BASTIAN v. State,

 54 Wis.2d 240 (1972)

194 N.W.2d 687

242 243 244 245 246 247 248 249 250 251  CASE LAW

BASTIAN, Plaintiff in error, v. STATE, Defendant in error. _________________________________________________________________ Supreme Court No. State 148. Argued February 3, 1972. Decided March 2, 1972.
PAGE 242
ERROR to review an order of the circuit court for

Milwaukee county:  HUGH R. O'CONNELL, Circuit Judge.


After a trial to the court, the defendant, George W. Bastian,

was found guilty of indecent behavior with a child,

in violation of Section 944.11(2), Stats.
PAGE 243
Since a conviction under this section requires a

mandatory commitment for observation to the

department of health & social services under

Section 959.15(1), Stats. 1967, Bastian

received the mandatory sixty-day commitment

for observation prior to sentencing.

Upon the completion of the examination period, the department of

health & social services made a finding that the defendant was

not deviated, and no specialized treatment was recommended.

He was, accordingly, returned to the trial court for sentencing

under the criminal code, and on December 28, 1970, was sentenced

to an indeterminate term of not more than ten years in the

Wisconsin State Reformatory at Green Bay.

Subsequently, Bastian filed a motion to review

and modify the sentence.

After a hearing, the circuit court modified the sentence and

reduced the term to a period of not to exceed seven years.

Upon application of the defendant, this court issued

a writ of error to review the seven-year sentence

imposed on March 17, 1971.

For the plaintiff in error there was a brief by

Alexander N. Rubin, and oral argument by

Jerome F. Pogodzinski, both of Milwaukee.

For the defendant in error the cause was argued by

Michael R. Klos, assistant attorney general, with

whom on the brief was Robert W. Warren, attorney general.


Much of the appellant's brief is devoted to the proposition

that the defendant was improperly convicted.

Great stress is placed upon the fact that the victim of the

sexual assault was a five-year-old boy and that, therefore,

his testimony was not to be given credence.

This argument overlooks the fact that no appeal has been

taken from the conviction, and no writ of error was

timely issued by this court to review the proceedings

that led to the judgment of conviction.

We are, therefore, obliged in considering this writ of

error to consider only the order brought before us on

the writ, the order which reduced the sentence to an

indeterminate term of seven years.
PAGE 244
The defendant contends that the term imposed was excessive

and that the trial judge abused his sentencing discretion

in arriving at that term of incarceration.

Although, under the posture of this record, we cannot examine

the sufficiency of the evidence which led to the conviction,

the nature of the crime was revealed in those proceedings

and was before the trial judge when he entered the order

modifying the sentence on March 17, 1971.

A brief review of the facts which led to the conviction and which

has a bearing upon the imposition of sentence is appropriate.

At the time of the offense, Bastian was twenty-one years old,

six feet two inches tall, and weighed 288 pounds.

The child who was the victim was five years old.

There was testimony that the child was enticed to the

defendant's room and subjected to anal intercourse.

The child had also testified that Bastian had done

the same thing on one previous occasion.

During the course of the trial before the court, the defendant

moved to dismiss on the ground that the testimony

was incredible and therefore insufficient.

The judge, however, denied the motion, specifically making the

finding that he found the testimony of the child credible.

The testimony was believed and is relied upon to the extent

that it is apparent it influenced the trial judge's

sentencing discretion.

At the original sentencing proceedings on December 28, 1970,

the trial judge read into the record the report of the

psychiatrists at Central State Hospital, which concluded

that the defendant did not need specialized treatment.

He also referred to that portion of the report which concluded

that Bastian appeared to be a suitable candidate for probation.

The prosecuting attorney stated the seriousness of the

offense and the disparity of the ages between Bastian

and the victim of the crime.
PAGE 245
He also pointed out that the defendant continued to

deny guilt and showed no remorse for his conduct.

He recommended lengthy incarceration.

The defendant's attorney emphasized the fact that Bastian

had been cooperative, that he had a job, and that the

crime was not one of violence.

In addition, he emphasized that this was

Bastian's first criminal offense.

The defendant was given the right of allocution

but merely denied his guilt.

The trial judge stated that, in imposing a period of

incarceration, he was not motivated by society's need

for retribution nor by the fact that the sentence

imposed in this case would be a deterrent to others.

He instead predicated his sentence upon the seriousness of the

crime and the fact that the incarceration of Bastian would

protect society from further conduct of this nature.

He specifically disagreed with the department of health & social

services' recommendation for probation and pointed out that,

since they found him not to be in need of treatment or

hospitalization, he would have to be considered as a

criminal, and thus to be subjected to criminal

penalties on the basis of the crime committed.

The defendant was sentenced to a term of ten years.

On March 17, 1971, following the hearing brought upon the

defendant's petition to modify the sentence, the trial judge

made another lengthy statement giving reasons for the reduced

sentence of seven years.

He reiterated the factors in the case, including the reports

and recommendations of the psychiatrists, and stated that he

had the benefit of the arguments made by the defendant's

counsel and by the prosecutor.

He pointed out that the seriousness of the crime merited

a stern disposition and again emphasized that, in this

type of crime, where the hospital authorities had

concluded that specialized treatment would be

inappropriate, the protection of society was

a principal factor to be considered.
PAGE 246
We are satisfied that the trial judge did not

abuse his discretion in imposing the sentence.

The seriousness of the conduct of which the defendant was found

guilty is emphasized by the legislature's conclusion that it

merited a mandatory period of hospitalization and examination.

The fact that the examining physicians found the defendant

not to be deviated and not to be in need of treatment in

no way minimizes the legislature's policy conclusion

that the crime was a serious one.

This court has frequently stated that, in the exercise of

discretion, a substantial sentence may be imposed

to emphasize the seriousness of the crime.


Cheney v. State (1969),

 44 Wis.2d 454,

171 N.W.2d 339,

174 N.W.2d 1,

we upheld a maximum sentence in a firebombing case, even though

the defendant had no prior record, had served honorably in the

military service, and was a married man with children.

We concluded that the seriousness of the offense was

a proper criterion in imposing a maximum sentence.

Moreover, the trial judge in this case emphasized the need to

protect society from similar conduct by this defendant.

We said in

Buchanan v. State (1969),

 41 Wis.2d 460, 471,

164 N.W.2d 253:

     "The purpose of the Sex Crimes Act is to protect the

     public from the commission of dangerous sex crimes and

     to provide treatment for the dangerous sex offender."

While, in the instant case, treatment for the offender was

found to be inappropriate, the necessity of protecting

society from such conduct remains.

The trial judge properly exercised his discretion when he

based his determination upon the fact that Bastian's

confinement for a lengthy period of time would, for

the term of his incarceration at least, protect society.

While the mere warehousing of dangerous individuals is

not the sole purpose for imposing substantial prison terms,

it is a legitimate and proper factor for a trial judge

to consider in exercising his discretion.
PAGE 247
The seriousness of Bastian's offense and the necessity of

removing him from society is emphasized in an article

appearing in the Comments, Criteria for Commitment

under the Wisconsin Sex Crimes Act,

1967 Wisconsin Law Review 980, 984, 985:

     "An offender whose deviant sexual conduct is directed

     toward others to their physical or moral harm should be

     regarded as dangerous.

     If his crime involved violence or aggression, or if

     there was an age disparity between the offender and his

     adolescent victim, the offender should be considered


     If the offender's conduct was such that it normally

     results in severe and enduring harmful effects on the

     victim, he should be considered dangerous.

     The taking of indecent liberties with preadolescent

     children often produces serious psychological problems

     later in life."

It is apparent that such conduct, though the result of a criminal

intent and not of a deviated psyche, is equally dangerous.

Defendant's counsel cites the American Bar Association's

Standards Relating to Probation (Approved Draft, 1970).

One of the standards, 1.3 on page 30, provides in part:

          ". . . 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. . . .

While the trial judge did not allude to this standard in imposing

sentence, his rationale followed that of the standard.

He concluded that, although the defendant was a first offender,

it was necessary to protect the public from further criminal

activity of this nature by George Bastian.

The standard that defendant's counsel urges that we apply,

when properly considered, in fact dictates the conclusion

that this is a proper case not to apply probation.

We agree with the standard urged by counsel and adopt Standard

1.3 in regard to the criteria for granting probation.[fn1]
PAGE 248
The American Bar Association Standards Relating to

Appellate Review of Sentences were considered and adopted in

McCleary v. State (1971), 49 Wis.2d 263, 182 N.W.2d 512.

The sentence therein was set aside because a search of the

record indicated that the trial judge failed to properly

exercise his discretion in imposing the sentence.

We emphasized in that case, however, that the trial court's

sentence would be upheld if the record showed a reasonable

process of reasoning based upon legally relevant factors.

We said:

     ". . . 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


     If the facts are fairly inferable from the record, and

     the reasons indicate the consideration of legally

     relevant factors, the sentence should ordinarily be


     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."

McCleary, supra, page 281.

In the instant case, Judge O'CONNELL discussed the facts of

record upon which he relied in the exercise of his discretion.

We find those facts to be supported by the record and were

legally relevant in the exercise of the trial

judge's sentencing discretion.

The sentence imposed did not constitute an abuse of discretion.
PAGE 249
The defendant contends that, in a similar case, a defendant

only a short time before had been placed on probation.

This type of problem was considered in McCleary, supra, page 272,

wherein we said that a mere disparity of sentences does not

establish a denial of equal protection of the laws.

We said,  "In the absence of a nexus between the crimes

          and defendants, the disparate sentences are

          totally irrelevant to this consideration."

Other than the fact that the defendant asserts that the charges

were the same, the defendant has established no facts to show

that the sentence in another case is legally relevant to the

sentence imposed in this case.

The defendant was not denied due process or prejudicial error

committed because various proceedings in the case were conducted

by different assistant district attorneys.

In McCleary, we have specifically approved the practice of

appellate review which requires that our determination of the

propriety of the sentencing discretion be based upon the record.

We see no reason why a prosecutor cannot be fully informed

of the preceding events of the case by reference

to the record that has gone before.

Defendant's counsel on this appeal was not his trial counsel,

yet he apparently feels in no way constrained from expressing

his views although they are based solely on the record and his

interviews with his client.

We see no reason why a prosecuting attorney should be less

able to continue a case which has been commenced

by another prosecutor.
PAGE 250
Although the assistant district attorney who appeared at

the sentencing was not the assistant who tried the case,

defense counsel was the same.

Defense counsel had a complete opportunity to express his

views and to disagree with any of the assertions

made by the prosecutor.

There was ample opportunity to correct any errors

that might have been made by the

newly substituted prosecutor.

In addition, the trial judge at sentencing

was the judge who tried the case.


Dobs v. State (1970),

 47 Wis.2d 20, 26,

176 N.W.2d 289,

we said:

     ". . . the trial judge had many years on the trial

     bench and has heard countless numbers of criminal


     We are satisfied that the trial court could and did

     evaluate the remarks of the assistant district attorney

     and gave them no undue weight."

The experienced trial judge in this case was also in a position

to evaluate the assertions of both the defense and prosecution.

Although the views of both were considered, the trial judge

relied upon the nature of the offense and upon

the record before him.

We see no error in the sentencing proceedings, and we are

satisfied that the sentence imposed was the

product of proper judicial discretion.

By the Court. Ä Order affirmed.

[fn1]     1.3 Criteria for granting probation.

          (a)  The probation decision should not

               turn upon generalizations about

               types of offenses or the existence

               of a prior criminal record, but

               should be rooted in the facts and

               circumstances of each case.

               The court should consider the

               nature and circumstances of the

               crime, the history and character of

               the offender, and available

               institutional and community


               Probation should be the sentence

               unless the sentencing court finds


               (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.

          (b)  Whether the defendant pleads

               guilty, pleads not guilty or

               intends to appeal is not relevant

               to the issue of whether probation

               is an appropriate sentence.

American Bar Association Standards

Relating To Probation

(Approved Draft, 1970), p. 30.
PAGE 251

                     BASTIAN v. State,

                      54 Wis.2d 240     (1972)

                     194 N.W.2d 687

Statutory Law:       Section 973.013

                     Indeterminate Sentence

                     Wisconsin State Prisons.

Advance Case Law:    State v. Vandenbert (Ct.App. 1998)

BASTIAN Case Law CITATIONS: STATE v. ANDERSON,   163 Wis.2d 342 (Ct.App. 1991)                      471 N.W.2d 279 STATE v. KRUEGER,    119 Wis.2d 327 (Ct.App. 1984)                      351 N.W.2d 738 STATE v. BERNAL,     111 Wis.2d 280 (Ct.App. 1983)                      330 N.W.2d 219 STATE v. LYNCH,      105 Wis.2d 164 (Ct.App. 1981)                      312 N.W.2d 871 ROEHL v. STATE,       77 Wis.2d 398 (1977)                       253 N.W.2d 210 CUNNINGHAM v. STATE,  76 Wis.2d 277 (1977)                      251 N.W.2d 65 ANDERSON v. STATE,    76 Wis.2d 361 (1977)                      251 N.W.2d 768 GARSKI v. STATE,      75 Wis.2d 62  (1977)                      248 N.W.2d 425 HARRIS v. STATE,      75 Wis.2d 513 (1977)                      250 N.W.2d 7 LAMBERT v. STATE,     73 Wis.2d 590 (1976)                      243 N.W.2d 524 ROSADO v. STATE,      70 Wis.2d 280 (1975)                      234 N.W.2d 69 STATE v. JACKSON,     69 Wis.2d 266 (1975)                      230 N.W.2d 832 STATE v. DEAN,        67 Wis.2d 513 (1975)                      227 N.W.2d 712