Gregory v. State

Wisconsin Supreme Court

Gregory v. State

218 N.W.2d 319, 63 Wis. 2d 754, 1974 Wisc. LEXIS 1496

CourtWisconsin Supreme Court

DecidedJune 4, 1974

DocketState 190

StatusPublished

Cited by4 cases

This text of 218 N.W.2d 319 (Gregory v. State) is published on Counsel Stack Legal Research, covering Wisconsin Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Gregory v. State, 218 N.W.2d 319, 63 Wis. 2d 754, 1974 Wisc. LEXIS 1496 (Wis. 1974).

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Opinion

Hanley, J.

The sole issue to determine on appeal is whether the actions of the trial court herein are constitutionally infirm for reliance in sentencing on the defendant’s declaration of noncomplicity in the crime alleged during the sentence hearing.

The defendant contends that the trial court erred in relying on defendant’s failure “to make a clean breast of things” in sentencing him. Such trial court action, he contends, penalized him for exercising his fifth amendment privilege against self-incrimination.

Here the trial court granted the defendant his statutory right of allocution. The colloquy that followed between the defendant and trial judge regarding the defendant’s perpetration of the crime of armed robbery resulted only *759 from the defendant’s assertion that he had reformed. We characterize the actions of the trial court as a mere interruption in a continued proclamation by the defendant of his desire for probation because of his lack of complicity in the armed robbery. While the actions of the trial court could be characterized as a statement of its belief as to the incredulity of the defendant, we find no evidence that the court’s statements influenced the judge’s discretion or that the judge abused his discretion in imposing sentence. The record fails to disclose any request by the trial judge that the defendant in fact admit his guilt.

The quoted statements of fact indicate that the trial court was concerned with the defendant’s volunteered statements that he was innocent of the crime for which the jury convicted him. The trial court explained that such statements indicated that the defendant was not sufficiently rehabilitated at the point of sentencing to be a candidate for probation.

On at least two occasions the trial judge stated that there was no way in which he could compel a person, or should even attempt to compel a person psychologically to concede his complicity in an act. We find no evidence that the trial judge did not observe the defendant’s constitutional rights.

We do not think the trial judge’s imposition of sentence constituted an abuse of discretion. Armed robbery carries a penalty of not more than thirty years. The judge imposed only one tenth of the legislative maximum.

By the Court. — Judgment and order affirmed.

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Hanley, J.

The sole issue to determine on appeal is whether the actions of the trial court herein are constitutionally infirm for reliance in sentencing on the defendant’s declaration of noncomplicity in the crime alleged during the sentence hearing.

The defendant contends that the trial court erred in relying on defendant’s failure “to make a clean breast of things” in sentencing him. Such trial court action, he contends, penalized him for exercising his fifth amendment privilege against self-incrimination.

Here the trial court granted the defendant his statutory right of allocution. The colloquy that followed between the defendant and trial judge regarding the defendant’s perpetration of the crime of armed robbery resulted only *759 from the defendant’s assertion that he had reformed. We characterize the actions of the trial court as a mere interruption in a continued proclamation by the defendant of his desire for probation because of his lack of complicity in the armed robbery. While the actions of the trial court could be characterized as a statement of its belief as to the incredulity of the defendant, we find no evidence that the court’s statements influenced the judge’s discretion or that the judge abused his discretion in imposing sentence. The record fails to disclose any request by the trial judge that the defendant in fact admit his guilt.

The quoted statements of fact indicate that the trial court was concerned with the defendant’s volunteered statements that he was innocent of the crime for which the jury convicted him. The trial court explained that such statements indicated that the defendant was not sufficiently rehabilitated at the point of sentencing to be a candidate for probation.

On at least two occasions the trial judge stated that there was no way in which he could compel a person, or should even attempt to compel a person psychologically to concede his complicity in an act. We find no evidence that the trial judge did not observe the defendant’s constitutional rights.

We do not think the trial judge’s imposition of sentence constituted an abuse of discretion. Armed robbery carries a penalty of not more than thirty years. The judge imposed only one tenth of the legislative maximum.

By the Court. — Judgment and order affirmed.

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Bluebook (online)

218 N.W.2d 319, 63 Wis. 2d 754, 1974 Wisc. LEXIS 1496, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gregory-v-state-wis-1974.

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