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,
STATE, Defendant in error.
Supreme Court No. State 148.
Argued February 3, 1972.
Decided March 2, 1972.
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.
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.
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
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.
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.
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.
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]
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.
". . . 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
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.
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.
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,
". . . 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
(ii) the offender is in need
of correctional treatment
which can most
effectively be provided
if he is confined; or
(iii) it would unduly
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.
DECISIONS AND OPINIONS CITING BASTIAN:
BASTIAN v. State,
54 Wis.2d 240 (1972)
194 N.W.2d 687
Statutory Law: Section 973.013
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