State v. Scott A. Magnuson

Nos.�� 97-3288-CR & 98-0190
STATE OF WISCONSIN	IN COURT OF APPEALS
State of Wisconsin, �� Plaintiff-Respondent, �� v. Scott A. Magnuson, �� Defendant-Appellant.

�� APPEAL from a judgment and an order of the circuit court for St. Croix County:� scott r. needham, Judge.� Affirmed.�

�� Before Cane, P.J., Myse and Hoover, JJ.�

�� HOOVER, J.� �� Scott Magnuson appeals a judgment and an order denying postconviction relief.� Magnuson pled guilty to two burglary charges, contrary to � 943.10(1)(a), Stats., as a repeater, � 939.62, Stats.� On appeal, he contends that the court erred by imposing two concurrent twelve-year prison sentences.� We conclude that judicial estoppel precludes him from raising this argument and, alternatively, the court properly exercised its discretion when imposing the sentence.� Accordingly, we affirm.

�� Magnuson was charged with three counts of felony theft and three counts of burglary, all as a repeater.� He waived his preliminary hearing and pled guilty to two counts of burglary as a repeater.� At sentencing, Magnuson�s probation agent recommended the court impose concurrent terms of twelve years in prison for each conviction, stay the sentences, and place Magnuson on ten years' probation concurrent with a probation term he was serving in Pierce County.� The assistant district attorney joined in the recommendation, and the defense attorney stated that he and Magnuson also agreed with the proposal.� The court accepted the agreement.� It also imposed certain conditions of probation, including four months in jail.�

�� Magnuson filed a motion asking the court to modify the sentence to eliminate the requirement that he serve jail time as a condition of probation.� He did not object to the length of the sentence.� The court modified the conditions of probation, including staying for a year the four-month jail term.� Within the year, however, Magnuson committed another felony and his probation was revoked.�� On appeal, Magnuson argues that the twelve-year concurrent prison sentences are excessive.� ��

�� We first determine whether the judicial estoppel doctrine precludes Magnuson�s argument.� This issue involves the application of law to undisputed facts.� It therefore presents a question of law reviewed de novo.� Ball v. District No. 4, Area Bd., 117 Wis.2d 529, 537, 345 N.W.2d 389, 394 (1984).�

�� The doctrine of judicial estoppel recognizes that �[i]t is contrary to fundamental principles of justice and orderly procedure to permit a party to assume a certain position in the course of litigation which may be advantageous, and then after the court maintains that position, argue on appeal that the action was error.� �State v. Gove, 148 Wis.2d 936, 944, 437 N.W.2d 218, 221 (1989).� Wisconsin has recognized and applied judicial estoppel in several different contexts.� See State v. Edwardsen, 146 Wis.2d 198, 209-10, 430 N.W.2d 604, 609 (Ct. App. 1988); State v. Hardwick, 144 Wis.2d 54, 61, 422 N.W.2d 922, 925 (Ct. App. 1988); State v. Washington, 142 Wis.2d 630, 635, 419 N.W.2d 275, 277 (Ct. App. 1987).�

�� We conclude that Magnuson is judicially estopped from asserting that the two twelve-year concurrent sentences are excessive.� Although Magnuson contends he did not agree to the recommended sentence, the record belies his claim.� Magnuson�s probation officer set forth the recommendation in the presentence investigation report (PSI).� The court asked Magnuson if he reviewed the PSI, and Magnuson�s attorney stated that both he and Magnuson had reviewed it.� After assistant district attorney Francis Collins concurred with the recommendation, defense counsel stated �we�re also in agreement with the recommendations and also with what Mr. Collins has stated.�� During his allocution, Magnuson expressed no objection to the proposed sentence.� The record thus demonstrates that Magnuson agreed to the proposed sentence.� He cannot agree to the recommendation of an imposed and stayed sentence, violate probation, and then take the position on appeal that the sentence was excessive.� If Magnuson objected to the recommendation, he should not have entered into the agreement.�

�� Alternatively, we conclude that the circuit court properly exercised its discretion when sentencing Magnuson.� In reviewing whether a court erroneously exercised sentencing discretion, we consider whether it applied the appropriate factors and whether the sentence imposed was excessive.� See State v. Glotz, 122 Wis.2d 519, 524, 362 N.W.2d 179, 182 (Ct. App. 1984).� The primary factors a court considers in fashioning a sentence are the gravity of the offense, the character of the offender, and the need for public protection.� State v. Iglesias, 185 Wis.2d 117, 128, 517 N.W.2d 175, 178 (1994). The weight of the factors is within the circuit court�s discretion.� Id.� Imposition of a sentence may be based on any of the three primary factors after all relevant factors have been considered.� See State v. Curbello-Rodriguez, 119 Wis.2d 414, 434, 351 N.W.2d 758, 768 (Ct. App. 1984).��

�� The record demonstrates that the court considered all three primary factors and properly exercised its discretion.� Each conviction carried a possible sentence of sixteen years in prison, for a maximum sentence of thirty-two years.� See �� 943.10(1)(a), 939.50(3)(c), and 939.62(1)(b), Stats.� Before imposing the two concurrent twelve-year prison sentences, the court considered the seriousness of the offenses, Magnuson�s character and �lengthy involvement with law enforcement,� and the need to protect the public.� It found that the severity of Magnuson�s offenses, although property crimes, was significant.� Despite this finding, it sentenced Magnuson to substantially less than the maximum prison term.� The court�s reasons for imposing the sentence are supported by the record, and we uphold its use of discretion.�

�� By the Court.�Judgment and order affirmed.