McCleary, Plaintiff in Error v. State, Defendant in Error

Summary

The Wisconsin Supreme Court rejected McCleary's contentions that his nine-year sentence for a first-offense forgery denied him equal protection when contrasted with a related offender placed on probation, and that the term constituted cruel and unusual punishment, holding that mere sentence disparity is not an equal-protection violation and that a sentence within the statutory ten-year maximum is not constitutionally infirm. Exercising its Tuttle-line power to review sentencing discretion, the court announced that a prima facie valid sentence requires the trial judge to state his reasons for the term selected (adopting ABA Standard 2.3(c)), and because Judge O'Connell explained only why probation was refused and gave no reasons for a near-maximum term, the sentence was an excessive abuse of discretion. The court therefore vacated the nine-year sentence and itself imposed an indeterminate five-year term commencing retroactively at noon on March 21, 1969. Chief Justice Hallows concurred but would have justified the reduction on the merits under a liberalized or error-based review standard; Justice Hansen dissented, contending the defendant's avowed defiance of the law justified the near-maximum sentence and would have affirmed.