source: Caselaw Access Project

author: DEININGER, J. DYKMAN, J.

license: Public Domain

text:
    State of Wisconsin, Plaintiff-Appellant, v. Michael A. Grindemann, Defendant-Respondent.

    Court of Appeals

      No. 01-0542-CR.

      Submitted on briefs December 7, 2001.—

      Decided April 18, 2002.

    2002 WI App 106
    (Also reported in 648 N.W.2d 507.)

      On behalf of the plaintiff-appellant, the cause was submitted on the briefs of Christian R. Larsen, assistant attorney general, and James E. Doyle, attorney general.
    On behalf of the defendant-respondent, the cause was submitted on the brief of Leonard D. Kachinsky of Kachinsky & Petit Law Offices, Neenah.
    Before Dykman, Roggensack and Deininger, JJ.

       Petition to review denied 9-26-02.

   DEININGER, J.

¶ 1. The State of Wisconsin appeals an order which modified Michael Grindemann's forty-four-year sentence to "time served" and placed him on probation. The State contends that Grind-emann failed to present a "new factor" that would warrant a reduction of his sentence, and that the trial court erred in concluding the State had breached the "spirit" of its plea agreement with Grindemann. The State also asserts that the court did not erroneously exercise its discretion when it originally imposed Grindemann's sentence, but that it did so in deciding to modify the sentence.

¶ 2. We first conclude that it was improper for the court to grant Grindemann's motion without first requesting a response from the State or conducting a hearing on the motion. We also agree with the State that the trial court's altered view of certain evidence presented at Grindemann's original sentencing hearing is not a "new factor," and we conclude that Grindemann's assertion of a breach of the plea agreement comes too late. Finally, we conclude that the record discloses no erroneous exercise of discretion by the court when it originally imposed sentence, and further, that the originally imposed sentence was not unduly harsh or unconscionable. Accordingly, we reverse the appealed order.

BACKGROUND

¶ 3. Grindemann pled guilty to eleven counts of second-degree sexual assault. The court sentenced him to eleven consecutive four-year prison terms. The offenses to which Grindemann pled were consolidated from three counties, and they involved sexual contact or intercourse with boys between the ages of twelve and sixteen years. Pursuant to a plea agreement, seven additional counts were dismissed but read in at sentencing.

¶ 4. Grindemann testified at the sentencing hearing that he had been "a victim of homosexual contact by another when [he was] a child." This had occurred when Grindemann was ten or eleven, and it involved sexual contacts initiated by an older classmate with whom, according to Grindemann's testimony, "a homosexual relationship developed." Grindemann further explained that at the time of these sexual experiences he "was a youngster that was eager to learn what [the older boy] had to teach." The fact of this early homosexual activity was also discussed in psychiatric and psychological reports that were provided to the court at sentencing. During argument, Grindemann's counsel labeled the events "an early traumatic experience" in Grindemann's life.

¶ 5. In addition to dismissing and reading in seven other counts for consideration at sentencing, the State had agreed to recommend "30 years or less" of imprisonment. The State did in fact recommend a sentence totaling thirty years. During the prosecutor's sentencing argument, however, he said that the offenses before the court were potentially "the tip of the iceberg," noting that at least with respect to the Waushara County charges, only one count per victim was charged and that "there are many other incidents that occurred in Waushara County involving the same boys." Defense counsel objected to the comment, claiming there was "not evidence . . . properly before the court" for the prosecutor's assertion. The court sustained the objection and admonished the prosecutor to "[b]e more cautious" in his comments.

¶ 6. Defense counsel's recommendation at sentencing, supported by a defense psychiatrist and several character witnesses, was for concurrent four-year sentences on each of eight counts, together with a consecutive ten-year term of probation on the remaining counts. The author of the pre-sentence investigation recommended a prison term of twelve to fifteen years.

¶ 7. In imposing sentence, the court expressly considered Grindemann's character, the gravity of his offenses and the need for protection of the public. The court indicated its awareness that Grindemann had no prior criminal offenses of any kind; that he was a college graduate, a teacher and married; and that he had the support of his family as well as numerous persons in the community. With respect to Grindemann's childhood sexual experience, the court said that "sexual deviancy on your part commenced when you are ten or eleven years old." The court also noted that despite Grindemann's "good traits," he was apparently unable to "distinguish between harmless adult-child communication and association and seriousness of sexual involvement" with the teenage boys. The court expressed its concern over Grindemann's partial rationalization of his actions as providing sex education to the victims, as opposed to seeking his own sexual gratification.

¶ 8. With respect to the offenses, the court noted that there were at least seven victims, and that the conduct had occurred over a period of almost two years. The court also noted that the legislature had provided a maximum penalty of ten years for each count, and thus Grindemann faced a potential 110 years of imprisonment. The court acknowledged that the offenses did not involve violence, force or threats to the victims, but stated that, in its opinion, "the crime of sexual assault of a male or female child is one of [the] most reprehensible acts an adult can commit," and that the conduct was "an aggravated situation, because of the repetition of these acts."

¶ 9. The court imposed eleven consecutive four-year terms and entered a judgment of conviction on July 31, 1985. Grindemann filed a motion for sentence reduction the following January. At the hearing on this motion, Grindemann's postconviction counsel argued that the original sentence was excessive, noting that Grindemann's parole eligibility on the sentence would be similar to that of a person convicted of first-degree murder. He also compared the forty-four-year sentence to the maximum of forty years which could have been imposed at the time for a person who committed two second-degree homicides. Grindemann specifically requested a reduction to what was recommended by the pre-sentence investigation author, twelve to fifteen years in prison, or a term between that recommendation and the State's request for a thirty-year prison sentence. The State opposed the motion.

¶ 10. In ruling on the motion, the court noted that although it could reduce the sentence if it concluded its original sentence was unduly harsh or unconscionable, "I have difficulty finding viable reasons that I can cite on the record as to why the sentence should be reduced." The court said that it had given the matter "a tremendous amount of thought at the time I imposed sentence," and that it could have imposed consecutive sentences of ten years each, instead of four years each. The court also pointed out that there had been "no testimony at this hearing to suggest that the conscience of the public has been shocked by this sentence ... or the judgment of reasonable people have been violated." Accordingly, the court denied the motion.

¶ 11. Grindemann, represented by a different attorney, filed a second "motion to modify sentence" in January 1990. In support of this motion, Grindemann's counsel asserted that a change in certain executive clemency procedures constituted a "new factor." At the hearing on the motion, Grindemann's counsel said that he did "not feel the court did not act within its discretion" in imposing the original sentence. Counsel also acknowledged that the court "could have sentenced him to ten years on each of the counts, and sentenced him to 110 years, and frankly, Your Honor, I don't think any appellate court would have overturned that decision." Because the "Clemency Board" had recently changed its procedures so as not to entertain requests for sentence commutation until parole eligibility had been attained, Grindemann's counsel requested the court to modify the sentence so as to permit an immediate clemency filing. Specifically, Grindemann sought a reduction to three years on each count, which would produce parole eligibility in "eight plus years as opposed to eleven years."

¶ 12. The State again opposed any modification of Grindemann's sentence, arguing that the change in clemency procedures was not a "new factor" under controlling case law, given that the court had not considered or relied upon executive clemency procedures at the time of sentencing. The court agreed and denied Grindemann's motion. In doing so, the court cited case law holding that a change in parole policy was not a new factor. It concluded that, by analogy, a change in clemency procedure was also not a new factor, stating "at the time that Mr. Grindemann was sentenced, I honestly didn't even think about Executive Clemency."

¶ 13. Grindemann filed a third sentence modification motion on May 11, 1994. The circuit court, however, denied the motion without a hearing, stating in a letter to Grindemann's counsel "it appears to me that the averments made fail to state a claim upon which the relief sought may be allowed. Accordingly, I see little reason to allow time on the court calendar for same."

¶ 14. Grindemann again filed a motion to modify his sentence on December 28,1999. This fourth motion, filed pro se, was grounded on: (1) an alleged new factor; (2) the State's alleged breach of the "spirit of the plea agreement"; (3) the sentencing court's failure to properly exercise its discretion; and (4) an assertion that the sentence imposed was unduly harsh. Grind-emann requested that his sentence be modified to a "30-year prison term, per the plea agreement," or to "time served followed by long-term probation."

¶ 15. The court did not direct or request the State to respond to Grindemann's fourth motion, and it did not conduct a hearing on it. In a written decision and order granting the motion, the court "concede [d] that at the time of sentencing, it thought of the Defendant as being a willing participant in aberrant conduct, rather than a victim of sexual abuse." The court next indicated that it had reviewed the sentencing transcript, and it agreed with Grindemann that the State had "breached the spirit of the plea agreement." Finally, the court stated that, in reviewing the original sentencing transcript, it "must concede that it did not state any specific reasons for the imposition of a sentence substantially in excess of the plea agreement."

¶ 16. The court summarized its conclusions as follows:

Based upon its conclusion that possibly a "new factor" existed, that the District Attorney breached the "spirit of the plea agreement" and that without a doubt the Court did not state any specific reasons for the imposition of a sentence substantially in excess of the plea agreement!,] the Court will grant the Defendant[']s Motion to Modify Sentence.

The court cited Cresci v. State, 89 Wis. 2d 495, 504, 278 N.W.2d 580 (1979), for the proposition that, although a trial court may not revise a sentence "merely upon 'reflection,1" a court may review a sentence it has imposed for abuse of discretion and conclude that the original sentence was "unduly harsh or unconscionable." The court ordered Grindemann's sentence modified as follows: " [T]he sentence of four years on each of the counts of the information, namely counts 1 through 11 to he served consecutively will be reduced to a sentence of time served followed by a probationary period of five (5) years." The court also ordered as a condition of probation that Grindemann enter and complete a residential sexual offender treatment program, and that he comply with such other "usual and customary conditions of probation" as the Department of Corrections might impose.

¶ 17. The State appeals the order modifying Grindemann's sentence.

ANALYSIS

¶ 18. We conclude at the outset that, regardless of how we might resolve the State's claims of substantive error, the appealed order must be reversed on procedural grounds. Although it is not clear from the record when or if Grindemann served the State with a copy of his motion, there is no dispute that the court never requested the State to respond to it, nor did it conduct a hearing on the motion. The State noted at the hearing on its motion to stay the appealed order that "[t]his was a pro se motion that was filed ... in the wake of a series of prior rulings ... [where] there had either been a hearing or where there had been an outright denial of the defendant's motion." The district attorney then argued "that the State is entitled to assume that,before anything substantively happens, [it] will at least be provided the courtesy of having notification of that fact via hearing or invitation to comment." We agree.

¶ 19. The trial court should not have granted Grindemann's motion for sentence modification without either requesting a response from the State or conducting a hearing on the motion. The parties agree that, for the most part, Grindemann's motion does not come within the provisions of Wis. Stat. § 974.06 (1999-2000). We nonetheless conclude, pursuant to our authority under Wis. Stat. § 752.02, that a circuit court should proceed in a fashion similar to that outlined in Wis. Stat. § 974.06(3) when it receives a motion requesting sentence modification. Under that subsection, a court may proceed in one of two ways to dispose of a postconviction motion: it may either deny the motion if "the motion and the files and records of the action conclusively show that the person is entitled to no relief'; or, the court shall "[clause a copy of the notice to be served upon the district attorney who shall file a written response within the time prescribed by the court" and "[glrant a prompt hearing." Section 974.06(3). Because the court omitted these steps and summarily granted Grindeniann's motion, we reverse the appealed order.

¶ 20. We next consider whether we must remand for further proceedings on Grindemann's motion, or whether, on the record before us, Grindemann is not entitled as a matter of law to the relief he seeks. We conclude that the latter is the case, and accordingly, our reversal of the appealed order terminates proceedings on Grindemann's motion. That is, we conclude that Grindemann has not identified a "new factor" entitling him to a sentence modification, and that he failed to timely raise his claim that the State breached the plea agreement. Moreover, we conclude that the court did not erroneously exercise its discretion when it originally imposed sentence and twice declined to modify it, and that the original sentence is not "unduly harsh and unconscionable." We address each of these issues in turn.

¶ 21. A circuit court has the "inherent power" to modify a previously imposed sentence after the sentence has commenced, State v. Wuensch, 69 Wis. 2d 467, 472-73, 230 N.W.2d 665 (1975), but it may not reduce a sentence merely upon "reflection" or second thoughts. Id. at 480; Scott v. State, 64 Wis. 2d 54, 59, 218 N.W.2d 350 (1974). A court may do so, however, on the basis of "new factors," Wuensch, 69 Wis. 2d at 479, or when it concludes its original sentence was "unduly harsh or unconscionable":

While the trial court may not revise a sentence merely upon "reflection,"... it may review its sentence for abuse of discretion based upon its conclusion that the sentence was unduly harsh or unconscionable. If the sentence is to be reduced upon those grounds, the trial court should set forth its reasons why it concludes the sentence originally imposed was unduly harsh or unconscionable.

Cresci, 89 Wis. 2d at 504 (citations omitted).

¶ 22. A new factor is a fact or set of facts highly relevant to the sentence determination, that was not known to the trial judge at the time of original sentencing because it was not then in existence or was "unknowingly overlooked" by all parties. State v. Rosado, 70 Wis. 2d 280, 288, 234 N.W.2d 69 (1975). The defendant must establish the existence of a new factor by clear and convincing evidence. State v. Franklin, 148 Wis. 2d 1, 9, 434 N.W.2d 609 (1989). Whether a fact or set of facts constitutes a new factor is a question of law that we review without deference to the trial court. State v. Kluck, 210 Wis. 2d 1, 6, 563 N.W.2d 468 (1997) (citing Franklin, 148 Wis. 2d at 8).

¶ 23. Grindemann articulates the "new factor" which he contends justifies the court's reduction of his sentence as follows. He claims he did not "fully appreciate until after he received therapy in prison" that, as a child, he had been "a victim of sexual exploitation by an older male and that his own behavior was a result of that exploitation." When he presented this newfound realization to the court in his fourth motion for sentence modification, the sentencing judge "recognized in the face of new evidence that Grindemann's past sexual history with an older male was a mitigating factor rather than an aggravating one."

¶ 24. We reject Grindemann's assertion that a court's altered view of facts known to the court at sentencing, or a reweighing of their significance, constitutes a new factor for sentencing purposes. Rather, we conclude that this is a classic example of the "mere reflection" or "second thoughts" which cannot form the basis for a sentence reduction. See State v. Foellmi, 57 Wis. 2d 572, 582, 205 N.W.2d 144 (1973), overruled on other grounds by Korpela v. State, 63 Wis. 2d 697, 218 N.W.2d 368 (1974).

¶ 25. Simply put, Grindemann has not pointed to any "fact or set of facts" that was not known to the court at the time of his sentencing. The sexual activity initiated by an older boy when Grindemann was ten or eleven years old was described to the court at sentencing by Grindemann himself, and it was noted in the defense psychiatrist's report and the pre-sentence investigation. Just as a new expert opinion based on previously known or knowable facts is " 'nothing more than the newly discovered importance of existing evidence' . . . not newly discovered evidence for purposes of plea withdrawal," a court's recharacterization or reweighing of previously known facts is not a "new factor" for sentence modification purposes.

¶ 26. We also conclude the trial court erred in relying on its finding that the State had violated the "spirit" of the plea agreement by mentioning uncharged offenses during its sentencing argument. First, we are not persuaded that the prosecutor's comments violated the "spirit" of the plea agreement, given that there was no provision precluding reference to other offenses, and the agreement itself contemplated numerous read-ins of other offenses for sentencing purposes. And, even if the "spirit" of the agreement was violated, we cannot say that this constituted a " 'material and substantial breach of the agreement'" for which a defendant may obtain postconviction relief. See, e.g., State v. Smith, 207 Wis. 2d 258, 272, 558 N.W.2d 379 (1997) (citation omitted).

¶ 27. Most significantly, however, Grindemann's argument for a reduction of his sentence grounded on the State's purported breach of the plea agreement suffers from an additional and dispositive infirmity. "[T]he right to object to an alleged breach of a plea agreement is waived when the defendant fails to object and proceeds to sentencing after the basis for the claim of error is known to the defendant." State v. Smith, 153 Wis. 2d 739, 741, 451 N.W.2d 794 (Ct. App. 1989). Here, Grindemann did object to the prosecutor's mention of uncharged offenses at sentencing, but the objection was based on the lack of evidence "properly before the court," not on any claim that the State was violating either the terms or the "spirit" of the plea agreement. Moreover, the court sustained the objection and admonished the prosecutor to "[b]e more cautious" in his comments, suggesting that the court agreed with Grindemann's point that it should not consider any uncharged offenses for which no evidence was presented. Thus, even if prosecutorial silence regarding uncharged offenses was an implied provision of the parties' plea agreement, Grindemann obtained "specific performance" of that provision when the court sustained his objection.

¶ 28. In summary, we conclude that Grindemann is not entitled to have his sentence modified on the basis of a new factor or because the "spirit" of his plea agreement was breached. The trial court also expressed concern in its sentence modification order that, at the original sentencing hearing, it had not specified any "reasons for the imposition of a sentence substantially in excess of the plea agreement." But that explanation is not required of a sentencing court so long as it otherwise explicates its rationale, based on permissible factors, for the sentence it imposes. See State v. Johnson, 158 Wis. 2d 458, 469, 463 N.W.2d 352 (Ct. App. 1990) ("[T]he court need not explain why its sentence differs from any particular recommendation," so long as proper sentencing discretion is exercised.).

¶ 29. The only remaining basis on which the trial court might have granted a sentence reduction is if it concluded that its original sentence was "unduly harsh or unconscionable." State v. Ralph, 156 Wis. 2d 433, 438, 456 N.W.2d 657 (Ct. App. 1990). The court did not state in its order that it so concluded, nor did it "set forth its reasons why it conclude [d] the sentence originally imposed was unduly harsh or unconscionable," which a court "must" do if it reduces a sentence on this basis. Wuensch, 69 Wis. 2d at 480. We will assume from the court's citation oí Ralph and Cresci, however, that it did reach that conclusion. Accordingly, our final inquiry becomes whether a determination that the court's original sentence was unduly harsh or unconscionable would be sustainable on appeal, based on the record in this case. We conclude that it would not be.

¶ 30. "We review a trial court's conclusion that a sentence it imposed was not unduly harsh and unconscionable for an erroneous exercise of discretion." State v. Giebel, 198 Wis. 2d 207, 220, 541 N.W.2d 815 (Ct. App. 1995) (emphasis added). Our review of the opposite conclusion must similarly be for an erroneous exercise of discretion. See Cresci, 89 Wis. 2d at 504 (concluding that "trial court acted within its discretion" when it modified a sentence from consecutive to concurrent). We will not set aside a discretionary ruling of the trial court if it appears from the record that the court applied the proper legal standards to the facts before it, and through a process of reasoning, reached a result which a reasonable judge could reach. Loy v. Bunderson, 107 Wis. 2d 400, 414-15, 320 N.W.2d 175 (1982).

¶ 31. When a defendant argues that his or her sentence is excessive or unduly harsh, a court may find an erroneous exercise of sentencing discretion "only where the sentence is so excessive and unusual and so disproportionate to the offense committed as to shock public sentiment and violate the judgment of reasonable people concerning what is right and proper under the circumstances." Ocanas v. State, 70 Wis. 2d 179, 185, 233 N.W.2d 457 (1975). However, "[a] sentence well within the limits of the maximum sentence is not so disproportionate to the offense committed as to shock the public sentiment and violate the judgment of reasonable people concerning what is right and proper under the circumstances." State v. Daniels, 117 Wis. 2d 9, 22, 343 N.W.2d 411 (Ct. App. 1983); see also State v. Scaccio, 2000 WI App 265, ¶ 18, 240 Wis. 2d 95, 622 N.W.2d 449 ("A sentence well within the limits of the maximum sentence is unlikely to be unduly harsh or unconscionable.").

¶ 32. As the trial court noted, both at sentencing and when denying Grindemann's first sentence modification motion, it could have imposed 110 years of imprisonment for Grindemann's offenses. The forty-four-year sentence it imposed was less than half of the maximum allowable sentence for Grindemann's eleven offenses. Thus, because the sentence imposed was "well within the limits of the maximum sentence," we conclude that it is presumptively not unduly harsh or unconscionable. See id. We now turn to the record before us to see whether, notwithstanding the fact that Grindemann's sentence was well within the maximum, there is any basis on which a court might reasonably conclude that the sentence was, nonetheless, unduly harsh or unconscionable.

¶ 33. The court's remarks at sentencing demonstrate that it considered the essential sentencing factors (gravity of the offense, the offender's character, and the public's need for protection). The court denied Grindemann's first sentence modification motion in 1986, less than eight months after imposing sentence, at a time when the facts and circumstances of the case and its considerations at sentencing were presumably still fresh in the court's mind. The court specifically stated in 1986 that it could find no "viable reasons that [it could] cite on the record as to why the sentence should be reduced," and that it had given "this matter a tremendous amount of thought at the time [it] imposed sentence." The court then addressed the "seven reasons or factors" Grindemann advanced in support of his first modification request, and found none meritorious. It concluded by noting that Grindemann had presented "nothing ... to suggest that the conscience of the public has been shocked by this sentence ... or the judgment of reasonable people have been violated."

¶ 34. Nothing in the record folio wing the denial of Grindemann's first motion in 1986 diminishes or undermines the court's rationale in refusing to modify Grindemann's sentence. In fact, during proceedings on Grindemann's second motion in 1990, his counsel virtually conceded that the court had not erroneously exercised its discretion when imposing the original sentence. (See ¶ 11 above.) Grindemann does not argue that the trial court erred in denying either his 1990 or 1994 motions, and we have explained why Grindemann's present assertion that a new factor or a breached plea agreement entitle him to a sentence modification lacks merit. In short, we find no basis in the record before us on which a judge could reasonably conclude that the sentence originally imposed was "unduly harsh or unconscionable," as that standard has been defined and applied by Wisconsin courts. Accordingly, there is no cause for further proceedings in the circuit court.

By the Court. — Order reversed.

DYKMAN, J.

¶ 35. (concurring in part; dissenting in part). A victim of a past sexual assault would probably not expect a trial court to use this traumatic experience as an aggravating factor justifying a harsher sentence for a crime the victim commits years later. But that is what happened here, and the majority finds this result proper. Indeed, the majority goes one step further. When the trial court in this case eventually realized that penalizing a person for being a sexual assault victim was wrong, and reduced the defendant's sentence, the majority finds this to be unreasonable, irrational and illogical, and reinstates the previous sentence.

¶ 36. The majority concludes that because Grindemann's sentences were "well within the limits of the maximum permitted sentence," the trial court erred by reducing the sentences. While I agree that the trial court should have held a hearing before entering its order, I disagree with the majority's analysis of the standard by which we review a trial court's finding that its previous sentence was unduly harsh or unconscionable.

¶ 37. The majority interprets two court of appeals cases, State v. Daniels, 117 Wis. 2d 9, 22, 343 N.W.2d 411 (Ct. App. 1983), and State v. Scaccio, 2000 WI App 265, ¶ 18, 240 Wis. 2d 95, 622 N.W.2d 449, as holding that a sentence "well within the limits of the maximum sentence" cannot be unduly harsh or unconscionable. While one could quibble with that interpretation, I conclude that those cases can be read to support the majority's conclusion.

¶ 38. The problem with doing so, however, is twofold. First, that interpretation reduces the concept of "harsh or unconscionable" to next to nothing. Maximum sentences occur, but rarely. Everything else can be "well within the limits of the maximum sentence." And the test itself is meaningless, and unsupported by common sense. Where is the dividing line between "within the limits of the maximum sentence" and "well within the limits of the maximum sentence?" And why is that a rational distinction to begin with?

¶ 39. The second difficulty with the majority's interpretation is more basic. It contravenes the methodology the supreme court has used when reviewing trial courts' decisions modifying or refusing to modify sentences under the "harsh or unconscionable" test. In Cresci v. State, 89 Wis. 2d 495, 499, 278 N.W.2d 850 (1979), the trial court reduced a sentence from consecutive to concurrent because it gave additional consideration to the fact that the defendant was unwilling to lie to the court and had chosen not to testify rather than lie. The supreme court concluded: "Thus, the trial court acted within its discretion when it modified the defendant's sentence from consecutive to concurrent." Id. at 504. And, in State v. Wuensch, 69 Wis. 2d 467, 480, 230 N.W.2d 665 (1975), the court said:

[W]e perceive no valid reason why a trial court should not be permitted to review a sentence for abuse of discretion based upon its conclusion the sentence was unduly harsh or unconscionable. If the sentence is to be reduced upon these grounds, the trial court must set forth its reasons why it concludes the sentence originally imposed was unduly harsh or unconscionable.

¶ 40. We followed Wuensch and Cresci in State v. Ralph, 156 Wis. 2d 433, 438-39, 456 N.W.2d 657 (Ct. App. 1990). There, we affirmed a trial court's sentence reduction because of sentence disparity. We concluded that this reason adequately supported the trial court's discretionary decision that the original sentence was unduly harsh.

¶ 41. The case in which the court initially concluded that a trial court could modify a previously imposed sentence, Hayes v. State, 46 Wis. 2d 93, 106, 175 N.W.2d 625 (1970), overruled on other grounds, State v. Taylor, 60 Wis. 2d 506, 210 N.W.2d 873 (1973), involved a trial court's reduction of a defendant's previously imposed sentence. The reason given for the reduction was: "In the instant case the trial judge believed he was in error in imposing a ten-year sentence because he was misinformed at the time of the sentencing as to Hayes' previous criminal record." Id. at 106-07. Some of Hayes' prior offenses had occurred when he was a juvenile. Id. at 107. The supreme court concluded: "We think there was no abuse in discretion in modifying the sentence." Id.

¶ 42. There are a host of cases affirming a trial court's discretionary decision not to modify a previously imposed sentence. See, e.g., State v. Giebel, 198 Wis. 2d 207, 220-21, 541 N.W.2d 815 (Ct. App. 1995). In none of these cases did the courts use a methodology similar to the one the majority uses to overturn the trial court's finding that the sentences it previously imposed on Grindemann were unduly harsh or unconscionable. Instead, the cases concluded that the trial courts' refusals to modify sentences were not an erroneous exercise of discretion. What the majority has done in effect is impose a double standard of review, in which we defer to trial courts' determinations that a sentence is not too harsh, but review de novo a conclusion that it is.

¶ 43. In Wuensch, Ralph, and Hayes, the courts affirmed the trial court's reductions of sentences even though those sentences were "well within the limits of the maximum permitted sentence," the very factor the majority uses to reverse the trial court's reduction of Grindemann's sentence. The majority opinion becomes the only appellate decision in over thirty years to overturn a trial court's discretionary decision to reduce an unduly harsh or unconscionable sentence.

¶ 44. The majority does not consider Hayes, Ralph or Cresci's analyses of trial courts' sentence modifications under the "unduly harsh or unconscionable" test. And yet, those are the very cases that provide the basis for the "application of proper legal standards," one of the cornerstones of a proper exercise of discretion. Instead, the majority relies on Ocanas v. State, 70 Wis. 2d 179, 185, 233 N.W.2d 457 (1975). The test the majority derives from Ocanas is whether "the sentence is so excessive and unusual and so disproportionate to the offense committed as to shock public sentiment and violate the judgment of reasonable people concerning what is right and proper under the circumstances." Id.

¶ 45. A wrong test usually leads to an incorrect conclusion. That is what has happened here. The court in Ocanas outlined the issues:

(1) Is the twenty-year sentence excessive and an abuse of discretion?
(2) Is the failure to modify his sentence in view of a three-year sentence given to his brother for the same offense and abuse of discretion and a denial of equal protection of the law?

Ocanas, 70 Wis. 2d at 181.

¶ 46. The majority's quote from Ocanas is, in reality, the test the Ocanas court used to address whether the trial court abused its discretion in originally sentencing the defendant. And I agree this is the correct test when considering the validity of an initial sentence. See State v. Steele, 2001 WI App 160, ¶ 10, 246 Wis. 2d 744, 632 N.W.2d 112. But it is not the test the Ocanas court used to determine whether the trial court abused its discretion by refusing to modify its original sentence. And it is not the test used by Hayes, Ralph and Cresci to determine whether a trial court erroneously exercised its discretion by modifying a previously imposed sentence.

¶ 47. It is irrelevant that the trial court had previously denied Grindemann's motions to modify his sentence. Of course the trial court denied the motions. At the time it did so, it believed that Grindemann, as a child, had been a "willing participant in aberrant conduct." It was only later that the trial court concluded that Grindemann was not then a sexual deviant, but instead was the victim of another's sexual assaults. The majority cites no authority holding that a trial court may not hear or decide subsequent motions for sentence modification. While a trial court may decline to hear repetitive motions, I know of no rule preventing it from hearing a matter for a second or third time. What the majority is really doing by discussing Grindemann's previous motions is second-guessing the trial court by suggesting that a motion made previously and denied is not credible when made again. While that may often be true, this is a decision to be made by a trial court in the exercise of its discretion. It is not an appellate court's proper function to make that call.

¶ 48. Were I writing for a majority, I would use the "erroneous exercise of discretion" test the supreme court has applied for deciding motions to modify sentences alleged to be unduly harsh or unconscionable. I would not ignore the supreme court's admonition that there is a strong policy against interference with the discretion of a trial court in passing sentence, that an appellate court should not supplant the predilections of a trial judge with its own, and that we are to start with a presumption that the trial court acted reasonably. State v. Macemon, 113 Wis. 2d 662, 670, 335 N.W.2d 402 (1983); see also State v. Mata, 2001 WI App 184, ¶ 13, 247 Wis. 2d 1, 632 N.W.2d 872. I would conclude that insofar as Daniels and Scaccio use a different test, we are to resolve differences between court of appeals decisions and supreme court decisions in favor of the supreme court. State v. Clark, 179 Wis. 2d 484, 493-94, 507 N.W.2d 172 (Ct. App. 1993).

¶ 49. Were this a majority opinion, I would compare the factors the supreme court and this court have held to be proper factors supporting a trial court's exercise of discretion in modifying a sentence because it was unduly harsh or unconscionable. In Hayes, the sentence modification was based on "misinformation as to previous criminal record;" in Ralph, it was "sentence disparity;" and in Cresci, it was "defendant unwilling to lie." These were found to be acceptable reasons to modify sentences under the "unduly harsh or unconscionable" test.

¶ 50. Here, the trial court's conclusion that it mistakenly considered Grindemann, at ten years old, a willing participant in aberrant conduct rather than a victim of sexual abuse is no different from the mistakes the trial courts made in Hayes, Ralph, and Cresci. Indeed, a mistake of this nature seems more compelling than the mistakes the trial courts were permitted to remedy in those cases.

¶ 51. I conclude that an analysis of this sort hews closer to the ideal of principled decisionmaking than the use of an analysis not followed by the supreme court, an analysis which itself suggests a near abandonment of the very notion of sentence modification because the original sentence was unduly harsh or unconscionable.

¶ 52. An. inquiry limited to whether a sentence is "well within the limits of' the maximum permitted by statute may be expedient, but it prohibits trial courts from modifying anything but maximum or near-maximum sentences.

¶ 53. I concur that the trial judge should have heard the State's objections to modifying Grindemann's sentences before it entered its order doing so. I disagree that the trial judge could not modify his sentences. I would therefore remand so that the judge who modified Grindemann's sentences could have a hearing at which both Grindemann and the State could present their views on Grindemann's motion, and then make his decision. Because the majority does not do so, I respectfully concur in part and dissent in part.

       The original sentencing judge, Robert F. Curtin, denied Grindemann's first two sentence modification motions. Judge Curtin retired from the circuit court in 1993. Grindemann's 1994 motion was denied by Waushara County Circuit Court Judge Lewis Murach.

       The director of state courts issued a "judicial assignment order," filed February 8, 2000, which assigned Judge Curtin, now a reserve judge, to act on Grindemann's most recent motion, citing as a reason for the assignment "expedite litigation." (See footnote 1.) The next item which appears in the record is the appealed order, entered on January 17, 2001.

       The State immediately sought a stay of the order pending this appeal. The chief judge issued a judicial assignment order returning the case to Circuit Court Judge Murach, who granted the State's motion to stay the order. (See footnotes 1 and 2.)

       In discussing why the rationale of the "successive motion" bar under Wis. Stat. § 974.06(4) and State v. Escalona-Naranjo, 185 Wis. 2d 168, 517 N.W.2d 157 (1994), should apply to Grindemann's motion, the State acknowledges that, insofar as it alleges a new factor or challenges the court's exercise of sentencing discretion, Grindemann's motion is not subject to § 974.06. See Smith v. State, 85 Wis. 2d 650, 661, 271 N.W.2d 20 (1978); State v. Coolidge, 173 Wis. 2d 783, 788, 496 N.W.2d 701 (Ct. App. 1993). Grindemann's assertion that the prosecutor's sentencing argument breached the plea agreement, however, raises a constitutional due process claim which would come within § 974.06(1). See State v. Wills, 187 Wis. 2d 529, 536-37, 523 N.W.2d 569 (Ct. App. 1994). Because we conclude the appealed order must be set aside on procedural and substantive grounds, we do not address the State's "successive motion" arguments. All references to the Wisconsin Statutes are to the 1999-2000 version unless otherwise noted.

       The State argues in its opening brief that the court erred procedurally "because it did not provide for input from victims of Grindemann's crimes before granting a reduction in his sentence to time served." The State concedes in its reply brief, however, that a failure to conform to provisions of Wis. Stat. ch. 950 is not grounds for an appeal of a sentence. See Wis. Stat. § 950.10(2).
      We also note that the appealed order may be subject to réversal because it arguably imposes an illegal sentence. Under Wis. Stat. § 973.09(1), a court "may withhold sentence or impose sentence . . . and stay its execution, and in either case place the person on probation to the [Department [of Corrections] for a stated period, stating in the order the reasons therefor." Here, however, the court ordered that each of the eleven four-year sentences it had previously imposed was modified to "time served." The court's order could be interpreted to mean that Grindemann had completed his sentence and was entitled to an immediate discharge. The five-year term of probation the court imposed would thus not relate to any stayed or withheld sentence. Because the State does not make this argument, however, we do not address it further, nor do we rest our disposition in whole or in part on the possible illegality of the modified sentence.

        State v. Fosnow, 2001 WI App 2, ¶ 25, 240 Wis. 2d 699, 624 N.W.2d 833 (citation omitted).

       There is no indication in the record that Grindemann appealed the denial of his first sentence modification motion, which alleged that the original sentence was "unduly harsh and excessive." As we have noted (see footnote 4), we leave open the question of whether, in the absence of a genuine "new factor," a defendant may bring successive motions to modify sentence on the grounds that the sentencing court abused its discretion by imposing an unduly harsh or unconscionable sentence. Cf. Wis. Stat. § 973.19.

       We will sustain- a trial court's discretionary act if it logically interprets the facts and uses a rational process to reach a reasonable conclusion. See State v. Malcom, 2001 WI App 291, ¶ 12, 249 Wis. 2d 403, 638 N.W.2d 918.
      The trial court's order did not explicitly find that its original sentence was unduly harsh or unconscionable. Instead, it noted as follows:
      "A trial Court may modify a sentence even though no new factors are presented. Jones (Hollis) v State, 70 Wis.2d 62, 72-73, 233 N.W.2d 441, 447 (1975). The Jones Court stated that State v Wuensch, 69 Wis.2d 467, 230 N.W.2nd 665 (1975), permits trial courts to review their own sentences to determine whether they are unduly harsh or unconscionable."
      (quoting State v. Ralph, 156 Wis. 2d 433, 438-39, 456 N.W.2d 657 (Ct. App. 1990)),
      "While the trial court may not revise a sentence merely upon "reflection", Scott v State, 64 Wis.2d 54, 59, 218 N.W.2nd 350 (1974), it may review its sentence for abuse of discretion based upon its conclusion that the sentence was unduly harsh or unconscionable. State v Wuensch, 69 Wis.2nd 467, 480, 230 N.W.2nd 665 (1975)."
      (quoting Cresci v. State, 89 Wis. 2d 495, 504, 278 N.W.2d 850 (1979)).
      I conclude that the trial court intended to base its order on a finding that its previous sentence was unduly harsh or unconscionable.

       In State v. Wuensch, 69 Wis. 2d 467, 480, 230 N.W.2d 665 (1975), the supreme court reversed the trial court's reduction of a sentence because the trial court failed to give reasons for its reduction. Here, the trial court explained that it was reducing Grindemann's sentence because "at the time of sentencing, it thought of the Defendant as being a willing participant in aberrant conduct, rather than a victim of sexual abuse."

       I also question whether, had Grindemann challenged his original sentence as being an abuse of discretion, we would have sustained it. Although sentencing is discretionary, the use of an improper factor is an erroneous exercise of discretion. State v. Martin, 100 Wis. 2d 326, 327, 302 N.W.2d 58 (Ct. App. 1981). In deciding Grindemann's sentence in 1985, the trial court stated that Grindemann had engaged in "sexual deviancy" as a ten year old, and displayed a "history of undesirable behaviors" that included a consensual relationship with another adult male. Had Grindemann complained initially that the trial court had considered both his status as a victim and his consensual relationship with an adult male as aggravating factors, we would have been hard pressed to sustain his sentence. See Wis. Stat. § 111.31 (1983-84) (declaring that discrimination on the basis of sexual orientation is against public policy).


author: CURLEY, J. SCHUDSON, J.

text:
    State of Wisconsin, Plaintiff-Respondent, v. Nathan T. Hall, Defendant-Appellant.
    Court of Appeals

      No. 01-0808-CR.

      Oral argument March 5, 2002. —
    Decided April 23, 2002.

    2002 WI App 108
    (Also reported in 648 N.W.2d 41.)

      On behalf of the defendant-appellant, the cause was submitted on the brief of Howard B. Eisenberg of Milwaukee, with oral argument by Howard B. Eisen-berg.
    On behalf of the plaintiff-respondent, the cause was submitted on the brief of Gregory M. Weber, assistant attorney general, and James E. Doyle, attorney general, with oral argument by Gregory M. Weber.

    Before Wedemeyer, PJ., Schudson and Curley, JJ.
   CURLEY, J.

¶ 1. Nathan T. Hall appeals from the judgment of conviction entered after he pled guilty to one count of felony murder, contrary to Wis. Stat. § 940.03 (1999-2000), six counts of armed robbery, party to a crime, contrary to Wis. Stat. §§ 943.32(1) and (2), and 939.05, and one count of attempted armed robbery, party to a crime, contrary to Wis. Stat. §§ 943.32(1) and (2), 939.32, and 939.05. Hall also appeals from the trial court's order denying his postconviction motion. Hall claims: (1) his sentence, which establishes a release eligibility date well beyond his life expectancy, is per se excessive because none of the crimes for which he was convicted carry a sentence of life imprisonment; or, alternatively, (2) while the trial court briefly mentioned the three primary sentencing factors, it failed to explain how these factors yield a 304-year sentence. Because we agree that the trial court gave inadequate reasons for the sentence imposed, and, additionally, because we are unable to find facts in the record to support the trial court's sentencing decisions, we reverse and remand with directions.

I. Background.

¶ 2. The charges against Hall arose out of a.string of armed robberies that occurred on the north side of Milwaukee between November 23, 1999, and February 6, 2000. During one of the robberies, on December 10, 1999, a sixteen-year-old girl was killed by Hall's co-defendant, Michael Moore. On that date, Hall called Moore, asked him if he wanted to make some money, and told him that he "had a spot picked out," meaning that he had found a location that they could rob. Moore agreed and the two drove to a restaurant approximately ten blocks from Hall's residence. After circling the block a number of times, Hall handed Moore a handgun and told him: "Just go in there. They're going to see the gun and tell you [to] take all the money." Moore entered the restaurant while Hall waited in the car down the block. As Moore approached the counter, the owner of the restaurant and her daughter, who were standing with their backs to the entrance, slowly turned around. Moore pointed the gun at the young girl and told them, "Give me the money." Moore then fired one shot at point-blank range in the face of the victim, who fell to the floor. Moore ran out of the restaurant without any money.

¶ 3. Hall was arrested on February 7,2000, for his involvement in the robberies. He was charged with six counts of armed robbery, one count of attempted armed robbery, and one count of felony murder. Hall pled guilty to all eight counts. The trial court imposed the following consecutive sentences: (1) felony murder - forty years; (2) attempted armed robbery - ten years; (3) counts three, four and five of armed robbery - thirty-eight years on each count; (4) counts six and seven of armed robbery - forty years on each count; and (5) count eight of armed robbery, committed after December 31, 1999 - sixty years (forty years day-for-day incarceration, followed by twenty years of supervision).

¶ 4. Hall's sentences total 304 years. For the first seven counts, release eligibility is computed as 25% of the sentence imposed, see Wis. Stat. § 304.06(l)(b), and for count eight, the release eligibility is counted day-for-day under the truth-in-sentencing legislation, see Wis. Stat. § 973.01. Accordingly, Hall will not be eligible for release for 101 years. Hall was born on May 29, 1978, and will be eligible for parole when he is 123 years old.

II. Analysis.

¶ 5. "[A] good sentence is one which can be reasonably explained." McCleary v. State, 49 Wis. 2d 263, 282, 182 N.W.2d 512 (1971). Hall argues that the court erroneously exercised its discretion by failing to adequately explain why a 304r-year sentence, which assures that he will die in prison, was appropriate. See id. Because the trial court gave inadequate reasons for the sentence imposed, Hall's sentence is the product of an erroneous exercise of discretion. See id.

¶ 6. However, our analysis does not conclude at that juncture. When the sentencing court fails to specifically set forth the reasons for the sentence imposed, "we are obliged to search the record to determine whether in the exercise of proper discretion the sentence imposed can be sustained." Id. Therefore, "it is ... our duty to affirm a sentence on appeal if from the facts of record [the sentence] is sustainable as a proper discretionary act." Id. From our examination of the facts of record, we cannot support the trial court's choice of sentence. See id. Thus, we conclude that Hall's sentence was the result of an erroneous exercise of discretion.

¶ 7. "At the very least, the sentencing court must consider the following three primary factors: (1) the gravity and nature of the offense, including the effect on the victim, (2) the character and rehabilitative needs of the offender, and (3) the need to protect the public." State v. Spears, 227 Wis. 2d 495, 507, 596 N.W.2d 375 (1999).

The trial court may also consider: the defendant's past record of criminal offenses; the defendant's history of undesirable behavior patterns; the defendant's personality, character and social traits; the presentence investigation results; the viciousness or aggravated nature of the defendant's crime; the degree of the defendant's culpability; the defendant's demeanor at trial; the defendant's age, educational background and employment record; the defendant's remorse, repentance or cooperativeness; the defendant's rehabilitative needs; the rehabilitative needs of the victim; and, the needs and rights of the public.

State v. Thompson, 172 Wis. 2d 257, 264-65, 493 N.W.2d 729 (Ct. App. 1992).

¶ 8. In situations where, as here, the defendant is convicted of more than one offense, the sentencing court may impose consecutive rather than concurrent sentences. See State v. Borrell, 167 Wis. 2d 749, 764-65, 482 N.W.2d 883 (1992). In sentencing a defendant to consecutive sentences, the trial court must provide sufficient justification for such sentences and apply the same factors concerning the length of a sentence to its determination of whether sentences should be served concurrently or consecutively. See State v. Hamm, 146 Wis. 2d 130, 156, 430 N.W.2d 584 (Ct. App. 1988). Therefore, in situations where the sentencing court has the ability to stack sentences consecutively, ad mortem, "[t]he sentence imposed should represent the minimum amount of custody consistent with those factors." State v. Setagord, 211 Wis. 2d 397, 416, 565 N.W.2d 506 (1997); see also Borrell, 167 Wis. 2d at 764-65.

¶ 9. Generally, there is a strong public policy against interfering with the sentencing discretion of the trial court. See State v. Harris, 119 Wis. 2d 612, 622, 350 N.W.2d 633 (1984). Thus, sentencing is left to the discretion of the trial court, and our review is limited to determining whether the trial court erroneously exercised that discretion. See id. Nevertheless, the supreme court has made it clear that "an [erroneous exercise] of discretion might be found under the following circumstances: (1) [f]ailure to state on the record the relevant and material factors which influenced the court's decision; (2) reliance upon factors which are totally irrelevant or immaterial to the type of decision to be made; and (3) too much weight given to one factor on the face of other contravening considerations." Ocanas v. State, 70 Wis. 2d 179, 187, 233 N.W.2d 457 (1975) (citing McCleary).

¶ 10. In McCleary, the supreme court articulated the importance of creating a sentencing record that highlights the sentencing judge's logic in an explainable manner:

It is thus apparent that the legislature vested 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 ....
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.
[TJhere 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. [TJhere should be evidence in the record that discretion was in fact exercised and the basis of that exercise of discretion should be set forth ....
... By this we mean that this court should review and reconsider ah 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.

McCleary, 49 Wis. 2d at 276-78 (citations omitted). The McCleary court continued by explaining its rationale for requiring a reasoned explanation on the record of the trial court's sentencing decisions:

[T]he requirement that the sentencing judge articulate the basis for [a] sentence will assist... in developing ... a set of consistent principles on which to base his [or her] sentences ....
In all Anglo-American jurisprudence a principal obligation of the judge is to explain the reasons for his [or her] actions. [The trial judge's] 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 [or her] reasons for selecting the particular sentence imposed.
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 [or her] 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.

Id. at 280-82 (citations omitted).

1 11. Thus, according to McCleary, there is a three-fold rationale for requiring sentencing courts to make a sufficient record detailing their reasons for the sentence imposed: (1) to provide the defendant, the victim, the victim's family, and the community as a whole with a satisfactory explanation of the debt owed to society; (2) to provide the appellate courts with an adequate record for review; and (3) to aid the trial court in focusing on relevant factors in order to impose just sentences. See also ABA Standards for Criminal Justice Sentencing, § 18-5.18 (Commentary), at 209 (3d ed. 1994) ("The requirement of findings of fact serves multiple purposes. First, the discipline of thought necessary for a court's reasoned determination of a sentence is fostered by the process of articulation of the factual bases for the judgment. Second, findings of fact are essential to meaningful appellate review of sentences.")

¶ 12. Here, unfortunately, the trial court never adequately explained its reasons for imposing a 304-year sentence, which resulted from its imposition of Hall's sentences consecutively:

When the [cjourt does, ah, in fact sentences you, young man, the [cjourt takes into consideration the nature of the offenses, and the [cjourt applies its factors applicable to each one of the counts; your character, the risk that you pose to the community.
Courtfs] takes into consideration any past record of criminal offenses - you've had some minor contacts, not significant - your personality, character, social traits, the results of the [pjresentence [ijnvestigation, which the [cjourt will make part of the sentencing record, your degree of culpability, your age, educational background, employment record, your remorse, repentance and cooperativeness, your need for close rehabilitative control, and the rights of the victim.
So it's also my understanding during one of the courses of the - or at some other armed robbery a shot was fired. And to do then the subsequent acts thereafter, after the life was taken, to go do subsequent armed robberies is - is - ah - is certainly, ah, egregious, horrific, whatever you want to call it. It's aggravating. And you are certainly responsible for it.
So based on the entire record in this case, the [c]ourt... is going to impose [ ] sentence ....

¶ 13. The trial court's lack of analysis flies in the face of the ABA Standards for Criminal Justice Sentencing:

[A] sentencing court, when imposing sentence, should state or summarize the court's findings of fact, should state with care the precise terms of the sentence imposed, and should state the reasons for selection of the type of sanction and the level of severity of the sanction in the sentence.
.. . The statement of reasons may he relatively concise when the level of severity and type of sanction are consistent with the presumptive sentence, but the sentencing court should always provide an explanation of the court's reasons sufficient to inform the parties, appellate courts, and the public of the basis for the sentence.

ABA Standards for Criminal Justice Sentencing, § 18-5.19(b)(i), at 211-12.

¶ 14. In reference to sentencing for more than one offense or count, the ABA Standards direct: ”[W]here the separate offenses are not merged for sentencing, a sentencing court should consider imposition of sanctions of a type and level of severity that take into account the connections between the separate offenses and, in imposing sanctions of total confinement, ordinarily should. designate them to be served concurrently." ABA Standards for Criminal Justice Sentencing, § 18 — 6.5(c) (ii), at 230. However, where a court decides to impose sentences consecutively, "[t]he imposition of consecutive sentences of total confinement, where such sentences are permitted, should be accompanied by a statement of reasons for the selection of consecutive terms." Id. at 213 n.2 (citation omitted).

¶ 15. In the instant case, while the trial court was authorized to impose consecutive sentences pursuant to Wis. Stat. § 973.15(2)(a), it never explained why it imposed the sentences consecutively such that Hall will never live long enough to serve them. Additionally, the trial court never, on the record, totaled the individual sentences from each count to determine the aggregate effect of the eight consecutive sentences and Hall's earliest possible date of release from prison. Finally, Hall's sentence exceeds the presentence investigation report's recommendation by approximately 200 years. The presentence report recommended a maximum sentence for all eight counts of 107 years with a period of four to six years of extended supervision.

¶ 16. Although the recommendations of the pre-sentence report are not binding on the sentencing court, see State v. Killory, 73 Wis. 2d 400, 409, 243 N.W.2d 475 (1976), "the trial court should exercise its discretion on the whole record, including the presen-tence report," State v. Burgher, 53 Wis. 2d 452, 457, 192 N.W.2d 869 (1972); see also Ocanas, 70 Wis. 2d at 188 (stating that while the sentencing judge is not bound by recommendations in a presentence report, the report is a relevant factor in determining type and length of sentence). At sentencing, the trial court stated, "[The court] takes into consideration. . . the [p]resentence ^Investigation, which the [c]ourt will make part of the sentencing record." Thus, while the trial court may have relied on the recommendations contained in the presentence report, it neither addressed the report's conclusions nor explained why it added nearly 200 years to the report's recommended sentence. Again, "it appears that... discretion was exercised without the underpinnings of an explained judicial reasoning process." McCleary, 49 Wis. 2d at 278.

¶ 17. Although the trial court briefly mentioned a number of the sentencing factors, it never applied those factors to Hall's case. In reading the trial court's sentencing decision, one could simply "fill in the blank" by inserting any crime and any sentence of any of number of years to be served concurrently or consecutively. Therefore, while the sentencing record reflects "decision-making," i.e., the trial court decided to sentence Hall to 304 years' confinement in prison, the court failed to demonstrate "a process of reasoning... based on a logical rationale," i.e., sufficient justification for consecutive sentences applying the same factors concerning the length of a sentence to its determination of whether sentences should be served concurrently or consecutively. McCleary, 49 Wis. 2d at 277; see also Hamm, 146 Wis. 2d at 156.

¶ 18. The long length of Hall's sentence renders it meaningless. See State v. Curbello-Rodriguez, 119 Wis. 2d 414, 437, 351 N.W.2d 758 (Ct. App. 1984) (Gartzke, P.J., concurring) (concluding that sentencing a twenty-five-year-old defendant to eighty or one hundred years in prison is meaningless because it can never be served). Had the trial court's main concern been to ensure that Hall will never be released from prison and commit such crimes in the future, it could have fashioned his sentence in a more realistic and reasonable manner. We conclude that the trial court's sentencing decision is simply inadequate and, therefore, Hall's sentence is the product of an erroneous exercise of discretion.

¶ 19. However, as previously stated, our analysis does not end with this conclusion. "[RJather, we are obliged to search the record to determine whether in the exercise of proper discretion the sentence imposed can be sustained." McCleary, 49 Wis. 2d at 282. Thus, "it is . . . our duty to affirm the sentence on appeal if from the facts of record it is sustainable as a proper discretionary act." Id. This duty is premised on the following:

[A]n appellate court can ask of a trial judge ... 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.

Id. at 281.

¶ 20. From an examination of the facts of record herein, we cannot find sufficient facts to support the trial court's choice of sentence. See id. Hall was convicted of crimes that do not carry a life sentence. See generally Wis. Stat. § 973.014. Nevertheless, because he is not eligible for parole until he turns 123 years old, the trial court essentially sentenced Hall to a life in prison by imposing the sentences consecutively. This sentence is far greater than necessary for the attainment of the trial court's identified societal goals. See ABA Standards for Criminal Justice Sentencing, at 29 ("All impositions of punishment should be no more than necessary for the attainment of identified societal goals.").

¶ 21. Hall concedes that the crimes he committed were exceedingly serious and he deserves a substantial prison term. We agree. However, we also agree that Hall, as do all criminal defendants, has a constitutional right to have the relevant and material factors which influence sentencing explained on the record by the trial court. Accordingly, Hall's sentence is reversed and the cause is remanded for sentencing consistent with the dictates herein.

By the Court. — Judgment and order reversed and cause remanded with directions.

SCHUDSON, J.

¶ 22. (concurring). The majority opinion astutely acknowledges that " 'the discipline of thought necessary for a court's reasoned determination of a sentence is fostered by the process of articulation of the factual bases for the judgment,'" majority at ¶ 11 (citation omitted), and declares that while we search the record for reasons to uphold a sentence, we must not "stuff the record with post-sentencing rationalizations that were clearly absent from the original sentencing decision," majority at ¶ 19 n.9. I wholeheartedly agree, and I join in most of the majority opinion.

¶ 23. I write separately, however, for two reasons: (1) to explain my disagreement with the majority's comment that "[t]he long length of Hall's sentence renders it meaningless," majority at ¶ 18; and (2) to again convey our concern that a single circuit court continues to ignore our many warnings and, as a result, repeatedly fails to perform its most fundamental duties.

I. A Meaningless Sentence?

¶ 24. The majority ably explains that the sentencing court erroneously exercised discretion. The majority goes too far, however, in declaring that "[t]he long length of Hall's sentence renders it meaningless." Majority at ¶ 18. Although, as the majority points out, Judge Gartzke expressed a similar view, see State v. Curbello-Rodriguez, 119 Wis. 2d 414, 437, 351 N.W.2d 758 (Ct. App. 1984) (Gartzke, P.J., concurring), and although Judge Martha Bablitch agreed with him, see id. at 438 (Bablitch, J., concurring), Judge Gartzke's comments must be considered in context.

¶ 25. In Curbello-Rodriguez, the court, with former Wisconsin Supreme Court Chief Justice Bruce F. Beilfuss, sitting as a reserve judge and writing the majority opinion, rejected a challenge to numerous consecutive and concurrent sentences — for three counts of first-degree sexual assault, six counts of first-degree sexual assault as party to the crime, and one count of abduction — totaling eighty years. See id. at 420. Concurring, Judge Gartzke correctly acknowledged, "Special circumstances .nevertheless exist when deciding whether sentences for multiple convictions should run concurrently or consecutively." Id. at 437 (Gartzke, J., concurring). He then went on to say, "One circumstance is longevity." M

¶ 26. I agree. Longevity is a special circumstance a sentencing court should consider in determining whether sentences should be consecutive or concurrent. But the fact that the total time consumed by consecutive sentences exceeds a defendant's lifetime does not necessarily render the sentences "meaningless."

¶ 27. In sentencing, a court can properly express the community's outrage. A conscientious court can declare the separate significance of each crime, each victim, and each punishment. A compassionate court can respond to what may be each victim's need to see a strong and separate sentence delivered to the defendant. And for the most serious crimes, the victims and the community have every reason to expect that the defendant's punishment will be beyond full mathematical implementation. See Wis. Stat. § 973.15(2)(a) ("court may impose as many sentences as there are convictions and may provide that any such sentence be concurrent with or consecutive to any other sentence").

¶ 28. This is anything but "meaningless." For the most serious crimes, victims, their families, and the community do find real meaning — real justice and perhaps even some recovery — when those who shattered their lives are sentenced to longer terms than they can ever serve.

II. A Meaningless Sentencing!

¶ 29. Still, even if the sentence in this case, by-virtue of its length, may not have been meaningless, the sentencing, by virtue of its legal and logical deficiencies, was. Our deep concern about this single circuit court can be better understood by reviewing even a small selection of the countless occasions we have been called upon to review its conduct in criminal case proceedings.

¶ 30. In 1995, in State v. Haralson, No. 94-0124-CR, unpublished slip op. (Wis. Ct. App. Feb. 28, 1995), a case involving habitual criminality convictions for first-degree sexual assault, armed robbery, armed burglary, and bail jumping, we quoted Judge Wagner's ruling on an identification suppression motion and then commented:

We are concerned that the trial court's treatment of the identification motion is grossly inadequate for purposes of the appellate record. When explicating its ruling, the trial court should clearly discuss the relevant law and apply it to the facts of record. This procedure is not evident in the above ruling.

Id. at 5 n.l.

¶ 31. One week later, in State v. Hall-El, No. 94-0716-CR, unpublished slip op. (Wis. Ct. App. March 6, 1995), we summarily reversed the circuit court's denial of a request for resentencing. Again, we admonished Judge Wagner:

The trial judge to whom the postconviction motion was assigned decided the motion without a hearing. Although a trial court need not always hold a hearing on a postconviction motion, in this instance the trial court merely signed a form order, giving no indication that it had considered the merits of Hall-El's motion. The order simply denied Hall-El's motion because it presented "no new factors or other circumstances" that warranted sentence modification. As Hall-El points out in his brief-in-chief, he did not request sentence modification in his postconviction motion. Rather, he requested resentencing. Courts deciding postconviction motions should attempt to address the merits of the motions with some specificity for the benefit of defendants and to promote meaningful review of challenges to sentencing.

Id. at 7 n.3 (citation omitted).

¶ 32. • In 1997, in State v. Williams, No. 96-1584-CR, unpublished slip op., (Wis. Ct. App. April 8, 1997), we concluded that the court erroneously exercised sentencing discretion. In language strikingly similar to that which we use in the instant appeal, we declared that Judge Wagner's comments were "inadequate" and did "not show that the court engaged in a logical process of reasoning to reach [its sentencing] decision." Id. at 2. Independently searching the record, however, we were able to affirm. Still, to assure that Judge Wagner understood our serious concern about his conduct, the concurring opinion added:

The majority correctly declares that "the trial court's comments at sentencing were inadequate" and fail to reflect "a logical process of reasoning." Majority slip op. at 3. The majority also accurately identifies why, under the standard of review articulated in McCleary v. State, 49 Wis.2d 263, 182 N.W.2d 512 (1971), we affirm rather than remand for the trial court to conduct a proper sentencing. I write separately, however, to express and further explain the enormous frustration [of appellate courts] when, again and again, [they] have little choice but to affirm [a] trial court's sentencing [decisions despite [the trial court's] complete failure to provide [any] statement^ reflecting any "logical process of reasoning."
Over the years this court has received numerous appeals — and has more appeals pending — of sentences from only one trial judge who consistently couches his sentencing comments in nothing more than references to "the totality of the circumstances" and "factors the court must take into consideration." As the majority has reiterated, such comments do not satisfy legal requirements. Moreover, the frequency with which such appeals arrive — all containing virtually identical language — leaves little doubt that even if the judge actually has considered the individual circumstances of each case, he has completely failed to articulate a sentence that could convey reasoning to or inspire confidence from defendants and victims, their friends and families, and the public.
The fact that, under McCleary, this court steps in to search the record and compensate for the trial judge's failures is no consolation. This court, distant in time and place from the sentencing scene, cannot understand the facts, know the nuances, see and hear the defendants and victims, and feel the forces in the courtroom as only a trial judge can. This court cannot recapture the trial judge's unique opportunity to address the defendant, the victim, the friends and families, and the public to provide the moral and legal leadership — the justice — that sentencing, at its best, seeks to assure.
Additionally, although the trial court's brevity may save its resources in the short run, such brevity not only reduces confidence in the sentencing process, but also imposes substantial costs on the justice system as well. Postconviction motions to modify sentences drain resources of counsel and trial courts, and are but the prelude to countless appeals that otherwise would not be filed.
Thus, although it seems this court has little choice but again to affirm this trial judge's sentence, we would be little more than acquiescent "enablers" if we failed to admonish this trial judge with additional words of the supreme court in McCleary:
In all Anglo-American jurisprudence a principal obligation of the judge is to explain the reasons for his actions. 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.
Id. at 280-81, 182 N.W.2d at 521. Accordingly, I trust the trial court will understand that, once again, affir-mance of its bottom line does not connote approval of its process.

Id. at 4-5 (Schudson, J., concurring).

¶ 33. Later in 1997, in State v. Blunt, No. 96-3237-CR, unpublished slip op. (Wis. Ct. App. Dec. 9, 1997), a case involving a conviction for armed robbery while concealing identity, party to a crime, we reversed the denial of the defendant's motion to withdraw his guilty plea, concluding that Judge Wagner had failed to properly advise him of his rights at the guilty plea hearing. Id. at 6-7. At the oral argument before this court in that case, Assistant Attorney General Mary Bowman conceded Judge Wagner's error and, referring specifically to him, expressed her frustration over "the enormous amount of public resources that are . . . expended unnecessarily when ... a trial judge does not comply with SM-32 [prescribing the requirements for a guilty plea]." Transcript of Oral Argument in State v. Blunt, No. 96-3237-CR, Oct. 29, 1997. Ms. Bowman lamented that she had "approached the problem through the district attorneys ... in trying to find out what [they were] doing to try to keep [Judge Wagner] on track." Id.

¶ 34. In 1998, in State v. Murillo, No. 97-0184-CR, unpublished slip op. (Wis. Ct. App. April 28,1998), a case involving convictions for two counts of first-degree recklessly endangering safety while armed, this court affirmed Judge Wagner's denial of the defendant's motion to withdraw his Alford plea, but only because the defendant had waived the issue he sought to raise on appeal. Believing that we should not apply waiver, I dissented and, in the process, provided Judge Wagner with yet one more reminder of this court's concern:

Because this court repeatedly has admonished Judge Wagner regarding his failure to provide adequate records on guilty pleas and other matters, and because his failures do substantial injustice, and because his failures result in countless appeals that otherwise would be unnecessary (indeed, it was Judge Wagner's Alford plea proceeding that the supreme court reversed in [State v. [George] Smith, 202 Wis. 2d 21, 549 N.W.2d 232 (1996)]), invoking waiver to rescue yet two more of his clearly deficient proceedings (both the plea hearing and the post-plea hearing and decision) can only dis-serve the interests of justice. Invoking waiver to rescue this record undermines justice not only in this case, but also in countless others before Judge Wagner and any other judges who would take consolation from the thought of just how much this court can stomach.

Id. at 5. (Schudson, J., dissenting).

¶ 35. In 1999, in State v. [Virgil] Smith, No. 98-3106-CR-NM, unpublished slip op. (Wis. Ct. App. Aug. 13,1999), a case involving a conviction for escape, we summarily rejected a no-merit report in part because, we concluded, the record of Judge Wagner's guilty plea proceeding reflected "an arguably meritorious issue as to whether Smith's guilty plea was knowing and voluntary." Id. at 9. Judge Wagner had accepted Smith's pro se guilty plea despite: (1) never advising Smith of the maximum potential penalty; (2) accepting Smith's pro se guilty plea questionnaire even though it listed no penalties in the spaces provided for such entries; and (3) providing a plea colloquy that included the following:

THE COURT: You'll be waiving any possible defenses that you may have to the offense charged in the [c]riminal [cjomplaint, in other words, legal defenses and stuff.
THE DEFENDANT: Auh-huh.
THE COURT: That kind of stuff. You understand that?
THE DEFENDANT: Yes.
THE COURT: That kind of stuff. All right. Nobody's made any promises or threats to you to get you to plead guilty to the offense. Right?
THE DEFENDANT: No.

Transcript of Proceedings, document 22, at page 9 (emphases added).

¶ 36. And finally, just as we were reviewing the challenge to the sentencing in the instant appeal, we also were facing yet one more of the many appeals of Judge Wagner's guilty plea proceedings. In State v. Logan, No. 01-1757-CR, unpublished slip op. (Wis. Ct. App. April 2, 2002), the defendant challenged his conviction for first-degree sexual assault of a child. We summarily reversed, concluding that, once again, Judge Wagner: (1) failed to provide a proper guilty plea proceeding, this time by neglecting to review the elements of the crime; and (2) failed to provide a required hearing to consider the defendant's motion to withdraw his plea. See id. at ¶¶ 9-11.

¶ 37. Thus, for at least the seven years recounted in these decisions, judges of this district of the Wisconsin Court of Appeals have repeatedly reversed and admonished Judge Wagner and, apparently, the Attorney General's office has attempted to motivate corrective action. And yet, as we see this month, Judge Wagner still fails to provide a proper guilty plea proceeding on a charge of first-degree sexual assault of a child, and still fails to provide a minimally adequate explanation for the sentences he orders for armed robbery, armed burglary, and felony murder.

¶ 38. So where do we go from here? At oral argument in this appeal, we asked Assistant Attorney General Gregory M. Weber for his advice. Mr. Weber conceded the inadequacy of Judge Wagner's sentencing remarks. Specifically referring to Judge Wagner's apparent inability or unwillingness to correct his conduct, he expressed concern about what he termed a "fairly localized problem." See Oral Argument Tape in State v. Hall, No. 01-0808-CR, March 5, 2002. Mr. Weber recommended that we publish a powerful decision reiterating themes such as those addressed in the concurring opinion in Williams, repeated in this opinion. See ¶ 11, above.

¶ 39. Assistant Attorney General Weber said that he thought it would be particularly important to emphasize to circuit court judges that when their sentencing remarks are inadequate, their sentencings may not always be saved by postconviction decisions elaborating their reasoning and, even if their sentencings are salvaged for appellate purposes, the judges have surrendered an irreplaceable opportunity to speak to the offenders, the victims, their families, and the community. See id. We completely agree.

¶ 40. And so, once again, we try... in as measured a manner as we know. We remain hopeful that this single circuit court will correct its course and sail smoothly. More realistically, perhaps, we remain confident that all other courts will better navigate their vessels, having learned valuable lessons from the one court that keeps capsizing.

       All references to the Wisconsin Statutes are to the 1999-2000 version unless otherwise noted.

       Although it is clear from the record that Hall pled guilty to armed robbery, a Class B felony, contrary to Wis. Stat. § 943.32(1) and (2), the judgment of conviction in this case states that Hall pled guilty to robbery with use of force, a Class C felony, contrary to Wis. Stat. § 943.32(l)(a). We remand this matter to the trial court for the clerk of courts to correct this error. See State v. Prihoda, 2000 WI 123, ¶ 5, 239 Wis. 2d 244, 618 N.W.2d 857 (stating that the trial court must correct a clerical error in the sentence portion of a written judgment or direct the clerk's office to make the correction).

       Because resolution of this issue is dispositive of Hall's appeal, we decline to address whether Hall's sentence is per se excessive. See Gross v. Hoffman, 227 Wis. 296, 300, 277 N.W. 663 (1938) (holding that if a decision on one point disposes of the appeal, an appellate court need not address the other issues raised); see also State v. Blalock, 150 Wis. 2d 688, 703, 442 N.W.2d 514 (Ct. App. 1989) ("[Cjases should be decided on the narrowest possible ground."); Grogan v. Public Serv. Comm'n, 109 Wis. 2d 75, 77, 325 N.W.2d 82 (Ct. App. 1982) ('We do not decide constitutional issues if the resolution of other issues can dispose of an appeal.").

       It is unclear whether Moore intentionally fired the weapon or whether it went off accidentally. Moore claimed that he did not remember pulling the trigger. He thought the gun went off accidentally because he was nervous and his body was shaking.

       Only one of the crimes, the armed robbery occurring on February 6, 2000, was committed after the effective date of the truth-in-sentencing legislation in Wisconsin, December 31, 1999.

       Hall's term of incarceration is nearly double his life expectancy. Hall has a life expectancy of 63.7 years, according to the National Vital Statistics Report, Vol. 47, No. 28, December 13, 1999, p. 32.

       The trial court's lack of reasoned analysis is further evidenced by the fact that it imposed a twenty-year period of extended supervision pursuant to Wis. Stat. § 973.01(2)(d), which is double the minimum required by statute. We can only wonder why a court would impose an extra ten years of extended supervision on a defendant who is not scheduled to be released from prison until he is 123 years old, and, therefore, will never live long enough to be placed on extended supervision, let alone serve an extra ten years.

       This is not to suggest that a trial court must apply a specific format or formula in sentencing decisions. The record must simply reflect the reasonableness of the sentence imposed.

       On the other hand, our search of the record is not intended to supplant the trial court's sentencing decision or reduce the trial court's obligation to state at sentencing the relevant and material factors that influenced its decision. Our duty to "search the record," as set forth in McCleary, was established to allow appellate courts to affirm a sentencing decision that reflects "a process or reasoning based on facts that are of record or that are reasonably derived by inference from the record." State v. Wagner, 191 Wis. 2d 322, 332, 528 N.W.2d 85 (Ct. App. 1995). Although we are obliged to search the record for facts to sustain the sentence, trial courts should not interpret this duty as creating an opportunity to stuff the record with post-sentencing rationalizations that were clearly absent from the original sentencing decision. In the instant case, even after a careful review of the record, we cannot find sufficient reasons to support the sentence imposed.

       Further, under the indeterminate sentencing system that existed prior to December 31,1999, "judges handled] down basic sentences [but] the length of confinement and community supervision [was] determined by the Parole Commission." Michael Lew, Wisconsin Department of Corrections, Offenders Admitted Under Truth in Sentencing: January 1, 2000 through June 30, 2001, at 1, (September 10, 2001). "In Wisconsin, offenders given an indeterminate sentence - aside from those sentenced to life - [were] eligible for parole consideration after serving 25 percent or 6 months of their sentence, whichever [was] greater." Id.

      However, "[u]nder [truth-in-sentencing], discretion surrounding an inmate's confinement time in prison is essentially transferred from the Parole Commission to the judiciary." Id. The truth-in-sentencing legislation abolished parole and established an accurate system of sentencing; meaning that a sentence to one-year confinement in prison assures that the offender will be incarcerated for exactly 365 days before being released. See 1997 Wis. Act 283; see also Michael B. BREnnan & Donald V. LatoRRaca, Truth-in-Sentencing, Wisconsin Lawyer, vol. 73, no. 5, at 14, 14-17 (May 2000).
      As explained by the Criminal Penalties Study Committee, an eighteen-person committee established by the truth-in-sentencing legislation, charged with the duty of investigating the effects of determinate sentencing in Wisconsin, making recommendations regarding the truth-in-sentencing legislation, and drafting proposed legislation necessary to implement their recommendations, the judiciary must grow with our evolving system of sentencing:
      The shift of more complete .. . sentencing decision!-] making to the judiciary places upon judges the task to more carefully fashion a sentence based upon the severity of the crime, the character of the offender, the interests of the community, and the need to protect the public. Judges are on the front lines of the criminal justice system every day, listening to victims and their families, defendants and their families, law enforcement, prosecutors, defense attorneys, and the public.
      The impact of this legislation in Wisconsin will be largely dependent on sentencing patterns exhibited by the judiciary and sentencing judges' abilities to communicate their decision-making processes. See Michael Lew, Wisconsin Department of Corrections, Offenders Admitted Under Truth in Sentencing: January 1, 2000 through June 30,2001, at 1. Without adequate sentencing decisions at the trial court level, the legislature, the governor, the judiciary, and the public are removed from all communication from this front line of the criminal justice system.

       We are also mindful that District IV will be addressing the issue of whether a sentence imposed under the truth-in-sentencing legislation may be modified pursuant to Wis. Stat. § 973.19 in State v. Champion, 01-1894-CR.

       We pause to comment on the nature of a concurring opinion. Generally, a concurring opinion agrees with the conclusion of the lead opinion while providing a distinct rationale. Here, the contents of the concurring opinion do not reflect the views of the entire court.

       Notably, however, Judge Gartzke was advocating for the adoption of ABA Standards for Criminal Justice Standard 18-4.5(b), which limits a court's ability to impose consecutive sentences. Specifically, Judge Gartzke believed that a court " 'should be authorized to impose ... a [consecutive] sentence only after a finding that confinement for such a term is necessary in order to protect the public from further serious criminal conduct by the defendant....'" State v. Curbello-Rodriguez, 119 Wis. 2d 414, 438, 351 N.W.2d 758 (Ct. App. 1984) (Gartzke, P.J., concurring) (citation omitted; alteration in original).
      The Wisconsin Supreme Court, however, has "repeatedly refused to accept guidelines or limitations on consecutive sentencing." State v. Paske, 163 Wis. 2d 52, 66, 471 N.W.2d 55 (1993); see also State v. LaTender, 86 Wis. 2d 410, 432, 273 N.W.2d 260 (1979); Cunningham v. State, 76 Wis. 2d 277, 284, 251 N.W.2d 65 (1977); Drinkwater v. State, 73 Wis. 2d 674, 684, 245 N.W.2d 664 (1976); Weatherall v. State, 73 Wis. 2d 22, 34, 242 N.W.2d 220 (1976).
      In Paske, the Court noted:
      The legislature has enacted sec. 973.15(2), Stats. (1987-88), giving the court discretion in imposing concurrent and consecutive sentences. Adopting a limitation on this statute ... would put us in the position of placing a restriction on something the legislature has already given the court wide discretion in doing. We adhere to our prior decisions which give deference to legislative enactment and judicial discretion, and therefore do not adopt any limitations on consecutive sentencing.

        Paske, 163 Wis. 2d at 67-68.

       The legislature, in Wis. Stat. § 950.01, has emphatically declared that victims' rights should be "honored and protected by law enforcement agencies, prosecutors and judges in a manner no less vigorous than the protections afforded criminal defendants." Wis. Stat. § 950.01; see also Wis. Stat. § 950.04(lv)(m) (allowing victims to provide statements concerning sentencing, disposition or parole).

       Judge Ralph Adam Fine (who was on the panels in the Blunt, Murillo, and Virgil Smith cases, but not on the panels in the other five cases recounted here), however, has authorized me to say that he never joined in an opinion that "admonished" Judge Wagner as he, Judge Fine, reads that word in this concurring opinion.
      Lest there be any concern that only the judges of this appellate district would find fault with Judge Wagner's conduct of the most basic guilty plea proceedings, I note that, on a rare occasion when an appeal from Judge Wagner's court came to District W h met the same fate.
      In State v. Luedke, No. 00-2459-CR, unpublished slip op. (WI App June 21, 2001), a case involving two felony charges of impersonating a peace officer, three District IV judges reversed Judge Wagner, concluding that he "did not adequately establish that [the defendant] had an awarenss of the essential elements of the crime." Id. at ¶ 7. The court explained that Judge Wagner had conducted critical portions of the plea colloquy in a "perfunctory" manner, thus failing to satisfy clearly established legal standards. See id.