Chapter 972

972.13 Annotation A trial judge has no power to validly sentence with a mental reservation that the judge might modify the sentence within 90 days if the defendant has profited from imprisonment, and the judge cannot change an imposed sentence unless new factors are present. State v. Foellmi, 57 Wis. 2d 572, 205 N.W.2d 144 (1973).

972.13 Annotation A claim that the trial court lacked jurisdiction to impose sentence because it failed to enter a judgment of conviction on the jury’s verdict was not reviewable because it involved no jurisdictional question, and the construction of the statute was not raised by the defendant in a motion for postconviction relief nor did the defendant go back to the trial court for relief as a basis for an appeal. Sass v. State, 63 Wis. 2d 92, 216 N.W.2d 22 (1974).

972.13 Annotation When Whitmore, 56 Wis. 2d 706 (1973), instructions are given, the defendant must show that the failure to move for a new trial constituted an unintentional waiver of rights. Thiesen v. State, 86 Wis. 2d 562, 273 N.W.2d 314 (1979).

972.13 Annotation Judgment entered by a state court during the pendency of removal proceedings in federal court was void. State v. Cegielski, 124 Wis. 2d 13, 368 N.W.2d 628 (1985).

972.13 Annotation A court’s refusal to poll jurors individually was reversible error. State v. Wojtalewicz, 127 Wis. 2d 344, 379 N.W.2d 338 (Ct. App. 1985).

972.13 Annotation A written judgment of conviction is not a prerequisite to sentencing. State v. Pham, 137 Wis. 2d 31, 403 N.W.2d 35 (1987).

972.13 Annotation When the court allowed voir dire after polling the jury on its guilty verdict and when one juror’s responses seriously undermined the previous vote of guilty, the jury’s verdict was no longer unanimous, requiring a new trial. State v. Cartagena, 140 Wis. 2d 59, 409 N.W.2d 386 (Ct. App. 1987).

972.13 Annotation There is no error in noting dismissed charges on a judgment of conviction. State v. Theriault, 187 Wis. 2d 125, 522 N.W.2d 254 (Ct. App. 1994).

972.13 Annotation There was no impropriety in a trial court’s inclusion of its parole recommendation in a judgment of conviction. State v. Whiteside, 205 Wis. 2d 685, 556 N.W.2d 443 (Ct. App. 1996), 95-3458.

972.13 Annotation It was not fatal to a conviction under sub. (1) on a plea of no contest that the defendant did not personally state “I plead no contest” when the totality of the facts, including a signed guilty plea questionnaire and colloquy with the judge on the record, indicated an intent to plead no contest. State v. Burns, 226 Wis. 2d 762, 594 N.W.2d 799 (1999), 96-3615.

972.13 Annotation No statute authorizes a clerk of court’s office to correct a clerical error in the sentence portion of a judgment of conviction. The circuit court, and not the clerk’s office, must determine the merits of a request for a change in the sentence portion of a written judgment because of an alleged clerical error. State v. Prihoda, 2000 WI 123, 239 Wis. 2d 244, 618 N.W.2d 857, 98-2263.

972.13 Annotation Under sub. (1), a judgment of conviction may not be entered if there is no guilty verdict, guilty finding, or guilty or no contest plea. Sub. (1) does not mandate entry of judgment immediately following the verdict, finding, or plea. State v. Wollenberg, 2004 WI App 20, 268 Wis. 2d 810, 674 N.W.2d 916, 03-1706.

972.14 972.14 Statements before sentencing.

972.14(1) (1) In this section:

972.14(1)(ag) (ag) “Crime considered at sentencing” means any crime for which the defendant was convicted and any read-in crime, as defined in s. 973.20 (1g) (b).

972.14(1)(b) (b) “Victim” has the meaning specified in s. 950.02 (4).

972.14(2) (2) Before pronouncing sentence, the court shall ask the defendant why sentence should not be pronounced upon him or her and allow the district attorney, defense counsel and defendant an opportunity to make a statement with respect to any matter relevant to the sentence. In addition, if the defendant is under 21 years of age and if the court has not ordered a presentence investigation under s. 972.15, the court shall ask the defendant if he or she has been adjudged delinquent under ch. 48, 1993 stats., or ch. 938 or has had a similar adjudication in any other state in the 4 years immediately preceding the date the criminal complaint relating to the present offense was issued.

972.14(2m) (2m) Before pronouncing sentence, the court shall inquire of the district attorney whether he or she has complied with s. 971.095 (2) and with sub. (3) (b), whether any of the victims of a crime considered at sentencing requested notice of the date, time and place of the sentencing hearing and, if so, whether the district attorney provided to the victim notice of the date, time and place of the sentencing hearing.

972.14(3) (3) 

972.14(3)(a) (a) Before pronouncing sentence, the court shall determine whether a victim of a crime considered at sentencing wants to make a statement to the court. If a victim wants to make a statement, the court shall allow the victim to make a statement in court or to submit a written statement to be read in court. The court may allow any other person to make or submit a statement under this paragraph. Any statement under this paragraph must be relevant to the sentence.

972.14(3)(b) (b) After a conviction, if the district attorney knows of a victim of a crime to be considered at sentencing, the district attorney shall make a reasonable attempt to contact that person to inform him or her of the right to make or provide a statement under par. (a). Any failure to comply with this paragraph is not a ground for an appeal of a judgment of conviction or for any court to reverse or modify a judgment of conviction.

972.14 History History: 1987 a. 27; 1989 a. 31; 1995 a. 77; 1997 a. 73, 181, 205; 1999 a. 32.

972.14 Annotation A court’s presentencing preparation and formulation of a tentative sentence does not deny a defendant’s right to allocution at sentencing. State v. Varnell, 153 Wis. 2d 334, 450 N.W.2d 524 (Ct. App. 1989).

972.14 Annotation The right, under sub. (2), of a defendant to make a statement prior to sentencing does not apply to an extension of a placement under the intensive sanctions program. State v. Turner, 200 Wis. 2d 168, 546 N.W.2d 880 (Ct. App. 1996), 95-1295.

972.14 Annotation Denial of the defendant’s right to speak at sentencing is harmless error when a life sentence without parole is mandatory. State v. Lindsey, 203 Wis. 2d 423, 554 N.W.2d 215 (Ct. App. 1996), 95-3392.

972.14 Annotation The good character of a victim killed as the result of a crime is relevant in sentencing. State v. Gallion, 2004 WI 42, 270 Wis. 2d 535, 678 N.W.2d 197, 01-0051.

972.14 Annotation This section does not specify any particular party to read a victim’s statement. The sole limitation on the victim’s statement is that it be “relevant to the sentence.” If a judge does not ensure compliance with the victims’ rights statutes, the judge can be fined under s. 950.11. State v. Bokenyi, 2014 WI 61, 355 Wis. 2d 28, 848 N.W.2d 759, 12-2557.

972.15 972.15 Presentence investigation.

972.15(1) (1) After a conviction the court may order a presentence investigation, except that the court may order an employee of the department to conduct a presentence investigation only after a conviction for a felony.

972.15(1m) (1m) If a person is convicted for a felony that requires him or her to register under s. 301.45 and if the victim was under 18 years of age at the time of the offense, the court may order the department to conduct a presentence investigation report to assess whether the person is at risk for committing another sex offense, as defined in s. 301.45 (1d) (b).

972.15(2) (2) When a presentence investigation report has been received the judge shall disclose the contents of the report to the defendant’s attorney and to the district attorney prior to sentencing. When the defendant is not represented by an attorney, the contents shall be disclosed to the defendant.

972.15(2b) (2b) If the defendant is subject to being sentenced under s. 973.01 and he or she satisfies the criteria under s. 302.05 (3) (a) 1., the person preparing the presentence investigation report shall include in the report a recommendation as to whether the defendant should be eligible to participate in the earned release program under s. 302.05 (3).

972.15(2c) (2c) If the defendant is subject to being sentenced under s. 973.01 and he or she satisfies the criteria under s. 302.045 (2) (b) and (c), the person preparing the presentence investigation report shall include in the report a recommendation as to whether the defendant should be eligible for the challenge incarceration program under s. 302.045.

972.15(2g) (2g) If the defendant is subject to being sentenced under s. 973.01 and a factor under s. 973.017 is pertinent to the offense, the person preparing the presentence investigation report shall include in the report any such factor.

972.15(2m) (2m) The person preparing the presentence investigation report shall make a reasonable attempt to contact the victim to determine the economic, physical and psychological effect of the crime on the victim. The person preparing the report may ask any appropriate person for information. This subsection does not preclude the person who prepares the report from including any information for the court concerning the impact of a crime on the victim.

972.15(2s) (2s) If the defendant is under 21 years of age, the person preparing the presentence investigation report shall attempt to determine whether the defendant has been adjudged delinquent under ch. 48, 1993 stats., or ch. 938 or has had a similar adjudication in any other state in the 4 years immediately preceding the date the criminal complaint relating to the present offense was issued and, if so, shall include that information in the report.

972.15(3) (3) The judge may conceal the identity of any person who provided information in the presentence investigation report.

972.15(4) (4) Except as provided in sub. (4m), (4r), (5), or (6), after sentencing the presentence investigation report shall be confidential and shall not be made available to any person except upon specific authorization of the court.

972.15(4m) (4m) The district attorney, the defendant’s attorney, and, following a conviction for a felony in which an assistant attorney general has original jurisdiction, served at the request of a district attorney under s. 978.05 (8) (b), or served as a special prosecutor under s. 978.045, the assistant attorney general are entitled to have and keep a copy of the presentence investigation report. If the defendant is not represented by counsel, the defendant is entitled to view the presentence investigation report but may not keep a copy of the report. Except as provided in s. 950.04 (1v) (p), a district attorney, the defendant’s attorney, or an assistant attorney general who receives a copy of the report shall keep it confidential. A defendant who views the contents of a presentence investigation report shall keep the information in the report confidential.

972.15(4r) (4r) The victim of the crime is entitled to view all sentencing recommendations included in the presentence investigation report, including any recommendations under sub. (2b) or (2c), and any portion of the presentence investigation report that contains information pertaining to the victim that was obtained pursuant to sub. (2m). A victim who views any contents of a presentence investigation report may not keep a copy of any portion of the report and shall keep the information he or she views confidential.

972.15(5) (5) The department may use the presentence investigation report for correctional programming, parole consideration or care and treatment of any person sentenced to imprisonment or the intensive sanctions program, placed on probation, released on parole or extended supervision or committed to the department under ch. 51 or 971 or any other person in the custody of the department or for research purposes. The department may make the report available to other agencies or persons to use for purposes related to correctional programming, parole consideration, care and treatment, or research. Any use of the report under this subsection is subject to the following conditions:

972.15(5)(a) (a) If a report is used or made available to use for research purposes and the research involves personal contact with subjects, the department, agency or person conducting the research may use a subject only with the written consent of the subject or the subject’s authorized representative.

972.15(5)(b) (b) The department or the agency or person to whom the report is made available shall not disclose the name or any other identifying characteristics of the subject, except for disclosure to appropriate staff members or employees of the department, agency or person as necessary for purposes related to correctional programming, parole consideration, care and treatment, or research.

972.15(6) (6) The presentence investigation report and any information contained in it or upon which it is based may be used by any of the following persons in any evaluation, examination, referral, hearing, trial, postcommitment relief proceeding, appeal, or other proceeding under ch. 980:

972.15(6)(a) (a) The department of corrections.

972.15(6)(b) (b) The department of health services.

972.15(6)(c) (c) The person who is the subject of the presentence investigation report, his or her attorney, or an agent or employee of the attorney.

972.15(6)(d) (d) The attorney representing the state or an agent or employee of the attorney.

972.15(6)(e) (e) A licensed physician, licensed psychologist, or other mental health professional who is examining the subject of the presentence investigation report.

972.15(6)(f) (f) The court and, if applicable, the jury hearing the case.

972.15 History History: 1983 a. 102; 1987 a. 27, 227; 1991 a. 39; 1993 a. 213; 1997 a. 73, 181, 205, 283; 1999 a. 32; 2001 a. 109; 2003 a. 33; 2005 a. 311, 434; 2007 a. 20 s. 9121 (6) (a); 2007 a. 80, 97; 2011 a. 273; 2013 a. 108, 338, 362; 2015 a. 196.

972.15 Annotation The defendant was not denied due process because the trial judge refused to order a psychiatric examination and have a psychiatric evaluation included in the presentence report. Hanson v. State, 48 Wis. 2d 203, 179 N.W.2d 909 (1970).

972.15 Annotation It is not error for the court to fail to order a presentence investigation, especially when the record contains much information as to the defendant’s background and criminal record. State v. Schilz, 50 Wis. 2d 395, 184 N.W.2d 134 (1971).

972.15 Annotation Section 48.78 does not prevent a judge from examining Department of Health and Social Services records. Restrictive rules of evidence do not apply to sentencing procedures. Hammill v. State, 52 Wis. 2d 118, 187 N.W.2d 792 (1971).

972.15 Annotation Refusal to accept a recommendation of probation does not amount to an abuse of discretion if the evidence justifies a severe sentence. State v. Burgher, 53 Wis. 2d 452, 192 N.W.2d 869 (1972).

972.15 Annotation If a presentence report is used by the trial court, it must be part of the record. Its absence is not error if the defendant and counsel saw the report and had a chance to correct it and if counsel approved the record without moving for its inclusion. Chambers v. State, 54 Wis. 2d 460, 195 N.W.2d 477 (1972).

972.15 Annotation A presentence report, consisting of information concerning the defendant’s personality, social circumstances, and general pattern of behavior and a section entitled “Agent’s Impressions,” contained neither biased nor incompetent material as such reports are not limited to evidence that is admissible in court, and the defendant’s report, although recommending imposition of a maximum term, contained material both favorable and unfavorable as to the defendant’s general pattern of behavior. State v. Jackson, 69 Wis. 2d 266, 230 N.W.2d 832 (1975).

972.15 Annotation Consideration by the trial court of a presentence report prior to the defendant’s plea of guilty, in violation of sub. (1), constituted at most harmless error, since the evil the statute is designed to prevent—receipt by the judge of prejudicial information while still considering the defendant’s guilt or innocence or presiding over a jury trial—cannot arise in the context of a guilty plea, especially when the trial court had already assured itself of the voluntariness of the plea and the factual basis for the crime. Rosado v. State, 70 Wis. 2d 280, 234 N.W.2d 69 (1975).

972.15 Annotation The sentencing judge does not deny due process by considering pending criminal charges in determining a sentence. Discussing the scope of judicial inquiry prior to sentencing. Handel v. State, 74 Wis. 2d 699, 247 N.W.2d 711 (1976).

972.15 Annotation Information gathered in the course of a presentence investigation may not be revealed at a trial following withdrawal of guilty plea. State v. Crowell, 149 Wis. 2d 859, 440 N.W.2d 352 (1989).

972.15 Annotation A defendant appearing with or without counsel has a due process right to read the presentence investigation report prior to sentencing. State v. Skaff, 152 Wis. 2d 48, 447 N.W.2d 84 (Ct. App. 1989).

972.15 Annotation A defendant challenging a sentence on due process grounds based upon failure to receive a copy of the presentence investigation report is entitled to a hearing only upon a showing that the court had a blanket policy of denial of access and that the policy was specifically applied to the defendant, or that before sentencing the defendant personally sought access and was denied it. State v. Flores, 158 Wis. 2d 636, 462 N.W.2d 899 (Ct. App. 1990).

972.15 Annotation A public defender appointed as postconviction counsel is entitled to the presentence investigation report under s. 967.06. Access may not be restricted under sub. (4). State ex rel. Oliver v. Guolee, 179 Wis. 2d 376, 507 N.W.2d 145 (Ct. App. 1993).

972.15 Annotation Although sub. (2s) requires a presentence report to include juvenile adjudications that are less than three years old, it does not prohibit the inclusion and consideration of adjudications that are older. State v. Crowe, 189 Wis. 2d 72, 525 N.W.2d 291 (Ct. App. 1994).

972.15 Annotation Sub. (5) does not provide a defendant with a means to obtain the defendant’s presentence report. Access is provided by subs. (2) and (4). State ex rel. Hill v. Zimmerman, 196 Wis. 2d 419, 538 N.W.2d 608 (Ct. App. 1995), 94-1861.

972.15 Annotation A marital relationship between a case’s prosecutor and the presentence report writer was sufficient to draw the objectivity of the report into question. It was error not to strike the report. State v. Suchocki, 208 Wis. 2d 509, 561 N.W.2d 332 (Ct. App. 1997), 96-1712.

972.15 Annotation The use of presentence reports from the underlying criminal proceeding in a ch. 980 sex offender commitment is not allowed under the sub. (5) provision for use of the reports for care and treatment, but allowing the state’s psychologist to use, and allowing the ch. 980 jury to hear, the reports is within the court’s discretion under sub. (4). State v. Zanelli, 212 Wis. 2d 358, 569 N.W.2d 301 (Ct. App. 1997), 96-2159.

972.15 Annotation Having disputed relevant portions of the presentence investigation at the sentencing hearing, it was trial counsel’s duty to see that the disputes were fully resolved by a proper hearing. Failure to do so constituted ineffective assistance of counsel. State v. Anderson, 222 Wis. 2d 403, 588 N.W.2d 75 (Ct. App. 1998), 97-3070.

972.15 Annotation A mental health professional who conducted a psychological assessment of a defendant convicted of sexual assault, which was incorporated into the presentence investigation report and admitted into evidence at the sentencing hearing, had a conflict of interest due to the fact that the professional had treated the victim in the case justifying modification of the defendant’s sentence. State v. Stafford, 2003 WI App 138, 265 Wis. 2d 886, 667 N.W.2d 370, 02-0544.

972.15 Annotation This section applies only to court-ordered presentence investigation reports and does not refer to memorandum submitted by a defendant at sentencing nor prevent the use of the memorandum submitted at one trial at a subsequent trial. State v. Greve, 2004 WI 69, 272 Wis. 2d 444, 681 N.W.2d 479, 02-2332.

972.15 Annotation Under Greve, 2004 WI 69, defense counsel’s failure to object to the testimony of the court-ordered presentence investigator constituted deficient performance, but failure to object to the testimony of the defense presentence investigator did not. State v. Jimmie R.R., 2004 WI App 168, 276 Wis. 2d 447, 688 N.W.2d 1, 02-1771.

972.15 Annotation For the limited purposes of determining the procedure for accessing the presentence investigation report under sub. (4m), a defendant in a no-merit appeal is in the same shoes as a defendant who is unrepresented. The defendant is entitled to a meaningful viewing of the report, but may not retain a copy of it, subject to the requirement that the defendant keep the information in the report confidential and the circuit court’s prerogative to redact identifying information of persons who provided information for the report. State v. Parent, 2006 WI 132, 298 Wis. 2d 63, 725 N.W.2d 915, 05-0661.

972.15 Annotation In a no-merit appeal, as the attorney general is often the state’s successor to the district attorney for purposes of this section, the attorney general’s office after sentencing must make its request to obtain a copy of the presentence investigation report and to disclose its contents in the state’s brief with the circuit court. State v. Parent, 2006 WI 132, 298 Wis. 2d 63, 725 N.W.2d 915, 05-0661.

972.15 Annotation Suchocki, 208 Wis. 2d 509 (1997), does not extend to a situation in which the probation agent who prepared the presentence investigation report (PSI) was married to another probation agent, and the two agents together were responsible for the defendant’s supervision. Suchocki is based on the conflict of interest between the prosecutor, as an agent of the state and the adversary of the defendant, and the presentence investigator, who must serve as the neutral agent of an independent judiciary. When both the author of the PSI and the author’s spouse are probation agents with joint responsibility for supervision, there is no inherent conflict of interest. State v. Thexton, 2007 WI App 11, 298 Wis. 2d 263, 727 N.W.2d 560, 05-3109.

972.15 Annotation The right to consultation with counsel before a presentence interview does not include a right to be apprised of all lines of questioning before the interview occurs. State v. Thexton, 2007 WI App 11, 298 Wis. 2d 263, 727 N.W.2d 560, 05-3109.

972.15 Annotation In a merit appeal, parties who are entitled “to have and keep a copy” of a presentence investigation report (PSI) under sub. (4m) need not ask any court’s permission to reference the PSI in an appellate brief. Parties may reference information from the PSI that does not reveal confidential information and that is relevant to the appeal. State ex rel. SPD v. Court of Appeals, 2013 WI 31, 346 Wis. 2d 735, 828 N.W.2d 847, 12-0544.

972.15 Annotation Courts do not have either express or implied statutory authority to order the destruction of presentence investigation reports. This section, the administrative code, and Supreme Court Rules on record retention implicate principles of preservation and confidentiality, not destruction. State v. Melton, 2013 WI 65, 349 Wis. 2d 48, 834 N.W.2d 345, 11-1770.

972.15 Annotation Insuring the Accuracy of the Presentence Investigation Report in the Wisconsin Correctional System. Bergman. 1986 WLR 613.