State v. Robert P. Vesper, 2018 WI App 31; case activity (including briefs)
Vesper complains that when he was sentenced for his 7th OWI offense the judge didn’t give a separate explanation for why it was imposing a fine in addition to prison time. Over a dissent, the court of appeals concludes the judge said enough to satisfy the (not at all exacting) standard of review for exercise of sentencing discretion. The court also rejects Vesper’s claim that the judge didn’t assess his ability to pay the fine.
The judge said plenty of the usual things to justify the prison sentence, but in addition the court imposed a “$1,900 fine,” with no additional explanation. (¶¶4-5, 13). The maximum fine was $25,000, and the district-wide OWI guidelines for Vesper’s case called for a $1,900 fine, though the judge didn’t explicitly refer to the guidelines. (¶¶5, 17). Relying on State v. Kuechler, 2003 WI App 245, 268 Wis. 2d 192, 673 N.W.2d 335, the majority holds that the entirety of the court’s sentencing remarks are sufficient to show an exercise of discretion, and no separate statement of reasons for the fine is necessary:
¶16 Here, as in Kuechler, the circuit court discussed factors both aggravating (high BAC of 0.139, repeat offender, and driving while on extended supervision and without a license) and mitigating (cooperative and remorseful attitude and taking responsibility for his actions), but emphasized the aggravating. Throughout its colloquy, the court explicitly and appropriately considered protection of the community (Vesper continued to put others at risk), the gravity of the offense (repeated offenses even when prohibited from driving), and the character and rehabilitation of Vesper (despite being a good person, he has not dealt well with his serious alcohol problem).
¶17 Although not explicitly citing to the local sentencing guidelines, the circuit court applied the analysis they encompass. …. For a seventh offense in an aggravated case and a BAC between 0.08 and 0.169, the guidelines recommend a fine of $1900, exactly what was imposed here. …. They also recommend initial confinement of forty-two to fifty-four months (fifty were imposed) and license revocation and ignition interlock device for thirty-six months, all of which match Vesper’s sentence….. It was appropriate for the court to apply the guidelines’ analysis, see Kuechler, 268 Wis. 2d 192, ¶10, which supports the terms of Vesper’s sentence, as it integrates sentence options, ranges, and the connection between the penalties of imprisonment and a fine. See State v. Ramel, 2007 WI App 271, ¶24, 306 Wis. 2d 654, 743 N.W.2d 502.
¶18 Whether the court explicitly applied the guidelines is of no matter. It is “well settled” that the discretionary process of reasoning “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.” [State v.] Taylor, [2006 WI 22,] 289 Wis. 2d 34, ¶¶17, 30[, 710 N.W.2d 466]…. When a court must select an amount between $0 and $25,000, the chances that the court will coincidentally choose one particular amount (i.e., $1900) are virtually nil. As a reviewing court, we are usually satisfied with drawing inferences from a record that are reasonable, and sometimes a record will allow us to draw inferences that are downright compelling, but rare is the record, such as this one, where we can draw an inference that is nearly a certainty. However, even without explicit or implicit reliance on the sentencing guidelines, the court’s colloquy appropriately discussed the sentencing objectives and relevant factors, all of which squarely supported the imposition of the $1900 fine which, just as is the case with the applicable guideline, is both reasonable and justified.
But wait a minute, says Vesper: Ramel found a court erroneously exercised its discretion by imposing a fine and failing to say why a fine was appropriate. Id., 306 Wis. 2d 654, ¶¶13-14. The majority distinguishes Ramel by saying the problem there was not a lack of explanation for the fine imposed, but a lack of information the defendant could pay a fine of any amount. (¶¶20-25). Vesper reads Ramel to require a separate statement on the record explaining the rationale for the fine. A concurring/dissenting judge (Hagedorn) agrees, as set out in a careful, thorough explanation (¶¶43-57), all the while acknowledging that requirement could be “overly burdensome and unnecessary” (¶54). To the dissent, then, Ramel and Kuechler are in conflict, which poses a problem:
¶58 We are not permitted to overrule our prior cases, by subtlety or otherwise. By publishing this decision, the majority renders Ramel a dying, if not dead, letter. Appellate courts will just search the record for implied and unstated rationales for imposing a criminal fine, [as] the majority instructs. “$1900 fine” is enough—if we can discern that it was probably based on sentencing guidelines. If that were the law that governs us, I would agree. But I do not believe Ramel permits that conclusion. ….
Sounds like a conflict for our supreme court to straighten out!—if only that’s the sort of thing they would actually do, instead of issuing fractured, non-precedential decisions or regurgitations of black-letter law with no analysis.
The court also finds there was sufficient basis in the record to conclude Vesper has the ability to pay the fine. (¶¶27-35). And, finally, the court rejects Vesper’s new-factor sentence modification argument. The new factor claim was that, after sentencing, the circuit court reduced Vesper’s sentence credit in this case to zero because it duplicated credit he got toward a previous sentence Vesper was serving, and the court had made the OWI 7th sentence consecutive to the previous sentence. (¶¶3, 5-6, 36-42).
