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STATE OF WISCONSIN CIRCUIT COURT MILWAUKEE COUNTY
STATE OF WISCONSIN,
Plaintiff,
vs. Case No. F-91-261
HARRY E. GUZNICZAK,
Defendant.
STATE'S SENTENCING BRIEF
I. INTRODUCTION
On June 21, 1991, defendant Harry E. Guzniczak
entered a plea of guilty to and was convicted of
one count of Felony Theft contrary to Section
943.20(1)(b) & (2)(c) of the Wisconsin Statutes.
He faces a maximum possible penalty of 10
years in prison, a $10,000 fine, or both.
The defendant is scheduled to be
sentenced on August 20, 1991.
II. FACTS OF THE CASE
Defendant Harry E. Guzniczak was the
Superintendent of Franklin Public Schools
from 1953 until shortly before charges were
issued in this case on January 17, 1991.
For at least six years prior to that date the
defendant systematically stole money from the
School District in various ways.
As outlined in the criminal complaint,
defendant's thefts can be broken
down as follows:
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F-91-261 Sentencing Brief Page 2 of 8
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(1) Special Services (Picture Fund) account.
This account was opened on November 6, 1962,
and defendant was the only person authorized
to sign checks drawn on it.
The Franklin Public School District
bookkeeper was not aware of the existence of
this account, because statements of the
account were not sent to the District but
rather to defendant's post office box.
The account was funded primarily by monies
obtained from students and parents to
purchase school pictures or to pay student
fees of various types.
Defendant used this account to make numerous
purchases of personal items including
jewelry, clothing, meals, lodging, radar
detectors, air fair and other items.
The total theft in this category is
$15,871.69.
(2) Double billing.
Defendant also used the "picture fund"
account to pay expenses incurred in traveling
for the District and for M.A.T.C., on whose
board he served for a period of time.
He then applied for and obtained
reimbursement from the District or M.A.T.C.,
billing them for expenses already paid with
District money.
The double billing to M.A.T.C. totaled
$745.22, and the double billing to the
District totaled $783.35, for a total theft
in this category of $1,528.57.
(3) Retirement dinners.
Each year the District held a retirement
dinner at the John Ernst Cafe, in honor of
retiring employees and employees who had
reached 25 years of service.
All but the honorees were retired to pay for
the dinner, and were instructed to make their
checks payable to defendant.
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F-91-261 Sentencing Brief Page 3 of 8
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Defendant then paid the dinner charge with a
District check and pocketed the money paid to
him by attendees.
Total theft in this category is $2,210.50.
The grand total of defendant's thefts
from the District is $19,610.76.
After defendant's thefts were discovered
he made restitution to the District.
Further facts will be noted below.
III. SENTENCING CONSIDERATIONS
In imposing sentence, the court must consider
the gravity of the offense, the character and
rehabilitative needs of the offender, and the
need for the protection of the public.
McCleary v. State,
49 Wis.2d 263, 275-276;
182 N.W.2d 512 (1971).
Rejection of probation and imposition of a
prison sentence may be based on one or more
of those factors, and the weight to be given
each factor is within the discretion of the
trial court.
Anderson v. State,
76 Wis.2d 361;
251 N.W.2d 768 (1977).
These factors will be discussed as they apply
to this case.
A. GRAVITY OF THE OFFENSE.
(1) DEFENDANT'S CRIME WAS CALCULATED AND DELIBERATE.
This is not a case where defendant ran afoul
of the law by accident, or because of passion
or poor judgment. Harry Guzniczak had not one
but three methods of stealing money from
the District. None was particularly sophisticated,
but each was calculated and quite deliberate.
The "picture account" statements went to a
personal post office box, presumably to
prevent the District's bookkeeper
from having access to it.
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The double billings and the pocketing
of retirement dinner payments were
clearly intentional, deliberate acts.
(2) DEFENDANT'S CRIME WAS COMMITTED REPEATEDLY
OVER A PERIOD OF AT LEAST SIX YEARS.
Although Section 971.36, Stats., permits the
charging of a single count in this case,
it should be remembered that the acts
constituting the offense were numerous
and continuous from at least June of
1985 through June of 1990.
Each time defendant wrote a "picture fund"
check for personal expenses he was
deliberately stealing District funds.
Each time defendant double billed the
District he was stealing District funds.
Each time defendant pocketed his colleagues'
retirement dinner ticket money he was
stealing District funds.
Although the statute of limitations prohibits
conviction for thefts committed prior to 1985
in this case, it is relevant for sentencing
purposes to note that there is evidence of
defendant's thievery long before that.
The investigation revealed at least one
retirement dinner check apparently converted
in 1982, and since the secret "picture fund"
account was opened in 1962, it is reasonable
to assume that the thefts began long before
the artificial cut-off date of June, 1985.
(3) DEFENDANT VIOLATED A PUBLIC TRUST.
As Superintendent of the Franklin Public
Schools defendant was in a position
of public trust.
He used that position of trust to enrich
himself, to the detriment of the
District and its constituents.
Governmental corruption, the use of public
office for personal monitory gain, is one
of the most serious conditions which can
afflict the body politic.
Left unchecked it can lead to systemic corruption.
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B. CHARACTER AND REHABILITATIVE NEEDS OF DEFENDANT.
(1) DEFENDANT USED HIS OFFICE AND
REPUTATION TO COMMIT THIS CRIME.
Defendant was a well respected member of his
community and had been entrusted with
the welfare of its schools. He enjoyed a good
reputation, having built it over the years
through his public actions.
But just as a burglar relies on stealth an
the dark of night to avoid detection, the
defendant used his good reputation and
respected position to avoid detection
in the light of day.
(2) DEFENDANT IS A FIRST OFFENDER
IN A TECHNICAL SENSE ONLY.
It is literally true that defendant
has no prior criminal record.
As discussed above, however, defendant's
involvement in this offense was lengthy
and involved numerous acts committed
over at least the past six years. Now
defendant's long period of criminal
behavior has come to an end, and he
has been convicted of felony theft.
This is not a first offense in
any but a technical sense. It
is merely the first time the
defendant has been caught.
(3) DEFENDANT IS IN NEED OF REHABILITATION.
Conventional sociological theory on the
causes of crime held that it was caused
by such factors as poverty, lack of
education and lack of job skills.
It was believed that such criminals could be
rehabilitated by providing them with
education, job and other skills to enable
them to become productive members of society.
Conventional theory, however, could not
explain criminality by someone such as
the defendant, who has education, status
and obviously marketable job skills.
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So it was, in the 1940s, that
criminologist Edwin H. Sutherland
developed his theories on what
called "white collar crime,"
or crime committed by those
of higher socio-economic status.
Although modern definitions of that term are
somewhat different than Sutherland's, his
theories provide a useful context in which to
discuss defendants such as Harry Guzniczak.
Defendant Harry Guzniczak has most of the
advantages society can give: education,
status, job skills and a comfortable
style of living.
In the sense that he had all of this and
still made a deliberate decision to commit
a crime over a lengthy period of time, he
is in very great need of rehabilitation,
though perhaps of a moral rather than
educational nature.
C. PROTECTION OF THE PUBLIC
Society has a right to be protected
against public corruption.
It has a right to expect that its public
officials and employees will not use their
positions for personal financial gain to the
detriment of the public.
This protection can best be achieved in this
case by a prison term, which will have
several direct benefits for the public.
First, it will act as a deterrent to other
public officials who might be tempted to tap
the public till. General deterrence is
largely discredited as a theory of punishment
in crimes of passion and impulse.
But in crimes of this nature, calculated and
deliberate schemes to steal public money, the
likelihood of a prison term is a powerful
consideration in the actor's cost-benefit
analysis of the risks involved.
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Second, a prison term will act as
an expression of the public's
outrage at defendant's crime.
The citizens of Franklin in particular
and the community in general have
a right to that expression.
Third, failure to sentence defendant to
prison would unduly depreciate the
seriousness of his offense.
American Bar Association Standards for
Criminal Justice, Sentencing Alternatives and
Procedures, Standard 18-2.5(c)(ii), permits
the seriousness of the offense and thereby
foster disrespect of the law.
Standard 18-2.5(c)(ii).
In Bastian v. State,
54 Wis.2d 240,
194 N.W.2d 687 (1971),
the court said:
This court has frequently stated
that,in the exercise of discretion,
a substantial sentence may be imposed to
emphasize the seriousness of the crime.
54 Wis.2d at 246.
The seriousness of defendant's crime, its
deliberate and repetitive nature, the
character and rehabilitative needs of the
defendant and the need for protection of the
public have been discussed at length above.
The state submits that anything less than a
prison term would unduly depreciate the
seriousness of the offense.
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F-91-261 Sentencing Brief Page 8 of 8
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IV. CONCLUSION
For all of these reasons, the state
recommends that the court sentence defendant
to a term in the Wisconsin State Prison.
Dated at Milwaukee, Wisconsin, August 13, 1991.
Respectfully submitted,
E. Michael McCann
District Attorney
Milwaukee County
JON N. REDDEN
Assistant District Attorney
P.O. Address
Room 453
821 West State Street
Milwaukee, WI 53233
Tel. (41) 278-4645
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CASE LAW CITED BY DISTRICT ATTORNEY GJS FILES
McCleary v. State, 49 Wis.2d 263, 275-276; MCCLEARY
182 N.W.2d 512 (1971).
Anderson v. State, 76 Wis.2d 361; ANDERSON
251 N.W.2d 768 (1977).
Bastian v. State, 54 Wis.2d 240, BASTION
194 N.W.2d 687 (1971),
TEXT of "SENTENCE" (NOT form or font) PRESERVED. TOP
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