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STATE OF WISCONSIN    CIRCUIT COURT    MILWAUKEE COUNTY
STATE OF WISCONSIN,                    Plaintiff, vs.                                  Case No. F-91-261 HARRY E. GUZNICZAK,                    Defendant.
STATE'S SENTENCING  BRIEF
I.   INTRODUCTION      On June 21, 1991, defendant Harry E. Guzniczak      entered a plea of guilty to and was convicted of      one count of Felony Theft contrary to Section      943.20(1)(b) & (2)(c) of the Wisconsin Statutes.      He faces a maximum possible penalty of 10      years in prison, a $10,000 fine, or both.      The defendant is scheduled to be      sentenced on August 20, 1991. II.  FACTS OF THE CASE      Defendant Harry E. Guzniczak was the      Superintendent of Franklin  Public Schools      from 1953 until shortly before charges were      issued in this case on January 17, 1991.      For at least six years prior to that date the      defendant systematically stole money from the      School District in various ways.      As outlined in the criminal complaint,      defendant's thefts can be broken      down as follows:
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     _____________________________________      F-91-261 Sentencing Brief Page 2 of 8      _____________________________________ (1)  Special Services (Picture Fund) account.      This account was opened on November 6, 1962,      and defendant was the only person authorized      to sign checks drawn on it.      The Franklin Public School District      bookkeeper was not aware of the existence of      this account, because statements of the      account were not sent to the District but      rather to defendant's post office box.      The account was funded primarily by monies      obtained from students and parents to      purchase school pictures or to pay student      fees of various types.      Defendant used this account to make numerous      purchases of personal items including      jewelry, clothing, meals, lodging, radar      detectors, air fair and other items.      The total theft in this category is      $15,871.69. (2)  Double billing.      Defendant also used the "picture fund"      account to pay expenses incurred in traveling      for the District and for M.A.T.C., on whose      board he served for a period of time.      He then applied for and obtained      reimbursement from the District or M.A.T.C.,      billing them for expenses already paid with      District money.      The double billing to M.A.T.C. totaled      $745.22, and the double billing to the      District totaled $783.35, for a total theft      in this category of $1,528.57. (3)  Retirement dinners.      Each year the District held a retirement      dinner at the John Ernst Cafe, in honor of      retiring employees and employees who had      reached 25 years of service.      All but the honorees were retired to pay for      the dinner, and were instructed to make their      checks payable to defendant.



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     _____________________________________      F-91-261 Sentencing Brief Page 3 of 8      _____________________________________      Defendant then paid the dinner charge with a      District check and pocketed the money paid to      him by attendees.      Total theft in this category is $2,210.50.      The grand total of defendant's thefts      from the District is $19,610.76.      After defendant's thefts were discovered      he made restitution to the District. Further facts will be noted below. III. SENTENCING CONSIDERATIONS      In imposing sentence, the court must consider      the gravity of the offense, the character and      rehabilitative needs of the offender, and the      need for the protection of the public.      McCleary v. State,      49 Wis.2d 263, 275-276;      182 N.W.2d 512 (1971).      Rejection of probation and imposition of a      prison sentence may be based on one or more      of those factors, and the weight to be given      each factor is within the discretion of the      trial court.      Anderson v. State,       76 Wis.2d 361;      251 N.W.2d 768 (1977).      These factors will be discussed as they apply      to this case. A.   GRAVITY OF THE OFFENSE. (1)  DEFENDANT'S CRIME WAS CALCULATED AND DELIBERATE.      This is not a case where defendant ran afoul      of the law by accident, or because of passion      or poor judgment. Harry Guzniczak had not one      but three methods of stealing money from      the District. None was particularly sophisticated,      but each was calculated and quite deliberate.      The "picture account" statements went to a      personal post office box, presumably to      prevent the District's bookkeeper      from having access to it.
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     _____________________________________      F-91-261 Sentencing Brief Page 4 of 8      _____________________________________
     The double billings and the pocketing

     of retirement dinner payments were

     clearly intentional, deliberate acts.



(2)  DEFENDANT'S CRIME WAS COMMITTED REPEATEDLY

     OVER A PERIOD OF AT LEAST SIX YEARS.



     Although Section 971.36, Stats., permits the

     charging of a single count in this case,

     it should be remembered that the acts

     constituting the offense were numerous

     and continuous from at least June of

     1985 through June of 1990.



     Each time defendant wrote a "picture fund"

     check for personal expenses he was

     deliberately stealing District funds.

     Each time defendant double billed the

     District he was stealing District funds.

     Each time defendant pocketed his colleagues'

     retirement dinner ticket money he was

     stealing District funds.



     Although the statute of limitations prohibits

     conviction for thefts committed prior to 1985

     in this case, it is relevant for sentencing

     purposes to note that there is evidence of

     defendant's thievery long before that.



     The investigation revealed at least one

     retirement dinner check apparently converted

     in 1982, and since the secret "picture fund"

     account was opened in 1962, it is reasonable

     to assume that the thefts began long before

     the artificial cut-off date of June, 1985.



(3)  DEFENDANT VIOLATED A PUBLIC TRUST.



     As Superintendent of the Franklin Public

     Schools defendant was in a position

     of public trust.



     He used that position of trust to enrich

     himself, to the detriment of the

     District and its constituents.



     Governmental corruption, the use of public

     office for personal monitory gain, is one

     of the most serious conditions which can

     afflict the body politic.



     Left unchecked it can lead to systemic corruption.




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     _____________________________________      F-91-261 Sentencing Brief Page 5 of 8      _____________________________________ B.   CHARACTER AND REHABILITATIVE NEEDS OF DEFENDANT. (1)  DEFENDANT USED HIS OFFICE AND      REPUTATION TO COMMIT THIS CRIME.      Defendant was a well respected member of his      community and had been entrusted with      the welfare of its schools. He enjoyed a good      reputation, having built it over the years      through his public actions.      But just as a burglar relies on stealth an      the dark of night to avoid detection, the      defendant used his good reputation and      respected position to avoid detection      in the light of day. (2)  DEFENDANT IS A FIRST OFFENDER      IN A TECHNICAL SENSE ONLY.      It is literally true that defendant      has no prior criminal record.      As discussed above, however, defendant's      involvement in this offense was lengthy      and involved numerous acts committed      over at least the past six years. Now      defendant's long period of criminal      behavior has come to an end, and he      has been convicted of felony theft.      This is not a first offense in      any but a technical sense. It      is merely the first time the      defendant has been caught. (3)  DEFENDANT IS IN NEED OF REHABILITATION.      Conventional sociological theory on the      causes of crime held that it was caused      by such factors as poverty, lack of      education and lack of job skills.      It was believed that such criminals could be      rehabilitated by providing them with      education, job and other skills to enable      them to become productive members of society.      Conventional theory, however, could not      explain criminality by someone such as      the defendant, who has education, status      and obviously marketable job skills.
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     _____________________________________      F-91-261 Sentencing Brief Page 6 of 8      _____________________________________      So it was, in the 1940s, that      criminologist Edwin H. Sutherland      developed his theories on what      called "white collar crime,"      or crime committed by those      of higher socio-economic status.      Although modern definitions of that term are      somewhat different than Sutherland's, his      theories provide a useful context in which to      discuss defendants such as Harry Guzniczak.      Defendant Harry Guzniczak has most of the      advantages society can give: education,      status, job skills and a comfortable      style of living.      In the sense that he had all of this and      still made a deliberate decision to commit      a crime over a lengthy period of time, he      is in very great need of rehabilitation,      though perhaps of a moral rather than      educational nature. C.   PROTECTION OF THE PUBLIC      Society has a right to be protected      against public corruption.      It has a right to expect that its public      officials and employees will not use their      positions for personal financial gain to the      detriment of the public.      This protection can best be achieved in this      case by a prison term, which will have      several direct benefits for the public.      First, it will act as a deterrent to other      public officials who might be tempted to tap      the public till. General deterrence is      largely discredited as a theory of punishment      in crimes of passion and impulse.      But in crimes of this nature, calculated and      deliberate schemes to steal public money, the      likelihood of a prison term is a powerful      consideration in the actor's cost-benefit      analysis of the risks involved.
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     _____________________________________      F-91-261 Sentencing Brief Page 7 of 8      _____________________________________      Second, a prison term will act as      an expression of the public's      outrage at defendant's crime.      The citizens of Franklin in particular      and the community in general have      a right to that expression.      Third, failure to sentence defendant to      prison would unduly depreciate the      seriousness of his offense.      American Bar Association Standards for      Criminal Justice, Sentencing Alternatives and      Procedures, Standard 18-2.5(c)(ii), permits      the seriousness of the offense and thereby      foster disrespect of the law.        Standard 18-2.5(c)(ii).      In Bastian v. State,       54 Wis.2d 240,      194 N.W.2d 687 (1971),      the court said:           This court has frequently stated           that,in the exercise of discretion,           a substantial sentence may be imposed to           emphasize the seriousness of the crime.      54 Wis.2d at 246.      The seriousness of defendant's crime, its      deliberate and repetitive nature, the      character and rehabilitative needs of the      defendant and the need for protection of the      public have been discussed at length above.      The state submits that anything less than a      prison term would unduly depreciate the      seriousness of the offense.
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     _____________________________________      F-91-261 Sentencing Brief Page 8 of 8      _____________________________________     IV.  CONCLUSION      For all of these reasons, the state      recommends that the court sentence defendant      to a term in the Wisconsin State Prison.      Dated at Milwaukee, Wisconsin, August 13, 1991.      Respectfully submitted,      E. Michael McCann      District Attorney      Milwaukee County      JON N. REDDEN      Assistant District Attorney      P.O. Address      Room 453      821 West State Street      Milwaukee, WI 53233      Tel. (41) 278-4645 =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-= CASE LAW CITED BY DISTRICT ATTORNEY          GJS FILES McCleary v. State, 49 Wis.2d 263, 275-276;     MCCLEARY                   182 N.W.2d 512 (1971). Anderson v. State, 76 Wis.2d 361;              ANDERSON                   251 N.W.2d 768 (1977). Bastian v. State,  54 Wis.2d 240,               BASTION                   194 N.W.2d 687 (1971), TEXT of "SENTENCE" (NOT form or font) PRESERVED.  TOP =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-= [AFT][NEA][WEAC][WFT][WEST PUBLISHING][ETHICS SEARCH] [Mail][GJS][BAR][WI STATUTES][WI BLUE BOOK][FOI] [WI COURTS] [DOJ][NOLO][LINKS][WI Public RECORDS][WI Open MEETINGS][LWM] [Misconduct in Public Office][K-12 School Board Proceedings] [WTCS District Board Proceedings][State or Federal Case Law] [WI Legislative Acts][WI Administrative Code] [Constitution] [Circuit Appellate Rules][US District Courts] [NAPIL] [NELA] [United States  Eastern District of  Wisconsin  Local Rules] [United States  Western District of  Wisconsin  Local Rules] [Wisconsin Lawyer Magazine][Milwaukee Bar] [Urban Institute] [LRA Federal Appellate Proceedure Rules][AALLNET][DRI] [GJS] [LRA Federal Civil Proceedure Rules] [LEGAL ETHICS Web Site] [LRA Federal Criminal Procedure Rules][WisBar Link Subjects] [LRA Federal Rules of Evidence][WisBar Links Alphabetized] [LII FEDERAL RULES OF EVIDENCE][WisBar Index to Materials] [Lindberg Case Hot Site][LEGAL LIST][LEGAL ETHICS Sites]
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