cincinnati Cas. Ins. Co., 2002 WI 76, Wis. 2d 36, 645 N.W.2d 880. The first step in statutory interpretation is to look at language of the statute. Id., ¶16. 7 No. ¶14 by the granted 01-2690-CR If we find that the sentencing guidelines established Fifth by Judicial District the legislature in do not exceed the authority Wis. Stat. § 346.65(2m)(a), the analysis must focus on the constitutionality of that statute. The constitutionality of a statute is a question of law which this court reviews de novo. State v. McManus, 152 Wis. 2d 113, 129, 447 N.W.2d 654 (1989); Employers Health Ins. Co. v. Tesmer, 161 Wis. 2d 733, 737, 469 N.W.2d 203 (Ct. App. 1991). are presumed constitutional, and the party Statutes bringing the constitutional challenge bears the burden of proving the statute unconstitutional beyond a reasonable doubt. McManus, 152 Wis. 2d at 129 (internal citation omitted); Stanhope v. Brown County, 90 Wis. 2d 823, 837, 280 N.W.2d 711 (1979); State v. Hanson, 182 Wis. 2d 481, 485, 513 N.W.2d 700 (Ct. App. 1994); Employers Health, 161 Wis. 2d at 737. classification or fundamental right If there is no suspect involved, "'it is the court's obligation to locate or to construct, if possible, a rationale that might have influenced the legislature and that reasonably upholds the legislative determination.'" Tomczak v. Bailey, 218 Wis. 2d 245, 264, 578 N.W.2d 166 (1998) (internal citation omitted); McManus, 152 Wis. 2d at 129 ("'If the court can conceive any facts on which the legislation could reasonably be based, it must hold the legislation constitutional.'") (quoting State ex rel. Strykowski v. Wilkie, 81 Wis. 2d 491, 506, 261 N.W.2d 434 (1978)); see also Employers Health, 161 Wis. 2d at 737-38 ("'If there is any reasonable basis upon which the legislation may constitutionally rest, the court must assume 8 No. 01-2690-CR that the legislature had [that] fact in mind [when it passed the act].'") (internal citation omitted) (brackets in original). III. ¶15 This sentencing case centers guidelines ANALYSIS around promulgated Wis. Stat. § 346.65(2m)(a). the constitutionality under Jorgensen the authority argues that of of these guidelines violate her state and federal constitutional rights to due process and equal protection of the law because they increase sentencing disparity on the basis of the geographic location related of the alleged preliminary offense. issues. Jorgensen She argues also that raises the two guidelines established by the Fifth Judicial District exceed the authority granted through Wis. Stat. § 346.65(2m)(a) and that guidelines, on their face, are not applicable to her case. address these issues first. the We Because we conclude that the guidelines were authorized under § 346.65(2m)(a), that reference to the guidelines was not error, and that there is a rational basis for the guidelines, we affirm the court of appeals' decision. Finally, Jorgensen asserts that even if we find the sentencing guidelines supervisory powers constitutional, to abrogate use we of should the utilize guidelines. our We decline to do so. A. Statutory Authority ¶16 Jorgensen argues that the sentencing guidelines established by the Fifth Judicial District exceed the authority granted by the legislature in § 346.65(2m)(a). She argues that the guidelines legislature did not mandate 9 creation of with No. 01-2690-CR recommendations of specific sentences or sentencing ranges. points to pertinent the language part: administrative of § 346.65(2m)(a), "The district chief shall judge adopt which of She states, each in judicial guidelines . . . for consideration of aggravating and mitigating factors." the Jorgensen suggests that the legislature did not intend for the districts to go beyond creating a list of appropriate aggravating and mitigating factors for consideration. ¶17 The State, on the other hand, suggests that § 346.65(2m)(a) merely sets a minimum upon which the chief judges of various judicial districts have expounded by adding a link to an perspective. appropriate sentence. We agree with this We see nothing in the language that prohibits the districts from linking the aggravating and mitigating factors with an appropriate sentences mandates under SCR within the under § 346.65. that chief judges authority "[e]ach allowed sentence 70.34 chief judge may set up (2000). adopt broader Section guidelines range 346.65(2m)(a) based on their This rule provides additional local rules set up that not conflict with the uniform judicial administrative rules." 70.34. of in SCR The legislature authorized and required chief judges to guidelines mitigating factors. for consideration of aggravating and As far as we can discern, there is nothing to prevent the chief judges from taking an extra step to link these factors with appropriate sentence ranges. ¶18 This court has found that "when the legislature has granted the sentencing court the authority to impose sentences 10 No. within a certain range, the legislature has given 01-2690-CR the court discretion to determine where in that range a sentence should fall." State v. Setagord, 211 Wis. 2d 397, 418, 565 N.W.2d 506 (1997) (citation omitted). judges have done here. up appropriate aggravating That is essentially what the chief They have created guidelines that match and sentences within mitigating the factors. statutory We do ranges not find to this inappropriate. B. Applicability of the Guidelines ¶19 Jorgensen The parties' briefs to this court raise the issue that was sentenced under Wis. Stat. § 346.63(1)(b). Wis. Stat. § 346.63(1)(a), not It appears that this issue was not raised before either the circuit court or the court of appeals. Instead, the record indicates that all parties appeared to rely upon the applicability of the guidelines until the appeal to this court. Jorgensen now attempts to use the argument to emphasize her point that application of these guidelines to her was inappropriate. Arguably, she has waived any complaint about the application of the wrong statute to her case. Nonetheless, we find it appropriate to discuss the issue because the State agrees that Jorgensen was sentenced under the wrong section of the statute and asserts that the error deprives Jorgensen of standing to argue the unconstitutionality of the guidelines. ¶20 The State asserts that Jorgensen lacks standing to raise a constitutional challenge to the sentencing guidelines because the guidelines are inapplicable to the section under which she was sentenced. The State acknowledges that the judge 11 No. relied upon the guidelines, sentenced under the but suggests relevant that only section 01-2690-CR a person mentioned in Wis. Stat. § 346.65(2m)(a) Wis. Stat. § 346.63(1)(b) has standing to make a constitutional challenge. The State argues that Jorgensen could, at best, claim that the court's reliance upon the guidelines was an erroneous exercise of discretion. ¶21 We do not agree with the State's argument on standing. In Mast v. Olsen, 89 Wis. 2d 12, 16, 278 N.W.2d 205 (1979), this court held: "A party has standing to challenge a statute if that statute causes that party injury in fact and the party has a personal stake in the outcome of the action." We find that if the circuit court relied upon the local sentencing guidelines, then Jorgensen has arguably been injured and assuredly has a personal stake in whether or not the guidelines are constitutional. ¶22 courts One of the reasons for the rule of standing is that "should not adjudicate constitutional rights State v. Fisher, 211 Wis. 2d 665, 668 n.2, 565 unnecessarily." N.W.2d 565 (Ct. App. 1997) (quoting Mast, 89 Wis. 2d at 16). In Schwittay v. Sheboygan Falls Mutual Insurance Co., 2001 WI App 140, ¶16 n.3, 246 Wis. 2d 385, 630 N.W.2d 772, the court of appeals found that requiring standing also "assures that [the court does] not decide a constitutional issue unless it essential to the determination of the case before [it]." is Here, the State has conceded that it was not necessarily inappropriate for the circuit court to refer to the sentencing guidelines. Circuit courts are allowed wide discretion in sentencing. 12 See No. 01-2690-CR State v. McQuay, 154 Wis. 2d 116, 129, 452 N.W.2d 377 (1990); Anderson v. State, 76 Wis. 2d 361, 363, 251 N.W.2d 768 (1977); Eckola, 249 Wis. 2d 276, ¶4. This court has found that the circuit courts are in the best position to consider the factors relevant to sentencing. See Setagord, 211 Wis. 2d at 418. We agree with the State that a circuit court's reference to the sentencing guidelines is not necessarily inappropriate, but we cannot agree that constitutional Jorgensen issue is deprived because she of was standing sentenced on the under Wis. Stat. § 346.63(1)(a). ¶23 Essentially, the issue of whether the circuit court erroneously determined actually exercised by two relied discretion considerations: upon Jorgensen; and (2) its if the the local judge in this (1) whether guidelines relied case upon the may be judge in sentencing the guidelines, whether it was error for the judge to do so. ¶24 The parties do not dispute reliance upon the sentencing guidelines.5 5 the circuit court's We find the record Jorgensen argues, as she must, that the circuit court relied upon the guidelines. If the circuit court did not rely upon the guidelines for sentencing, Jorgensen would clearly lack standing to make a constitutional claim, because there would be no injury. See Mast v. Olsen, 89 Wis. 2d 12, 16, 278 N.W.2d 205 (1979); Schwittay v. Sheboygan Falls Mutual Ins. Co., 2001 WI App 140, ¶16 n.3, 246 Wis. 2d 385, 630 N.W.2d 722. The State argues that Jorgensen does not have standing, but on the basis that the circuit court sentenced Jorgensen under the wrong statute, not on the basis that the circuit court did not rely on the guidelines. 13 No. 01-2690-CR indicates that the circuit court did, in fact, rely, at least to some extent, sentencing upon the Fifth Jorgensen. As Judicial noted, District both parties sentencing arguments based on the guidelines. then followed suit, noting at the guidelines outset made in their The circuit court of its sentencing determination that "everybody apparently has the guidelines in front of them, so we all know what the Fifth Judicial District does consider as being an appropriate penalties for this type of an offense." to note that Jorgensen's blood alcohol range of sentencing The court then went on level meant that the relevant section was the highest level in the guideline table. As noted by the circuit court in its postconviction order, however, it did consider other relevant factors in addition to the range of penalties set out by the guidelines, including blood alcohol level, prior convictions for operating under the influence, and the fact that there was an accident. The circuit court indicated that its sentence was based upon the appropriate factors laid out by this court in McCleary: the gravity of the offense, the character of the offender, and protection of the public. See McCleary, 49 Wis. 2d at 276; State v. Harris, 119 Wis. 2d 612, 623, 350 N.W.2d 633 (1984) (noting the McCleary "primary" factors and listing other additional factors). Apparently, the parties disputed reliance at the court of appeals level, and the court of appeals did not make a determination regarding whether the circuit court relied upon the guidelines. Rather, the court of appeals stated that it would assume the circuit court relied upon the guidelines in order to reach the constitutional issue. 14 No. ¶25 01-2690-CR Our second consideration is whether reliance upon the guidelines was inappropriate under the relevant statutes. We have established that the circuit court relied, at least to some degree, upon the provisions of the guidelines. Section 346.65(2m)(a) of the Wisconsin Statutes authorized the creation of sentencing guidelines for certain offenses. That section provides, in its entirety: In imposing a sentence under sub. (2) for a violation of s. 346.63(1)(b) or (5) or a local ordinance in conformity therewith, the court shall review the record and consider the aggravating and mitigating factors in the matter. If the level of the person's blood alcohol level is known, the court shall consider that level as a factor in sentencing. The chief judge of each judicial administrative district shall adopt guidelines, under the chief judge's authority to adopt local rules under SCR 70.34, for the consideration of aggravating and mitigating factors. Wis. Stat. § 346.65(2m)(a) (emphasis added). The plain language of the statute makes clear that the sentencing guidelines are only applicable to convictions under Wis. Stat. § 346.63(1)(b) or Wis. Stat. § 346.63(5). ¶26 The record here shows that Jorgensen was not sentenced under either § 346.63(1)(b) or Wis. Stat. § 346.64(5). sentenced under § 346.63(1)(a). issue and, in fact, both arguments to this court. with and found She was Neither party has disputed that relied upon it in making their It is true that Jorgensen was charged guilty §§ 346.63(1)(a) and (1)(b). by a jury of violating both Nevertheless, under the provisions of Wis. Stat. § 346.63(1)(c), Jorgensen could only be convicted 15 No. and sentenced under one of these subsections. 01-2690-CR The circuit court sentenced her under § 346.63(1)(a). ¶27 Since the legislature specified that guidelines were to be established for use in sentencing under § 346.63(1)(b), not § 346.63(1)(a), circuit courts should guidelines by rote to (1)(a) convictions.6 not apply the We agree that in exercising its broad discretion in the area of sentencing, a court may refer to the sentencing guidelines for PAC offenses in sentencing a defendant convicted of OWI. These violations are similar and one cannot argue that the factors relevant to one offense are not a relevant consideration in sentencing for the other. As this court has noted: "Wisconsin has a strong public policy that the sentencing court be provided with all relevant information." State N.W.2d 446 (1992). v. Guzman, 166 Wis. 2d 577, 592, 480 Although this policy typically comes up in the context of information about the defendant, we believe it applies with equal force to relevant law. for a circuit court to under § 346.65(2m)(a) under § 346.63(1)(a). specifically delineated refer when the guidelines sentencing However, the to Thus, it is not error because offense 6 to the which a authorized defendant legislature the has guidelines In addition, we note that these are discretionary, not mandatory, guidelines. State v. Smart, 2002 WI App 240, ¶15, 257 Wis. 2d 713, 652 N.W.2d 429 ("The guidelines are not mandatory, and a court may disregard them if it so chooses."). Thus, even if sentencing a defendant under Wis. Stat. § 346.63(1)(b), a circuit court may decide to disregard the sentencing guidelines. 16 No. 01-2690-CR apply, it is inappropriate for a circuit court to simply apply the guidelines as the sole basis for its sentence in a § 346.63(1)(a) case.7 C. Equal Protection and Due Process ¶28 We have found that the sentencing guidelines do not exceed the authority granted by the legislature in § 346.65(2m)(a) and that a circuit court may refer to the guidelines as a under § 346.63(1)(a). whether § 346.65(2m)(a) relevant factor in sentencing These findings leave us with the issue of itself violates Jorgensen's constitutional rights to due process and equal protection of the 7 We note that this circuit court's error may not be unique. In the appendix to her brief to this court, Jorgensen included copies of the related sentencing guidelines from Eighth, Fourth, and Fifth Judicial Districts. All of these guidelines are entitled "OWI Sentencing Guidelines." This is somewhat of a misnomer that we suggest should be clarified. Wisconsin Stat. § 346.63 deals with many "operating under the influence" offenses. Violations of subsection (1)(a) of that statute are often referred to as "OWI" offenses. Subsection (1)(b), as clarified in this case, refers to violations for operating a vehicle while having a prohibited blood alcohol concentration, sometimes known as "PAC" violations. Titling the guidelines "OWI Sentencing Guidelines" suggests that the guidelines refer to all the offenses under § 346.63 and none of the guidelines appear to include an explanation that the guidelines only apply to Wis. Stat. §§ 346.63(1)(b) and (5). Courts could even interpret the guidelines to apply only to offenses under Wis. Stat. § 346.63(1)(a) so-called OWI offenses. This opinion is intended to clarify that these interpretations are incorrect. The guidelines only apply to sentencing for convictions under §§ 346.63(1)(b) and (5), although we acknowledge that a court may refer to the guidelines as a relevant factor in sentencing under Wis. Stat. § 346.63(1)(a). 17 No. 01-2690-CR laws under both the state and federal constitutions.8 "This court has held the due process and equal protection clauses of the Wisconsin Constitution are the substantial equivalents of their respective clauses in the federal constitution." McManus, 152 Wis. 2d at 130; see also Joseph E.G. v. State, 2001 WI App 29, ¶5 n.4, 240 Wis. 2d 481, 623 N.W.2d 137 (2000). ¶29 Jorgensen argues that the sentencing guidelines violate her constitutional rights because the various judicial districts receive have different committed. within a factor. to did a different sentences based and on thus, where defendants may the was crime Jorgensen asserts that the location of an offense particular district is not a legitimate sentencing Jorgensen asserts that the guidelines are not entitled presumption not guidelines of authorize the constitutionality type Fifth Judicial District. of because § 346.65(2m)(a) guidelines promulgated by the In contrast, the State argues that because there is a rational basis for the sentencing guidelines 8 Article XIV, Section 1, of the United States Constitution provides, in pertinent part: No State shall . . . deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. Article I, Section 1 provides, in pertinent part: of the Wisconsin Constitution All people are born equally free and independent, and have certain inherent rights; among these are life, liberty and the pursuit of happiness . . . . 18 No. 01-2690-CR that being a reduction in sentencing disparity within judicial districts the guidelines are constitutional. ¶30 We agree with the analysis employed by the court of appeals in this case and in the case of State v. Smart, 2002 WI App 240, 257 Wis. 2d 713, 652 N.W.2d 429, a nearly identical case. In both cases, the constitutionality of the guidelines was upheld. ¶31 Jorgensen does not argue that there is any suspect class or fundamental right involved here and appears to agree, as she did at the court of appeals, that a rational basis test is appropriate. op. at ¶30. See Jorgensen, No. 01-2690-CR, unpublished slip The United States Supreme Court, in Chapman v. United States, 500 U.S. 453, 464-65 (1991), supports such an interpretation of the claims here. Chapman held that a fundamental right is not involved in this context and that a rational basis test is appropriate: They [the defendants] argue preliminarily that the right to be free from deprivations of liberty as a result of arbitrary sentences is fundamental, and therefore the statutory provision at issue may be upheld only if the Government has a compelling interest in the classification in question. But we have never subjected the criminal process to this sort of truncated analysis, and we decline to do so now. Every person has a fundamental right to liberty in the sense that the Government may not punish him unless and until it proves his guilt beyond a reasonable doubt at a criminal trial conducted in accordance with the relevant constitutional guarantees. But a person who has been so convicted is eligible for, and the court may impose, whatever punishment is authorized by statute for his offense, so long as that penalty is not cruel and unusual, and so long as the penalty is not based on an arbitrary distinction that would 19 No. 01-2690-CR violate the Due Process Clause of the Fifth Amendment. In this context, . . . an argument based on equal protection essentially duplicates an argument based on due process. Chapman, 500 U.S. at 464-65 (emphasis in original) (internal citations omitted). This view was adopted by the court of the due appeals in Smart, 257 Wis. 2d 713, ¶5. ¶32 As indicated by Chapman, the analyses of process claims and equal protection claims are largely the same. Chapman, 500 U.S. at 464-65. The court of appeals has laid out In Joseph E.G., 240 Wis. 2d 481, ¶8, the the test for both. court of appeals held: When considering an equal protection challenge that does not involve a suspect or quasi-suspect classification, "the fundamental determination to be made . . . is whether there is an arbitrary discrimination in the statute . . . , and thus whether there is a rational basis which justifies a difference in rights afforded." (internal citations omitted); see also McManus, 152 Wis. 2d at 130-31. So long as a statute creating a classification is "rationally related to a valid legislative objective," it does not violate the constitutional right to equal protection. ¶33 Similarly, the court of appeals has Id. held that substantive due process serves to "protect[] people from state conduct that 'shocks the conscience . . . or interferes rights implicit in the concept of ordered liberty.'" with Smart, 257 Wis. 2d 713, ¶11 (quoting Joseph E.G., 240 Wis. 2d 481, ¶13). The court there found that unless a fundamental right is implicated, "a statute will generally survive a substantial due 20 No. 01-2690-CR process challenge if it is rationally related to a legitimate government interest." ¶34 Id. (citing McManus, 152 Wis. 2d at 131). We disagree with Jorgensen's argument that the statute is not entitled to a presumption of constitutionality. We have already found that the sentencing guidelines do not exceed the authority granted in § 346.65(2m)(a). Thus, the issue becomes the constitutionality of the statute itself. It has been well- settled that statutes are presumed constitutional and a party challenging the constitutionality of a statute must prove the statute Stanhope, unconstitutional 90 beyond Wis. 2d at 837 a ("We reasonable begin with doubt. the See principle repeatedly stated by this court and the United States Supreme Court that all legislative constitutional . . . ."); Club v. DHSS, 130 see also Wis. 2d 79, acts are Milwaukee 98-99, 387 presumed Brewers Baseball N.W.2d 254 (1986). Consequently, we will apply a presumption of constitutionality in our examination of Wis. Stat. § 346.65(2m)(a) and the guidelines promulgated thereunder. ¶35 Jorgensen asserts, as did the defendant in Smart, that this court's decision in Nankin v. Village of Shorewood, 2001 WI 92, 245 Wis. 2d 86, 630 N.W.2d 141, and the United States Supreme Court decision in Bush v. Gore, 531 U.S. 98 (2000), support her argument that the guidelines are unconstitutional. Like the court of appeals in both this case and Smart, we disagree. ¶36 In the Nankin case, this court held unconstitutional a tax statute that applied differently to residents in counties 21 No. with larger populations. by the court of 01-2690-CR Nankin, 245 Wis. 2d 86, ¶46. appeals in Smart, Nankin case is distinguishable. 257 Wis. 2d 713, As noted ¶9, the Unlike the statute in Nankin, which merely created a disparity based on population where none existed before, the statute here purpose of reducing disparity. ¶37 is remedial and serves the See Smart, 257 Wis. 2d 713, ¶9. The United States Supreme Court decision in Bush is also distinguishable, as noted by the court of appeals in Smart, 257 Wis. 2d 713, ¶10. In Bush, 531 U.S. at 110, the United States Supreme Court prevented a recount of presidential ballots on the basis that different standards would be used across the state. Further, as the Smart court pointed out, the Supreme Court arguably applied a higher level of scrutiny since "the right to vote for president of the United States, once conferred by a state, is a fundamental right." Smart, 257 Wis. 2d 713, ¶10. ¶38 Jorgensen disparity, but as argues noted that the the court by guidelines of provided no evidence of such an effect. appeals, increase she has Instead, she asserts that the court of appeals in Smart concedes the point, with its acknowledgement that the statute "creates different classes of people" that might be subject Smart, 257 Wis. 2d 713, ¶6. to different deny a jurisdiction discretion state the power differently; to create See We disagree with this assertion. In fact, as this court has recognized: not standards. to rather treat the classifications 22 "Equal protection does persons state so within retains long as its broad the No. classifications have a reasonable basis." 01-2690-CR McManus, 152 Wis. 2d at 131. ¶39 We agree that having different guidelines in various judicial districts may lead to some disparity. not a perfect solution to the sentencing disparity the It is problem. However, under a rational basis test, it need not be a perfect solution. It must only be a step in the right direction. As noted by the court of appeals in Smart, 257 Wis. 2d 713, ¶7: Smart argues the guideline scheme does not bear a rational relationship to the objective of reducing disparity and actually increases it by allowing each judicial district to develop their own standards. While we agree the statute may not be the best way to reduce drunk driving sentencing disparity, a rational basis inquiry does not require perfection. Our only question is whether the statute bears some relationship to advancing that goal. It does. By mandating the creation of guidelines within judicial districts, the statute attempts to reduce sentencing disparity within those districts. While statewide guidelines would perhaps be more equitable, there is no requirement the legislature choose the wisest or most effective means of reducing disparity. In addition, this court has held: "The fact a statutory classification results in some inequity . . . does not provide sufficient grounds for invalidating a legislative enactment." McManus, 152 Wis. 2d at 131. ¶40 Jorgensen does not challenge sentencing guidelines as a whole. As this court acknowledged in State v. Speer, 176 Wis. 2d 1101, 1124, 501 N.W.2d 429 (1993), sentencing guidelines that allow "the exercise of judicial discretion while reducing variance by providing guideline sentences for similar offenders who commit similar offenses," are valid. 23 (Citation omitted.) No. We disagree established mold. with Jorgensen under that the 01-2690-CR sentencing Wis. Stat. § 346.65(2m)(a) do guidelines not fit that We agree with the court of appeals' statement in Smart that statewide guidelines might be better, but that acknowledgement is not the equivalent of a determination that district-by-district guidelines increase disparity. Smart, 257 Wis. 2d 713, ¶7. Rather, we are persuaded, as was the court of appeals Smart in both and this case, that the district-by- district sentencing guidelines at issue here in fact operate to reduce disparity within the judicial administrative districts. Smart, See 257 Wis. 2d 713, ¶9. Such guidelines do not completely eliminate the evil of sentencing disparity, but as the court of appeals in this case pointed out, "[T]he proper comparison is between having no guidelines and having districtby-district guidelines." slip op. at ¶29. Jorgensen, No. 01-2690-CR, unpublished That comparison makes clear that having some guidelines within districts are better than none at all. As the State points out in its brief, Jorgensen here appears to argue for the equal position that protection and guidelines does not. illogical and guidelines we district-by-district guidelines violate due a without process, but (Resp't Br. at 12) reject fulfill it. the Instead, rational system Such a position is we basis accept test that these by reducing of appeals' sentencing disparity within judicial districts. ¶41 Accordingly, determination that the we affirm Fifth the District court Sentencing guidelines authorized by Wis. Stat. § 346.65(2m)(a) are constitutional. 24 No. D. 01-2690-CR Supervisory Powers ¶42 In a final argument, Jorgensen suggests that even if this court finds the guidelines constitutional which we do this court should still invalidate the guidelines exercising its supervisory powers over the state courts. We decline this invitation. In finding these guidelines constitutional, we have determined that although such guidelines do not eliminate all disparity, they were authorized and set up for the purpose of, and succeed in eliminating some of the disparity existed within the state judicial districts. that has As such, we will not impede the authority granted to chief judges of the circuit courts or the discretion of the circuit courts themselves in sentencing. ¶43 This court has declared on previous occasions an unwillingness to intrude unnecessarily upon the discretion of circuit courts in the realm of sentencing. See In re Felony Sentencing Guidelines, 120 Wis. 2d 198, 200-202, 353 N.W.2d 793 (1984). In Felony Sentencing, 120 Wis. 2d at 202-03, this court declined the sentencing legislature's guidelines. request Here, to Jorgensen promulgate asks this felony court to overrule a scheme set up by the legislature and implemented by the various districts of the state, specifically here, the Fifth Judicial District. We decline to do so for many of the same reasons discussed in Felony Sentencing. Sentencing, 120 Wis. 2d at 203, that whether and legislature . . . to decide sentencing discretion court's 25 should Id. We held in Felony "[i]t to be what is for the extent the limited." The No. 01-2690-CR legislature here has, via Wis. Stat. § 346.65(2m)(a), mandated districts to establish sentencing guidelines related to certain "operating under the influence" offenses. have followed this mandate and The various districts established guidelines consideration of aggravating and mitigating factors. for This court will not obstruct operation of this sentencing scheme. IV. ¶44 CONCLUSION For the foregoing reasons, we affirm the decision of the court of appeals and find that the sentencing guidelines established by the Fifth Judicial District do not violate Jorgensen's equal protection or due process rights. By the Court. The decision affirmed. 26 of the court of appeals is No. ¶45 SHIRLEY S. ABRAHAMSON, CHIEF JUSTICE 01-2690-CR.ssa (dissenting). I conclude that Wis. Stat. § 346.65(2m)(a) is unconstitutional. The statute increases sentencing disparity for drunk driving offenses across the 10 judicial administrative districts of the state, and no rational basis exists for the legislature to treat offenders differently based upon the judicial district in which the offense was committed. Moreover, the legislature's delegation of authority to the chief judges of each judicial district to create OWI sentencing guidelines may violate the separation of powers doctrine. I ¶46 judge of Wisconsin Stat. § 346.65(2m)(a) "each judicial administrative directs district" the chief to "adopt guidelines for the consideration of aggravating and mitigating factors" under the chief judge's authority to "adopt local rules under SCR 70.34."9 The legislature gives no direction that the guidelines be consistent across judicial districts or even that all judicial districts consider the same aggravating and mitigating factors. ¶47 Thus, the statute, on its face, envisions a sentencing guidelines scheme that varies from judicial district to judicial 9 Wis. Stat. § 346.65(2m)(a) (emphasis added). SCR 70.34 provides: "The director of state courts shall develop uniform rules for trial court administration. Each chief judge may adopt additional local rules not in conflict with the uniform judicial administrative rules." No one argues that the guidelines are not local judicial administrative rules under 70.34, but it seems arguable that they are not. 1 No. district. It creates a system in which 01-2690-CR.ssa sentences vary not because of any characteristic of the offender or the offense, but because of the geographic location in which the offense took place. As the court of appeals has noted, "the statute creates different driving classes while of under people. the It makes influence in persons one convicted judicial of district subject to potentially different sentencing standards from those in other districts."10 ¶48 The majority opinion understates the sentencing disparity created by Wis. Stat. § 346.65(2m)(a) when it admits that "having districts sentences different may lead between to guidelines in the disparity."11 some judicial districts § 346.65(2m)(a) is dramatic.12 various The as judicial disparity in result of a In State v. Smart, 2002 WI App 240, ¶4, 257 Wis. 2d 713, 652 N.W.2d 429, the court of appeals explained offense that OWI the maximum conviction sentence ranged from for 45 a defendant's days to third 120 days, depending on the judicial district.13 10 State v. Smart, 2002 WI App 240, ¶6, 257 Wis. 2d 713, 652 N.W.2d 429. 11 Majority op., ¶39. 12 Indeed, it is arguable that the multiple guidelines create huge disparity where none existed before. A Judicial Conference committee concluded in a 1983 report that there was no unjustified disparity in sentencing in Wisconsin courts. Matter of Implementation of Felony Sentencing Guidelines, 113 Wis. 2d 689, 693, 335 N.W.2d 868 (1983). 13 Smart, 257 Wis. 2d 713, ¶4: [T]he ninth district's jail time guideline for [the defendant's] offense is 120 days, except between 2 No. ¶49 The range of possible sentences 01-2690-CR.ssa across judicial districts for a defendant convicted of fourth offense OWI, like the defendant in the present case, is no less startling. One need only look at the guidelines created by the three districts I have attached hereto to see the disparity. These guidelines were presented by and discussed by the parties in this case. ¶50 In the Eighth Judicial District a person's fourth offense aggravated OWI conviction (with a blood alcohol level of .276 and resulting "accident") is subject to a flat 150-day sentence.14 The district guidelines provide no direction for a sentencing judge to consider additional aggravating or mitigating factors. ¶51 In the Fourth Judicial District, a person's fourth offense aggravated OWI conviction (with a .276 blood alcohol level and resulting "accident") is subject to a flat sentence of 105 days in jail, though the guidelines permit a court to consider as "mitigating factors" the defendant's ability to pay and conduct since the offense, the consequences to the defendant and victim, and whether there was cooperation by the defendant. ¶52 In the Fifth Judicial District (where the defendant was convicted), according to guidelines, the same person faces a January 2001 and August 2001, when it was ten months. Had he been convicted of the same crime in other judicial districts, [the defendant] would have likely received a much shorter jail term. In the tenth district, the guideline is 110 days; in the eighth, seventy-five days; and in the fourth, forty-five days. 14 The defendant would also face a $1654.00 fine and have his or her license revoked for 36 months. 3 No. 01-2690-CR.ssa possible sentence ranging from 90 days to one year. Despite the guidelines proposing this wide range, the Fifth Judicial District guidelines give no directions to the circuit court in deciding where to place a given defendant within this broad range. ¶53 The truth of the matter is that Wis. Stat. § 346.65(2m)(a) has, by design, created the potential for significant disparity in sentencing similarly situated offenders under similar circumstances who are similar threats to the public based solely upon geography, and the disparity from district to district and across the state has come to pass. II ¶54 The majority opinion concludes that the legislature's decision to create disparate sentencing guidelines from judicial administrative district to survives constitutional focusing exclusively on judicial district. The disparity created judicial scrutiny the by reframing decreased majority by administrative the disparity opinion district issue within contends that Wis. Stat. § 346.65(2m)(a) and each the is constitutional because a rational basis for the disparity among judicial districts can be conceived, namely that the guidelines adopted under § 346.65(2m)(a) operate to reduce sentencing disparity within judicial districts.15 ¶55 The purpose disparity in sentences. of the law at issue is to eliminate The objective of decreasing disparity 15 Majority op., ¶40 ("we accept that these guidelines fulfill the rational basis test by reducing sentencing disparity within judicial districts"). 4 No. is to ensure to the extent possible offenders will be sentenced similarly. that 01-2690-CR.ssa similarly situated Thus the imposition of a criminal sentence must be based on "the gravity of the offense, the character of the offender and the need for the protection of the public."16 differences "Sentencing disparities that are not justified by among offenses or offenders and to the public. offenders are unfair both to A sentence that is unjustifiably high compared to sentences for similarly situated offenders is clearly unfair to the offender; a sentence that is unjustifiably low is just as plainly unfair to the public."17 ¶56 Sentencing guidelines are "designed to allow the exercise of judicial discretion to consider the offense, the offender and the public while reducing variance by providing guideline sentences offenses."18 offenders for similar offenders who commit similar Sentencing guidelines do not achieve this goal when who commit similar offenses under similar circumstances and present similar dangers to the public are not sentenced similarly. ¶57 The question in this case is whether there is a rational basis for establishing a sentencing guideline system that treats 16 criminal offenders State v. Ogden, 199 (1996) (citations omitted). in one Wis. 2d 566, judicial 571, 544 district N.W.2d 574 17 United States v. Chapman, 500 U.S. 453, 473 n.10 (1991) (citing S. Rep. No. 98-225, at 45-46 (1983); 1984 U.S.C.C.A.N. (98 Stat.) 3228-29.). 18 State v. Speer, 176 Wis. 2d 1101, 1124, 501 N.W.2d 429 (1993) 5 No. different from district. similar More offenders specifically, in the a 01-2690-CR.ssa different question judicial is: How is authorizing different guidelines in each administrative district germane to the purpose of reducing disparity? "The classification adopted must be germane to the purpose of the law."19 within The majority opinion concludes that reducing disparity the general geographical locus of the offense has a rational relation to reducing disparity in sentencing in the state even though sentencing disparity is increased within the state as a whole. ¶58 The majority opinion's "rational basis" is, in fact, irrational. It begs the question to conclude that the statute has a rational basis of reducing disparate sentencing in the State by reducing disparity within each judicial district. The issue of disparate sentencing is not about disparate treatment of similar offenders within different parts of the state but about disparate treatment of similar offenders across the state. The majority opinion never explains why the judicial district classification is germane to the purpose of eliminating disparity in sentencing.20 19 Nankin v. Village of Shorewood, 2001 WI 92, ¶39, 245 Wis. 2d 86, 630 N.W.2d 141 (quoting Aicher v. Wis. Patients Comp. Fund, 2000 WI 98, ¶58, 237 Wis. 2d 99, 613 N.W.2d 849). 20 I am also attaching a map showing the judicial administrative districts. The map shows that while these districts might make sense for purposes of trial court administration they do not necessarily make sense for purposes of differences in OWI sentencing. 6 No. ¶59 01-2690-CR.ssa The geographical unit in which to determine disparity in sentencing for similar offenders is the state as a whole. The offenders have violated a state criminal statute describing an offense against the people of the State of Wisconsin, not an offense merely against the people of a particular county or administrative district. Yet the statute mandates a guideline system in which offenders who have similar characteristics are sentenced to the same state institutions but for different time periods, with the determinative issue not the characteristics of the offender and offense but geography (the administrative district in which the offense occurred).21 ¶60 Village Although of the majority Shorewood, N.W.2d 141, without persuasive. In 2001 opinion WI a meaningful Nankin, the 92, dismisses 245 Wis. 2d 86, explanation, legislature Nankin I find provided v. 630 Nankin different procedures for challenging property assessments depending on the population of the county treating owners of in which property the located property in was populous located, counties differently than owners of property located in other counties without a rational basis. The Nankin court concluded that no rational basis existed for treating taxpayers differently on the 21 If the legislature or a statewide sentencing commission adopted different sentencing guidelines for each judicial district, it is hard to believe that this court would conclude that there is a rational basis for disparate sentencing across geographical lines. Yet as a result of the majority opinion it seems to me that such a sentencing structure would now be valid. Clearly the constitutionality of the guidelines does not depend on whether the legislature promulgates the guidelines or delegates the authority to the chief judges of each judicial district. 7 No. 01-2690-CR.ssa basis of the population of the county in which their property was located. offenders No rational basis exists here either for treating differently on the location of the county in a judicial administrative district. ¶61 not The majority saved merely an by save offense declaration imperfect direction."22 cannot the OWI opinion's "rational" that solution that this is basis analysis guideline "step a system the in is is right Decreases in disparity within a judicial district the increase offenders in disparate across the sentences state. A for fourth legislatively mandated program that fosters and creates disparate guidelines from one geographical area in the State to another cannot be viewed as a step in the right direction of eliminating disparity in sentencing in the State of Wisconsin.23 ¶62 saved by The majority opinion's "rational" basis is also not asserting that the Wis. Stat. § 346.65(2m)(a) establish The "permissive argument might sentencing orders guidelines," be made that scheme judicial not created districts mandatory because the under to guidelines. guidelines are permissive a circuit court must examine each offender and the circumstances of the offense in addition to the suggested guidelines and accordingly there is uniformity across the state. This reasoning rests 22 on the premise that the guidelines are Majority op., ¶39. 23 The judges in a county or district might adopt countywide permissive guidelines. This is different from legislatively mandated district guidelines. 8 No. 01-2690-CR.ssa basically irrelevant or of little relevance because each circuit court must ultimately exercise its discretion free of the guidelines. ¶63 If the majority opinion is resting on this reasoning, the majority's thinking squarely contradicts its own rational basis argument that the statute fosters disparity within each district. the elimination of The majority opinion cannot argue that Wis. Stat. § 346.65(2m)(a) is constitutional because the guidelines decrease disparity within each judicial district if it also is arguing that the statute's constitutionality rests on the fact that each circuit court has no obligation to follow the guidelines and is free to impose whatever sentence it concludes fits the offender, offense, and public safety. ¶64 Clearly the legislature (and the chief judges) intend circuit courts to adhere possible and want the to the guidelines sentencing. Otherwise the futility.24 Furthermore, guidelines to guidelines our have are experience to an an with the extent effect on exercise in guidelines demonstrates that they are very influential and that circuit courts ordinarily follow them or, at a minimum, use them as a starting point. 24 As this court explained: "The advisory committee could hardly expect the use of sentencing guidelines to reduce variance and dispel any perception of unequal treatment in sentencing if it did not intend that judges follow the guidelines and impose sentence within the guideline matrix ranges, except in cases where aggravating or mitigating circumstances dictate otherwise." Matter of Implementation of Felony Sentencing Guidelines, 113 Wis. 2d at 697. 9 No. ¶65 01-2690-CR.ssa The OWI sentencing guidelines in place in the various districts do not reflect a movement towards greater statewide sentencing commit uniformity similar public. The for offenses similarly and guidelines are reflect situated similarly a offenders dangerous movement towards to who the greater sentencing disparity from district to district with differences in the guidelines based solely on geographical considerations. Because there is no rational basis for disparate sentences based upon the judicial district in which the offense occurred, I conclude that the statute is unconstitutional. III ¶66 Finally, the majority opinion completely ignores the possibility that Wis. Stat. § 346.65(2m)(a) is unconstitutional because it violates the separation of powers doctrine. Article VII, Section 3(1) of the Wisconsin Constitution states that "the supreme court shall have superintending and administrative authority over all courts." ¶67 Article VII, Section 3(1) makes it "incumbent on the legislature legislating authority."25 to in exercise areas The both deference that impinge enactment of and upon restraint this when [court's] Wis. Stat. § 346.65(2m)(a) demonstrates both a lack of deference and a lack of restraint on behalf of the legislature and arguably impinges on our authority to supervise and administer the circuit courts and chief judges of the state. 25 State v. Holmes, 106 Wis. 2d 31, 75-76, 315 N.W.2d 703 (1982) (Coffey, J., concurring). 10 No. ¶68 01-2690-CR.ssa This conclusion becomes clear when the history of the adoption of sentencing guidelines is set forth. In 1983, this court pilot expressly refused to adopt an 18-month program requiring circuit courts to use, according to their discretion, felony sentencing guidelines developed by the Advisory Committee for the Wisconsin Felony Sentencing Guidelines Project.26 A goal of the sentencing guidelines was to "remedy an unjustifiable disparity of sentences imposed by Wisconsin trial judges for like offenses,"27 but the court noted that the 1983 report of the advisory committee stated disparity in concluded that an alleged public disparity does not justify guidelines. sentencing "that in there Wisconsin is no unjustified courts."28 perception The The of court sentencing court further concluded that it is for the legislature, not the court, to "decide whether [judicial discretion] should be more closely circumscribed."29 ¶69 One year later, the legislature enacted a statute giving this court the express authority to promulgate rules for sentencing guidelines to be used by Wisconsin courts.30 This court refused to act, however, and according to the statute the 26 Matter of Implementation of Felony Sentencing Guidelines, 113 Wis. 2d at 690. 27 Id. at 693. 28 Id. 29 Id. at 695. 30 In the Matter of Jud. Admin. Felony Guidelines, 120 Wis. 2d 198, 353 N.W.2d 793 (1984). 11 Sentencing No. authority to promulgate sentencing guidelines 01-2690-CR.ssa passed to a sentencing commission attached to the Wisconsin Department of Administration. The court explained its refusal this time by stating that the existing sentencing system was accomplishing the goal of consistency and that it was for the legislative branch, not the judicial branch, to decide the extent to which sentencing discretion should be limited to accomplish the goal of consistency in criminal sentencing: The legislature considers it most appropriate that this court promulgate rules for sentencing guidelines because it sees a direct relation between the establishment of the guidelines and the exercise of judicial discretion. We disagree; it is precisely because the determination of what constitutes an appropriate sentence in a particular case involves the exercise of judicial discretion that we decline to promulgate guidelines and thereby encroach on that discretion.31 ¶70 By legislature enacting circumvents sentencing guidelines. judges Wis. Stat. § 346.65(2m)(a), (whom this this court's decision not to the adopt The legislature requires circuit court court has appointed as chief judges of judicial districts) to do on a district-by-district level what this court has already refused to do on a statewide scale, because adopting sentencing guidelines is a legislative, not a judicial, function. ¶71 31 For the foregoing reasons, I dissent. Id. at 203-04. 12 No. 1 01-2690-CR.ssa No. 2 01-2690-CR.ssa No. 3 01-2690-CR.ssa No. 01-2690-CR.ssa Judicial Administrative Districts of Wisconsin 4 No. 1 01-2690-CR.ssa

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