¶1(concurring). I concur with much of what is said in the court’s opinion, but I would go farther in justification of the result.
¶2This is the second case to modify the sentence pronounced by a trial court since State v. Tuttle (1963), 21 Wis. 2d 147, 124 N. W. 2d 9, and Jung v. State (1966), 32 Wis. 2d 541, 145 N. W. 2d 684, which recognized the power of this court to review the propriety of a sentence. In both of these cases and in some subsequent cases, it was stated the court would only reverse or modify a sentence in a rare instance of abuse of discretion. Both Tuttleand Jungwere decided before the American Bar Association’s standards on sentencing were drafted and approved. In Jungwe pointed out the then lack of standards or agreement in sentencing and stated at page 548 a study of the problem was then in progress by the American Bar Association.
¶3In Denny v. State (1970), 47 Wis. 2d 541, 178 N. W. 2d 38, this court by its mandate reduced a sentence because the trial court was in error in resentencing the defendant to a greater sentence than he received at the first trial. Dennypointed out the importance, in resen-tencing, sentencing on a new trial, or modifying a sen*292tence, of the court having the transcript of the original sentencing and the need for the reasons for the sentence appearing in the record because we are being increasingly called upon to review criminal sentences. Dennystates, at page 546, “. . . trial courts must now make a record of the concrete, identifiable, specific reasons for all resentencing, so this court can properly reconstruct what happened in reviewing the sentence.” We also pointed out the necessity of including the presentence report when used by a trial judge and of requiring it to appear in the record, citing Embry v. State (1970), 46 Wis. 2d 151, 174 N. W. 2d 521, and the Standards Relating to Appellate Review of Sentences, American Bar Association Project on Minimum Standards for Criminal Justice, Approved Draft, 1968, page 42, sec. 2.3.
¶4The lack of a complete record on sentencing should be error, not an abuse of discretion. In my view of the case before us, the reduced sentence is justified on the merits and not because the trial court failed to give reasons in the record why the lengthy sentence was imposed. The trial court did give its reasons briefly in one form or another but they are insufficient to justify the sentence when all facts appearing in the record are considered. The court’s opinion views this case as within the rule that we only modify a sentence when it results from an abuse of discretion. This court should review sentencing as a matter of course as it does other legal issues. If the “abuse of discretion” test is to be used, then the concept of abuse should be liberalized or the error-concept adopted. See the dissent in Riley v. State (1970), 47 Wis. 2d 801, 809, 177 N. W. 2d 838.
¶5What the majority calls an abuse of discretion may well be a constitutional error. An excessive sentence may be so greatly disproportioned to the offense charged as to constitute a violation of the constitutional guarantee against cruel and unusual punishment. Weems v. *293United States (1910), 217 U. S. 349, 30 Sup. Ct. 544, 54 L. Ed. 793. In Ralph v. Warden (4th Cir. 1970), 438 Fed. 2d 786, the court, quoting from Weems, stated, “The court gave full effect to current concepts of proportionality, because the cruel and unusual punishment clause is ‘progressive’ and ‘is not fastened to the obsolete, but may acquire meaning as public opinion becomes enlightened by a humane justice.’ ” See also: Trop v. Dulles (1958), 356 U. S. 86, 101, 78 Sup. Ct. 590, 2 L. Ed. 2d 630, “The [eighth] amendment must draw its meaning from the evolving standards of decency that mark the progress of a maturing society.”
¶6The trial court was in error in not considering the sentence given to Gregory James Heydak. In multibranch criminal courts, as in Milwaukee, it is important that the judges conducting criminal trials follow general standards to insure uniformity and equality in individualized sentences. There should be no tough judge or soft judge. Great disparity in substantially similar cases is one of the current injustices in our jurisprudence and the grounds of many complaints to this court. There is need for the establishment and unification of guidelines for all sentencing which should apply not only to a multi-branch criminal court but also to all courts in the state. The objectives of criminal sanctions can be developed by trial judges becoming more concerned and cognizant of uniform standards of individualizing sentences; and like other legal solutions, standards can be developed by judicial appellate review and decision on the merits of sentences. It is no longer acceptable that a sentence within the maximum allowed by statute is not an abuse of discretion.
¶7The present trend is toward uniform guidelines in criminal sentencing and procedure. Some of these have been set forth in three American Bar Association standards, i.e., Standards Relating to Criminal Appeals; *294Standards Relating to Sentencing, Alternatives and Procedures; and Standards Relating to Appellate Review of Sentencing. This new concern of sentencing and the need for uniform guidelines have been the subject of many state institutes for judges on sentencing and is now an important and popular course in the National College of State Trial Judges. This concern also motivated this court to recognize jurisdiction in the trial court to reconsider a sentence after the defendant had been imprisoned. Hayes v. State (1970), 46 Wis. 2d 93, 175 N. W. 2d 625.
¶8Although this court ought not to set aside a valid sentence because it is excessive and impose a new sentence to commence retroactively, such procedure was required in this case because the trial court did not follow the recommendations in Hayes. Rather than modify the original sentence, the trial court vacated it and imposed a new sentence which was not made retroactive.
¶9(dissenting). This case seems to involve three “R’s” — reading, ’riting and repetition — with the third “R” the important one here.
¶10What got the defendant into trouble with the law was not his reading. One need not subscribe in toto to the literary critiques in the majority opinion to agree that the reading interests of the defendant have no relevance to charge, conviction or sentence imposed. In fact, as a former mayor of New York City implied, checks are not forged by books.
¶11What brought the defendant to court was the second “R” — ’riting—in this case, writing a forged check. His plea of nolo contendere and a presentence investigation preceded the imposition of sentence.
¶12However, on the matter of the sentence to be imposed, it is the third “R” — repetition, the predictability of re-occurrence — that became material, in fact, controlling. *295In imposing the maximum sentence of ten years (subsequently reduced on motion to nine years), the trial court stated:
“The Court: I want to read into the record certain pertinent portions of the presentence report, on Page 1 under the heading ‘Defendant’s statement: The defendant disclosed that he had always taken pride in his ability to cash checks. . . . The defendant added that he didn’t feel that he would be caught for this offense and that he had no respect for the authorities. . . . The defendant denied any feeling of guilt in this offense as he does not consider taking money from institutions “stealing” but “profit sharing.” The defendant continued his statement by stating how superior he felt to most other people, including the law itself. . . .’”
¶13As the probation officer stated in his “summary and recommendations,” such statements go beyond establishing “that the defendant does not have the proper attitude or sense of responsibility needed in order to benefit from probation.” They support the conclusion that “it appears to the law investigating officer that the defendant has no desire to change or conform to them [the laws of society].” The court was confronted and society threatened by the predictability of repetition — of the same type of offense by the same defendant.
¶14It is a principal, public-protecting purpose of the whole process of the administration of criminal justice to make recidivism less likely. Whether this purpose can best be served by probation or incarceration depends upon the facts and factors in a particular case. The choice between supervision and isolation is a choice between tools to use in seeking to insure some insurance against repetition. The majority opinion concedes that the facts in the presentence report justified the trial court “in rejecting the probation alternative.” The writer would agree that probation is not indicated for a convicted felon who states that he has no sense of guilt, no *296remorse, and gives every indication that he does not intend to abide by the laws of society. However, the majority states that while the trial judge “obviously felt, and said, that incarceration was necessary in view of the defendant’s attitude,” he “gave no reason why the ten-year sentence (later reduced to nine) was necessary.” No search is necessary for the reason. It is the same reason: what the majority terms “the defendant’s attitude,” and what the writer would term the “predictability of repetition.” Future conduct as well as present attitude are involved. The length of, as well as the necessity for, incarceration are alike involved where it is made clear by a defendant that he intends to continue to act in defiance of the laws of the land. The defendant’s express intention to live ungoverned by the law provides both reason and reasonableness to the sentence imposed. If, in fact, the majority felt that the trial judge here had imposed sentence “without explaining why,” the appropriate remand would be for resentencing or completion of the record by stating such reasons.
¶15Instead the majority reduces the nine-year sentence to five years. The four-year difference between the trial court and appellate court sentences does not affect eligibility to parole. The majority thinks it may, or at least should, affect the granting of parole. Here the defendant has applied for parole, and action on his application has been deferred, not denied. However, the majority points out that the maximum sentence is related to the date of mandatory release. Exactly so, and exactly why, given the defendant’s attitude and intentions, early release without a wholehearted change as to attitude and intent was not in the public interest. The indeterminate sentence law is intended not only to justify earlier release where prospects for conforming to the laws are good, but to continue isolation from the community where such prospects are poor, or, as here, without a change of at*297titude, nonexistent. The majority gives weight to the defendant’s statement, made at the time of his motion for reduction of sentence, that he had “learned his lesson,” finding it “entirely inconsistent” with the assumption that defendant’s defiance of the law would continue. It concedes that the trial court was not obliged to place much credence in “this eleventh hour remorse.” Post-midnight repentance might be a more apt description, chronologically speaking. Actually, the trial court was required to give the statement no credence, and none it gave. To give it weight, even mention, on appeal is to substitute the judgment of a court that did not hear the statement for the evaluation of the court that did.
¶16What is puzzling and disturbing in the majority opinion is the holding that “this is a mine-run forgery.” Coupled with a detailed reference to a proposed Model Sentencing Act (presumably intended for legislative, not judicial, consideration) that categorizes felonies into first, second and third degrees, the implication is clear that forgery, as a crime against property, is not considered as a very serious offense. The suggested distinction between “a dangerous offender” and “an ordinary felon” clearly puts forgers with the ordinaries. If there is merit to such categorization, it is enough to say that the legislature, not the courts, ought adopt it. If the “considered judgment of all these studies” is accepted by this court as persuasive that “the ordinary offender ought not be sentenced to a term in excess of five years unless circumstances are present” etc., we have a new maximum sentence established not by the legislature, but by this court, based upon a distinction between “dangerous” and “ordinary” not established by the legislature, but recognized by this court. That makes this court not only a reviewing court as to sentences imposed by trial courts, but a super-legislature determining for itself the relative seriousness of differing crimes as well as the appropriate*298ness of sentences imposed within statutorily set máxi-mums.
¶17Prophecy is always a risky undertaking, hut the writer has some doubts about the majority opinion’s prediction that “a byproduct of a reasonable review of sentencing by an appellate court” may well be the “diminution of the appellate court’s workload by reducing appeals on the merit.” It may be that the convicted criminal who has neither the law nor the facts on his side will be reduced to complaining about the sentence. However, it is as likely that he will add a complaint as to the sentence to other points raised on appeal or by writ. The shotgun, not the rifle, is the model for most appeals in criminal cases.
¶18The concurring opinion relates a reduction of sentence in this case to the matter of “great disparity [in sentences imposed] in substantially similar cases.” Case-by-case adjustment downward by an appellate court is hardly an answer to so complex a problem. As the writer pointed out, concurring in Riley v. State (1970), 47 Wis. 2d 801, 808, 809, 177 N. W. 2d 838, the “various proposals for legislative action to promote greater uniformity in sentencing procedures . . . limit the reviewing agency created to eliminating disparate results, and authorize adjusting sentences up or down to further this goal. . . .” In any event, as stated in Riley, the writer believes that, under our form of government, the “discussion and decision in this area belong to the legislative branch of our government, not the judicial.” If guidelines there are to be, however or by whom established, the writer would hope that they would include reserving to trial judges the right to impose a maximum sentence where a convicted defendant makes clear that he will repeat the offense or violate the laws as soon as he is given the opportunity to do so. The people are entitled to the fair and firm enforcement of criminal laws, including pro*299tection against repetition of the same offense by the same offender. The writer would affirm.