¶ 12. (concurring). The majority makes heavy weather of Grady's assertion that we have jurisdiction to reverse and remand a trial court's failure to consider sentencing guidelines under Wis. Stat. § 973.017(10) (2003-04).1 All that was necessary was the following quote from State v. Elam, 195 Wis. 2d 683, 685, 538 N.W.2d 249 (1995):
We do not remand this appeal to the court of appeals because the court of appeals has already decided the issue presented in this appeal, namely whether Wis. Stat. § 973.012 (1993-94) prohibits a defendant from basing an appeal on a sentencing *302court's failure to take sentencing guidelines into consideration. In State v. Halbert, 147 Wis. 2d 123, 131-32, 432 N.W.2d 633 (Ct. App. 1988), the court of appeals held that a sentencing court's failure to consider the sentencing guidelines is not subject to appellate review.
¶ 13. Because we are bound by published supreme court opinions, Cook v. Cook, 208 Wis. 2d 166, 189, 560 N.W.2d 246 (1997), I concur with the majority's mandate. Grady disagrees with this analysis, arguing that Elam is a per curiam opinion with three members of the court voting to affirm and three voting to reverse, the same tie vote that occurred in State v. Speer, 176 Wis. 2d 1101, 501 N.W.2d 429 (1993). But Grady misses the quote above in which all six members of the court concluded that in Halbert we held that a sentencing court's failure to consider sentencing guidelines was not subject to appellate review.
¶ 14. Halbert did not hold that a sentencing court's failure to consider sentencing guidelines was unreviewable. Though the majority here and several courts have cited that as Halbert’s holding, courts coming to this conclusion have not cited the part of Halbert from which this conclusion is drawn. See Elam, 195 Wis. 2d at 685-86; State v. Smet, 186 Wis. 2d 24, 30 n.2, 519 N.W.2d 697 (Ct. App. 1994).
¶ 15. I do not find much in Halbert supporting this conclusion. I find much that suggests the opposite. The closest Halbert gets to the majority's conclusion is "[Halbert] contends that the court failed to consider the guidelines and, alternatively, if the court did consider them, the form was inaccurate because it penalized Halbert for using an operable gun." Halbert, 147 Wis. 2d at 129. But that quote requires an inquiry into the court's answer to Halbert's contentions. The court begins its answer with: "No matter how denominated, *303however, the crux of [Halbert's] complaint is that the ninety month sentence did not fall within the guidelines." Id. at 129-30. A footnote notes that Halbert's sentence did not fall within the guidelines. Id. at 130 n.2. A second footnote notes that the trial court did consider the guidelines. Id. at 130 n.3. So far, I find nothing supporting the majority's view of Halbert's, holding.
¶ 16. Still, the Halbert court wrote, "[w]hile these matters are clearly without merit," id. at 130, requiring a reader to determine what the court meant by "matters." It might be Halbert's two contentions, but why then the "crux of his complaint" language? If the crux of Halbert's complaint was the trial court's failure to stay within the applicable guidelines, why would it he necessary to discuss the alleged failure to consider the guidelines at all, especially when the court of appeals concluded that the trial court considered the guidelines? It is more likely that "matters" refers to the footnote within the "matters" sentence in which the court concludes that the trial court did consider the guidelines and the fact that Halbert's gun was not loaded. Id. at 130 n.3. So, while a creative analysis might focus on Halbert's contentions to reach a conclusion, so far I think the better conclusion is that the Halbert court didn't consider the issue of our jurisdiction to review a trial court's failure to consider guidelines because it did not have to.
¶ 17. There is more to support my conclusion. The Halbert court spends a couple of pages explaining the history of guidelines and quoting Justice Bablitch in In re Felony Sentencing Guidelines, 120 Wis. 2d 198, 353 N.W.2d 793 (1984). This is unnecessary to a conclusion that we do not have jurisdiction to consider a trial court's failure to consider guidelines. Nor is the court's *304discussion of the analysis inventive counsel might use to disguise attacks on sentences useful unless the court was referring only to arguments asserting that sentences fell outside the guidelines. Halbert, 147 Wis. 2d at 132-33. Why would a substantial part of the explanation of our decision in Halbert be unnecessary or dicta if the quick and easy conclusion was that Halbert lost because we were without jurisdiction to consider two of the three issues he raised? All that would have been necessary was an interpretation of Wis. Stat. § 973.012 (1993-94).
¶ 18. That is how I would analyze the issue in this case if I were writing on a clean slate. State ex rel. Kalal v. Circuit Court for Dane County, 2004 WI 58, 271 Wis. 2d 633, 681 N.W.2d 110, explains that we are to first look to the language of a statute to discern its meaning. Wisconsin Stat. § 973.017(10) provides:
The requirement under sub. (2) (a) that a court consider sentencing guidelines adopted by the sentencing commission or the criminal penalties study committee 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.
I get no further than a reading of this statute to conclude that it is unambiguous, at least as to whether we have jurisdiction to review a trial court's failure to consider sentencing guidelines. The dispositive phrase is: "[A]nd 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." Departing from a guideline is distinctly different from not considering a guideline in the first place. A legislature intent on requiring *305the use of guidelines would be unlikely to require trial courts to do so and then make that requirement totally unenforceable. It is easy to understand a requirement that a new appellate issue of "sentences outside the guidelines" be prohibited. But that does not require the interpretation of § 973.017(10) that the majority adopts.
¶ 19. Cook, 208 Wis. 2d at 190, provides a method by which the court of appeals can present a decided issue to the supreme court:
The court of appeals, however, is not powerless if it concludes that a prior decision of the court of appeals or the supreme court is erroneous. It may signal its disfavor to litigants, lawyers and this court by certifying the appeal to this court, explaining that it believes a prior case was wrongly decided. Alternatively, the court of appeals may decide the appeal, adhering to a prior case but stating its belief that the prior case was wrongly decided.
¶ 20. The issue of our jurisdiction to review a trial court's failure to consider guidelines has been decided, albeit, in my view, incorrectly. I respectfully disagree with the majority's holding that Halbert mandates that we have no jurisdiction to review a trial court's failure to consider sentencing guidelines. I concur with the majority's decision because I conclude that Elam holds that we do not. I write to explain my view of why the majority's view of Halbert is incorrect and why we do not have jurisdiction to review this issue. I do so pursuant to the court's suggestion in Cook.
All references to the Wisconsin Statutes are to the 2003-04 version unless otherwise noted.