2023 Wisconsin Statutes & Annotations › Chapter 973 - Sentencing. › 973.017 - Bifurcated sentences; use of guidelines; consideration of aggravating and mitigating factors.

973.017
Bifurcated sentences; use of guidelines; consideration of aggravating and mitigating factors.
(1)
Definition. In this section, “sentencing decision" means a decision as to whether to impose a bifurcated sentence under s. 973.01 or place a person on probation and a decision as to the length of a bifurcated sentence, including the length of each component of the bifurcated sentence, the amount of a fine, and the length of a term of probation.
(2)
General requirement. When a court makes a sentencing decision concerning a person convicted of a criminal offense committed on or after February 1, 2003, the court shall consider all of the following:
(ad)
The protection of the public.
(ag)
The gravity of the offense.
(ak)
The rehabilitative needs of the defendant.
(b)
Any applicable mitigating factors and any applicable aggravating factors, including the aggravating factors specified in subs. (3) to (8).
(3)
Aggravating factors; generally. When making a sentencing decision for any crime, the court shall consider all of the following as aggravating factors:
(a)
The fact that the person committed the crime while his or her usual appearance was concealed, disguised, or altered, with the intent to make it less likely that he or she would be identified with the crime.
(b)
The fact that the person committed the crime using information that was disclosed to him or her under s. 301.46.
(c)
The fact that the person committed the crime for the benefit of, at the direction of, or in association with any criminal gang, as defined in s. 939.22 (9), with the specific intent to promote, further, or assist in any criminal conduct by criminal gang members, as defined in s. 939.22 (9g).
(d)
The fact that the person committed the felony while wearing a vest or other garment designed, redesigned, or adapted to prevent bullets from penetrating the garment.
(e)
1.
Subject to subd. 2., the fact that the person committed the felony with the intent to influence the policy of a governmental unit or to punish a governmental unit for a prior policy decision, if any of the following circumstances also applies to the felony committed by the person:
a.
The person caused bodily harm, great bodily harm, or death to another.
b.
The person caused damage to the property of another and the total property damaged is reduced in value by $25,000 or more. For the purposes of this subd. 1. b., property is reduced in value by the amount that it would cost either to repair or to replace it, whichever is less.
c.
The person used force or violence or the threat of force or violence.
2.
a.
In this subdivision, “ labor dispute" includes any controversy concerning terms, tenure, or conditions of employment or concerning the association or representation of persons in negotiating, fixing, maintaining, changing, or seeking to arrange terms or conditions of employment, regardless of whether the disputants stand in the proximate relation of employer and employee.
b.
Subdivision 1. does not apply to conduct arising out of or in connection with a labor dispute.
(4)
Aggravating factors; serious sex crimes committed while infected with certain diseases.
(a)
In this subsection:
1.
“HIV" means any strain of human immunodeficiency virus, which causes acquired immunodeficiency syndrome.
1m.
“HIV test" has the meaning given in s. 252.01 (2m).
2.
“Serious sex crime" means a violation of s. 940.225 (1) or (2), 948.02 (1) or (2), 948.025, 948.085.
3.
“Sexually transmitted disease" means syphilis, gonorrhea, hepatitis B, hepatitis C, or chlamydia.
4.
“Significantly exposed" means sustaining a contact that carries a potential for transmission of a sexually transmitted disease or HIV by one or more of the following:
a.
Transmission, into a body orifice or onto mucous membrane, of blood; semen; vaginal secretions; cerebrospinal, synovial, pleural, peritoneal, pericardial, or amniotic fluid; or other body fluid that is visibly contaminated with blood.
b.
Exchange, during the accidental or intentional infliction of a penetrating wound, including a needle puncture, of blood; semen; vaginal secretions; cerebrospinal, synovial, pleural, peritoneal, pericardial, or amniotic fluid; or other body fluid that is visibly contaminated with blood.
c.
Exchange, into an eye, an open wound, an oozing lesion, or other place where a significant breakdown in the epidermal barrier has occurred, of blood; semen; vaginal secretions; cerebrospinal, synovial, pleural, peritoneal, pericardial, or amniotic fluid; or other body fluid that is visibly contaminated with blood.
(b)
When making a sentencing decision concerning a person convicted of a serious sex crime, the court shall consider as an aggravating factor the fact that the serious sex crime was committed under all of the following circumstances:
1.
At the time that he or she committed the serious sex crime, the person convicted of committing the serious sex crime had a sexually transmitted disease or acquired immunodeficiency syndrome or had had a positive HIV test.
2.
At the time that he or she committed the serious sex crime, the person convicted of committing the serious sex crime knew that he or she had a sexually transmitted disease or acquired immunodeficiency syndrome or that he or she had had a positive HIV test.
3.
The victim of the serious sex crime was significantly exposed to HIV or to the sexually transmitted disease, whichever is applicable, by the acts constituting the serious sex crime.
(5)
Aggravating factors; violent felony committed against elder person.
(a)
In this subsection:
1.
“Elder person" means any individual who is 62 years of age or older.
2.
“Violent felony" means any felony under s. 940.19 (2), (4), (5), or (6), 940.225 (1), (2), or (3), 940.23, or 943.32.
(b)
When making a sentencing decision concerning a person convicted of a violent felony, the court shall consider as an aggravating factor the fact that the victim of the violent felony was an elder person. This paragraph applies even if the person mistakenly believed that the victim had not attained the age of 62 years.
(6)
Aggravating factors; child sexual assault or child abuse by certain persons.
(a)
In this subsection, “person responsible for the welfare of the child" includes the child's parent, stepparent, guardian, or foster parent; an employee of a public or private residential home, institution, or agency; any other person legally responsible for the child's welfare in a residential setting; or a person employed by one who is legally responsible for the child's welfare to exercise temporary control or care for the child.
(b)
When making a sentencing decision concerning a person convicted of a violation of s. 948.02 (1) or (2), 948.025 (1), 948.03 (2), (3), or (5) (a) 1., 2., 3., or 4., or 948.051, the court shall consider as an aggravating factor the fact that the person was a person responsible for the welfare of the child who was the victim of the violation.
(6m)
Aggravating factors; domestic abuse in presence of a child.
(a)
In this subsection:
1.
“Child" means an individual who has not attained the age of 18 years.
2.
“Domestic abuse" has the meaning given in s. 968.075 (1) (a).
(b)
When making a sentencing decision concerning a person convicted of a crime that involves an act of domestic abuse, the court shall consider as an aggravating factor the fact that the act was committed in a place or a manner in which the act was observable by or audible to a child or was in the presence of a child and the actor knew or had reason to know that the act was observable by or audible to a child or was in the presence of a child.
(7)
Aggravating factors; homicide or injury by intoxicated use of a vehicle. When making a sentencing decision concerning a person convicted of a violation of s. 940.09 (1) or 940.25 (1), the court shall consider as an aggravating factor the fact that, at the time of the violation, there was a minor passenger under 16 years of age or an unborn child in the person's motor vehicle.
(8)
Aggravating factors; controlled substances offenses.
(a)
Distribution or delivery to prisoners.
1.
In this paragraph, “precinct" means a place where any activity is conducted by a prison, jail, or house of correction.
2.
When making a sentencing decision concerning a person convicted of violating s. 961.41 (1) or (1m), the court shall consider as an aggravating factor the fact that the violation involved delivering, distributing, or possessing with intent to deliver or distribute a controlled substance or controlled substance analog to a prisoner within the precincts of any prison, jail, or house of correction.
3.
When making a sentencing decision concerning a person convicted of violating s. 961.65, the court shall consider as an aggravating factor the fact that the person intended to deliver or distribute methamphetamine or a controlled substance analog of methamphetamine to a prisoner within the precincts of any prison, jail, or house of correction.
(b)
Distribution or delivery on public transit vehicles. When making a sentencing decision concerning a person convicted of violating s. 961.41 (1) or (1m), the court shall consider as an aggravating factor the fact that the violation involved delivering, distributing, or possessing with intent to deliver or distribute a controlled substance included in schedule I or II or a controlled substance analog of any controlled substance included in schedule I or II and that the person knowingly used a public transit vehicle during the violation.
(c)
Distribution or delivery of methamphetamine on public transit vehicles. When making a sentencing decision concerning a person convicted of violating s. 961.65, the court shall consider as an aggravating factor the fact that the person intended to deliver or distribute methamphetamine or a controlled substance analog of methamphetamine and that the person knowingly used a public transit vehicle during the violation.
(9)
Aggravating factors not an element of the crime. The aggravating factors listed in this section are not elements of any crime. A prosecutor is not required to charge any aggravating factor or otherwise allege the existence of an aggravating factor in any pleading for a court to consider the aggravating factor when making a sentencing decision.
(10m)
Statement of reasons for sentencing decision.
(a)
The court shall state the reasons for its sentencing decision and, except as provided in par. (b), shall do so in open court and on the record.
(b)
If the court determines that it is not in the interest of the defendant for it to state the reasons for its sentencing decision in the defendant's presence, the court shall state the reasons for its sentencing decision in writing and include the written statement in the record.
History:  2001 a. 109; 2003 a. 321; 2005 a. 14, 277; 2007 a. 20, 96, 97, 116; 2009 a. 28, 209; 2011 a. 273; 2013 a. 165; 2015 a. 366.
Under sub. (10m), a circuit court must state the reasons for its sentencing decision on the record. Under the erroneous exercise of discretion standard, the circuit court's determination will be upheld on appeal if it is a reasonable conclusion, based upon a consideration of the appropriate law and facts of record. State v. Salas Gayton, 2016 WI 58, 370 Wis. 2d 264, 882 N.W.2d 459, 13-0646.
The circuit court's obligation to consider a required factor under sub. (2) (ad) to (ak) on the record is distinct from the court's discretion to determine the factor's appropriate weight once the court has considered all factors. While a court may, in the proper exercise of discretion, decide to give a required factor little or no weight, the court may not decide to not consider a required factor at all. State v. Bolstad, 2021 WI App 81, 399 Wis. 2d 815, 967 N.W.2d 164, 21-0049.
A circuit court erroneously exercises its sentencing discretion when it actually relies on clearly irrelevant or improper factors. Accordingly, a defendant challenging the defendant's sentence must prove by clear and convincing evidence that: 1) the challenged factor is irrelevant or improper; and 2) the circuit court actually relied on that factor. Under the improper-factor prong, sentencing factors are proper when they inform valid sentencing objectives including the protection of the community, punishment of the defendant, rehabilitation of the defendant, and deterrence to others. A circuit court may properly entertain a general predisposition, based upon the court's criminal sentencing experience, so long as that predisposition is not so specific or rigid that it ignores the particular circumstances of the individual offender. Under the actual-reliance prong, the appeals court reviews the sentencing transcript as a whole and assesses any allegedly improper comments within that context. A defendant will fall short of proving actual reliance if the transcript lacks clear and convincing evidence that the factor was the sole cause of a harsher sentence. A defendant will also fail to show actual reliance if a reference to a challenged factor bears a reasonable nexus to a relevant, proper factor. State v. Dodson, 2022 WI 5, 400 Wis. 2d 313, 969 N.W.2d 225, 18-1476.
While a defendant has a due process right to be present at the sentencing, it does not necessarily follow that due process requires that the defendant be present when the sentencing court provides its reasons for its sentencing decision, particularly when the court is required to make the written statement of its sentencing rationale a part of the record and thus available to the defendant. At the point at which the court provides the rationale for the sentence imposed, the defendant has no further opportunity to contribute to the court's decision. In this case, the process in sub. (10m) (b), which allows the court to state the reasons for its sentencing decision in writing, was not unconstitutional as applied to the defendant. State v. McReynolds, 2022 WI App 25, 402 Wis. 2d 175, 975 N.W.2d 265, 21-0943.