973.013 Indeterminate sentence; Wisconsin state prisons.

(1)

(a) If imprisonment in the Wisconsin state prisons for a term of years is imposed, the court may fix a term less than the prescribed maximum. The form of such sentence shall be substantially as follows: “You are hereby sentenced to the Wisconsin state prisons for an indeterminate term of not more than .... (the maximum as fixed by the court) years."

(b) Except as provided in s. 973.01, the sentence shall have the effect of a sentence at hard labor for the maximum term fixed by the court, subject to the power of actual release from confinement by parole by the department or by pardon as provided by law. If a person is sentenced for a definite time for an offense for which the person may be sentenced under this section, the person is in legal effect sentenced as required by this section, said definite time being the maximum period. A defendant convicted of a crime for which the minimum penalty is life shall be sentenced for life.

(2) Upon the recommendation of the department, the governor may, without the procedure required by ch. 304, discharge absolutely, or upon such conditions and restrictions and under such limitation as the governor thinks proper, any inmate committed to the Wisconsin state prisons after he or she has served the minimum term of punishment prescribed by law for the offense for which he or she was sentenced, except that if the term was life imprisonment, 5 years must elapse after release on parole or extended supervision before such a recommendation can be made to the governor. The discharge has the effect of an absolute or conditional pardon, respectively.

(3) Female persons convicted of a felony may be committed to the Taycheedah Correctional Institution unless they are subject to sub. (3m).

(3m) If a person who has not attained the age of 18 years is sentenced to the Wisconsin state prisons, the department shall place the person at a juvenile correctional facility or a secured residential care center for children and youth, unless the department determines that placement in an institution under s. 302.01 is appropriate based on the person's prior record of adjustment in a correctional setting, if any; the person's present and potential vocational and educational needs, interests and abilities; the adequacy and suitability of available facilities; the services and procedures available for treatment of the person within the various institutions; the protection of the public; and any other considerations promulgated by the department by rule. The department may not place any person under the age of 18 years in the correctional institution authorized in s. 301.16 (1n). This subsection does not preclude the department from designating an adult correctional institution, other than the correctional institution authorized in s. 301.16 (1n), as a reception center for the person and subsequently transferring the person to a juvenile correctional facility or a secured residential care center for children and youth. Section 302.11 and ch. 304 apply to all persons placed in a juvenile correctional facility or a secured residential care center for children and youth under this subsection.

(4) If information under s. 972.15 (2m) has been provided in a presentence investigation report, the court shall consider that information when sentencing the defendant.

History: 1973 c. 90; 1975 c. 189 s. 99 (1); 1975 c. 224 s. 146m; 1983 a. 102, 1983 a. 371 s. 13; Stats. 1983 s. 973.013; 1987 a. 27; 1989 a. 31, 107; 1993 a. 486; 1995 a. 27; 1997 a. 283; 2001 a. 16, 103; 2005 a. 344; 2017 a. 59.

The sentencing judge shall state for the record, in the presence of the defendant, the reasons for selecting the particular sentence imposed or, if the sentencing judge considers it in the interest of the defendant not to state reasons in the presence of the defendant, shall prepare a statement for transmission to the reviewing court as part of the record. McCleary v. State, 49 Wis. 2d 263, 182 N.W.2d 512 (1971).

It was not a denial of equal protection to sentence a defendant to 4 years' imprisonment, although other persons involved, all minors, received lesser or no punishment. State v. Schilz, 50 Wis. 2d 395, 184 N.W.2d 134 (1971).

An abuse of discretion, as it relates to sentencing procedures, will be found only if there is no rational basis for the imposition of the sentence or the rationale is not articulated in, or inferable from, the record, or if discretion is exercised on the basis of clearly irrelevant or improper factors. Davis v. State, 52 Wis. 2d 697, 190 N.W.2d 890 (1971).

The seriousness of the offense is a proper criterion for imposing a maximum sentence. While warehousing dangerous individuals is not the sole purpose for imposing long prison terms, it is a legitimate factor for a trial court to consider. Bastian v. State, 54 Wis. 2d 240, 194 N.W.2d 687 (1972).

A prison sentence is reduced to reflect days of pretrial incarceration during which the defendant was unable to raise bail because of indigency. Wilkins v. State, 66 Wis. 2d 628, 225 N.W.2d 492 (1975).

A defendant's change in attitude or rehabilitative progress subsequent to sentencing is a factor to be considered in determining parole but is not a proper consideration upon which a trial court might base a reduction of sentence. State v. Wuensch, 69 Wis. 2d 467, 230 N.W.2d 665 (1975).

Although evidence concerning incidents of sexual activity abroad was relevant as to defendant's character and admissible at the sentencing hearing, the trial court abused its discretion by punishing the defendant not only for the crime of which he stood convicted, but for the events that occurred outside Wisconsin, as indicated by the fact that both sentencing hearings were devoted largely to these foreign incidents. Rosado v. State, 70 Wis. 2d 280, 234 N.W.2d 69 (1975).

The trial court exceeded its jurisdiction by specifying conditions of incarceration. State v. Gibbons, 71 Wis. 2d 94, 237 N.W.2d 33 (1976).

A plea bargain agreement by law enforcement officials not to reveal relevant and pertinent information to the sentencing judge was unenforceable as being against public policy. Grant v. State, 73 Wis. 2d 441, 243 N.W.2d 186 (1976).

Chronic offenses of theft by fraud by promising to marry several persons provided a rational basis for a lengthy sentence. Lambert v. State, 73 Wis. 2d 590, 243 N.W.2d 524 (1976).

A sentencing judge does not deny due process by considering pending criminal charges in determining a sentence. The scope of judicial inquiry prior to sentencing is discussed. Handel v. State, 74 Wis. 2d 699, 247 N.W.2d 711 (1976).

A defendant's refusal to name accomplices was properly considered by the sentencing judge. Because the defendant had pleaded guilty to the crime, self-incrimination would not have resulted from the requested cooperation. Holmes v. State, 76 Wis. 2d 259, 251 N.W.2d 56 (1977).

Courts may correct formal or clerical errors or an illegal sentence at any time. Krueger v. State, 86 Wis. 2d 435, 272 N.W.2d 847 (1979).

The double jeopardy clause did not bar prosecution of a charge after it was considered as evidence of character in sentencing the defendant on a prior unrelated conviction. State v. Jackson, 110 Wis. 2d 548, 329 N.W.2d 182 (1983).

Increasing a sentence following the vacation of a bargained for no contest plea did not violate due process. The test for judicial vindictiveness is discussed. State v. Stubbendick, 110 Wis. 2d 693, 329 N.W.2d 399 (1983).

An 80-year sentence for a first-time sexual offender was not an abuse of discretion. State v. Curbello-Rodriguez, 119 Wis. 2d 414, 351 N.W.2d 758 (Ct. App. 1984).

An unambiguous sentence pronounced orally and recorded in the sentencing transcript controls over the written judgment of conviction. State v. Perry, 136 Wis. 2d 92, 401 N.W.2d 748 (1987).

The sentencing court does not abuse its discretion by considering a victim's statements and recommendations. State v. Johnson, 158 Wis. 2d 458, 463 N.W.2d 352 (Ct. App. 1990).

The primary factors to be considered in exercising discretion in sentencing are: 1) the gravity of the offense; 2) the rehabilitative needs of the defendant; and 3) the protection of the public. State v. Paske, 163 Wis. 2d 52, 471 N.W.2d 55 (1991).

Due process does not require the presence of counsel at a presentence investigation interview of the defendant. State v. Perez, 170 Wis. 2d 130, 487 N.W.2d 630 (Ct. App. 1992).

Whether a particular factor will be considered as a mitigating or aggravating factor will depend on the particular defendant and case. State v. Thompson, 172 Wis. 2d 257, 493 N.W.2d 729 (Ct. App. 1992).

The trial court's possible consideration at sentencing of the defendant's culpability in a more serious offense, although the jury convicted on a lesser included offense, was not error. State v. Marhal, 172 Wis. 2d 491, 493 N.W.2d 758 (Ct. App. 1992). See also State v. Bobbitt, 178 Wis. 2d 11, 503 N.W.2d 11 (Ct. App. 1993).

No specific burden of proof is imposed as to read-in offenses that bear upon sentencing; all sentencing is under the standard for judicial discretion. State v. Hubert, 181 Wis. 2d 333, 510 N.W.2d 799 (Ct. App. 1993).

A sentencing court may consider a defendant's religious beliefs and practices only if a reliable nexus exists between the defendant's criminal conduct and those beliefs and practices. State v. Fuerst, 181 Wis. 2d 903, 512 N.W.2d 243 (Ct. App. 1994).

If an oral pronouncement is ambiguous, it is proper to look to the written judgment to ascertain a court's intent in sentencing. An omission in the oral pronouncement can create an ambiguity. State v. Lipke, 186 Wis. 2d 358, 521 N.W.2d 444 (Ct. App. 1994).

Under s. 973.013 [now sub. (1)], life imprisonment without parole is not an option. State v. Setagord, 187 Wis. 2d 339, 523 N.W.2d 124 (Ct. App. 1994).

A trial court in exercising sentencing discretion is not prohibited from entertaining general predispositions based on experience, but the judge's predispositions may never be so specific as to ignore the particular circumstances of the individual offender. State v. Ogden, 199 Wis. 2d 566, 544 N.W.2d 574 (1996), 94-1485.

A defendant who requests resentencing must show that specific information was inaccurate and that the court relied on it. When facts stated in a presentence report are not challenged at sentencing, the sentencing judge may appropriately consider them. State v. Mosley, 201 Wis. 2d 36, 547 N.W.2d 806 (Ct. App. 1996), 95-1340.

A court must consider 3 primary factors in exercising discretion in sentencing: 1) the gravity of the offense; 2) the character of the offender; and 3) the need to protect the public. Remorse is an additional factor that may be considered. State v. Rodgers, 203 Wis. 2d 83, 552 N.W.2d 123 (Ct. App. 1996), 95-2570. For enumeration of other additional factors that may be considered, see State v. Barnes, 203 Wis. 2d 132, 552 N.W.2d 857 (Ct. App. 1996), 95-1831.

A defendant is automatically prejudiced when the prosecutor materially and substantially breaches a plea agreement. New sentencing is required. State v. Smith, 207 Wis. 2d 258, 558 N.W.2d 379 (1997), 94-3364.

When resentencing a defendant, a court should consider all information relevant about a defendant, including information not existing or not known when sentence was first passed. State v. Carter, 208 Wis. 2d 142, 560 N.W.2d 256 (1997), 94-2001.

A marital relationship between a case's prosecutor and the presentence report writer was sufficient to draw the objectivity of the report into question. It was error not to strike the report. State v. Suchocki, 208 Wis. 2d 509, 561 N.W.2d 332 (Ct. App. 1997), 96-1712.

Evidence of unproven offenses involving the defendant my be considered in sentencing decisions, as the court must consider whether the crime is an isolated act or part of a pattern of conduct. State v. Fisher, 211 Wis. 2d 665, 565 N.W.2d 565 (Ct. App. 1997), 96-1764.

A defendant's argument that his sentence was excessive in relation to other sentences for similar crimes committed in the same county was without merit. There is no requirement that persons convicted of similar offenses must receive similar sentences. State v. Lechner, 217 Wis. 2d 392, 576 N.W.2d 912 (1998), 96-2830.

That a conviction followed an Alford plea did not prevent requiring the defendant, as a condition, to complete a treatment program that required acknowledging responsibility for the crime which resulted in the conviction. The imposition of the condition did not violate the defendant's due process rights. There is nothing inherent in an Alford plea that gives a defendant any rights as to punishment. State ex rel. Warren v. Schwarz, 219 Wis. 2d 615, 579 N.W.2d 698 (1998), 96-2441.

When a victim's criminal record supports a defendant's version of a crime, the gravity of which crime is a sentencing factor, the criminal record should be admitted as evidence at the defendant's sentencing hearing. State v. Spears, 227 Wis. 2d 495, 596 N.W.2d 375 (1999), 97-0536.

Proper sentencing discretion can exist without delineation of sentencing factors; what is required is consideration of the sentencing factors (see the note to Rodgers). When the same judge presides at sentencing after probation revocation and the original sentencing, the judge does not have to restate the reasons supporting the original sentencing, which is implicitly adopted. State v. Wegner, 2000 WI App 231, 239 Wis. 2d 96, 619 N.W.2d 289, 99-3079.

It is entirely reasonable that a competency examination designed to address a defendant's ability to understand the proceedings and assist counsel may also address issues of future dangerousness, which a court may reasonably consider when gauging the need for public protection in setting a sentence. State v. Slagoski, 2001 WI App 112, 244 Wis. 2d 49, 629 N.W.2d 50, 00-1586.

Spears does not stand for the proposition that a defendant may, at sentencing, present any and all evidence that he or she wishes to present. State v. Robinson, 2001 WI App 127, 246 Wis. 2d 180, 629 N.W.2d 810, 00-1170.

The exercise of sentencing discretion requires the court to exercise its discretion to create a sentence within the range provided by the legislature that reflects the circumstances of the situation and the particular characteristics of the offender. The court must consider the gravity of the offense, the offender's character and the public's need for protection. The weight given to any factor is left to the trial court's discretion. State v. Steele, 2001 WI App 160, 246 Wis. 2d 744, 632 N.W.2d 112, 00-2864.

In sentencing after probation revocation, if the judge did not preside at the original sentencing, the judge must be able to rely upon the entire record, including comments at the first sentencing. When the record at the second sentencing reflected no recognition by the second judge of trial testimony, the presentence investigation report, or the trial judge's comments on the severity of the offense, the sentence could not stand. State v. Reynolds, 2002 WI App 15, 249 Wis. 2d 798, 640 N.W.2d 140, 01-0498.

A court's correction of an invalid sentence by increasing the punishment does not constitute double jeopardy; the initial sentence being invalid, the second sentence is the only valid sentence imposed. An increased sentence is permissible at resentencing only when it is based upon a desire to implement the original dispositional scheme from the first sentencing and when the initial conviction and sentence are invalid, the resentencing court has no new information or newly known information, and the resentencing court seeks to impose a greater sentence. State v. Helm, 2002 WI App 154, 256 Wis. 2d 285, 647 N.W.2d 405, 01-2398.

In fixing a sentence within statutory limits, the judge may consider the defendant's false testimony observed by the judge during trial. United States v. Grayson, 438 U.S. 41 (1978).

The Lodestar of Personal Responsibility. Brennan. 88 MLR 365 (2004).

Appellate sentence review. 1976 WLR 655. (1983).