State v. Randy L. Bolstad

2021 WI APP 81

COURT OF APPEALS OF WISCONSIN
PUBLISHED OPINION

Case No.: 2021AP49-CR

Complete Title of Case:

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

RANDY L. BOLSTAD,

DEFENDANT-APPELLANT.

Opinion Filed: October 28, 2021
Submitted on Briefs: August 12, 2021
Oral Argument:

JUDGES: Blanchard, P.J., Kloppenburg, and Graham, JJ.
Concurred:
Dissented:

Appellant
ATTORNEYS: On behalf of the defendant-appellant, the cause was submitted on the
briefs of Thomas B. Aquino, assistant state public defender of Madison.

Respondent
ATTORNEYS: On behalf of the plaintiff-respondent, the cause was submitted on the
brief of John W. Kellis, assistant attorney general, and Joshua L. Kaul,
attorney general.
2021 WI App 81

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
October 28, 2021
A party may file with the Supreme Court a
Sheila T. Reiff petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10 and
RULE 809.62.

Appeal No. 2021AP49-CR Cir. Ct. No. 2016CF794

STATE OF WISCONSIN IN COURT OF APPEALS

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

RANDY L. BOLSTAD,

DEFENDANT-APPELLANT.

APPEAL from a judgment and an order of the circuit court for
La Crosse County: GLORIA L. DOYLE, Judge. Reversed and cause remanded
with directions.

Before Blanchard, P.J., Kloppenburg, and Graham, JJ.

¶1 KLOPPENBURG, J. The circuit court sentenced Randy Bolstad,
after revocation of his probation, to five years of initial confinement and two years
of extended supervision for attempted robbery with threat of force. Bolstad argues
No. 2021AP49-CR

that the circuit court erroneously exercised its discretion at sentencing by failing to
consider the gravity of the underlying offense for which he received the probation
disposition. We agree and, therefore, reverse and remand to the circuit court for
resentencing.

BACKGROUND

¶2 This case began with the filing of the criminal complaint in October
2016, which alleged the following facts. On October 18, 2016, A.S. reported to
police that his uncle, Randy Bolstad, came to the front porch of his residence with
a baseball bat and threatened to strike him with the bat unless he gave Bolstad all of
the money he had with him. A.S. then left the residence after locking the door
behind him and walked past Bolstad toward his vehicle. Bolstad followed him away
from the residence while swinging the baseball bat in the air, but Bolstad did not
swing the bat at him or any other person. Bolstad told A.S. that if he did not give
Bolstad his money, Bolstad would damage his vehicle. A.S. told Bolstad that if
Bolstad did not leave, he would be forced to call the police. Bolstad then got on a
bicycle and rode away, after which A.S. contacted law enforcement. A.S. was afraid
that Bolstad would injure him because Bolstad appeared to be under the influence
of a narcotic or “messed up.”

¶3 Bolstad was taken into custody and charged with attempted armed
robbery with threat of force as a repeater.

¶4 In February 2017 Bolstad entered an Alford plea to an amended
charge of attempted robbery with threat of force.1 During the plea colloquy, the

1
“An Alford plea is a guilty or no contest plea in which the defendant either maintains
innocence or does not admit to the commission of the crime.” State v. Multaler, 2002 WI 35, ¶4
n.4, 252 Wis. 2d 54, 643 N.W.2d 437; see also North Carolina v. Alford, 400 U.S. 25 (1970).

2
No. 2021AP49-CR

circuit court observed that Bolstad was then being treated for mental illness.
Bolstad’s counsel elaborated to the court that Bolstad has been diagnosed with
schizophrenia and was struggling with managing his mental illness and substance
use disorder. The court sentenced Bolstad to a three-year term of probation.2

¶5 In 2018, Bolstad’s probation was revoked and in March 2019, a
sentencing after revocation hearing was held, which is the focus of this appeal.
Bolstad was sentenced to five years of initial confinement and two years of extended
supervision.

¶6 Because the full scope of what the circuit court said at the sentencing
hearing is central to the analysis that follows we reproduce the remarks in full, as
slightly edited for clarity:

So, Mr. Bolstad, this isn’t really a happy day for me
because two years ago on February 22nd of 2017, we had
your plea and sentencing in this hearing, and, you know, we
had sort of the reverse discussion, right? Mr. Bolstad, you
can’t keep going like this, Mr. Bolstad, you need to, you
know, take some responsibility for your actions, Mr.
Bolstad, you have these conditions. Do an AODA
assessment, comply with the recommendations. Don’t drink
any alcohol or take controlled substances. Do random
testing, don’t go anywhere where drugs are used, don’t
contact the victim. Do anything else your [probation agent]
tells you to do and pay your court costs and supervision fees.
All you had to do [to] stay in the community was follow the
rules for three years. No prison time.

So at that time the Court really believed that despite
your sort of lack of accountability, your lack of willingness
to take responsibility for your actions[, y]ou could work with
the Department of Correction for three years and never have
to go to prison, okay? So today when I look at the case, I
have to honestly say, you cannot be managed in this

2
The February 2017 hearing also served as a sentencing after revocation for a 2015 case
not at issue here.

3
No. 2021AP49-CR

community. []I think the Department of Corrections gave it
a good run.

You can’t blame the Department of Corrections that
you did nothing, okay? You can get a sponsor on your own,
you can go to counseling on your own, you can find your
own healthy support system, you can engage in prosocial
activities. You can go fishing instead of committing new
crimes, you can, you know, volunteer at a homeless shelter,
volunteer at a food pantry, or do a lot of other things to keep
yourself out of trouble and you can seek your own mental
health. You are not helpless, okay? You have the ability to
help yourself, okay?

And I say that because when you get out of prison,
you are going to have to do those things again. You don’t
get a baby sitter, especially when you rejected the
Department of Corrections’ help, okay?

There’s no more baby sitters, there is no more, we’ll
hold your hand while you do everything. You are going to
have to, you know, become a little better at being an adult.

At this point, you can’t be managed in the
community. We tried that on probation. You had, you
know, 89 days credit back then and now you are up to 559
days credit because you have been incarcerated for so long
during this probationary period.

I think the Department of Corrections looked at this,
looked at everything else possible to do with you and
decided there weren’t any alternatives, so, I am left with
sentencing you on the crime that I sentenced you on two
years ago. At that time I thought you could be managed in
the community. You have proven you cannot. So, I am
going to sentence you to seven years in the Wisconsin State
Prison System, five years of initial confinement and two
years of extended supervision time.

I recognize the State was asking for more than that
on extended supervision, but, frankly, I can only hope that
you are a better candidate when you are released than you
are right now for—you have been previously for extended
supervision[, i]n other words, working with the Department
of Corrections.

This [] judgment of conviction will indicate that you
are entitled to 559 days credit. And the conditions of
extended supervision will be that you cooperate with the
Department of Corrections, do an alcohol and other drug

4
No. 2021AP49-CR

assessment, comply with any follow ups around that,
consume no alcohol or controlled substances, subject
yourself to random testing through the Department of
Corrections, not be in any locations where drugs are being
used or sold. We will continue the no contact with A.S. and
continue at that time your payment of court costs and any
Department of Corrections’ supervision fees.

¶7 Bolstad filed a motion for postconviction relief, arguing that the
circuit court erroneously exercised its discretion when it failed to consider the
gravity of the underlying offense for which Bolstad was being sentenced and failed
to explain why five years was “the minimum amount of custody or confinement
which is consistent with the protection of the public, the gravity of the offense and
the rehabilitative needs of the defendant,” pursuant to State v. Gallion, 2004 WI 42,
¶44, 270 Wis. 2d 535, 678 N.W.2d 197.

¶8 The circuit court issued an order denying the postconviction motion,
concluding that Bolstad’s sentence “was neither unduly harsh nor unconscionable.”3

¶9 Bolstad appeals.

3
Bolstad argues that, in its order denying his motion for postconviction relief, the circuit
court fails to address the grounds he asserted in his motion, including that the court erroneously
exercised its discretion by failing to consider required sentencing factors. Bolstad also asserts that
this court does not have jurisdiction to consider that order because it was issued after the 60-day
statutory deadline and is thus considered a “nullity,” and the State agrees. However, this court
issued an order on February 17, 2021, retroactively extending the deadline for the circuit court to
decide the motion to December 17, 2020, the day it was issued. Accordingly, the order denying
Bolstad’s motion for postconviction relief was not untimely and we do not consider the order a
“nullity.” As for Bolstad’s argument that the circuit court’s order fails to address the issues he
raised in his motion, the State does not respond and, indeed, implicitly concedes that Bolstad is
correct. We accept that concession that the order does not address the court’s asserted failure to
consider the gravity of the underlying offense. See Schlieper v. DNR, 188 Wis. 2d 318, 322, 525
N.W.2d 99 (Ct. App. 1994) (“respondents cannot complain if propositions of appellants are taken
as confessed which respondents do not undertake to refute.”). Accordingly, we do not consider the
order further and confine our analysis to the court’s remarks at sentencing.

5
No. 2021AP49-CR

DISCUSSION

¶10 As stated, Bolstad argues that the circuit court erroneously exercised
its discretion at his sentencing after revocation hearing by failing to consider the
gravity of the underlying offense for which he was being sentenced.4 We first
summarize the standard of review and general legal principles that govern
sentencing decisions and the more specific legal principles that govern situations in
which, as here, the circuit court does not explicitly identify a factor that it is required
to consider. We next apply those principles to the challenged sentencing decision
here and conclude that the circuit court erroneously exercised its discretion by
failing to consider one of the required factors, the gravity of the underlying offense,
in a manner that is discernible in the record. We then address and reject the State’s
arguments to the contrary.

I. Applicable Standard of Review and General Legal Principles

¶11 “It is a well-settled principle of law that a circuit court exercises
discretion at sentencing.” Gallion, 270 Wis. 2d 535, ¶17. “On appeal, review is

4
Bolstad raises two additional issues that we do not address, as we now explain.

First, Bolstad argues that the circuit court erroneously exercised its discretion by imposing
the five-year maximum term of initial confinement without explaining why it was the minimum
amount of custody or confinement which is consistent with the protection of the public, the gravity
of the offense, and the rehabilitative needs of the defendant. We do not address this argument
because our conclusion that the court erroneously exercised its discretion by failing to consider the
gravity of the underlying offense is dispositive. See Barrows v. American Family Ins. Co., 2014
WI App 11, ¶9, 352 Wis. 2d 436, 842 N.W.2d 508 (2013) (“An appellate court need not address
every issue raised by the parties when one issue is dispositive.”).

Second, Bolstad asserts that the circuit court failed at his initial sentencing in 2017 to
consider the gravity of the offense. The State does not dispute that point. Instead, the State’s only
response is to state that Bolstad is not entitled to appellate review of the 2017 sentence because
Bolstad did not appeal that sentence. We need not address this issue, because even if we were to
take into consideration the court’s 2017 sentencing remarks, it would not change our analysis or
conclusion here.

6
No. 2021AP49-CR

limited to determining if discretion was erroneously exercised.” Id. “Discretion is
not synonymous with decision-making. Rather, the term contemplates a process of
reasoning. This process must depend on facts that are of record or that are
reasonably derived by inference from the record and a conclusion based on a logical
rationale founded upon proper legal standards.” McCleary v. State, 49 Wis. 2d 263,
277, 182 N.W.2d 512 (1971). “A circuit court erroneously exercises its discretion
if it applies an improper legal standard ….” State v. Jackson, 2014 WI 4, ¶43, 352
Wis. 2d 249, 841 N.W.2d 791.

¶12 “On review, in any instance where the exercise of discretion has been
demonstrated, the appellate court follows a consistent and strong policy against
interference with the discretion of the [circuit] court in passing sentence.” Gallion,
270 Wis. 2d 535, ¶17 (quoted source and brackets omitted).

¶13 The application of sentencing standards must be set forth on the record
in order to demonstrate the proper exercise of discretion. Gallion, 270 Wis. 2d 535,
¶¶8, 51; see also McCleary, 49 Wis. 2d at 281 (“requisite to a prima facie valid
sentence is a statement by the [circuit court] judge detailing his [or her] reasons for
selecting the particular sentence imposed.”); see also WIS. STAT. § 973.017(10m)(a)
(2019-20)5 (“The court shall state the reasons for its sentencing decision and … shall
do so in open court and on the record.”).6

5
All references to the Wisconsin Statutes are to the 2019-20 version unless otherwise
noted.
6
WISCONSIN STAT. § 973.017(10m)(b) provides a limited exception to the on-the-record
requirement, for the situation in which “the court determines that it is not in the interest of the
defendant for it to state the reasons for its sentencing decision in the defendant’s presence;” in those
circumstances, “the court shall state the reasons for its sentencing decision in writing and include
the written statement in the record.” The circuit court here did not purport to make such a
determination, and neither party argues that this exception applies here.

7
No. 2021AP49-CR

¶14 At sentencing the circuit court must consider three primary factors:
(1) the protection of the public; (2) the gravity of the offense; and (3) the
rehabilitative needs of the defendant. State v. Salas Gayton, 2016 WI 58, ¶22, 370
Wis. 2d 264, 882 N.W.2d 459; see also Gallion, 270 Wis. 2d 535, ¶40 n.10. This
requirement is codified in WIS. STAT. § 973.017(2):

(2) General requirement. When a court makes a
sentencing decision concerning a person convicted of a
criminal offense committed on or after February 1, 2003, the
court shall consider all of the following:

(ad) The protection of the public.

(ag) The gravity of the offense.

(ak) The rehabilitative needs of the defendant.

(b) Any applicable mitigating factors and any
applicable aggravating factors, including the aggravating
factors specified in subs. (3) to (8).

We will generally refer to each of the three factors identified in WIS. STAT.
§ 973.017(2)(ad)-(ak) as a required factor.

¶15 “The weight to be given each factor is within the discretion of the
[circuit] court. The sentence may be based on any or all of the three [required]
factors after all … have been considered.” State v. Wickstrom, 118 Wis. 2d 339,
355, 348 N.W.2d 183 (Ct. App. 1984).

¶16 “How much explanation is necessary, of course, will vary from case
to case.” Gallion, 270 Wis. 2d 535, ¶39. Requiring explanation of the sentence
imposed “is not intended to be a semantic trap for circuit courts. It is also not
intended to be a call for … ‘magic words.’” Id., ¶49. “Proper sentencing discretion
can exist without [explicitly identifying the] sentencing factors; what is required is
a consideration of the sentencing factors.” State v. Wegner, 2000 WI App 231, ¶7,

8
No. 2021AP49-CR

239 Wis. 2d 96, 619 N.W.2d 289. “[T]he requirement of an on-the-record
explanation will serve to fulfill the McCleary mandate that discretion of a
sentencing judge be exercised on a ‘rational and explainable basis.’ This will assist
appellate courts in determining whether the circuit court properly exercised its
discretion.” Gallion, 270 Wis. 2d 535, ¶49 (quoting McCleary, 49 Wis. 2d at 276).
On review, “appellate courts are required to … closely scrutinize the record to
ensure that ‘discretion was in fact exercised and the basis of that exercise of
discretion [is] set forth.’” Gallion, 270 Wis. 2d 535, ¶4 (quoting McCleary, 49
Wis. 2d at 277).

II. Appellate Review of Record Under McCleary and Gallion When Required
Factor Is Not Explicitly Identified

¶17 This appeal concerns the mandate, expressed in both McCleary and
Gallion, that we search the record to determine whether the circuit court’s
consideration of required factors is discernible in the record. See McCleary, 49
Wis. 2d at 281-82; Gallion, 270 Wis. 2d 535, ¶4. Here, as discussed in greater detail
below, the circuit court did not explicitly identify a required factor, the gravity of
the offense, when it imposed sentence. To provide clarity as to both the circuit
court’s and the appellate court’s duties in this situation under these two cases, we
provide the following details of pertinent statements in McCleary and Gallion.

¶18 In McCleary, our supreme court set standards for both circuit courts
sentencing defendants and appellate courts reviewing those sentencing decisions.
McCleary, 49 Wis. 2d at 277-82. As discussed above, the circuit court must state
on the record the facts on which it relies and its reasons for choosing the imposed
sentence in light of its consideration of the three required factors: the protection of
the public; the gravity of the offense; and the rehabilitative needs of the defendant.

9
No. 2021AP49-CR

Id. at 276, 281. The circuit court’s reasons must be supported by facts that “are
fairly inferable from the record.” Id. at 281.

¶19 On review, the appellate court may not substitute its judgment for that
of the circuit court but determines only whether “there is evidence that discretion
was properly exercised, and the sentence imposed was the product of that
discretion.” Id. When the circuit court has not explicitly identified any of the three
required factors that it used in exercising its discretion, the appellate court must
search the record to determine whether the circuit court considered each of the
required factors in its “exercise of proper discretion.” Id. at 282 (emphasis added).

¶20 In Gallion our supreme court addressed the application of the
standards set forth in McCleary. Gallion, 270 Wis. 2d 535, ¶26. The court observed
that there had been a “disconnect” between the McCleary principles as they were
stated in McCleary and those principles as they were being applied by sentencing
and appellate courts, resulting in a “more mechanical form of sentencing” and the
court acting as a “rubber stamp” for sentences upon appellate review. Gallion, 270
Wis. 2d 535, ¶26 & n.7. More specifically, the Gallion court was concerned about
what had become a common scenario, in which the circuit court would explicitly
identify each of the required factors at sentencing, but the record contained no
indication that the court actually considered those factors when imposing sentence.
Id., ¶¶26, 37.

¶21 As the Gallion court explained, the standards set forth in McCleary
had been “eroded” because appellate courts were accepting “magic words” and
“implied reasoning rather than requiring an on-the-record explanation for the
particular sentence imposed.” Id., ¶¶37, 50. The Gallion court explained that
“more” is required. Id., ¶37. According to the court in Gallion, proper adherence

10
No. 2021AP49-CR

to the McCleary principles requires an on-the-record explanation of the sentencing
court’s consideration of the required factors, Gallion, 270 Wis. 2d 535, ¶¶37-38,
and a more exacting scrutiny of the record by the appellate court to determine a
discernible basis for the circuit court’s exercise of discretion, id., ¶76.

¶22 The court in Gallion explained that it was not changing the standards
for determining and reviewing sentences established in “McCleary and its progeny.”
Gallion, 270 Wis. 2d 535, ¶¶37-38, 76. Rather, the court examined “the process of
reasoning which demonstrates the proper exercise of sentencing discretion,” id., ¶6,
and clarified “the manner in which [the McCleary standards] are to be applied,” id.,
¶38. The court determined that those standards require appellate courts to “closely
scrutinize the record to ensure that ‘discretion was in fact exercised and the basis of
that exercise of discretion is set forth.’” Id., ¶76 (quoting McCleary, 49 Wis. 2d at
277). As the Gallion court emphasized, “[w]hat has previously been satisfied with
implied rationale must now be set forth on the record.” Id., ¶38.

¶23 This case presents a more extreme example of the problem addressed
in Gallion. Here, unlike the particular circumstance addressed in Gallion, the
circuit court did not explicitly identify the gravity of the offense as a factor it was
required to consider. Nevertheless, the ultimate issue in this case is the same as that
in Gallion, namely, whether the record of the sentencing hearing demonstrates that
the circuit court considered the gravity factor. See id., ¶¶58-62 (reviewing the
circuit court’s sentencing remarks to determine whether the court’s explanation of
the sentence provided evidence of the court’s consideration of the required
sentencing factors); WIS. STAT. § 973.017(2), (10m) (requiring the circuit court to
“consider” the three required factors and state on the record its reasons for its
sentence). Applying here the “set forth on the record” rule stated in Gallion, id.,

11
No. 2021AP49-CR

¶38, the absence of evidence in the record that the court considered the gravity factor
would amount to an erroneous exercise of discretion.7

¶24 In sum, under both McCleary and Gallion, a sentence cannot be
“sustainable as a proper discretionary act” if the circuit court failed to conduct the
necessary “process of reasoning” based upon applicable legal standards. McCleary,
49 Wis. 2d at 282; Gallion, 270 Wis. 2d 535, ¶19 (quoting McCleary, 49 Wis. 2d at
277). On review, this precedent requires us to look to the sentencing record to
determine whether the process of reasoning based on applicable legal standards, and
necessary supporting facts, are discernible. McCleary, 49 Wis. 2d at 281-82;
Gallion, 270 Wis. 2d 535, ¶76. As stated, the applicable legal standards require the
circuit court to consider the three aforementioned factors when making a sentencing
decision. Accordingly, in order to sustain a sentence as a proper discretionary act,
the record must demonstrate that the required factors were considered.

III. Analysis of Bolstad’s Sentencing

¶25 The circuit court’s sentencing remarks, quoted above in full, lack any
reference whatsoever to the gravity of the underlying offense for which Bolstad was
being sentenced. The court instead referenced the Department of Corrections’
decision to revoke Bolstad’s probation and said, “I am left with sentencing you on
the crime that I sentenced you on two years ago.” This statement was, at best, an
implicit acknowledgement that the circuit court had some recollection of the
particular crime to which Bolstad entered a plea. However, the circuit court did not

7
We emphasize that Gallion does not require “magic words,” that is, any particular
terminology by the sentencing court. Here, if the circuit court’s sentencing remarks demonstrated
that it did consider the gravity of the offense, despite the court’s failure to explicitly identify that
factor, we would affirm the court’s exercise of discretion. State v. Gallion, 2004 WI 42, ¶44, 270
Wis. 2d 535, 678 N.W.2d 197.

12
No. 2021AP49-CR

identify that crime, mention any facts relating to that crime, or refer in any way to
the court’s consideration of the gravity of his criminal conduct. To the extent that
the court’s reference to “the crime that I sentenced you on two years ago” may
reflect an acknowledgment of the legal elements of that crime, that is not the same
as considering the gravity of the offense. See McCleary, 49 Wis. 2d at 271 (“it is
essential that a sentencing court consider the nature of the particular crime, i.e., the
degree of culpability—distinguishable from the bare-bones legal elements of it.”).8

¶26 A circuit court need not explicitly use the phrase “gravity of the
offense” in order to meet the requirement of an on-the-record explanation of
sentence. See Gallion, 270 Wis. 2d 535, ¶49. However, it must be discernible from
the sentencing transcript that the court considered the required factors, including
gravity of the offense. See id., ¶58 (looking to the sentencing transcript to find
evidence that the circuit court considered the three required factors); State v. Odom,
2006 WI App 145, ¶25, 294 Wis. 2d 844, 720 N.W.2d 695 (rejecting the defendant’s
argument that the circuit court did not properly consider the three required factors
and stating, “[w]hile it is true that the [circuit] court did not explicitly identify the
three factors, it clearly discussed the three [required] factors”); State v. Loomis,
2016 WI 68, ¶108, 371 Wis. 2d 235, 279, 881 N.W.2d 749, 771 (affirming the
sentence because “[a] review of the sentencing transcript reveals that the circuit

8
We note that the circuit court also remarked that at the time of the original sentencing it
had determined that, “despite your sort of lack of accountability, your lack of willingness to take
responsibility for your actions[, y]ou could work with the Department of Corrections for three years
and never have to go to prison,” but that Bolstad had since shown that “you cannot be managed in
this community.” To the extent that the remarks relating specifically to the original sentence reflect
the court’s recollection of its rationale for imposing probation then, there is nothing in these
remarks that reflects the court’s consideration of the gravity of the underlying offense as a topic
distinct from other considerations that may have justified the original probation disposition. That
is, we are unable to discern from these references to the original sentencing any consideration by
the court of the gravity of the underlying criminal conduct. Moreover, the State, in referencing in
its appellate briefing these same remarks by the circuit court, does not argue that they reflect
consideration by the court of the gravity of the underlying offense.

13
No. 2021AP49-CR

court … addressed and discussed the gravity of the offense, the character and
rehabilitative needs of the defendant, and the need to protect the public.”). We see
nothing in the record from which we can discern that the circuit court considered
the gravity of the underlying offense here.

¶27 In sum, the law requires that the circuit court consider the gravity of
the underlying offense and that such consideration be discernible in the record.
Here, in the absence of any reference in the record to facts related to the underlying
offense or any indication in the record that the circuit court considered the gravity
of the underlying offense, we lack a sufficient basis to conclude that the court
applied the correct legal standard. Accordingly, we must conclude based on
McCleary and Gallion that the court erroneously exercised its discretion when
sentencing Bolstad after revocation.

IV. The State’s Arguments

¶28 The State points to no language in the circuit court’s remarks that
shows that the court considered the gravity of the underlying offense. Rather, the
State makes a series of circuitous sub-arguments that appear to be directed at the
overarching argument that the record nonetheless demonstrates that the court
considered the gravity of the underlying offense. We now address each aspect of
this overarching argument as best we can discern it. Any aspect of the argument
that we do not address is insufficiently developed and rejected on that basis. See
Wisconsin Conf. Bd. of Trs. of the United Methodist Church, Inc. v. Culver, 2001
WI 55, ¶38, 243 Wis. 2d 394, 627 N.W.2d 469 (stating that we need not address
arguments that are conclusory and insufficiently developed).

¶29 The State concedes that the circuit court must consider the gravity of
the underlying offense when imposing sentence (although the State does not cite the

14
No. 2021AP49-CR

case law and statutory language referenced above that impose such a requirement)
and that the court here did not reference the gravity factor by name. The State also,
without citing any case law, but consistent with the case law we have cited above,
states that the circuit court need not explicitly identify the gravity factor or explain
how the facts fit that factor or specify how that factor “drove its sentence.” The
problem with this approach is that the State disregards the legal authority cited
above, which establishes that the circuit court’s consideration of that factor must be
discernible in the record.

¶30 The State essentially switches the topic. It points to the “appropriate
sentencing considerations” that are supported by the record, none of which include
the gravity of the underlying offense. The State notes that the circuit court
repeatedly referenced Bolstad’s inability to manage his mental health and substance
use disorder in the community and avoid “undesirable behavior,” as well as his
failure to take responsibility for his actions. The State then explains that these
references show that the court considered “the need to protect the public, Bolstad’s
character, his criminal history, and his pattern of undesirable behavior in the
community.” Notably absent from these “appropriate sentencing considerations” is
the required record evidence that the court considered the gravity of the underlying
offense.

¶31 The State accurately notes that the circuit court determined that, in the
State’s words, “Bolstad could not be managed in the community” and the court “saw
no other viable option” but to sentence him to prison. The State argues that “the
court was entitled to base its sentence after revocation entirely upon the need to
protect the public and Bolstad’s negative character attributes.” It is undisputed that
the circuit court’s ultimate weighing of the factors it considered may not be
disturbed on appellate review. But the State points to nothing in the record to show,

15
No. 2021AP49-CR

contrary to our view of the record explained above, that the court considered the
gravity of the underlying offense before it made its determination either to impose
a prison sentence or to set the length of that prison sentence. Under the legal
authority cited above, such consideration must precede the court’s ultimate
weighing of the factors in fashioning a sentence.

¶32 Moreover, the State misinterprets Bolstad’s argument. The State
contends that Bolstad argues that the circuit court should have accorded greater
weight to the gravity of the underlying offense as a mitigating factor, and cites legal
authority supporting the proposition that it is solely for the circuit court to weigh
aggravating and mitigating factors. However, as Bolstad states in reply, the State
confuses the court’s obligation to consider the gravity of the offense factor with the
court’s discretion to determine its appropriate weight once considered.

¶33 The State also appears to argue that case law supports its position that
the circuit court’s demonstrated consideration of some appropriate sentencing
considerations relieves this court of reviewing whether the record shows that the
circuit court considered each of the required sentencing factors. Specifically, the
State cites the following language from Odom, 294 Wis. 2d 844: “[t]he weight
given each of [the required] factors lies within the [circuit] court’s discretion, and
the court may base the sentence on any or all of them.” Id., ¶7. But, this language
does not change the circuit court’s duty to consider all of the required sentencing
factors before it determines the sentence. As we now explain, this language clarifies
that it is only after such consideration that the circuit court may decide how to weigh
the factors as a part of its exercise of discretion.

¶34 Later language in Odom expressly states that this weighing can occur
only after all the required factors are considered: “Gallion did not change the

16
No. 2021AP49-CR

principle that the [circuit] court has the discretion to emphasize any of the
sentencing factors as long as it considers all the [required] factors.” Id., ¶28
(emphasis added). Further context is provided by the case Odom cites for the
language relied on by the State, State v. Wickstrom, 118 Wis. 2d 339. In Wickstrom
the court stated, “[t]he weight to be given each factor is within the discretion of the
[circuit] court. The sentence may be based on any or all of the three primary factors
after all … have been considered.” Wickstrom, 118 Wis. 2d at 355 (emphasis
added).

¶35 We also look to the case on which Wickstrom relied, State v. Lynch,
105 Wis. 2d 164, 312 N.W.2d 871 (Ct. App. 1981), in which the court explained
that it is “entirely permissible” for the court to place the greatest weight on the factor
of protection of the public when it was evident in the sentencing transcript that “[t]he
[circuit] court examined the three basic factors relevant to sentencing, the gravity of
the offense, the character of the offender, and the need for the protection of the
public.” Id. at 167-68.

¶36 From the context that the additional language in Odom, Wickstrom,
and Lynch provides, it is evident that the State’s reliance on Odom is misplaced.
To reiterate, the circuit court’s obligation to consider a required factor on the record
is distinct from the court’s discretion to determine its appropriate weight once the
court has considered all factors. While a court may, in the proper exercise of
discretion, decide to give a required factor little or no weight, it may not decide to
not consider a required factor at all. See WIS. STAT. § 973.017(2)(ag) (“the court
shall consider … [t]he gravity of the offense.” (emphasis added)).

¶37 The State asserts that “there is nothing to show that the circuit court
actually failed to consider the gravity of Bolstad’s criminal conduct,” but this

17
No. 2021AP49-CR

assertion turns the legal standard on its head. As we have explained, the circuit
court is required to consider the gravity of the offense at sentencing and we must be
able to discern evidence of that consideration on the record; therefore, the question
is whether there is something in the record that shows that the court here considered
the gravity of the offense. See WIS. STAT. § 973.017(2), (10m); Gallion, 270
Wis. 2d 535. The failure of the circuit court to create a record that demonstrates its
consideration of the required gravity factor matters because “the failure to exercise
discretion (discretion that is apparent from the record) when discretion is required,
constitutes an abuse of discretion.”9 McCleary, 49 Wis. 2d at 282 (emphasis added).
It is precisely the absence in the record of any reference related to the gravity or the
facts of the underlying criminal conduct that shows that the circuit court failed to
consider the gravity of Bolstad’s underlying offense as it was required to do, and
erroneously exercised its discretion as a result.

¶38 The State also relies on the facts in the criminal complaint and the
revocation summary in an effort to establish that the circuit court considered the
gravity of the underlying offense. However, the State points to no part of the record
showing that the court referenced either of those documents or considered their
contents when determining Bolstad’s sentence.

¶39 In the alternative, the State argues that, even if the circuit court
erroneously exercised its discretion by failing to consider the gravity of the offense,
Bolstad is not entitled to resentencing if “this Court can find from the facts of record
that Bolstad’s sentence is sustainable as a proper discretionary act.” Specifically,
the State points to the information contained in the criminal complaint and the

9
McCleary v. State, 49 Wis. 2d 263, 182 N.W.2d 512 (1971), uses the phrase “abuse of
discretion,” which is a phrase we no longer employ. We now employ the phrase “erroneous
exercise of discretion.” See State v. Alexander, 2015 WI 6, 360 Wis. 2d 292, 858 N.W.2d 662.

18
No. 2021AP49-CR

revocation summary as a basis to affirm the sentence. The State cites McCleary, 49
Wis. 2d at 282, in support of this argument. However, the State fails to address the
legal developments since McCleary in WIS. STAT. § 973.017(2) and (10m) and
Gallion, which specifically mandate that the circuit court’s consideration of the
three required sentencing factors, including gravity of the offense, be reflected in
the record. In addition, the State fails to cite any legal authority after Gallion that
supports the proposition that we can affirm a sentence where the record fails to show
that the court considered the gravity of the offense. In other words, the State does
not explain how its argument survives Gallion’s pronouncement that appellate
courts should not affirm a sentence based on implied reasoning, and its
pronouncement that “[w]hat has previously been satisfied with implied rationale
must now be set forth on the record.” Gallion, 270 Wis. 2d 535, ¶38.

¶40 In sum, the circuit court had an obligation to consider the gravity of
the underlying offense for which Bolstad was being sentenced in a way that is
discernible in the record. Because the record lacks any indication that such
consideration occurred, we lack a sufficient basis to conclude that the circuit court
applied the proper legal standard and thus we must conclude that the court
erroneously exercised its discretion in imposing Bolstad’s sentence.

CONCLUSION

¶41 For the reasons set forth above, we reverse and remand for
resentencing.

By the Court.—Judgment and order reversed and cause remanded
with directions.

19