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,
STATE, Defendant in error.
Supreme Court No. 75-686-CR.
Submitted on briefs February 2, 1977.
Decided March 15, 1977.
ERRORS to review a judgment and order of the county court of
Racine county: WILLIAM F. JONES, County Judge. Affirmed.
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
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.
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]
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
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]
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
(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
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.
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.
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.
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),
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
". . . 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),
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,
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.
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.
CASE LAW CITING ANDERSON:
1997: Kaufman, White, Koepp, Waite
1996: Setagord, Ducommun, Gates, Lloyd
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
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