(concurring). I concur in the mandate which affirms the judgment of conviction of the defendant by the circuit court.
I also concur in Part I, "OTHER CRIMES EVIDENCE" in Justice Bablitch's opinion at 1113. However, I do not concur in Part II, "SENTENCING GUIDELINES" (at 1119 et seq.) for the reason I do not agree with Justice Bablitch's conclusions on the review-ability of sentences where a trial judge may exceed the guidelines. The guidelines statute cited by Justice Bab-*1133litch at 1121-1122 states: "973.012 ... There shall be no right to appeal on the basis of the trial court's decision to render a sentence that does not fall within the sentencing guidelines."
Sentencing guidelines are quite controversial. Twice this court refused to adopt sentencing guidelines.
In The Matter of Implementation of Felony Sentencing Guidelines, 113 Wis. 2d 689, 335 N.W.2d 868 (1983). The legislature in response enacted 1983 Wis. Act. 371 which authorized the Supreme Court to promulgate rules for sentencing guidelines for use by Wisconsin judges in sentencing convicted felons if we chose to do so. If we declined, authority to promulgate sentencing guidelines was given to a sentencing commission attached to the Wisconsin Department of Administration. The majority of this court by a vote of 6-2 declined to establish such guidelines. In The Matter of Judicial Administration: Felony Sentencing Guidelines, 120 Wis. 2d 198, 353 N.W.2d 793 (1984).
The resulting statute represented a legislative compromise.
In a very well reasoned concurrence Justice William Bablitch explained why it would be inappropriate for this court to promulgate guidelines. He was joined by Justices Day, Callow, Ceci and Steinmetz.
Among other things, Justice William Bablitch wrote:
That confusion existed in 1971, and continues to exist today. The legislature has maintained indeterminate sentencing by maintaining the same system of parole. It has not enacted minimum mandatory sentencing. It has not given over to the judiciary the responsibility for establishing penalties for criminal offenses. Because of the availability of parole, the sentencing court has no power to determine the *1134length of sentence actually served below the maximum imposed despite the public's belief that this power rests in the sentencing court. Until the legislature chooses to change that system, I do not believe this court should be a party to a procedure which will continue to mislead the public as to which branch of government is responsible for establishing criminal penalties and the actual sentence served by a convicted defendant. If this court accepted the legislative invitation and promulgated the sentencing guidelines, I believe we would simply continue to add to this confusion. In re Felony Sentencing Guidelines, 120 Wis. 2d 198 at 206-207.
Justice Bablitch added, "This court has consistently adhered to McCleary since 1971 [49 Wis. 2d 263 (1971)], and nothing in 1983 Wis. Act. 371 will change that."
I agree, McCleary is still the standard to examine any sentence imposed, not adherence to or consideration of or explaining deviation from the sentencing guidelines. They are not part of an appellate courts review. The only "discretion" used in sentencing subject to appellate review are the McCleary standards. That's why the legislature said there should be no appeal for failure to follow them.
Justice Bablitch's opinion, in this case, is critical of State v. Halbert, 147 Wis. 2d 123, 432 N.W.2d 633 (Ct. App. 1988) which said at 132: "Simply put, a trial court's compliance or non-compliance with sec. 973.012, Stats., is not an appellate issue here, because the Court of Appeals has no jurisdiction."
I believe the Halbert interpretation of the statute in question is correct. It has been the law of this state for five years. If the legislature disagreed they could amend the law. They have not done so.
I believe that what Justice Bablitch's opinion says in Part II about using the guidelines is dicta. He cor*1135rectly found the judge had used the guidelines so use was no longer an issue. The "advice" about the detailed methods judges should follow in using the guidelines to avoid being overruled on appeal was mere dicta. The results of not following the no appeal provision of sec. 973.012, Stats., was foreseen by the court of appeals in Halbert, 147 Wis. 2d at 132.
Inventive counsel may attempt to disguise appeals that are, in reality, based on "the trial court's decision to render a sentence that does not fall within the sentencing guidelines," sec. 973.012, Stats., in the garb of "abuse of discretion" or "error-laden form" and the like. To permit appeals under those circumstances would not only ignore the clear legislative mandate against these appeals but would transform sentencing guidelines from tools whose usefulness appropriately varies with the circumstances into mere rigid recipes. This would ultimately reduce, not increase, fairness by obliterating McCleary's emphasis on individualized sentencing. As explained by Chief Justice Heffernan, who dissented from the court's refusal to assume responsibility for the promulgation of the sentencing guidelines, appellate review of sentences should focus on the McCleary standards and not on "whether a guideline was followed."
For these reasons I do not go along with Part II of Justice Bablitch's opinion, in this case. If the law on guidelines is to be changed it should be done by the legislature, not by this court.
I am authorized to state that Justices STEINMETZ and CECI join this concurrence.