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ANDERSON v. STATE,  76 Wis.2d 361 (1977) 251 N.W.2d 768
363 364 365 366 367 368 369 370 + ANDERSON CITES
ANDERSON, Plaintiff in error, v. STATE, Defendant in error. _________________________________________________________________ Supreme Court No. 75-686-CR. Submitted on briefs February 2, 1977. Decided March 15, 1977.
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ERRORS to review a judgment and order of the county court of

Racine county:  WILLIAM F. JONES, County Judge.  Affirmed.



FACTS.



On July 7, 1975, plaintiff in error Bruce Wayne Anderson,

hereinafter referred to as defendant, entered a guilty plea to a

charge of burglary, contrary to Section 943.10(1)(a), Stats., and

a plea of guilty to the charge of robbery, party to a crime,

contrary to Sections 943.32(1)(a) and 939.05, Stats.



The trial judge accepted the guilty pleas and found the defendant

guilty of burglary and robbery, sentencing him to indeterminate

terms, of not more than three years on the burglary charge, and

not more than eight years on the robbery charge.



The sentences are to run concurrently.



The maximum sentence on both the burglary and

robbery convictions was ten years each.



Defendant challenges the sentences imposed

as excessive and an abuse of discretion.



The incident giving rise to defendant's convictions took place

on June 7, 1975, in an apartment inhabited by an elderly lady

(in her seventies) in the city of Racine.



Defendant and two other men entered the victim's apartment,

accomplishing entry by forcing open a window.



(Various items were taken from the downstairs of the apartment.)

The defendant and his two associates in crime then proceeded to

the upstairs bedroom, attracted by a noise made by the elderly

occupant.



One of the attackers then sprayed mace in the lady's face.



The three, defendant included, proceeded to ransack the upstairs.



Shortly after the incident defendant was apprehended and various

items stolen from the apartment were found on his person.



On September 16, 1975, a hearing on sentencing was held,

following defendant's waiver of preliminary hearing and

acceptance by the trial court of his pleas of guilty

to burglary and robbery.
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A presentence investigation had been ordered

and received by the trial court.



(The report prepared by the social investigator recommended

probation, as did a psychiatrist, with the former suggesting, as

a condition of probation, that the defendant remain at a

"residential therapeutic community in Milwaukee, where they help

individuals with drug problems.") The trial judge sentenced

defendant to three years on the burglary charge and eight years

on the robbery charge, the sentences to be served concurrently.



Defendant appeals from the judgment of conviction

and the order denying modification of sentence.



For the plaintiff in error the cause was submitted on the brief

of Howard B. Eisenberg, state public defender, and

Melvin F. Greenberg, assistant state public defender.



For the defendant in error the cause was submitted on the brief

of Bronson C. La Follette, attorney general, and

David J. Becker, assistant attorney general.



ROBERT W. HANSEN, J.



Defendant claims the trial judge abused his judicial discretion

in sentencing the defendant to prison instead of

placing him on probation.



Every case has its frame of reference.



Here that backdrop is the sentencing phase of

the judicial process in criminal cases.



It is thus necessary to begin, even though we repeat what has

been said before by this court Ä and very recently so Ä with

the wide discretion given trial judges in this state in

determining an appropriate sentence in a particular case.



As to appellate review of trial court sentences,

our court has made clear that



     ". . . all an appellate court can ask of a trial judge

     is that he state the facts on which he predicates his

     judgment, and that he give the reasons for his

     conclusion. . . .  If there is evidence that discretion

     was properly exercised, and the sentence imposed was

     the product of that discretion, the trial judge fully

     complies with the standard."[fn1]
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As to such appellate review, we have made clear that the

trial court's sentence would be upheld if the record showed

a process of reasoning based on legally relevant factors.[fn2]



While other factors can be considered,[fn3]



the primary factors to be considered in determining an

appropriate sentence or disposition are the gravity of the

offense, the character of the offender, and the need for the

protection of the public.[fn4]



It has been made abundantly clear that the



     ". . . weight which is to be attributed to each factor

     is a determination which appears to be particularly

     within the wide discretion of the sentencing

     judge."[fn5]



Thus our court has upheld the imposition of a maximum sentence

for a first offender solely on the basis of the gravity

of the offense involved, i.e., a fire bombing.[fn6]



Likewise, our court has affirmed the lengthy incarceration of one

convicted of indecent liberties with a child solely because

such extended incarceration would protect society.[fn7]
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The state public defender, on behalf of the defendant, does not

challenge these and other decisions of this court which make

clear that sentencing is a discretionary judicial act.[fn8]



Nor does defense counsel contest that this court will remand

for resentencing or modify the sentence imposed only when it

appears that no discretion was exercised in the imposition of

sentence or the discretion was exercised without the

underpinnings of an explained judicial reasoning process.[fn9]



Instead defendant sees a narrower range of trial court

discretion applying to the rejection of probation

as a sentencing alternative.





In support of this position defendant cites the adoption by

this court of criteria or standards relating to the

granting of probation in Bastian v. State.[fn10]



These criteria, constituting Section 1.3 of the American Bar

Association Standards Relating to Probation, provide that

probation should be the sentence unless the sentencing court

finds that:



     (i)  confinement is necessary to protect the public from

          further criminal activity by the offender; or



     (ii) the offender is in need of correctional treatment which

          can most effectively be provided if he is confined; or



    (iii) it would unduly depreciate the seriousness of

          the offense if a sentence of probation were

          imposed."[fn11]
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We do not see the criteria relating to granting or

rejecting probation as a sentencing alternative as

in any way affecting, much less changing or limiting,

the decisions before and since this court adopted

Section 1.3 of the ABA standards in Bastian in 1972.[fn12]



Rejection of probation is a necessary predicate to a

determination that incarceration is required

in a particular case.



It would not make sense to have one standard for the exercise of

discretion as to granting of probation and another and different

standard for the exercise of judicial discretion as to the

appropriate period of incarceration.



These are not two, sides of a single coin.



They are part of the same side of the same coin Ä the

determination of the appropriate disposition.



In point of fact we see the threefold test of Section 1.3

of the ABA criteria relating to probation as exactly the

same as the threefold approach to sentencing

recently reiterated in Rosado in 1975.[fn13]



To paraphrase the Section 1.3 standard,

the reference is to:



     (1)  Protection of the public;



     (2)  need of correctional treatment; and



     (3)  seriousness of the offense.





In Rosado, the primary factors are held to be:



     (1)  Gravity of the offense;



     (2)  character of the defendant; and



     (3)  protection of society.



The difference is in the words used and the order listed,

but there is no difference as to substance or content.



In both there is a single approach or rule which is to require

the trial judge to consider the three enumerated factors.
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The weight to be attributed any of these factors is for the trial

court to determine in the exercise of its judicial discretion.



Both rejection of probation and imposition of a

particular sentence can be based on any one

or more of the three primary factors.



While an element of weighing or balancing is involved,

this is for the trial court to perform.



Such determination will not be reweighed or rebalanced by this

court, since ". . . weight which is to be attributed to each

factor is a determination which appears to be particularly

within the wide discretion of the sentencing judge."[fn14]



This is as true in the consideration of the probation

alternative as it is in the selection of an

appropriate period of incarceration.



In both determinations the trial court here

clearly considered all three primary factors.



As to the gravity of the offense, the trial court found the

offense committed involved force and violence Ä spraying mace

in the victim's eyes, and expressed grave concern for the

trauma experienced by the elderly victim of the crime.



The trial court found the defendant made a deliberate choice

to participate in the robbery and that defendant furnished

the mace spray, a steel club and gloves for the

commission of the crime.[fn15]



As to defendant's character and need for correctional treatment,

the trial court was informed and relied on the fact that

defendant was on probation for criminal damage to property.



Defendant had also been committed as a juvenile to an

institution in Prairie du Chien for operating a

vehicle without the owner's consent and for assault.
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The trial court found that defendant needed a "strict, structured

environment not only for himself, but society in general."[fn16]



As to the need to protect society, the trial judge concluded that

he was unable to find that defendant would not commit another

crime, that the type of burglary and robbery here involved was an

"offense society could not tolerate,"[fn17]



and that confinement was necessary to protect the public.



While any one of these factors would have been sufficient,

the others were given consideration.



The trial court here clearly rejected probation and

fixed the sentence, giving weight as well as

consideration to all three factors.



We thus find no fault in the reasons stated and in the exercise

of judicial discretion which resulted in the sentences here

imposed Ä three years and eight years Ä to run concurrently.
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As no more than postscript, we note the lower court

elected not to follow the recommendation of the social

investigator who conducted the presentence investigation.



The trial judge was not required to do so.[fn18]



Likewise, the sentencing judge was not required to accept the

defendant's statement that during the assault on the elderly

victim he had restrained an accomplice from inflicting

additional physical harm upon the victim.



Credibility always is for the trier of fact to decide.



Additionally, there was some dispute below as to whether

defendant or one of his accomplices had sprayed

the victim with mace.



We agree with the trial judge that it was irrelevant which

individual had actually sprayed the victim.[fn19]



The trial judge commented as follows:



          ". . . whether one hit her, two others went along

           with the same crime and received the proceeds.



           I don't think it diminishes his responsibility."



In response to defendant's allegation of restraint,

the trial judge stated:



          "How can you reconcile the fact that he

          [defendant] got the pipe at home, got the

          mace, he got the gloves and went to the house

          and met those people?"



The trial judge could not reconcile that fact and, in the

exercise of sound judicial discretion, he was not obliged



By the Court. Judgment and order affirmed.



[fn1]     Bastian v. State,

           54 Wis.2d 240, 248,

          194 N.W.2d 687 (1972),



          quoting



          McCleary v. State,

           49 Wis.2d 263, 281,

          182 N.W.2d 512 (1971).



[fn2]     Id. at 248.



[fn3]     See, e.g., State v. Killory,

                      73 Wis.2d 400, 408,

                     243 N.W.2d 475 (1976),



          holding that factors relevant to sentencing

          determinations include:



          ". . . the defendant's personality, character

          and social traits, the results of a

          presentence investigation, the vicious or

          aggravated nature of the crime, the degree of

          defendant's culpability, the defendant's

          demeanor at trial, the defendant's age,

          educational background and employment record,

          the defendant's remorse, repentance and

          cooperativeness, the defendant's need for

          close rehabilitative control, and the rights

          of the public."



          Citing State v. Tew,

           54 Wis.2d 361, 367, 368,

          195 N.W.2d 615 (1972).



[fn4]     Rosado v. State,

           70 Wis.2d 280, 291,

          234 N.W.2d 69 (1975),



          citing



          McCleary v. State, supra, n. 1, at 274-276.



[fn5]     Ocanas v. State,

           70 Wis.2d 179, 185,

          233 N.W.2d 457 (1975).



[fn6]     Cheney v. State,

           44 Wis.2d 454, 468, 469,

          171 N.W.2d 339,

          174 N.W.2d 1 (1969),



          affirming a maximum sentence of a first

          offender on the charge of fire bombing.



          Of the Cheney result, this court stated in

          Bastian v. State, supra, n. 1, at 246:



          "We [in Cheney] concluded that the

          seriousness of the offense was a proper

          criterion in imposing a maximum sentence."



[fn7]     Bastian v. State, supra, n. 1, at 247,

          affirming the sentence of extended

          incarceration, seven years, for a first

          offender convicted of indecent liberties with

          a minor, because the trial judge concluded

          that ". . . it was necessary to protect the

          public from further criminal activity of this

          nature by George Bastian."



[fn8]     McCleary v. State, supra, n. 1, at 277,

          quoting



          State v. Hutnik,

           39 Wis.2d 754, 764,

          159 N.W.2d 733 (1968):



          ". . . there should be evidence in the record

          that discretion was in fact exercised and the

          basis of that exercise of discretion should

          be set forth."



[fn9]     Id. at 278.



[fn10]    Bastian v. State, supra, n. 1, at 247, 248.



[fn11]    American Bar Association Standards Relating to

          Probation, Section 1.3 (Approved Draft, 1970).



[fn12]    See, e.g., cases cited in footnotes 1-8, supra.



[fn13]    Rosado v. State, supra, n. 4, at 291.



          As recent as this term this threefold test

          was again endorsed by this court.



          See:



          Cunningham v. State,

           76 Wis.2d 277,

          251 N.W.2d 65 (1977).



[fn14]    Ocanas v. State, supra, n. 5, at 185.



[fn15]    The trial judge relied on a finding

          in the presentence report:



          "While fishing with his stepfather along Root

          River, two friends approached Bruce and told

          him they knew where a lady was living who

          they could rob.  Bruce's stepfather told him

          not to go, however, Bruce agreed to meet the

          other two males at about 9:15 the night of

          June 7, 1975. Bruce then went home to get the

          spray, a steel club and gloves and the three

          of them went over to Knapp School playground

          where they sat and smoked marijuana."



[fn16]    The trial judge holding:



          ". . . I don't think society should go on

          trial, as far as Bruce Anderson is concerned,

          whether that hostility should go unbridled,

          without any restriction on him.



          His behavior, his conduct is such, that

          the court feels that he needs a strict,

          structured environment not only for

          himself, but for society."



[fn17]    The trial court concluded:



          "Now it was stated that the victim. . .

          didn't suffer from the spraying of her eyes

          for any long duration, but this was an

          offense involving force.  Society does not

          tolerate it, I don't think anybody should

          tolerate it.  Now here is what is in the

          victim's statement, in the report made to the

          court by the probation department:



          "[Victim] said that she was very shook up by

          the incident and still has had nightmares

          about the involvement.



          Now that is a psychological reaction

          that is hard to overcome.



          There would be nothing in any medical

          report that would demonstrate her

          mental anguish of this offense."



[fn18]    See:  State v. Killory, supra, n. 3, at 409,

          this court holding:



          "Although the presentence report did not

          recommend total incarceration, such report is

          not binding on the sentencing court."



          Citing Ocanas v. State, supra, p. 5, at 188.



[fn19]    That is because defendant was convicted

          of being party to the crime of robbery.

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CASE LAW CITING ANDERSON:


Unpublished: 1997: Kaufman,  White,    Koepp,  Waite 1996: Setagord, Ducommun, Gates,  Lloyd 1995: Amrine
PUBLISHED:
STATE v. NAME (unless otherwise identified)
STEELE                                (Ct.App. 1998)



ANDERSON               215 Wis.2d 667 (Ct.App. 1997)



OGDEN                  199 Wis.2d 566         (1996)

                       544 N.W.2d 574



MORGAN                 195 Wis.2d 388 (Ct.App. 1995)

                       536 N.W.2d 425



GRUBE v. DAUN          173 Wis.2d 30  (Ct.App. 1992)

                       496 N.W.2d 106



J.E.B.                 161 Wis.2d 655 (Ct.App. 1991)

                       469 N.W.2d 192



KUBA                   150 Wis.2d 618 (Ct.App. 1989)

                       443 N.W.2d 17



FLATTUM                122 Wis.2d 282         (1985)

                       361 N.W.2d 705



KRUEGER                119 Wis.2d 327 (Ct.App. 1984)

                       351 N.W.2d 738



CURBELLO-RODRIGUEZ     119 Wis.2d 414 (Ct.App. 1984)

                       351 N.W.2d 758



WICKSTROM              118 Wis.2d 339 (Ct.App. 1984)

                       348 N.W.2d 183



LYNCH                  105 Wis.2d 164 (Ct.App. 1981)

                       312 N.W.2d 871



BALDWIN                101 Wis.2d 441         (1981)

                       304 N.W.2d 742



SMITH                  100 Wis.2d 317 (Ct.App. 1981)

                       302 N.W.2d 54



ELIAS v. STATE          93 Wis.2d 278         (1980)

                       286 N.W.2d 559



WILSON                  77 Wis.2d 15          (1977)

                       252 N.W.2d 64



ANDERSON v. STATE       76 Wis.2d 361         (1977)

                       251 N.W.2d 768



Boston Store v. AFOHW  269 Wis.   338         (1955)

                        69 N.W.2d 762




ANDERSON
GJS
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