McCLEARY v. STATE,             

 49 Wis.2d 263 (1971)

182 N.W.2d 512

RELATED LAW citing McLeary

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McCLEARY, Plaintiff in error,


STATE, Defendant in error.


Supreme Court No. State 78.

Argued October 9, 1970. Ä

Decided January 5, 1971.

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ERRORS to review judgments of the circuit court for

Milwaukee county:

HUGH R. O'CONNELL, Circuit Judge.

Reversed and sentence imposed.

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On August 3, 1968, the defendant, Richard David McCleary,

forged and uttered a $50 check bearing the purported

signature of James Kopatich.

On December 17, 1968, he was charged with a single

count of violating Section 943.38(2), Stats.

A violation of this subsection may be punished by a fine

of not more than $5,000, or by imprisonment for not more

than ten years, or by both fine and imprisonment.

On January 13, 1969, McCleary entered a plea of no contest.

The trial judge very carefully examined the defendant

in respect to his educational background and his

understanding of the consequence of the plea,

and informed him that he could be found

guilty upon a plea of nolo contendere,

thus exposing himself to the possibility

of a ten-year sentence.

He pointed out to the defendant that by so pleading

he was foregoing the valuable right to a trial,

either to the court or jury.

The plea was accepted on January 23, 1969.

The state presented a prima facie case tending

to show the defendant's guilt.

Edward McHugh, a detective with the Milwaukee police force,

testified that the $50 check bearing the forged signature of

James Kopatich was cashed in a Kroger store on August 3, 1968.

The forgery was discovered only when the check was returned from

the Hampton State Bank bearing the notation "account closed."

McCleary was identified by his handwriting.

He admitted that he had written and cashed the check

and used the proceeds for his own purposes.

Detective McHugh testified that McCleary's previous

record involved only traffic violations.

McCleary took the stand and testified that he was

married and had one child, aged seven months.

He was, at the time of his arraignment, a salesman

for the Britannica Corporation, working on a

guaranteed commission of $800 per month.

He had only recently secured this employment.

McCleary acknowledged that he had written the check for $50

and that he had forged the name of James Kopatich,

an acquaintance of many years standing.

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He acknowledged that he now realized

the seriousness of the offense.

To his attorney's question,

     "You think you have learned your lesson as far as

     whether or not you should do anything like this,"

he answered, "Yes."

Cross-examination by the district attorney revealed that McCleary

had approximately three years of university training at the

University of Wisconsin-Milwaukee and at San Diego College,

San Francisco, that he was twenty-two years old, and that he

had been rejected by the selective service as physically unfit.

At the time of the offense McCleary was an assistant manager

at Kohl's supermarket.

He testified that he cashed the check because he needed

the money to pay household bills Ä rent.

He was earning $116 per week at that time.

Following the taking of this testimony, the trial judge found

the defendant guilty and ordered a presentence investigation.

On March 21, 1969, after a hearing which afforded the defendant

no opportunity to offer any proof in contravention of facts

set forth in the presentence report and without affording

the defendant the right of allocution, the court sentenced

the defendant to the Wisconsin state prison for an

indeterminate term of not more than ten years.

Prior to pronouncement of sentence, the trial judge read

without comment portions of the presentence report.

They included the probation officer's assertions that:

The defendant

                had always taken pride in his

                ability to cash checks, 

                that he took the challenge

                of trying to cash a check

                at Kroger's,

                that he didn't feel he would be

                caught for this offense and that

                he has no respect for the authorities,

                that his political convictions

                did not allow him to accept the

                law as it was accepted by most

                other people,

                that he denied any feeling of guilt

                in this offense as he does not consider

                taking money from institutions "stealing"

                but "profit sharing,"

                that he stated how superior he felt to

                most other people, including the law itself,

                and that he tries to rationalize his action.

                The basis for most of his rationalization

                centers around his political ideology.

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The trial judge read into the record the conclusion of

the probation officer that the defendant does not have

the proper attitude or sense of responsibility needed

in order to benefit from probation.

The probation officer concluded that the ideals of the

defendant were not compatible with the laws of society, and

     "it appears to the investigating officer that the

     defendant has no desire to change or conform to them."

The probation officer stated that in some instances

the defendant had not told the truth.

He recommended that

          "some other disposition than probation

           be considered at this time."

Judge O'CONNELL'S only comment prior to sentencing

consisted of the following two paragraphs:

     "I intend to follow the recommendation of the

      Probation Department, and I will not

      grant probation in this case."

     "I'm prepared to make disposition thereon."

     "The laws of society apply to every member thereof,

      whether in a nichey [sic, Nietzschean?] type

      attitude he considers himself to be above them or not."

He then proceeded to pronounce sentence for an

indeterminate term of not more than ten years.

Subsequently, the defendant moved for

a rehearing on the sentence.

The motion was granted; and a hearing was held

on September 2, 1969.

During the period from sentencing until the date of rehearing

the defendant was imprisoned at the Wisconsin state prison.

The first witness at the hearing was Lawrence Anthony, the

probation officer who wrote the presentence report.

He testified that all of the statements attributed to the

defendant in the report were in fact made by the defendant.

On cross-examination, Anthony stated that he began working

as a probation officer on January 5, 1969, just before

the McCleary case was referred to him.

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Prior to January, 1969, he had had

no experience as a probation officer.

He stated that there was nothing unusual about defendant's

statement that he did not think he would be caught

when he committed the crime.

Most criminals think this, he stated.

Counsel for the defendant then asked Anthony whether defendant

had told him that he had forged the check to get even

with Kopatich, who had on a prior occasion forged

a check using defendant's name.

The trial court refused to permit the question.

Anthony denied that the term, "profit sharing," used in the

report was suggested by him rather than by the defendant.

Anthony stated that the recommendation made in the report was

still his recommendation for disposition of the case.

However, he admitted that he had done no further study

of the case since preparing the report.

The defendant then took the stand and testified that

many of the statements attributed to him were

taken out of context or made in jest.

He also stated that he had forged and cashed the check to get

even with Kopatich, who had forged defendant's name on

a check and cashed it on a prior occasion.

The defense then attempted to introduce the file of the Milwaukee

county circuit court case of State of Wisconsin v. Gregory James

Heydak to show that, although Heydak had pleaded guilty to seven

counts of check forgery and one count of armed robbery, he

received only a sentence of probation in the court

presided over by Judge HERBERT J. STEFFES.

The trial judge refused to take judicial notice

of the Heydak case.

He later stated that he was

          "not accountable for dispositions of other

          cases which have not been before [him]."

Again, the judge's reasons for imposing the

nine-year sentence were extremely brief.

He stated that forgery was a serious offense.

He stated that he believed the probation officer's assertion

that the defendant considered the forgery

as "profit sharing" rather than "stealing."

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He concluded, therefore, that probation was not appropriate.

He made no attempt to explain why the near-maximum sentence

was appropriate in the circumstances.

While the judge stated his reasons for ordering incarceration

rather than probation, he made no statement

in explanation of the term imposed.

He did point out that the legislature had provided

a range of up to ten years imprisonment.

This was the only statement given in explanation

of his discretion in imposing sentence.

Judge O'CONNELL then imposed an indeterminate term of nine years,

stating that he was taking into consideration the fact that

McCleary had already served six months of the original

ten-year term.

Writs of error have been issued from the

two sentencing judgments only.

For the plaintiff in error there was a brief by Shellow & Shellow

and Robert H. Friebert, all of Milwaukee, and oral argument

by Mr. Friebert.

For the defendant in error the cause was argued by

Lee Edward Wells, assistant district attorney

of Milwaukee county, with whom on the brief were

Robert W. Warren, attorney general, and

E. Michael McCann, district attorney.


There is no serious contention that McCleary should

necessarily have been placed on probation.

It is apparent that, under the facts and circumstances

of the case, the trial judge could properly impose

some period of incarceration.

The objection is to the excessiveness of the sentence.

Counsel on appeal contends that, by the imposition of this

sentence, defendant McCleary has been denied equal protection

of the laws, as his sentence is disproportionate to

those imposed on other check forgers.

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He also contends that the imposition of so lengthy a

sentence constitutes cruel and inhuman treatment,

violative of the United States Constitution.

We see no merit in either of these contentions.

The argument that defendant has been denied equal protection of

the laws is based upon the fact that Gregory James Heydak, who

gave the defendant the check on which he forged the name of

Kopatich, was given a sentence of five years probation by

Judge HERBERT J. STEFFES after pleading guilty to seven

counts of forgery and one count of armed robbery.

Defendant contends that for Judge O'CONNELL to sentence him to

nine and one-half years (including the six months already served)

on a first offense on the single count of the nonviolent crime of

forgery, merely because of disputed statements made by the

probation officer in regard to the defendant's political

philosophy, defies explanation and, when compared to Heydak's

sentence, constitutes a denial of equal protection of the laws.

We agree that, on the face of things, the disparity is great; but

we have frequently stated that the mere disparity of sentences

does not establish a denial of equal protection of laws.

It is not the philosophy of modern criminal law that the

punishment fit the crime alone and that for every violation

of a particular statute there be an identical sanction.

In light of the function of the law to deter similar acts by

the defendant and others and to rehabilitate the individual

defendant, it is essential that a sentencing court consider

the nature of the particular crime, i.e., the degree of

culpability Ä distinguishable from the bare-bones legal

elements of it Ä and the personality of the criminal.

The interests of both society and the individual

must be weighed in each sentencing process.

Clearly, the use of such an empirical guide will properly result

in wide deviations from one sentence imposition to another.

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Hence, the mere fact of disparity in the sentences

received by persons committing similar crimes does

not establish denial of equal protection.

Price v. State (1967),

 37 Wis.2d 117,

154 N.W.2d 222;

Jung v. State (1966),

 32 Wis.2d 541,

145 N.W.2d 684.

There may well be abundant reasons why Heydak was placed on

probation Ä reasons that are totally foreign to the

considerations relevant in the sentencing of McCleary.

The record in Heydak is not before us, and we agree that the

trial judge properly excluded the offer of proof to introduce

the Heydak record into these proceedings, although there was

testimony of Officer McHugh and of the defendant indicating

that the Heydak and McCleary cases were related in that

Heydak had given McCleary the Kopatich check blank.

Had there been evidence of a closer relationship between

the crimes of Heydak and McCleary, the Heydak sentencing

might well have been relevant.

United States v. Wiley (7th Cir. 1959),

267 F.2d 453;

United States v. Wiley (7th Cir. 1960), 278 F.2d 500.

There was nothing to show that Heydak was in any way associated

with the same criminal act that was charged against McCleary.

In the absence of a nexus between the crimes and defendants, the

disparate sentences are totally irrelevant to this consideration.

This court can only speculate as to the reasons for

Judge STEFFES placing Heydak on probation.

In the instant case, Judge O'CONNELL indicated that he imposed a

prison term rather than probation because he felt the defendant's

conduct indicated a "nichey" attitude that he was above the law

and that the defendant needed rehabilitative attention beyond

that which could be afforded by probation.

We are satisfied that Judge O'CONNELL applied proper

standards and reasoning in this determination.

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The fact that Heydak received a sentence of

probation is irrelevant.

In any event the trial judge fully justified the

rejection of probation in sentencing McCleary.

Nor can we accept the contention of the defendant

that the term herein imposed constitutes "cruel and

unusual punishment" in the constitutional sense.

It was within the statutory powers of the trial judge

to impose the sentence that he did impose.

We have been offered no reasons why in the proper case

it may not be just and reasonable to impose a sentence

of not to exceed ten years.

The question as we view it is not whether the imposition of a

nine-year-plus term was constitutionally infirm on the ground

of denial of equal protection of the laws or as a cruel and

unusual punishment, but simply whether it constituted an

abuse of the trial judge's sentencing discretion.

We conclude that the sentence imposed, though within the

statutory limits of Section 943.38(2), Stats.,

constituted an abuse of judicial discretion.

In State v. Tuttle (1963),

21 Wis.2d 147, 151,

124 N.W.2d 9,

this court said it had the power to review sentences to

determine whether an abuse of discretion had occurred.

Therein, the court specifically relied upon

Section 251.09, Stats., saying:

     "This court . . . has statutory power to reverse and to

     direct the entry of a proper judgment when it appears

     from the record that it is probable that justice has

     for any reason miscarried.

     We consider that we have the power to review sentences

     to determine whether an abuse of discretion clearly

     appears, and to remand for resentencing or to

     modify a sentence."

The court might also have referred to Section 251.17, Stats.,

which provides that, on writ of error in a criminal case,

this court, after reversing for defects, irregularities,

or illegality after verdict may itself pronounce the

proper judgment or remit the record to the court below. 

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Mueller, Penology on Appeal:

Appellate Review of Legal but Excessive Sentences,

15 Vanderbilt Law Review (1962), 671;

Statute Law, Criminal Law Ä

Power of Appellate Court to Modify Sentences on Appeal,

9 Wisconsin Law Review (1934), 172.

It is clear that Tuttle, supra, which permits an appellate

review for the abuse of sentencing discretion, is consonant

with practices that are well nigh universal outside of the

United States.[fn1]

In fact, as is pointed out in the American Bar Association

Standards Relating to Appellate Review of Sentences, page 2,

no other country of the free world permits unrestricted

sentencing power not subject to further judicial review.

Thirteen of the 50 states have specific statutes

spelling out sentence-review obligations.

Seven states, including Wisconsin, have construed their appellate

jurisdiction to impose the obligation to review judicial

discretion in the imposition of sentence.

The recent American Bar Association study committee concerned

with this problem unanimously favored the appellate review of

trial court sentences, although there were disagreements in

regard to the right of an appellate court to increase,

as well as decrease, the sentence imposed.

The American Bar Association Approved Standards Appellate Review

of Sentences states the objectives of such review are:

   (i)    to correct the sentence which is excessive in

          length, having regard to the nature of the

          offense, the character of the offender, and

          the protection of the public interest;

   (ii)   to facilitate the rehabilitation of the

          offender by affording him an opportunity to

          assert grievances he may have regarding his


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   (iii)  to promote respect for law by correcting

          abuses of the sentencing power and by

          increasing the fairness of the

          sentencing process; and

   (iv)   to promote the development and application of

          criteria for sentencing which are both

          rational and just.  (P. 7)

We conclude the sentences should be reviewed by

this court bearing these objectives in mind.

The imposition of an excessive sentence and its review

presents a judicial problem and not a problem for

either the legislature or the executive.

When the legislature grants sentencing power to the courts to

impose sentences covering a range, as it did in the case of

forgery Ä not to exceed ten years, it is apparent that it

left it to the judicial discretion to determine where

in that range the sentence should be selected.

It is also apparent that the legislature concluded that all

criminals convicted of a particular crime were not to

be treated alike in respect to sentencing.

Some were to be sentenced to probation, some were to

be sentenced to short terms, and some to the maximum.

Since it is the role of the courts to find rationality in

legislative enactments where possible, we must conclude that the

legislature intended that maximum sentences were to be reserved

for a more aggravated breach of the statutes, and probation or

lighter sentences were to be used in cases where the protection

of society and the rehabilitation of the criminal did not require

a maximum or near-maximum sentence.

The legislature intended that individual criminals, though guilty

of the same statutory offense, were not necessarily to be treated

the same but were to be sentenced according to the needs of the

particular case as determined by the criminals' degree of

culpability and upon the mode of rehabilitation that

appears to be of greatest efficacy.


Neely v. State (1970),

 47 Wis.2d 330, 334, fn. 8,

177 N.W.2d 79,

we recently quoted with approval Standards Relating to Sentencing

Alternatives and Procedures, American Bar Association Project on

Minimum Standards for Criminal Justice, Approved Draft, 1968,

page 14, Section 2.2:

     "The sentence imposed in each case should call for the

     minimum amount of custody or confinement which is

     consistent with the protection of the public, the

     gravity of the offense and the rehabilitative

     needs of the defendant."

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It is thus apparent that the legislature vested a

discretion in the sentencing judge, which must be

exercised on a rational and explainable basis.

It flies in the face of reason and logic, as well as the basic

precepts of our American ideals, to conclude that the legislature

vested unbridled authority in the judiciary when it so carefully

spelled out the duties and obligations of the judges in all other

aspects of criminal proceedings.

Just because the legislature provides a range of ten years,

it would be nonsense to conclude that, in a particular case,

it would make no difference in terms of legislative intent

whether the sentence was for one year or ten.

Since Tuttle, supra, this court will determine whether or

not a trial judge has abused his sentencing discretion.

The recent case of

Riley v. State (1970),

 47 Wis.2d 801,

177 N.W.2d 838,

reviewed a number of post-Tuttle cases in which this court

considered the trial judge's sentencing discretion.

In discussing review of sentencing, we have frequently

restated the Tuttle caveat (supra, page 150):

          ". . . that this question should be treated

          in terms of strong policy against

          interference with the discretion of the

          trial court in passing sentence . . . ."

Similar language runs through

Jung v. State (1966),

 32 Wis.2d 541, 548,

145 N.W.2d 684;

State v. Woodington (1966),

 31 Wis.2d 151, 183b,

142 N.W.2d 810,

143 N.W.2d 753;

Price v. State (1967),

 37 Wis.2d 117,135,

154 N.W.2d 222;

Nelson v. State (1967),

 35 Wis.2d 797,

151 N.W.2d 694;

Finger v. State (1968),

 40 Wis.2d 103,

161 N.W.2d 272;

Deja v. State (1969),

43 Wis.2d 488,

168 N.W.2d 856;

State v. Harling (1969),

44 Wis.2d 266,

170 N.W.2d 720;

Cheney v. State (1969),

44 Wis.2d 454,

171 N.W.2d 339,

174 N.W.2d 1.

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It is thus clear that sentencing is a discretionary

judicial act and is reviewable by this court in the

same manner that all discretionary acts are to be reviewed.

In the first place, there must be evidence that

discretion was in fact exercised.

Discretion is not synonymous with decision-making.

Rather, the term contemplates a process of reasoning.

This process must depend on facts that are of record or that are

reasonably derived by inference from the record and a conclusion

based on a logical rationale founded upon proper legal standards.

As we pointed out in

State v. Hutnik (1968),

 39 Wis.2d 754, 764,

159 N.W.2d 733,

               ". . . 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."

A similar rule is applicable in the exercise of judicial

discretion in a civil case where damages are disputed

in motions after verdict.

We have held that we will not upset a post-verdict

damage determination by a trial judge unless

there is an abuse of discretion.


Boodry v. Byrne (1964),

 22 Wis.2d 585,

589, 126 N.W.2d 503,

we stated that,

          ". . . this court will not find an abuse of

          discretion if there exists a reasonable basis

          for the trial court's determination. . . ." 

          In cases where the trial judge has failed to

          set forth his reasons, we examine the record

          ab initio to resolve the post-verdict damage


Unless there is evidence that the trial judge has undertaken a

reasonable inquiry and examination of the facts as the basis of

his decision, his decision will be disregarded by this court.

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Such a decision on its face shows an abuse of

discretion for failure to exercise discretion.

The same rationale is applicable in reviewing

a criminal sentence.

We have frequently stated that we will remand for sentencing

or modify the sentence only when an abuse of discretion

clearly appears.

By this we mean that this court should review and reconsider an

allegedly excessive sentence whenever it appears that no

discretion was exercised in its imposition or discretion

was exercised without the underpinnings of an

explained judicial reasoning process.

Where the judicial sentencing discretion is exercised on

the basis of clearly irrelevant or improper factors,

an abuse of discretion also results.

In addition to the desirability of reviewing sentences to make

sure that they are just, commensurate with the degree of guilt

and the need for rehabilitation of the defendant, the American

Bar Association Standards point out that sentence review will

facilitate the rehabilitation of the offender by affording

him an opportunity to assert a reasonable grievance he

may have regarding his sentence.

A by-product of a reasonable review of sentencing by an appellate

court may well be the diminution of the appellate court's

workload by reducing appeals on the merits.

In general an appeal from a sentence, at least where the trial

judge has demonstrated his exercise of discretion in a written

sentencing judgment, could be much more summarily handled than

the average appeal on the merits.

The American Bar Association committee takes notice of the fact,

well known to this court, that many appeals ostensibly directed

to the merits really result from sentencing dissatisfaction.

James Bennett, former director of the federal prison system,

has pointed out that,

          ". . . 40 to 50 percent of the time of the

          appeals court is required to review cases

          which would not be there had a reasonable

          sentence been pronounced."

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Bennett, The Sentence Ä

Its Relation to Crime and Rehabilitation,

S. Doc. No. 70, 88th Cong., 2d Sess., 307, 311 (1964),

as quoted in

American Bar Standards Relating to

Appellate Review of Sentencing,

Commentary, page 30, Section 1.2(h).

A realistic review of sentencing by a collegial court, where

collective judgment may be exercised, would not only result

in the correction of occasional abuses of power, but also

would better give the appearance of justice.

               "It is shocking, to say the least,

               that the United States is the only

               country in the free world where not

               only can a single man sentence

               without explaining why, but where

               there is no regular channel for

               review of his work."

American Bar Association Project, Approved Draft,

Standards Relating to Appellate Review of Sentences,

Commentary, page 26, Section 1.2(d).

Perhaps most importantly, the review of sentences on a consistent

and rational basis will inevitably lead to the development of

criteria to be used by trial judges in the sentencing process.

The judges of this state have shown great concern

and interest in sentencing problems.

No trial judge approaches the sentencing function with

anything but the deepest sense of responsibility.

However, appellate courts and this court have almost completely

washed their hands of this problem, leaving it to the harassed

and overworked trial judge to independently reach a rational

sentencing decision, without the opportunity of having his

judgment and discretion tested on a statewide basis, as

it is in respect to all other judicial problems.

Additionally, the trial bench has been deprived of the assistance

that would be afforded by the appellate discussion and affirmance

of well thought out sentencing judgments of trial courts.

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The failure has been the appellate courts far

more than that of the trial bench.

The American Bar Association Project, Approved Draft, Standards

Relating to Appellate Review of Sentences, Commentary, supra,

page 29, points out:

     ". . . sentence review can contribute to the

     development of sound sentencing principles and thus

     lead closer to the goal of approaching each defendant

     on the same basis.

     This in turn can be brought about in two ways:

     the requirement that the sentencing judge articulate

     the basis for his sentence will assist him in

     developing for himself a set of consistent principles

     on which to base his sentences;

     and the articulation in written opinions of the basis

     for a modification by an appellate court should lead to

     similar development on a more widely applicable scale."

The following was written thirty years ago, and it is

in most jurisdictions no less true today:

     "The law gives the judge wide discretion in sentencing,

     but furnishes him no assistance in exercising that


     In performing their ordinary judicial functions, judges

     base their actions either on statutes or on prior

     judicial decisions and practices.

     Controversies involving innumerable difficult legal

     questions have in the course of centuries been appealed

     to the . . . appellate courts. . . .  These courts have

     written opinions recorded in vast legal libraries.

     But in the difficult and important task of sentencing

     offenders, there are almost no precedents or standards

     to follow.

     Since determining what sentence to impose has nearly

     always been a matter of judicial discretion, few

     opinions have been written to explain sentences.

     The knowledge and wisdom of individual judges have thus

     died with them."

Warner & Cabot, Judges and Law Reform 159-60 (1936).

Compare Glueck, Crime and Justice, pp. 128-29 (1936).

Sentence review at least holds out the hope that the knowledge

and wisdom of our experts will not die with them.

It also holds out the hope that our system will be

fairer and more equitable for that reason.

In all Anglo-American jurisprudence a principal obligation

of the judge is to explain the reasons for his actions.

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His decisions will not be understood by the people and

cannot be reviewed by the appellate courts unless the

reasons for decisions can be examined.

It is thus apparent that requisite to a prima facie valid

sentence is a statement by the trial judge detailing his

reasons for selecting the particular sentence imposed.

An appellate court should not supplant the predilections

of a trial judge with its own.

Appellate judges should not substitute their preference for a

sentence merely because, had they been in the trial judge's

position, they would have meted out a different sentence.

As in the examination of damages in a civil suit, 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 the facts are fairly inferable from the record, and the

reasons indicate the consideration of legally relevant

factors, the sentence should ordinarily be affirmed.

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.

In any instance where the exercise of discretion has been

demonstrated, this court follows a consistent and strong

policy against interference with the discretion

of the trial court in passing sentence.

Woodington, supra, page 183b.

We adopt Standard 2.3(c) of the American Bar Association

Standards Relating to Appellate Review of Sentences, page 11,

which provides:

     "The sentencing judge should be required in every case

     to state his reasons for selecting the particular

     sentence imposed.

     Normally, this should be done for the record in the

     presence of the defendant at the time of sentence.  In

     cases in which the sentencing judge deems it in the

     interest of the defendant not to state fully the

     reasons for the sentence in the presence of the


     he should prepare such a statement for transmission to

     the reviewing court as a part of the record."[fn2]

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The purpose of the sentencing statement is not only to

aid in appellate review but also to facilitate the

trial judge's rationale of his sentences.

The requirement that the reasons for sentencing be stated

will make it easier for trial judges to focus on

relevant factors that lead to their conclusions.

As Judge LUTHER YOUNGDAHL has said in

Remarks Opening the Sentencing Institute Program,

Denver, Colorado, 35 F.R.D. 387, 388 (1964),

     "a good sentence is one which can be reasonably explained."

The problem in the instant case arises because the trial

judge failed to give his reasons why a lengthy,

near-maximum sentence was appropriate.

He very well and properly stated his reasons why

probation was not appropriate, but gave no reason

for the sentence he did impose.

On its face, therefore, it appears that the sentence is the

product of an abuse of discretion in that there was no

delineation of any of the factors utilized by the

trial judge in the exercise of discretion.

As in Hutnik, supra, the failure to exercise discretion

(discretion that is apparent from the record) when

discretion is required, constitutes an abuse of discretion.

We will not, however, set aside a sentence for that reason;

rather, we are obliged to search the record to determine

whether in the exercise of proper discretion the

sentence imposed can be sustained.

It is not only our duty not to interfere with the discretion

of the trial judge, but it is, in addition, our duty to

affirm the sentence on appeal if from the facts of

record it is sustainable as a proper discretionary act.

We cannot from an examination of the record herein find

facts to support the trial court's choice of sentence.

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McCleary was a first offender.

His was not a crime of violence; it was solely against property.

While the protection of property is vital to the viability of our

free American society, it is important to note that McCleary

stated he did not intend to place the financial onus on Kroger's,

but rather that Kopatich, who he claimed owed him money, would

be responsible for the check drawn on his account.

This is, of course, no less of a crime; but when so viewed, it is

apparent that the forging of the check was not an episode in a

calculated vendetta against our society, but was rather an

ill-conceived, immature act of one who sought retribution

from an individual who he believed had defrauded him.

However, the trial judge as a matter of credibility chose

to disbelieve the defendant, and we are bound by

that factual conclusion.

But the disbelief of McCleary does not reasonably lead to the

conclusion that the isolated act of forgery constituted a

political-economic blow against the "system."

The presentence investigation was the work of a new and

inexperienced caseworker, who had, according to the record,

no prior experience or training in probation work.

He was a philosophy major with two years of

graduate work in the same subject.

He attributed great import to books that the

defendant had read at an early age.

The probation officer stated in his report:

     "The defendant's relationship with these relatives was

     good, but he became bored and took up reading as his

     favorite pastime.

     The defendant indicated that at a very early age he

     read such books as 'Das Kapital' and 'De Rerum Natura.'

     (It is obvious to the investigating officer that these

     and many other books were very influential to the

     defendant when he was at a ripe age.

     Such influence has made the defendant's interests and

     thoughts very stereotyped.)  The defendant further

     stated that he had many mixed feelings about the

     society in which he lived.

     Although the defendant is ambivalent in many respects,

     he attributes this feeling to the incompatibility

     which exists between his `idealogy' and

     the society in which he lives."

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From this report the trial judge apparently drew the

conclusion that the defendant had a "nichey" (sic)

attitude and considered himself above the law.

The observation was proper in respect to accepting the plea

of guilty and in rejecting the probation alternative.

The trial judge obviously felt, and said, that incarceration

was necessary in view of the defendant's attitude, but he

gave no reason why the ten-year sentence

(later reduced to nine) was necessary.[fn3]

Reading the long disproved labyrinthine syllogistic "economic

science" of Karl Marx is not a crime, though perusal of

its turgid marshalling of preconceived prejudices

may well be a form of punishment.

It is ridiculous to assume, despite McCleary's ambivalence

toward his society, that his check passing at Kroger's

constituted a subversive political economic conspiracy

to hasten the "withering away" of the state.

The Marxist theory of "socialist inevitability" does not rely

on check forgers to hasten the disintegration of the state.

The reading of De Rerum Natura and even the acceptance of some

of its philosophy is not punishable as a crime.

This writer would venture to guess that this eye-to-eye

confrontation between a philosophy major lately turned

probation officer and a convicted forger discussing

The Nature of Things is unique in the annals of

probation history.

But De Rerum Natura is no mean literary achievement,

and it is surprising that its reading should have

been considered evidence of dark and dangerous

designs against our society.

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Macaulay, in referring to De Rerum Natura, stated:

     "In energy, perspicuity, variety of illustration,

     knowledge of life and manners, talent for description,

     sense of the beauty of the external world, and

     elevation and dignity of moral feeling, Lucretius has

     hardly ever an equal."

Quoted in Lucretius, on The Nature of Things, page 9,

Translation by L. L. Johnson, Centaur Press, Ltd.,

Fontwell Sussex, Great Britain.

Although the philosophy of Lucretius is by no means consistent

with the Christian ethic, some commentators credit him with the

rationale that effectively demolished the beliefs that supported

the polydeistic theories of the Romans and made more readily

acceptable Christian monotheism.

This writer, who as a prosecutor has read presentence reports on

the state and federal level for fifteen years, is of the opinion

that the philosopher-probation agent was overzealous in

attempting to make his past educational experience

pertinent to his new job.

True, the sentencing judge, as pointed out in the concurrence to

Riley v. State, supra, has the opportunity, not afforded to

this court, of observing the defendant's demeanor.

This is reason for deferring to the trial court's discretion

when there is evidence that it is exercised.

It is not reason for foreclosing appellate review.

In the instant case, only six pages of the record in the first

sentencing were devoted to the testimony of McCleary.

It may well be doubted that, on the basis of such brief

appearance before the court, any observations could

be made that would justify a ten-year sentence.

If sentencing is to be based on such observations, they should be

made a part of the record and subject to consideration as facts

underlying the trial judge's exercise of discretion.

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We are satisfied that in the instant case there is no

evidence that judicial discretion was exercised in

a manner that justifies a near-maximum sentence.

Our review of the record, giving due deference to the trial

judge, convinces us that this is a run-of-the-mine

forgery case, less aggravated than many.

None of the facts set forth in the presentence report

or the entire record justifies a ten-year sentence.

There is nothing in the record to show any tendency toward

violence or a tendency to persist in criminal conduct.

McCleary stated that he was now aware of the seriousness

of his offense and had learned his lesson.

While the trial judge is not obliged to place much credence in

this eleventh hour remorse, McCleary's statement is entirely

inconsistent with the assumption that his "nichey" attitude

of defiance of the law would persist.

The sentence is therefore set aside on the ground that

the trial judge failed to exercise any discretion

justifying so lengthy a sentence.

Under the facts of the record, it is excessive.

The attorney general argues that the future of this defendant

as a free member of our society is not substantially foreclosed

by the fact that he received a sentence of nine years.

He correctly points out that an indeterminate

sentence was imposed.

Such a sentence is authorized by Section 959.05, Stats.

Section 959.05(1)(b) provides that:

          "The sentence shall have the effect of a

          sentence for the maximum term fixed by the

          court, subject to the power of actual release

          from confinement by parole by the state

          department of public welfare, or by

          pardon as provided by law."

Section 57.06, Stats., authorizes a parole of

an inmate of the Wisconsin state prisons

     "when he has served the minimum term prescribed by

     statute for the offense (which [minimum term] shall be

     one year unless a greater minimum is prescribed by the

     statute defining the crime). . . ."

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Under these statutes, the attorney general points out

that McCleary attained parole eligibility after

one year's imprisonment.

It is therefore argued that the actual period of incarceration

likely to result from this sentence is not excessive even though

it be conceded, arguendo, that actually serving a ten-year term

would be excessive punishment for the crime of forgery under

these circumstances.

This, of course, is a nearly explicit admission of the

excessiveness of the sentence, but the attorney general

argues that the abuse of trial court discretion will be

ameliorated by legislative grace exercised by the

department of health and social services.

Also implicit in this argument is the contention that the

judiciary assumes no responsibility for sentences imposed.

The assumption of the attorney general is that the parole board

completely disregards the exercise of judicial discretion or the

absence of it at sentencing and makes its own determination ab

initio as the result of its studies of the prisoner.

The argument is based on the premise that there is no

relationship between the sentence imposed

and the time actually served.

No evidence has been submitted in support of this assertion,

however, and it appears to run counter to the experiences

of this court, which indicate there is a relationship between

the length of sentence and the date of first granting parole.

It should be pointed out that the records of the department

of health and social services show that McCleary did make

application at the time of original eligibility and

parole was denied.

Moreover, if the indeterminate sentence is of no consequence in

determining the actual period of incarceration, then the much

vaunted opportunity of the trial judge to observe the defendant

and base his conclusions on the facts as he sees them in the

course of trial is a completely irrelevant exercise in futility.

We doubt that even the most ardent opponents

of sentence review would accept this thesis.

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It should be noted also that the date of mandatory

release is directly related to the maximum sentence.

Our experience in reviewing petitions of persons incarcerated

at the state prison indicates that large numbers of prisoners

do not attain their freedom until the date for mandatory

release has arrived.

The indeterminate sentence serves a useful penological and

rehabilitative purpose, and it vests considerable discretion

in the hands of those who are best able to determine the

progress toward rehabilitation that a prisoner makes

during a term of incarceration.

The fact that egregious errors of the judiciary can thus be

partially corrected in no way absolves the court system

from its duty to dispense justice fairly.

Moreover, if in a proper case the judge, in the exercise of

proper discretion, imposes a severe sentence which has the

approval of the public, it is a fraud on the public if

sentences thus imposed on dangerous criminals are

completely disregarded by the probation department.

We serve no public interest by perpetuating the canard of

judicial sentencing if the sentence is in fact meaningless.

We are satisfied that a sentence properly imposed in the

exercise of judicial discretion is, and should be,

considered highly relevant in the determination

of parole by the department of health

and social services.[fn4]

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As we have stated, our review of the record

indicates that this is a mine-run forgery.

Its only deviation from the usual first offense is the evidence

of record that indicates the defendant considered himself

to be above the laws designed to control relations between

citizens and that, hence, a substantial period of

close rehabilitative control appeared in order.

For this reason the trial judge properly denied probation.

Although the sentence imposed constituted an abuse of discretion

in that no reasonable explanation was given for the near-maximum

sentence, we are satisfied that a substantial term of

imprisonment should nevertheless be imposed.

Numerous attempts have been made to formulate and codify

guidelines for the exercise of the sentencing power.

Among the better known efforts are the Model Sentencing Act,

prepared by the Advisory Council of Judges of the National

Council on Crime and Delinquency, and the Model Penal Code,

prepared by the American Law Institute.

Both of these proposed codes appear in the appendices to the

American Bar Association Standards Relating to Sentencing

Alternatives and Procedures.

Each of these proposed codes distinguishes types of felonies.

In the Model Sentencing Act, McCleary's offense is of

the type denominated as not dangerous or atrocious.

Under the proposed recommendation of the Model Sentencing Act,

a dangerous offender may be sentenced to as much as thirty

years' imprisonment, but an ordinary felon, it is suggested,

should receive a maximum of five years.

A dangerous offender is one who is sentenced for a felony

involving serious bodily harm and has a personality disorder

indicating a propensity toward criminal activity.

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In general, the category of dangerous offender is

reserved for those who have committed a crime

which seriously endangers the safety of others.

The Model Penal Code also attempts to categorize

felonies into first, second, and third degree.

In general, the ordinary term for a third-degree offender,

in which category McCleary's crime would fall, runs from a

minimum of one year to a maximum of not to exceed five years.

Extended terms are to be available if there is evidence that

the defendant is a dangerous, mentally abnormal person whose

extended incarceration (after a psychiatric examination) for

the protection of the public.

The approved American Bar Association Standards Relative to

Sentencing Alternatives and Procedures, page 13, Section 2.1(d),

takes the position that the maximum term to be imposed for a

crime not involving the physical safety of others should not

ordinarily exceed five years.

We adopt none of these Standards relating to length of sentence,

but we find it persuasive that the considered judgment of all

these studies concludes that the ordinary offender ought not

be sentenced to a term in excess of five years unless

circumstances are present which trigger a proper exercise

of judicial discretion to impose a greater sentence.

None of these circumstances are apparent from

the record in this case.

In imposing the term of five years in this case, we do so in

deference to the judgment of the trial judge and impose what

we consider to be the maximum sentence that reasonably ought

to be imposed in light of the facts revealed in the record

and the trial judge's partial appraisal of these facts.

We wish to make it absolutely clear, however, that a trial judge,

in an aggravated case and in the exercise of proper discretion,

could impose a maximum ten-year sentence in a forgery case and

that such discretion would be sustained by this court.

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We conclude that, for purposes of parole eligibility and

service of the sentence now imposed, the term of imprisonment

shall commence on the date of McCleary's original sentence, to

wit, twelve o'clock noon on March 21, 1969.

By the Court. Ä 

The sentence heretofore imposed by the circuit court for

Milwaukee county on September 2, 1969, is set aside and vacated.

The defendant, Richard David McCleary, is hereby sentenced to the

Wisconsin state prisons at hard labor for an indeterminate term

of not more than five years, the term to commence at twelve

o'clock noon on March 21, 1969.

[fn1]     For an excellent discussion of the dire consequences to

          society unfair and excessive sentences go uncorrected,

          see Menninger, The Crime of Punishment.

[fn2]     The application of this section was heretofore

          discussed in Denny v. State (1970),

                        47 Wis.2d 541, 546, 547,

                       178 N.W.2d 38,

          in connection with resentencing after retrial.

[fn3]     At this point it would have been appropriate for the

          trial judge to make a statement indicating why a

          near-maximum sentence conformed to the sentencing

          standards of the American Bar Association, supra, i.e.,

          that the custody imposed was the minimum consistent

          with the protection of the public, the gravity of the

          offense, and the rehabilitative needs of the defendant.

[fn4]     The writer of this opinion sees great merit in a true

          indeterminate sentence, if it were made clear to the

          public that the actual term of incarceration is a

          matter of legislative prerogative to be exercised

          through the probation and parole agents.

          But as sentences are now imposed, the public is misled

          into thinking that a trial judge has safely isolated a

          dangerous criminal from society when, in fact, all he

          has done is to turn him over to "experts" for analysis

          and treatment, and possible early release.

          This may be good penology and good sociology, but it

          does not comport with fundamental honesty in dealing

          with the public Ä at least if we take seriously the

          attorney general's argument that the judicially imposed

          sentence is irrelevant.

HALLOWS, C.J. (concurring).

I concur with much of what is said in the court's opinion,

but I would go farther in justification of the result.

This is the second case to modify the sentence

pronounced by a trial court since

State v. Tuttle (1963),

21 Wis.2d 147,

 124 N.W.2d 9,


Jung v. State (1966),

32 Wis.2d 541,

145 N.W.2d 684,

which recognized the power of this court

to review the propriety of a sentence.

In both of these cases and in some subsequent cases, it was

stated the court would only reverse or modify a sentence

in a rare instance of abuse of discretion.

Both Tuttle and Jung were decided before the American Bar

Association's standards on sentencing were drafted and approved.

In Jung we pointed out the then lack of standards or agreement in

sentencing and stated at page 548 a study of the problem was then

in progress by the American Bar Association.


Denny v. State (1970),

 47 Wis. 2d 541,

178 N.W.2d 38,

this court by its mandate reduced a sentence because the trial

court was in error in resentencing the defendant to a greater

sentence than he received at the first trial.

Denny pointed out the importance, in resentencing, sentencing on

a new trial, or modifying a sentence, of the court having the

transcript of the original sentencing and the need for the

reasons for the sentence appearing in the record because we are

being increasingly called upon to review criminal sentences.

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Denny states, at page 546,

     ". . . trial courts must now make a record of the

     concrete, identifiable, specific reasons for all

     resentencing, so this court can properly reconstruct

     what happened in reviewing the sentence."

We also pointed out the necessity of including the presentence

report when used by a trial judge and of requiring it to appear

in the record, citing

Embry v. State (1970),

 46 Wis.2d 151,

174 N.W.2d 521,

and the Standards Relating to Appellate Review of Sentences,

American Bar Association Project on Minimum Standards for

Criminal Justice, Approved Draft, 1968, page 42, Section 2.3.

The lack of a complete record on sentencing

should be error, not an abuse of discretion.

In my view of the case before us, the reduced sentence is

justified on the merits and not because the trial court failed to

give reasons in the record why the lengthy sentence was imposed.

The trial court did give its reasons briefly in one form or

another but they are insufficient to justify the sentence

when all facts appearing in the record are considered.

The court's opinion views this case as within the rule

that we only modify a sentence when it results

from an abuse of discretion.

This court should review sentencing as a matter of course as it

does other legal issues.  If the "abuse of discretion" test is

to be used, then the concept of abuse should be liberalized or

the error-concept adopted.

See the dissent in

Riley v. State (1970),

 47 Wis.2d 801, 809,

177 N.W.2d 838.

What the majority calls an abuse of discretion

may well be a constitutional error.

An excessive sentence may be so greatly disproportioned to

the offense charged as to constitute a violation of the

constitutional guarantee against cruel and unusual punishment.

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Weems v. United States (1910),

217 U.S. 349,

 30 Sup.Ct. 544,

 54 L.Ed. 793.


Ralph v. Warden (4th Cir. 1970),

438 Fed. 2d 786,

the court, quoting from Weems, stated,

          The court gave full effect to current

          concepts of proportionality, because the

          cruel and unusual punishment clause is

          "progressive" and "is not fastened to the

          obsolete, but may acquire meaning as public

          opinion becomes enlightened by a humane


See also:

Trop v. Dulles (1958),

356 U.S. 86, 101,

 78 Sup.Ct. 590,

 2 L.Ed.2d 630,

          "The [eighth] amendment must draw its meaning

          from the evolving standards of decency that

          mark the progress of a maturing society."

The trial court was in error in not considering

the sentence given to Gregory James Heydak.

In multibranch criminal courts, as in Milwaukee,

it is important that the judges conducting criminal

trials follow general standards to insure uniformity

and equality in individualized sentences.

There should be no tough judge or soft judge.

Great disparity in substantially similar cases

is one of the current injustices in our jurisprudence

and the grounds of many complaints to this court.

There is need for the establishment and unification of guidelines

for all sentencing which should apply not only to a multibranch

criminal court but also to all courts in the state.

The objectives of criminal sanctions can be developed by trial

judges becoming more concerned and cognizant of uniform standards

of individualizing sentences; and like other legal solutions,

standards can be developed by judicial appellate review and

decision on the merits of sentences.

It is no longer acceptable that a sentence within the maximum

allowed by statute is not an abuse of discretion.

The present trend is toward uniform guidelines

in criminal sentencing and procedure.

Some of these have been set forth in three

American Bar Association standards, i.e.,

Standards Relating to Criminal Appeals;

Standards Relating to Sentencing,

Alternatives and Procedures;


Standards Relating

to Appellate Review of Sentencing.

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This new concern of sentencing and the need for uniform

guidelines have been the subject of many state institutes

for judges on sentencing and is now an important and popular

course in the National College of State Trial Judges.

This concern also motivated this court to recognize

jurisdiction in the trial court to reconsider a

sentence after the defendant had been imprisoned.

Hayes v. State (1970),

46 Wis.2d 93, 175 N.W.2d 625.

Although this court ought not to set aside a valid sentence

because it is excessive and impose a new sentence to commence

retroactively, such procedure was required in this case because

the trial court did not follow the recommendations in Hayes.

Rather than modify the original sentence, the trial court vacated

it and imposed a new sentence which was not made retroactive.

ROBERT W. HANSEN, J.  (dissenting).

This case seems to involve three "R's" Ä reading, 'riting and

repetition Ä with the third "R" the important one here.

What got the defendant into trouble with

the law was not his reading.

One need not subscribe in toto to the literary critiques in

the majority opinion to agree that the reading interests of

the defendant have no relevance to charge, conviction

or sentence imposed.

In fact, as a former mayor of New York City implied,

checks are not forged by books.

What brought the defendant to court was the second "R" Ä 'riting

Ä in this case, writing a forged check.

His plea of nolo contendere and a presentence investigation

preceded the imposition of sentence.

However, on the matter of the sentence to be imposed, it is the

third "R" Ä repetition, the predictability of reoccurrence Ä that

became material, in fact, controlling.

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In imposing the maximum sentence of ten years (subsequently

reduced on motion to nine years), the trial court stated:

The Court:     I want to read into the record

               certain pertinent portions of the

               presentence report, on Page 1 under

               the heading "Defendant's statement: 

               The defendant disclosed that he had

               always taken pride in his ability

               to cash checks.

               The defendant added that he didn't

               feel that he would be caught for

               this offense and that he had no

               respect for the authorities.

               The defendant denied any feeling of

               guilt in this offense as he does

               not consider taking money from

               institutions "stealing" but

               "profit sharing."

               The defendant continued his

               statement by stating how superior

               he felt to most other people,

               including the law itself. . . .

As the probation officer stated in his "summary and

recommendations," such statements go beyond establishing "that

the defendant does not have the proper attitude or sense of

responsibility needed in order to benefit from probation."

They support the conclusion that "it appears to the law

investigating officer that the defendant has no desire to change

or conform to them [the laws of society]."

The court was confronted and society threatened by the

predictability of repetition Ä of the same type of offense by the

same defendant.

It is a principal, public-protecting purpose of the whole process

of the administration of criminal justice to make recidivism less


Whether this purpose can best be served by probation or

incarceration depends upon the facts and factors in a particular


The choice between supervision and isolation is a choice between

tools to use in seeking to insure some insurance against


The majority opinion concedes that the facts in the presentence

report justified the trial court "in rejecting the probation

alternative"  The writer would agree that probation is not

indicated for a convicted felon who states that he has no sense

of guilt, no remorse, and gives every indication that he does not

intend to abide by the laws of society.

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However, the majority states that while the trial judge

"obviously felt, and said, that incarceration was necessary in

view the defendant's attitude," he "gave no reason why the

ten-year sentence (later reduced to nine) was necessary."

No search is necessary for the reason.

It is the same reason:  what the majority terms "the defendant's

attitude," and what the writer would term the "predictability of


Future conduct as well as present attitude are involved.

The length of, as well as the necessity for, incarceration are

alike involved where it is made clear by a defendant that he

intends to continue to act in defiance of the laws of the land.

The defendant's express intention to live ungoverned by the law

provides both reason and reasonableness to the sentence imposed.

If, in fact, the majority felt that the trial judge here had

imposed sentence "without explaining why," the appropriate remand

would be for resentencing or completion of the record by stating

such reasons.

Instead the majority reduces the nine-year sentence to five


The four-year difference between the trial court and appellate

court sentences does not affect eligibility to parole.

The majority thinks it may, or at least should, affect the

granting of parole.

Here the defendant has applied for parole, and action on his

application has been deferred, not denied.

However, the majority points out that the maximum sentence is

related to the date of mandatory release.

Exactly so, and exactly why, given the defendant's attitude and

intentions, early release without a wholehearted change as to

attitude and intent was not in the public interest.

The indeterminate sentence law is intended not only to justify

earlier release where prospects for conforming to the laws are

good, but to continue isolation from the community where such

prospects are poor, or, as here, without a change of attitude,


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The majority gives weight to the defendant's statement, made at

the time of his motion for reduction of sentence, that he had

"learned his lesson," finding it "entirely inconsistent" with the

assumption that defendant's defiance of the law would continue.

It concedes that the trial court was not obliged to place much

credence in "this eleventh hour remorse."

Post-midnight repentance might be a more apt description,

chronologically speaking.

Actually, the trial court was required to give the statement no

credence, and none it gave.

To give it weight, even mention, on appeal is to substitute the

judgment of a court that did not hear the statement for the

evaluation of the court that did.

What is puzzling and disturbing in the majority opinion is the

holding that "this is a mine-run forgery."

Coupled with a detailed reference to a proposed Model Sentencing

Act (presumably intended for legislative, not judicial,

consideration) that categorizes felonies into first, second and

third degrees, the implication is clear that forgery, as a crime

against property, is not considered as a very serious offense.

The suggested distinction between "a dangerous offender" and "an

ordinary felon" clearly puts forgers with the ordinaries.

If there is merit to such categorization, it is enough to say

that the legislature, not the courts, ought adopt it.

If the "considered judgment of all these studies" is accepted by

this court as persuasive that "the ordinary offender ought not be

sentenced to a term in excess of five years unless circumstances

are present" etc.

, we have a new maximum sentence established not by the

legislature, but by this court, based upon a distinction between

"dangerous" and "ordinary" not established by the legislature,

but recognized by this court.

That makes this court not only a reviewing court as to sentences

imposed by trial courts, but a super-legislature determining for

itself the relative seriousness of differing crimes as well as

the appropriateness of sentences imposed within statutorily set


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Prophecy is always a risky undertaking, but the writer has some

doubts about the majority opinion's prediction that "a byproduct

of a reasonable review of sentencing by an appellate court" may

well be the "diminution of the appellate court's workload by

reducing appeals on the merit."

It may be that the convicted criminal who has neither the law nor

the facts on his side will be reduced to complaining about the


However, it is as likely that he will add a complaint as to the

sentence to other points raised on appeal or by writ.

The shotgun, not the rifle, is the model for most appeals in

criminal cases.

The concurring opinion relates a reduction of sentence in this

case to the matter of "great disparity [in sentences imposed] in

substantially similar cases."

Case-by-case adjustment downward by an appellate court is hardly

an answer to so complex a problem.

As the writer pointed out, concurring in

Riley v. State (1970),

 47 Wis.2d 801, 808, 809,

177 N.W.2d 838,

the  "various proposals for legislative action to promote

     greater uniformity in sentencing procedures . . . limit

     the reviewing agency created to eliminating disparate

     results, and authorize adjusting sentences up or down

     to further this goal. . . ."

In any event, as stated in Riley, the writer believes that,

under our form of government, the

     "discussion and decision in this area belong to the

     legislative branch of our government,

     not the judicial."

If guidelines there are to be, however or by whom established,

the writer would hope that they would include reserving to trial

judges the right to impose a maximum sentence where a convicted

defendant makes clear that he will repeat the offense or violate

the laws as soon as he is given the opportunity to do so.

The people are entitled to the fair and firm enforcement of

criminal laws, including protection against repetition of the

same offense by the same offender.

The writer would affirm.

                                                         Page 299

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Sixteen Logical pages of McCleary Citations:

   Statutory Law           Related CASE law

   ADVANCE Case Law        Unpublished cases


McCleary v. State CITATIONS................Page 1 of 16

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Statutory Law citing McCleary v. State,

                      49 Wis.2d 263             (1971)

                     182 N.W.2d 512

Section 973.013 Indeterminate Sentence

                Wisconsin State Prisons


ADVANCE CASE LAW citing McCleary v. State,

                         49 Wis.2d 263          (1971)

                        182 N.W.2d 512

In the Matter of Sanctions in State v. Rodgers  (1998)


UNPUBLISHED CASE LAW citing McCleary v. State,

                             49 Wis.2d 263      (1971)

                            182 N.W.2d 512

State v. --------  UNPUBLISHED CASE LAW citing

McCleary v. State  49 Wis.2d 263,

                  275-276 182 N.W.2d 512 (1971)

Before the Wisconsin Court of Appeals 7/27/98:


1998:      Blackwell       Kirkpatrick          Procell



Anderson   Eick       Hamdan      Kaufman      Olsen

Beu        Franklin   Hardnett    Koepp        Penkoske 

Boyles     Gadach     Helgeland   Miller       Williams

Brannon    Grimes     Johnson     Minniecheske



Avila      Gates      Roberts      Werchowski

Becker     Glass      Schoeneberg  Yang

Dortch     Hall       Setagord


1995:      Bankston       Coates       Gamer       Pirk


McCleary v. State CITATIONS................Page 2 of 16

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Case Law citing McCleary v. State,

                      49 Wis.2d 263              (1971)

                     182 N.W.2d 512

State v. Lechner,                                (1998)

State v. Steele,                         (Ct.App. 1998)

State v. Nagel,                          (Ct.App. 1998)

State v. Sullivan,                               (1998)

State v. Panknin,                        (Ct.App. 1998)

State v. Barney,

213 Wis.2d 344                           (Ct.App. 1997)

State v. Smith,

203 Wis.2d 288                           (Ct.App. 1996)

553 N.W.2d 824

State v. Ogden,

199 Wis.2d 566                                   (1996)

544 N.W.2d 574

Hacker v. DHSS.,

197 Wis.2d 441                                   (1995)

541 N.W.2d 766

Peplinski v. Fobe's Roofing,

193 Wis.2d 6                                     (1995)

531 N.W.2d 597

State v. Kennedy,

190 Wis.2d 252                           (Ct.App. 1994)

528 N.W.2d 9

State v. Toliver,

187 Wis.2d 346                           (Ct.App. 1994)

523 N.W.2d 113

State v. Smet,

186 Wis.2d 24                            (Ct.App. 1994)

519 N.W.2d 697

State v. Iglesias,

185 Wis.2d 117                                   (1994)

517 N.W.2d 175

In Re Marriage of Prosser v. Cook,

185 Wis.2d 745                           (Ct.App. 1994)

519 N.W.2d 649

Strong v. Brushafer,

185 Wis.2d 812                           (Ct.App. 1994)

519 N.W.2d 668


McCleary v. State CITATIONS................Page 3 of 16

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Schultz v. Darlington Mut. Ins.,

181 Wis.2d 646                                   (1994)

511 N.W.2d 879

State v. Johnson,

178 Wis.2d 42                            (Ct.App. 1993)

503 N.W.2d 575

State v. Speer,

176 Wis.2d 1101                                  (1993)

501 N.W.2d 429

Singer v. Jones,

173 Wis.2d 191                           (Ct.App. 1992)

496 N.W.2d 156

State v. Handley,

173 Wis.2d 838                           (Ct.App. 1993)

496 N.W.2d 725

State v. Thompson,

172 Wis.2d 257                           (Ct.App. 1992)

493 N.W.2d 729

State v. Babler,

170 Wis.2d 210                           (Ct.App. 1992)

487 N.W.2d 636

State v. Canadeo,

168 Wis.2d 559                           (Ct.App. 1992)

484 N.W.2d 340

Galang v. Medical Examining Board,

168 Wis.2d 695                           (Ct.App. 1992)

484 N.W.2d 375

In Re Marriage of Gerrits v. Gerrits,

167 Wis.2d 429                           (Ct.App. 1992)

482 N.W.2d 134

State v. Borrell,

167 Wis.2d 749                                   (1992)

482 N.W.2d 883

Burkes v. Hales,

165 Wis.2d 585                           (Ct.App. 1991)

478 N.W.2d 37

State v. Dietzen,

164 Wis.2d 205                           (Ct.App. 1991)

474 N.W.2d 753


McCleary v. State CITATIONS................Page 4 of 16

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State v. Paske,

163 Wis.2d 52                                    (1991)

471 N.W.2d 55

Milwaukee Journal v. UW Board of Regents,

163 Wis.2d 933                           (Ct.App. 1991)

472 N.W.2d 607

In Interest OF B.S.,

162 Wis.2d 378                           (Ct.App. 1991)

469 N.W.2d 860

In Interest OF J.A.L.,

162 Wis.2d 940                                   (1991)

471 N.W.2d 493

State v. J.E.B.,

161 Wis.2d 655                           (Ct.App. 1991)

469 N.W.2d 192

State v. Waites,

158 Wis.2d 376                                   (1990)

462 N.W.2d 206

State v. Johnson,

158 Wis.2d 458                           (Ct.App. 1990)

463 N.W.2d 352

Lendman v. Lendman,

157 Wis.2d 606                           (Ct.App. 1990)

460 N.W.2d 781

Fletcher v. Eagle River Hosp.,

156 Wis.2d 165                                   (1990)

456 N.W.2d 788

Siegel v. Leer, Inc.,

156 Wis.2d 621                           (Ct.App. 1990)

457 N.W.2d 533

Ter Maat v. Barnett,

156 Wis.2d 737                           (Ct.App. 1990)

457 N.W.2d 551

Anderson v. Onsager,

155 Wis.2d 504                                   (1990)

455 N.W.2d 885

In Matter of Guardianship of F.E.H.,

154 Wis.2d 576                                   (1990)

453 N.W.2d 882


McCleary v. State CITATIONS................Page 5 of 16

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In re Marriage of Greenwald,

154 Wis.2d 767                           (Ct.App. 1990)

454 N.W.2d 34

In re Marriage of Sommerfield,

154 Wis.2d 840                           (Ct.App. 1990)

454 N.W.2d 55

State v. C.V.C.,

153 Wis.2d 145                           (Ct.App. 1989)

450 N.W.2d 463

Milwaukee Journal v. Call,

153 Wis.2d 313                           (Ct.App. 1989)

450 N.W.2d 515

State v. Scherreiks,

153 Wis.2d 510                           (Ct.App. 1989)

451 N.W.2d 759

Shannon & Riordan v. Zoning Board,

153 Wis.2d 713                           (Ct.App. 1989)

451 N.W.2d 479

Dececco v. Board of Regents,

151 Wis.2d 106                           (Ct.App. 1989)

442 N.W.2d 585

State v. Pence,

150 Wis.2d 759                           (Ct.App. 1989)

442 N.W.2d 540

Raby v. Moe,

149 Wis.2d 370                           (Ct.App. 1989)

441 N.W.2d 263

State v. Johnson,

149 Wis.2d 418                                   (1989)

439 N.W.2d 122

State v. Tarwid,

147 Wis.2d 95                            (Ct.App. 1988)

433 N.W.2d 255

State v. Halbert,

147 Wis.2d 123                           (Ct.App. 1988)

432 N.W.2d 633

State v. Spears,

147 Wis.2d 429                           (Ct.App. 1988)

433 N.W.2d 595


McCleary v. State CITATIONS................Page 6 of 16

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State v. Kazee,

146 Wis.2d 366                                   (1988)

432 N.W.2d 93

State v. Weber,

146 Wis.2d 817                           (Ct.App. 1988)

___ N.W.2d ___

State v. Schultz,

145 Wis.2d 661                           (Ct.App. 1988)

429 N.W.2d 79

State v. Brecht,

143 Wis.2d 297                                   (1988)

421 N.W.2d 96

School Directors v. Taachers' Ass'n,

143 Wis.2d 591                           (Ct.App. 1988)

422 N.W.2d 149

Prahl v. Brosamle,

142 Wis.2d 658                           (Ct.App. 1987)

420 N.W.2d 372

State v. Evers,

139 Wis.2d 424                                   (1987)

407 N.W.2d 256

State v. Roubik,

137 Wis.2d 301                           (Ct.App. 1987)

404 N.W.2d 105

Argonaut INS. v. LIRC,

132 Wis.2d 385                           (Ct.App. 1986)

392 N.W.2d 837

St. ex rel Wis. Jour. v. Dane Cir. Ct,

131 Wis.2d 515                           (Ct.App. 1986)

389 N.W.2d 73

State v. Davis,

127 Wis.2d 486                                   (1986)

381 N.W.2d 333

State v. Cegielski,

124 Wis.2d 13                                    (1985)

368 N.W.2d 628

Evans v. W.E.A. Ins. Trust,

122 Wis.2d 1                                     (1985)

361 N.W.2d 630


McCleary v. State CITATIONS................Page 7 of 16

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State v. Lewandowski,

122 Wis.2d 759                           (Ct.App. 1985)

364 N.W.2d 550.

In re Felony Sentencing Guidelines,

120 Wis.2d 198                                   (1984)

353 N.W.2d 793

State v. Krueger,

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

351 N.W.2d 738

State v. Curbello-Rodriguez,

119 Wis.2d 414                           (Ct.App. 1984)

351 N.W.2d 758

State v. Sepulveda,

119 Wis.2d 546                                   (1984)

350 N.W.2d 96

State v. Harris,

119 Wis.2d 612                                   (1984)

350 N.W.2d 633

State v. Haynes,

118 Wis.2d 21                            (Ct.App. 1984)

345 N.W.2d 892

J. I. Case Co. v. LIRC,

118 Wis.2d 45                            (Ct.App. 1984)

346 N.W.2d 315

State v. Wickstrom,

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

348 N.W.2d 183

State v. Sarabia,

118 Wis.2d 655                                   (1984)

348 N.W.2d 527

State v. Daniels,

117 Wis.2d 9                             (Ct.App. 1983)

343 N.W.2d 411

State v. Cooper,

117 Wis.2d 30                            (Ct.App. 1983)

344 N.W.2d 194

Arrowhead United Teachers v. ERC,

116 Wis.2d 580                                   (1984)

342 N.W.2d 709


McCleary v. State CITATIONS................Page 8 of 16

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State Ex Rel. La Crosse Tribune v. Circuit Ct.,

115 Wis.2d 220                                   (1983)

340 N.W.2d 460

State v. Pharr,

115 Wis.2d 334                                   (1983)

340 N.W.2d 498

State v. Gollon,

115 Wis.2d 592                           (Ct.App. 1983)

340 N.W.2d 912

Breier v. Balen,

114 Wis.2d 237                           (Ct.App. 1983)

338 N.W.2d 304

State v. Mcconnohie,

113 Wis.2d 362                                   (1983)

334 N.W.2d 903

State v. Macemon,

113 Wis.2d 662                                   (1983)

335 N.W.2d 402

In re Felony Sentencing Guidelines,

113 Wis.2d 689                                   (1983)

335 N.W.2d 868

Robertson-Ryan v. Pohlhammer,

112 Wis.2d 583                                   (1983)

334 N.W.2d 246

Schmid v. Olsen,

111 Wis.2d 228                                   (1983)

330 N.W.2d 547

State v. Pepin,

110 Wis.2d 431                           (Ct.App. 1982)

328 N.W.2d 898

State v. Stubbendick,

110 Wis.2d 693                                   (1983)

329 N.W.2d 399

Madison Gas & Elec. Co v, PSC.,

109 Wis.2d 127                                   (1982)

325 N.W.2d 339

Hedtcke v. Senty Ins. Co.,

109 Wis.2d 461                                   (1982)

326 N.W.2d 727


McCleary v. State CITATIONS................Page 9 of 16

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State v. Outlaw,

108 Wis.2d 112                                   (1982)

321 N.W.2d 145

State v. Lehman,

108 Wis.2d 291                                   (1982)

321 N.W.2d 212

State v. Chosa,

108 Wis.2d 392                                   (1982)

321 N.W.2d 280

State v. Alsteen,

108 Wis.2d 723                                   (1982)

324 N.W.2d 426

Loy v. Bunderson,

107 Wis.2d 400                                   (1982)

320 N.W.2d 175

State v. Pope,

107 Wis.2d 726                           (Ct.App. 1982)

321 N.W.2d 359

State v. LYNCH,

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

312 N.W.2d 871

State v. OUTLAW,

104 Wis.2d 231                           (Ct.App. 1981)

311 N.W.2d 235

Wisconsin Public Service Corp. v. Krist

104 Wis.2d 381                                   (1981)

311 N.W.2d 624

Holbrook v. Holbrook,

103 Wis.2d 327                           (Ct.App. 1981)

309 N.W.2d 343

Hartung v. Hartung,

102 Wis.2d 58                                    (1981)

306 N.W.2d 16

State v. Baldwin,

101 Wis.2d 441                                   (1981)

304 N.W.2d 742

State v. Smith,

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

302 N.W.2d 54


McCleary v. State CITATIONS...............Page 10 of 16

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State v. Martin,

100 Wis.2d 326                           (Ct.App. 1981)

302 N.W.2d 58

City of Praoroe di Chien v. Evans,

100 Wis.2d 358                           (Ct.App. 1981)

302 N.W.2d 61

In Matter of Guardianship of Wisnewski,

100 Wis.2d 391                           (Ct.App. 1981)

302 N.W.2d 79

State v. Wedgeworth,

100 Wis.2d 514                                   (1981)

302 N.W.2d 810

State v. Phillips,

99 Wis.2d 46                             (Ct.App. 1980)

298 N.W.2d 239

Barrera v. State,

99 Wis.2d 269                                    (1980)

298 N.W.2d 820

Fahrenberg v. Tengel,

96 Wis.2d 211                                    (1980)

291 N.W.2d 516

Elias v. State,

93 Wis.2d 278                                    (1980)

286 N.W.2d 559

State v. Stuhr,

92 Wis.2d 46                             (Ct.App. 1979)

284 N.W.2d 459

Conrad v. Conrad,

92 Wis.2d 407                                    (1979)

284 N.W.2d 674

State v. Ascencio,

92 Wis.2d 822                            (Ct.App. 1979)

285 N.W.2d 910

State v. Alston,

92 Wis.2d 893                            (Ct.App. 1979)

___ N.W.2d ___

State ex rel. Lewis v. DH&SS,

89 Wis.2d 220                            (Ct.App. 1979)

278 N.W.2d 232


McCleary v. State CITATIONS...............Page 11 of 16

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State v. LaTender,

86 Wis.2d 410                                    (1978)

273 N.W.2d 260

State v. Wollman,

86 Wis.2d 459                                    (1978)

273 N.W.2d 225

Termination OF Parental Rights to Kegel,

85 Wis.2d 574                                    (1978)

271 N.W.2d 114

Van Erman v. H&SS Department,

84 Wis.2d 57                                     (1978)

267 N.W.2d 17

State v. Oliver,

84 Wis.2d 316                                    (1978)

267 N.W.2d 333

Mitchell v. State,

84 Wis.2d 325                                    (1978)

267 N.W.2d 349

State ex rel. Hauser v. Carballo,

82 Wis.2d 51                                     (1978)

261 N.W.2d 133

U.I.P. Corp. v. Lawyers Title Ins. Corp.,

82 Wis.2d 616                                    (1978)

264 N.W.2d 525

Reidinger v. Optometry Examining Board,

81 Wis.2d 292                                    (1977)

260 N.W.2d 270

Maier Const.,Inc. v. Ryan,

81 Wis.2d 463                                    (1977)

260 N.W.2d 700

State v. Mendoza,

80 Wis.2d 122                                    (1977)

258 N.W.2d 260

Williams v. State,

79 Wis.2d 235                                    (1977)

255 N.W.2d 504

Harrison v. State,

78 Wis.2d 189                                    (1977)

254 N.W.2d 220


McCleary v. State CITATIONS...............Page 12 of 16

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Harris v. State,

78 Wis.2d 357                                    (1977)

254 N.W.2d 291

Bruneau v. State,

77 Wis.2d 166                                    (1977)

252 N.W.2d 347

Roehl v. State,

77 Wis.2d 398                                    (1977)

253 N.W.2d 210

Holmes v. State,

76 Wis.2d 259                                    (1977)

251 N.W.2d 56

Cunningham v. State,

76 Wis.2d 277                                    (1977)

251 N.W.2d 65

In Interest of D. H.,

76 Wis.2d 286                                    (1977)

251 N.W.2d 196

Anderson v. State,

76 Wis.2d 361                                    (1977)

251 N.W.2d 768

Bere v. State,

76 Wis.2d 514                                    (1977)

251 N.W.2d 814

Garski v. State,

75 Wis.2d 62                                     (1977)

248 N.W.2d 425

Klimas v. State,

75 Wis.2d 244                                    (1977)

249 N.W.2d 285

Harris v. State,

75 Wis.2d 513                                    (1977)

250 N.W.2d 7

Murphy v. State,

75 Wis.2d 522                                    (1977)

249 N.W.2d 779

Green v. State,

75 Wis.2d 631                                    (1977)

250 N.W.2d 305


McCleary v. State CITATIONS...............Page 13 of 16

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Jaworski v. State,

74 Wis.2d 134                                    (1976)

246 N.W.2d 137

Taylor v. State,

74 Wis.2d 255                                    (1976)

246 N.W.2d 516

Lambert v. State,

73 Wis.2d 590                                    (1976)

243 N.W.2d 524

Drinkwater v. State,

73 Wis.2d 674                                    (1976)

245 N.W.2d 664

Brown v. State,

73 Wis.2d 703                                    (1976)

245 N.W.2d 670

State v. Gibbons,

71 Wis.2d 94                                     (1976)

237 N.W.2d 33

Kubart v. State,

70 Wis.2d 94                                     (1975)

233 N.W.2d 404

Ocanas v. State,

70 Wis.2d 179                                    (1975)

233 N.W.2d 457

Rosado v. State,

70 Wis.2d 280                                    (1975)

234 N.W.2d 69

Joint School v. Wisconsin Rapids Ed. Asso.,

70 Wis.2d 292                                    (1975)

234 N.W.2d 289

Sanders v. State ,

69 Wis.2d 242                                    (1975)

230 N.W.2d 845

Flores v. State,

69 Wis.2d 509                                    (1975)

230 N.W.2d 637

Brozovich v. State,

69 Wis.2d 653                                    (1975)

230 N.W.2d 639


McCleary v. State CITATIONS...............Page 14 of 16

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State v. Dean,

67 Wis.2d 513                                    (1975)

227 N.W.2d 712

State v. Cook,

66 Wis.2d 25                                     (1974)

224 N.W.2d 194

Jones v. State,

66 Wis.2d 105                                    (1974)

223 N.W.2d 889

Anderson v. State,

66 Wis.2d 233                                    (1974)

223 N.W.2d 879

Organ v. State,

65 Wis.2d 36                                     (1974)

221 N.W.2d 823

U.I.P. Corp. v. Lawyers Title Ins. Corp.,

65 Wis.2d 377                                    (1974)

222 N.W.2d 638

Hyslop v. Maxwell,

65 Wis.2d 658                                    (1974)

223 N.W.2d 516

Ruff v. State,

65 Wis.2d 713                                    (1974)

223 N.W.2d 446

Krebs v. State,

64 Wis.2d 407                                    (1974)

219 N.W.2d 355

Scales v. State,

64 Wis.2d 485                                    (1974)

219 N.W.2d 286

Hansen v. State,

64 Wis.2d 541                                    (1974)

219 N.W.2d 246

Gaddis v. State,

63 Wis.2d 120                                    (1974)

216 N.W.2d 527

Hall v. State,

63 Wis.2d 304                                    (1974)

217 N.W.2d 352


McCleary v. State CITATIONS...............Page 15 of 16

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Cousins v. State,

62 Wis.2d 217                                    (1974)

214 N.W.2d 315

State Ex Rel. Cresci v. H&SS Ddpartment,

62 Wis.2d 400                                    (1974)

215 N.W.2d 361

Baldwin v. State,

62 Wis.2d 521                                    (1974)

215 N.W.2d 541

Voigt v. State,

61 Wis.2d 17                                     (1973)

211 N.W.2d 445

Langston v. State,

61 Wis.2d 288                                    (1973)

212 N.W.2d 113

State v. STUDLER,

61 Wis.2d 537                                    (1973)

213 N.W.2d 24

Libke v. State,

60 Wis.2d 121                                    (1973)

208 N.W.2d 331

State v. State,

57 Wis.2d 485                                    (1973)

204 N.W.2d 474

Buckner v. State,

56 Wis.2d 539                                    (1972)

202 N.W.2d 406

Whitmore v. State,

56 Wis.2d 706                                    (1973)

203 N.W.2d 56

Tucker v. State,

56 Wis.2d 728                                    (1973)

202 N.W.2d 897

Moore v. State,

55 Wis.2d 1                                      (1972)

197 N.W.2d 820

Byas v. State,

55 Wis.2d 125                                    (1972)

197 N.W.2d 757


McCleary v. State CITATIONS...............Page 16 of 16

Day v. State,

55 Wis.2d 756                                    (1972)

201 N.W.2d 42

Bastian v. State,

54 Wis.2d 240                                    (1972)

194 N.W.2d 687

State v. TEW,

54 Wis.2d 361                                    (1972)

195 N.W.2d 615

Chambers v. State,

54 Wis.2d 460                                    (1972)

195 N.W.2d 477

Kelley v. State,

54 Wis.2d 475                                    (1972)

195 N.W.2d 457

State Ex Rel. Warren v. County Court,

54 Wis.2d 613                                    (1972)

197 N.W.2d 1

State v. McClanahan,

54 Wis.2d 751                                    (1972)

196 N.W.2d 700

State v. Burgher,

53 Wis.2d 452                                    (1972)

192 N.W.2d 869

State v. Erickson,

53 Wis.2d 474                                    (1972)

192 N.W.2d 872

State v. White,

53 Wis.2d 549                                    (1972)

193 N.W.2d 36

Brown v. State,

52 Wis.2d 496                                    (1971)

190 N.W.2d 497

Davis v. State,

52 Wis.2d 697                                    (1971)

190 N.W.2d 890

Farley v. State,

50 Wis.2d 113                                    (1971)

183 N.W.2d 33

State v. Schilz,

50 Wis.2d 395                                    (1971)

184 N.W.2d 134

Hanneman v. State,

50 Wis.2d 689                                    (1971)

184 N.W.2d 896