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State v. Dade5/3/2000
on, but merely followed a sentencing matrix formulated by the Second Judicial District, made up of judges in Racine, Kenosha and Walworth counties. It is true that a trial court may not consider the guidelines as mandatory. A preconceived or rigid policy, or a "fixed view" as to sentencing, is the antithesis of discretion. See United States v. Foss, 501 F.2d 522, 527 (1st Cir. 1974). But it is also true that sentencing guidelines may serve as direction for the court in making its sentencing consideration. This is because a trial court should consider all relevant information bearing upon the sentence. See State v. Guzman, 161 Wis. 2d 80, 90, 467 N.W.2d 564 (Ct. App. 1991), aff'd, 166 Wis. 2d 577, 480 N.W.2d 446 (1992).
. Here, the trial court did not blindly follow the matrix. Rather, the court considered Dade's claim of mitigating factors. In deciding to reject Dade's entreaty, the court concluded that he "hasn't learned yet that this type of behavior, drinking and driving is serious, wrong .... I think it would be a disfavor for me to give you a leniency here. So I think the recommendations are appropriate. So I will sentence in accordance with our guidelines. I think it falls within the guidelines." It is clear that the court did exercise discretion. It listened to reasons why the guidelines should not be applied in Dade's instance and then made a decision that the guidelines should, in fact, be applied.
. Dade next complains that the trial court erred by allowing the State to argue that Dade's fleeing and eluding should be considered when sentencing. In Dade's view, if the State wanted to penalize Dade for this conduct, it should have charged him with fleeing and eluding. According to Dade, the State should not be allowed to comment upon and the court should not be allowed to consider conduct for which he was not charged. This issue is also a nonstarter. The fleeing and eluding behavior was part of the underlying facts. The sentencing court has a right-even a duty-based on public policy, to consider all relevant information bearing upon the sentence. Uncharged conduct, especially if part of the factual background of the charge that was pled, may be considered. Here, Dade's conduct bears upon his uncooperativeness and unsafe driving. Both of these factors are relevant to the sentencing decision.
. Finally, Dade argues that the court misused its discretion when it considered the fact that the legislature recently made a fifth OWI offense a felony. He claims that the court took into consideration "law not in existence at the time." This issue has no merit. The trial court was merely using the recent legislative action as an example of how the citizens of this state consider repeat drunk driving to be a serious problem. We read the trial court's comment to be nothing more than a statement that like the legislature-and like the citizenry electing the legislators-the court similarly considers repeat drunk driving to be a serious situation. Trial courts must consider the seriousness of an offense in sentencing. The court was merely fulfilling its duty of considering the seriousness of Dade's offense when it made the comment concerning recent legislative action. We affirm the conviction.
By the Court. -- Judgment affirmed.
This opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)4.
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