State v. Walker

KESSLER, J.

¶ 32. (concurring). I agree with the majority conclusion that the denial of the petition for a writ of habeas corpus challenging revocation of extended supervision was proper in this case. Majority, ¶ 31.1 also agree with the majority conclusion that the order reconfining defendant must be reversed and remanded for a new reconfinement hearing. Majority, ¶ 31. I write separately because I disagree with the majority argument, Majority, ¶¶ 27 and 30, that our prior decision in State v. Gee, 2007 WI App 32, 299 Wis. 2d 518, 729 N.W.2d 424, was inconsistent with the supreme court's holdings in State v. Brown, 2006 WI 131, 298 Wis. 2d 37, 725 N.W.2d 262.

¶ 33. In Gee, the reconfinement judge was not the sentencing judge. Id., 729 N.W.2d 424, ¶ 4. The recon-finement judge, in explaining the reconfinement decision, did not claim to have reviewed the sentencing trial court's sentencing transcript, the presentence report, or any other original sentencing information, concluding that he was not required to do so under State v. Jones, 2005 WI App 259, 288 Wis. 2d 475, 707 N.W.2d 876. Gee, 729 N.W.2d 424, ¶ 6. The reconfinement judge explained the time he imposed in terms frequently heard in the context of an original sentencing hearing, i.e., the reconfinement court mentioned "a true protection of society issue," and "a need to punish sufficiently so you're finally deterred," concluding that "all I can tell you is that all we're going to be doing is protecting society . . . ." Id., ¶ 5.

*763¶ 34. As we observed in Gee, "[i]n Brown, the court. . . imposed on trial courts the requirement that they 'provid[e] reasoned explanations for reconfinement decisions.'" Gee, 729 N.W.2d 424, ¶ 10 (citing Brown, 729 N.W.2d 424, ¶ 28) (modification in Gee). To provide those reasoned explanations, the court in Brown discusses a number of factors1 that may be relevant, see id., ¶¶ 34-36, and explains "[t]hese factors are not a mandatory checklist, and we do not hold that a circuit court must examine each factor on the record in every case," id., ¶ 37 (emphasis added). The Brown court then explains what it is important to review in order to examine the relevant factors:

The original sentencing transcript is an important source of information on the defendant that discusses many of the factors that circuit courts should consider when making a reconfinement decision. The original sentencing transcript is readily available for a circuit *764court to examine, and those portions that are considered by the court to be relevant should be mentioned.

Id., ¶ 38 (emphasis added). One can only wonder how a reconfmement judge who did not impose the original sentence could comply with the supreme court's clear instruction to examine the relevant factors the court described in Brown, much less mention those portions of the sentencing transcript which are relevant to those factors, unless the sentencing transcript has been reviewed.

¶ 35. The majority's argument, based upon the briefs in Brown (which were obviously reviewed by the supreme court before releasing its opinion), see Majority, ¶ 27, suggests that the supreme court's decision not to remand was somehow an approval of a reconfinement judge not reading a readily available sentencing transcript. In my view, this ignores the court's specific explanation for the lack of a remand: "Since this court has not, until now, set forth any guidance as to the factors that circuit courts should consider in making reconfinement decisions, we hold that the circuit court, in this case, did not erroneously exercise its discretion . . . ." Brown, 725 N.W.2d 262, ¶ 41.

¶ 36. In Gee, the record did not indicate that the reconfinement judge reviewed any original sentencing material. In the case before us, the reconfinement judge reviewed only what the majority describes as a "court memo" from Walker's extended-supervision agent, Majority, ¶ 18, and took statements from the State and Walker's trial counsel, Majority, ¶¶ 20-22. The trial court was unable to say that it reviewed the sentencing transcript before the reconfinement hearing. Majority, ¶ 25. Thus, in this case, as in Gee, the reconfinement *765court did not review any relevant original sentencing information. Consequently, as in Gee, Brown requires remand for a new reconfinement hearing.

The factors mentioned include:

• "[W]e expect that circuit courts will usually consider the nature and severity of the original offense, the client's institutional conduct record, as well as the amount of incarceration necessary to protect the public from the risk of further criminal activity ... the defendant's conduct and the nature of the violation of terms and conditions during extended supervision." Brown, 2006 WI 131, ¶ 34, 298 Wis. 2d 37, 725 N.W.2d 262.
• "[W]hat balance of time between renewed incarceration and further parole [extended] supervision is most likely to protect society and at the same time to facilitate the violator's transition between prison and unconditional freedom." Brown, 725 N.W.2d 262, ¶ 35 (citation and internal quotation marks omitted).
• "Other factors that may be relevant... in making reconfinement decisions include ... the defendant's record, attitude, and capacity for rehabilitation, and the rehabilitative goals to be accomplished by imprisonment... in relation to the time left on the violator's original sentence." Brown, 725 N.W.2d 262, ¶ 36.