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    Supreme Court Digest

    This column summarizes selected published opinions of the Wisconsin Supreme Court (except those involving lawyer or judicial discipline, which are digested elsewhere in the magazine). Prof. Daniel D. Blinka and Prof. Thomas J. Hammer invite comments and questions about the digests. They can be reached at the Marquette University Law School, 1103 W. Wisconsin Ave., Milwaukee, WI 53233, (414) 288-7090.
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    Vol. 80, No. 11, November 2007

    Criminal Procedure

    Sentencing _ Truth-in-Sentencing Cases _ Consideration of Sentencing Guidelines

    State v. Grady, 2007 WI 125 (filed 11 Oct. 2007)

    [Editors' Background Note: On June 29, 2007, the supreme court released an opinion in State v. Grady, 2007 WI 81, ___ Wis. 2d ___, 734 N.W.2d 364. The following synopsis of that decision was published in the August 2007 Wisconsin Lawyer:

    [The defendant pleaded guilty to two counts of armed robbery for an offense that was committed on Nov. 12, 2003 (after the second wave of truth-in-sentencing legislation [2001 Wis. Act 109] took effect). Although a sentencing guideline exists for this offense, neither the judge nor the parties mentioned the guideline at the sentencing hearing. When the defendant raised this as a postconviction issue, the judge stated on the record that she had considered the guideline during the initial sentencing hearing though she did not explicitly mention it. The court denied the postconviction motion and the court of appeals affirmed. In a unanimous decision authored by Justice Wilcox, the supreme court affirmed.

    [The first question before the court was whether Wis. Stat. section 973.017(10) precludes appellate review of a circuit court's consideration of a sentencing guideline pursuant to section 973.017(2)(a). The latter subsection requires the sentencing court to consider any applicable sentencing guideline when making a sentencing decision. Section 973.017(10) specifies that this obligation "does not require a court to make a sentencing decision that is within any range or consistent with a recommendation specified in the guidelines, and there is no right to appeal a court's sentencing decision based on the court's decision to depart in any way from any guideline." The supreme court held that "[n]othing in the language of § 973.017(10) suggests that a circuit court's failure to consider an applicable sentencing guideline pursuant to § 973.017(2)(a) is not a valid grounds for appeal. Therefore, we conclude that like the other provisions of Wis. Stat. ch. 973 that establish obligations for circuit courts during sentencing, an appellate court may review whether or not a circuit court satisfied its § 973.017(2)(a) obligation" (¶ 18).

    [The supreme court then addressed the question of how a circuit court satisfies its section 973.017(2)(a) obligation to consider an applicable sentencing guideline. "We hold that a circuit court satisfies its § 973.017(2)(a) obligation when the record of the sentencing hearing demonstrates that the court actually considered the sentencing guidelines and so stated on the record. In this case, the record of the postconviction motion hearing reveals that the sentencing judge considered the applicable guideline during the sentencing hearing. Hereafter, supplementing the record with evidence beyond the sentencing hearing will be insufficient. For sentencing hearings occurring after September 1, 2007, a circuit court satisfies its § 973.017(2)(a) obligation when the record of the sentencing hearing demonstrates that the court actually considered the sentencing guidelines and so stated on the record" (¶¶ 2-3).

    [Providing further guidance to the circuit courts, the supreme court indicated that "[f]or a sentencing court to satisfy its § 973.017(2)(a) obligation there are not magic words that must appear in the record. The legislature has made clear that the § 973.017(2)(a) obligation `does not require a court to make a sentencing decision that is within any range or consistent with a recommendation specified in the guidelines.' Wis. Stat. § 973.017(10). By requiring circuit courts to consider any applicable guideline, the legislature has indicated that courts must at least take any applicable guideline into account. The consideration of an applicable guideline must occur for each sentence imposed for a sentencing court to satisfy its § 973.017(2)(a) obligation" (¶¶ 34-35).

    [The court rejected the defendant's argument that sentencing judges must complete any applicable sentencing guideline worksheet. Said the court, "[t]his is not required by the statute." (¶ 38). Addressing additional defense arguments, the court found that section 973.017(2)(a) "does not include language that suggests that considering a sentencing guideline means the sentencing court must explain both how the sentencing guideline fits the objectives of sentencing and how the sentencing guideline influences the sentence imposed. From the language of § 973.017(2)(a), a sentencing court must consider an applicable guideline, not explain it" (¶ 42).]

    After the original decision in this case was released, the defendant moved the supreme court for reconsideration of its decision "for the limited purpose of clarifying the court's opinion to remove an alleged ambiguity about the effective date of parts of the opinion" (¶ 1). In this per curiam decision, the court denied the defendant's motion for reconsideration and declined to revise the language of the original opinion. However, it restated its principal conclusions from the earlier decision as follows:

    "A. For sentencing occurring after September 1, 2007, a circuit court satisfies its Wis. Stat. § 973.017(2)(a) obligation when the record of the sentencing hearing demonstrates that the court actually considered the sentencing guidelines and so stated on the record. Accordingly, when a circuit court's consideration of sentencing guidelines is reviewed, the reviewing court may not supplement the sentencing record with evidence outside the sentencing hearing for any sentencing occurring after September 1, 2007. Whether a circuit court has met its § 973.017(2)(a) obligation in a sentencing after that date must be determined from the record of the sentencing hearing.

    "B. The prospective application of the rule stated above does not affect other parts of the Grady opinion. Thus, the opinion's affirmation of both the circuit court's duty under Wis. Stat. § 973.017(2)(a) to consider any applicable sentencing guidelines and appellate authority to review the circuit court's compliance with this statute, apply to all sentencing procedures, retroactively as well as prospectively" (¶ 2).

    Justice Ziegler did not participate.

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    Insurance

    Bifurcation _ Coverage _ "Volunteers"

    Heikkinen v. United Servs. Auto. Ass'n, 2007 WI 124 (filed 12 Oct. 2007)

    [Editors' Background Note: In 2006 the court of appeals released an opinion in Heikkinen v. United Services Automobile Ass'n, 2006 WI App 207, 296 Wis. 2d 428, 724 N.W.2d 243. The following synopsis of that decision was published in the December 2006 Wisconsin Lawyer:

    [Morse drove through a red light and her car then struck and injured Heikkinen. Although she was driving her own car, Morse was delivering a religious statue as a volunteer for a "volunteer service organization," the Legion of Mary, that served the needs of her church (Christ King). The main issue at trial was whether Morse was covered by the liability insurance certificate issued by Catholic Mutual to the Milwaukee Archdiocese, within which Christ King was a parish. The trial court found that coverage applied.

    [The court of appeals, in an opinion written by Judge Curley, affirmed in an opinion that addressed four issues. First, the trial court properly exercised its discretion by denying bifurcation of damages and coverage issues. The plaintiff, age 84, was badly injured and the trial judge was understandably concerned about further delays.

    [Second, the trial judge properly worded the special verdict question relating to coverage, which simply asked if Morse was acting "on behalf of" her parish and/or the Archdiocese. The certificate "provides coverage to volunteers of Christ King and the Archdiocese `while acting within the scope of their duties or in their official capacity,' but specifically excludes bodily injury or property damage incurred in connection with automobiles. It is undisputed that the automobile exclusion does not apply to religious volunteers `while using their own automobiles on behalf of the Certificate Holder or other Protected Person(s)…'" (¶31).

    "[T]he issue was for whom was Morse acting as volunteer: only the Legion of Mary or also Christ King and/or the Archdiocese? In light of the numerous potential misinterpretations outlined above, it is understandable that the court preferred a simpler phrasing. Considering that what was really disputed was for whom Morse was delivering the statue, a simpler way to ask the same question was to ask whether Morse was acting `on behalf of' Christ King and/or the Archdiocese. Under the unusual facts of this case, where neither Morse's status as a volunteer, nor the fact that the delivery of the statue was within her duties was disputed, we are satisfied that the `on behalf of' language does indeed carry the same meaning as a `volunteer of a protected person' while acting in `the scope of their duties or in their official capacity' that was used by the parties in the certificate" (¶ 38). (The court of appeals also found sufficient evidence to support this finding).

    [Third, Morse's conduct fell within the aegis of the policy's excess liability coverage. Although defendants arguably had waived this claim by failing to raise it with the trial court, the court of appeals nonetheless found that the excess coverage "has no independent requirements other than satisfying the terms and conditions of the underlying coverage" (¶ 58).

    [Lastly, the court concluded that the damages were not excessive.]

    In this per curiam opinion, the supreme court was equally divided on the question of whether the court of appeals' published decision summarized above should be affirmed or reversed. Chief Justice Abrahamson and Justices Bradley and Butler would affirm; Justices Prosser, Roggensack, and Ziegler would reverse. Accordingly, the decision of the court of appeals was affirmed (see ¶ 2).

    Justice Crooks did not participate.

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