WisBar News: Resentencing not an option under Grady where no sentencing guidelines exist :

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  • Resentencing not an option under Grady where no sentencing guidelines exist 

    Man sentenced in 2005 invokes a Wisconsin Supreme Court case that requires sentencing courts to consider applicable sentencing guidelines and make a record of the consideration.

    Joe Forward

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    Resentencing not an option under 
<em>Grady</em> where no sentencing guidelines exist Oct. 26, 2011 – A Wisconsin Supreme Court case that requires a sentencing court to consider sentencing guidelines and make a record of that consideration does not apply as a basis for resentencing where no guidelines exist for the crime.

    In 2005, a circuit court sentenced Jeffrey Firebaugh to 10 years in prison, and 10 years extended supervision for homicide by intoxicated use of a motor vehicle. At the time, Wisconsin’s sentencing guidelines were still in the process of creation.

    Temporary guidelines for 11 offenses existed at the time of Firebaugh’s sentencing, but homicide by intoxicated use of a motor vehicle was not one of them.

    Wis. Stat. section 973.017(2)(a) – repealed by 2009 Wis. Act 28 but applicable at the time of Firebaugh’s sentencing – required a court to consider the guidelines adopted by the Wisconsin Sentencing Commission or any temporary guidelines adopted for all felony offenses committed after Feb. 1, 2003.

    Under State v. Grady, 2007 WI 81, 302 Wis. 2d 80, 734 N.W.2d 364, sentencing courts are required to consider applicable guidelines and make that consideration clear in the record.

    That portion of Grady requiring a sentencing court to state reasons for its sentencing decisions is codified in section 973.017(10m), and Grady still applies in cases where section 973.017(2)(a) is applicable.

    Thus, in 2010, Firebaugh filed a motion for resentencing, arguing that the sentencing court did not satisfy its section 973.01(2)(a) obligation to consider applicable sentencing guidelines and make the consideration clear in the record, as required by Grady.

    Essentially, Firebaugh argued that Grady serves as a new factor justifying resentencing because the sentencing court did not consider a sentencing guideline on the record in his case. The circuit court denied Firebaugh’s resentencing request, concluding that there was no sentencing guideline for the court to consider when Firebaugh was sentenced in 2005.

    In State v. Firebaugh, 2010AP2038-CR (Oct. 18, 2011), the District III Wisconsin Court of Appeals affirmed the circuit court, concluding that Firebaugh seeks an impossible remedy – consideration of a sentencing guideline that did not, and does not, exist.

    The appeals court, in an opinion written by Reserve Judge Thomas Cane, also rejected Firebaugh’s argument that State v. Gallion, 2004 WI 42, 270 Wis. 2d 535, 678 N.W.2d 197, directs application of section 973.017(2)(a) (repealed) specifically to crimes of homicide by intoxicated use of a motor vehicle.

    “It did not,” wrote Judge Cane. “Indeed, the [Gallion] court affirmed the defendant’s conviction even though the sentencing court apparently did not mention a guideline – presumably because none existed.”

    The state recommended publication of this case to forestall similar claims by litigants and others attempting to obtain a resentencing under Grady.

    By Joe Forward, Legal Writer, State Bar of Wisconsin