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State v. Stenzel8/11/2004
Walter I. Stenzel challenges the fourteen-year sentence imposed after his conviction on two counts of homicide by intoxicated use of a vehicle and one count of injury by intoxicated use of a vehicle. He asserts that the circuit court erroneously exercised its sentencing discretion by placing too much weight on the gravity of the offense and ignoring the many positive attributes of his seventy-eight years as a productive member of society. We conclude that the circuit court properly exercised its sentencing discretion when it assigned weight to what it concluded were the relevant sentencing factors; therefore, we affirm.
. On January 25, 2002, Stenzel, who was seventy-seven years old, had lunch with friends at a yacht club and, as was his habit, he had two alcoholic drinks. After lunch, he headed home to Thiensville on I-43. Short of his destination, he crossed the median into the southbound lanes and struck a car being driven by Kathryn Szeflinski in which her two children, Jake, born January 27, 1997, and Lauren, born August 11, 2001, were riding in safety seats. Regrettably, Jake and Lauren died as the result of injuries sustained in the accident and their mother survived her injuries.
. Stenzel was charged with multiple counts: two counts of homicide by intoxicated use of a vehicle, Wis. Stat. §§ 940.09(1)(a) and 939.50(3)(b) (2001-02)*fn1 ; two counts of homicide by intoxicated use of a vehicle, prohibited alcohol concentration, §§ 940.09(1)(b) and 939.50(3)(b); one count of causing injury by intoxicated use of a vehicle, Wis. Stat. §§ 346.63(2)(a)1 and 346.65(3m); and, one count of causing injury by operating a vehicle with a prohibited alcohol concentration, §§ 346.63(2)(a)2 and 346.65(3m). On October 8, 2002, Stenzel entered no contest pleas to two counts of homicide by intoxicated use of a vehicle and the count for causing injury by intoxicated use of a vehicle. In exchange for his plea, the State agreed that at sentencing it would argue the facts but not make a specific sentencing recommendation.
. Stenzel was seventy-eight years old at the sentencing on January 2, 2003. The circuit court had the benefit of presentence investigation reports prepared by the State and Stenzel's counsel. True to the plea agreement, the State did not make any specific sentencing recommendation but did offer a detailed recitation of the facts of the fatal accident. The court also heard statements by the parents of the deceased children, argument from Stenzel's counsel, and a statement by Stenzel. On each count of homicide by intoxicated use of a vehicle, the court imposed four years of confinement in prison, to be served consecutively. The court imposed six years of extended supervision on those convictions. And on the count of causing injury by intoxicated use of a vehicle, the court imposed a concurrent one-year term in the county jail.
. Stenzel pursued post-conviction relief in the form of a motion for resentencing.*fn2 The heart of the motion was his contention that because of his age-seventy-eight years old at sentencing-the eight years of initial confinement was virtually a life sentence. He contended that the court erroneously exercised its discretion by placing too much emphasis on the seriousness of the offense, the sentence was unduly harsh and unconscionable, and the sentence constituted cruel and unusual punishment. The circuit court denied Stenzel's motion and on appeal he raises the same arguments.
. In State v. Gallion, 2004 WI 42, 270 Wis. 2d 535, 678 N.W.2d 197, the Wisconsin Supreme Court revisited the seminal case in sentencing jurisprudence, McCleary v. State, 49 Wis. 2d 263, 182 N.W.2d 512 (1971):
Now, in the wake of truth-in-sentencing legislati
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