Riley v. State

177 N.W.2d 838, 47 Wis. 2d 801, 1970 Wisc. LEXIS 1041
CourtWisconsin Supreme Court
DecidedJuly 1, 1970
DocketState 173
StatusPublished
Cited by15 cases

This text of 177 N.W.2d 838 (Riley 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
Riley v. State, 177 N.W.2d 838, 47 Wis. 2d 801, 1970 Wisc. LEXIS 1041 (Wis. 1970).

Opinions

Beileuss, J.

The sole issue is whether the imposition of a four-year sentence for defendant’s conviction on escape was an abuse of discretion by the trial court.

In State v. Tuttle (1963), 21 Wis. 2d 147, 124 N. W. 2d 9, this court modified the rule regarding review of sentences and declared that it has the power to review sentences within the statutory limits to determine whether an abuse of discretion clearly appears, and the power to remand for resentencing or modifying the sentence. The manner in which such review will be conducted was described at pages 150, 151:

“It seems to us that this question should be treated in terms of strong policy against interference with the discretion of the trial court in passing sentence and not of lack of power to do so. We are very reluctant so to [803]*803interfere. The trial court has great advantages in considering all relevant factors, including the opportunity to observe the defendant, which it always has in felony cases and ordinarily in other cases.
“. . . We consider that we have the power to review sentences to determine whether an abuse of discretion clearly appears, and to remand for resentencing or to modify a sentence. We withdraw all past statements indicating that the court lacks power to do so, although it will be a rare case where the power will be used.”

The method of reviewing the trial court’s discretion was further amplified in Jung v. State (1966), 32 Wis. 2d 541, 548, 145 N. W. 2d 684:

“In reviewing a sentence for an abuse of discretion, we start with the presumption that the trial court acted reasonably and with the requirement that the complainant must show some unreasonable or unjustifiable basis in the record for the sentence complained of. Consequently, in the instant case there must be a showing that in determining the sentence of Jung the trial court based its determination upon factors not proper in or irrelevant to sentencing, or was influenced by motives inconsistent with impartiality.”

And in State v. Woodington (1966), 31 Wis. 2d 151, 183b, 142 N. W. 2d 810, 143 N. W. 2d 753, we said:

“Appellant filed a separate motion, seeking review and modification of the sentence imposed. In essence this is also a motion for rehearing, but upon a ground not even hinted at in the briefs on appeal. We did say in the opinion that the sentence ‘seems quite severe,’ but by no means went so far as to characterize this as one of the ‘rare’ cases where ‘an abuse of discretion clearly appears’ so as to overcome our ‘strong policy against interference with the discretion of the trial court in passing sentence 9 99

In Price v. State (1967), 37 Wis. 2d 117, 135, 154 N. W. 2d 222, we stated that it was only in “unusual” cases that this court would not defer to the judgment of the sentencing court. Moreover, as pointed out by the attorney general, the weight of the burden in showing [804]*804an abuse of discretion is evidenced by the consistent refusal to overturn the sentences in all of the cases following Tuttle and Jung, supra.2

In an attempt to demonstrate an abuse of discretion by the sentencing court the defendant makes reference to the mitigating facts and circumstances he introduced at the trial and the hearing on his motion to vacate the sentence.

At the time of his escape the defendant was an inmate at the pre-release center (Walworth Correctional Center, Elkhorn, Wisconsin) awaiting release on parole. He escaped August 23, 1967, approximately fourteen days before his parole release date. He testified that on the evening of that date, as he returned to his room, he found a letter on his bed supposedly from his sister informing him their mother had died at her home in Hammond, Indiana, and claimed the letter stated the funeral was scheduled for that weekend.

Eiley testified he deliberated for some two hours what action he should take and then walked away from the pre-release center and went to Hammond, Indiana. Upon defendant’s arrival at the funeral home in Hammond he discovered nothing was known about his mother’s funeral; further checking with the coroner’s office yielded no helpful information. Because he was unaware of his mother’s whereabouts the defendant argues he was apparently the victim of a practical joke perpetrated upon him by one of his fellow prisoners.

The defendant did not return to the Wisconsin Correctional Center nor contact local police officials but wandered about the nation for over fourteen months until he gave himself up in November, 1968, to a county police officer in the state of Oregon, waived extradition and was returned to Wisconsin.

[805]*805The record further shows that after the defendant was returned to the Wisconsin State Prison another false communique was allegedly received from his sister in January, 1969, indicating an upcoming prison visit by his mother. Investigation by prison authorities revealed defendant’s sister had not forwarded the false message either in 1967 or 1969, a factor the defense argues tends to corroborate Riley’s explanation of his escape. The defendant also argues the escape offense was mitigated by the absence here of any of the other crimes which frequently accompany prison escapes, namely, various forms of injury to either persons or property, or theft in effecting the escape.

At the hearing on the motion to vacate the sentences the testimony of a prison social worker, James Gruen-berg, was introduced respecting defendant’s prison record. This evidence was to the effect defendant had been examined by psychiatrists and psychologists who found him to be of an unstable character, that he tends to run from problems, has poor judgment, poor impulse control, lacks insight and has been treated for problems of anxiety.

Following the defendant’s plea of no contest the state introduced a number of facts into the record for the trial court’s consideration on sentencing. Defendant’s criminal record was presented which consisted of a 1961 auto theft conviction in Wyoming for which he received a sentence of twelve to eighteen months; a 1968 conviction for aiding and abetting theft and fraud for which he was sentenced to two and one-half years in the Wisconsin State Reformatory; a 1965 conviction for escape from the reformatory and operating a vehicle without consent for which he received three years and one year respectively, concurrent but consecutive to previous sentences to the reformatory. Additionally, the state points out the defendant remained at large for fourteen and one-half months before he surrendered, and that the state was [806]*806put to a substantial amount of expense in returning him here from Oregon.

A principal argument made by the defendant is that the sentencing judge looked only to the record of a prior escape in imposing the four-year sentence, disregarding all the mitigating factors presented. Reference is made to the following statement by the court at the time sentence was imposed:

“The Court: Well, I’ll tell you, I made it a practice to be very considerate of anybody on first offense. I have been giving the minimum that is permissible under the law for one year where there hasn’t been any severe injury done to either person or property.

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Related

State v. Davis
225 N.W.2d 505 (Wisconsin Supreme Court, 1975)
Langston v. State
212 N.W.2d 113 (Wisconsin Supreme Court, 1973)
Whitmore v. State
203 N.W.2d 56 (Wisconsin Supreme Court, 1973)
Buckner v. State
202 N.W.2d 406 (Wisconsin Supreme Court, 1972)
Day v. State
201 N.W.2d 42 (Wisconsin Supreme Court, 1972)
State v. Wells
187 N.W.2d 328 (Wisconsin Supreme Court, 1971)
Hanneman v. State
184 N.W.2d 896 (Wisconsin Supreme Court, 1971)
State v. Schilz
184 N.W.2d 134 (Wisconsin Supreme Court, 1971)
McCleary v. State
182 N.W.2d 512 (Wisconsin Supreme Court, 1971)
Riley v. State
177 N.W.2d 838 (Wisconsin Supreme Court, 1970)
Denny v. State
178 N.W.2d 38 (Wisconsin Supreme Court, 1970)

Cite This Page — Counsel Stack

Bluebook (online)
177 N.W.2d 838, 47 Wis. 2d 801, 1970 Wisc. LEXIS 1041, Counsel Stack Legal Research, https://law.counselstack.com/opinion/riley-v-state-wis-1970.