|
COURT OF APPEALS DECISION DATED AND FILED August 31, 2015 Diane M. Fremgen Clerk of Court of Appeals |
|
NOTICE |
|
|
|
This opinion is subject to further editing.� If published, the official version will appear in the bound volume of the Official Reports.� A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals.� See Wis. Stat. � 808.10 and Rule 809.62.� |
|
|
Appeal No.� |
Cir. Ct. No.� 2013CM1509 |
|||
|
STATE OF WISCONSIN� |
IN COURT OF APPEALS |
|||
|
|
DISTRICT III |
|||
|
|
|
|||
|
|
|
|||
|
State of Wisconsin, ��������� Plaintiff-Respondent, ���� v. Sharod D. Weaver, ��������� Defendant-Appellant. |
||||
|
|
|
|||
����������������������� APPEAL from a judgment and an order of the circuit court for Eau Claire County:� WILLIAM M. GABLER, SR., Judge. �Affirmed and cause remanded with directions.
�1������� STARK, P.J.[1] Sharod Weaver appeals a judgment convicting him of operating a motor vehicle while under the influence of an intoxicant (OWI), third offense, and an order denying his motion for postconviction relief.� Weaver argues the circuit court erroneously exercised its discretion[2] when it disregarded the OWI sentencing guidelines on the mistaken assumption that they were not based on the four primary sentencing factors.� We affirm. �
BACKGROUND
�2������� Weaver was charged with third-offense OWI and disorderly conduct. �The complaint was later amended to add one count of operating with a prohibited alcohol concentration as a third offense.� It alleged that on December 6, 2013, officer Ben Hundt observed a red GMC SUV cross the centerline �for more than a second� and proceed down the two westbound lanes, �straddling the white lane dividing strips.�� Hundt stopped the vehicle and identified Sharod Weaver as the driver. �Hundt smelled alcohol on Weaver�s breath and observed that Weaver�s eyes were red and glassy and his speech was slurred.�
�3������� Hundt asked Weaver to perform standard field sobriety tests.� Given the cold temperatures, Hundt offered to administer the tests at the police station, but Weaver replied, �Fuck that.� �Hundt first administered the horizontal gaze nystagmus test (HGN). �Weaver repeatedly interrupted Hundt and yelled, �Hurry up, bitch� while Hundt was explaining the test to Weaver.� During the test, Hundt observed �all six clues on the HGN,� but he had to stop testing due to Weaver yelling �Man, hurry the fuck up!� and �How fucking long is this?�� Hundt next attempted to administer the �walk and turn test.�� Weaver �refused to stand in the instructional stance� and repeatedly called Hundt a �racist bitch.� �Hundt determined Weaver was unwilling to complete further testing and arrested Weaver for OWI. �
�4������� Hundt transported Weaver to a hospital for a blood draw.� At the hospital, Sergeant O�Malley attempted to speak with Weaver, but Weaver �began to scream� and stated, �Suck my dick, bitch!�� Weaver continued to call the officers �racist, faggots, and �his bitches�� and also stated, �I�m going to get you. �You�re going to be my priority.� �Weaver further told the officers, �I�ll kill you three times over� and �I swear if I see one of you off-duty by yourself, nothing will save ya�ll.�� When a laboratory technician attempted to speak with Weaver about the blood draw, Weaver stated, �Suck my dick, bitch!��
�5������� At some point, Weaver asked to use the restroom; however, due to Weaver�s threats and �aggressive behavior,� O�Malley felt it was unsafe.� When back in the squad car Weaver began to spit at the officers through the screen in the squad car.� Even after the plastic partition of the squad car was closed, Weaver continued to spit at the partition.� A report from the State Laboratory of Hygiene later showed Weaver had a blood ethanol content of .240 g/100mL. �
�6������� On the day of trial, Weaver pled guilty to third-offense OWI.� The court dismissed the remaining two counts. �
�7������� At sentencing, the court noted the local OWI guidelines, which in Weaver�s case provided for a jail sentence of 110 days, or 140 days if the court followed the aggravated guidelines.[3]� However, the court ultimately departed from the guidelines in imposing Weaver�s jail sentence.� In particular, the court indicated that the guidelines �don�t take into account the four primary factors of sentencing:� the seriousness of the offense, the need to protect the public, the offender�s rehabilitative needs, and the character of the defendant.�� The court further explained, �based upon the probable cause portion of the Criminal Complaint and the Amended Criminal Complaint ... I should maybe take those [factors] into account.�� After considering the four factors, the court sentenced Weaver to the statutory maximum of one year in jail.� The court followed the guidelines in imposing $3,014[4] in fines, costs, and surcharges, plus an additional $32 charge for the blood draw; revoking Weaver�s license for thirty months; and requiring an ignition interlock device to be installed in Weaver�s vehicle for eighteen months once he is eligible to drive again. �
�8������� Weaver filed a motion for resentencing or, in the alternative, for modification of his jail sentence to that provided by the guidelines, or to a six-month jail term.� The circuit court denied the motion, and Weaver now appeals.
DISCUSSION
�9������� Circuit courts have significant discretion in fashioning a sentence.� State v. Jorgenson, 2003 WI 105, �22, 264 Wis. 2d 157, 667 N.W.2d 318.� We will not disturb a sentence unless the court erroneously exercised its discretion.� State v. Travis, 2013 WI 38, �16, 347 Wis. 2d 142, 832 N.W.2d 491.� A court erroneously exercises its discretion �when the exercise of discretion is based on an error of law.�� State v. Davis, 2001 WI 136, �28, 248 Wis. 2d 986, 637 N.W.2d 62.�
�10����� Weaver claims the circuit court erred as a matter of law by disregarding the guidelines on the mistaken assumption that the guidelines were not based on what the court considered to be the four primary sentencing factors�the seriousness of the offense, the need to protect the public, the rehabilitative needs of the defendant, and the character of the defendant.� He also claims by disregarding the guidelines the court failed to consider other important sentencing factors such as deterrence and avoidance of sentencing disparity.� Weaver acknowledges that the court may properly disregard the guidelines, and that guidelines are not mandatory. �See State v. Smart, 2002 WI App 240, �15, 257 Wis. 2d 713, 652 N.W.2d 429. �However, he argues that the circuit court cannot disregard the guidelines based on an erroneous view of the law.
�11����� The parties dispute the extent to which the guidelines take into consideration the primary sentencing factors.� Even assuming without deciding they do so, the court did not erroneously exercise its discretion in refusing to follow them in this case.� Weaver�s premise that the court misunderstood the guidelines and their relationship to the primary sentencing factors is not supported by a review of the record.� Rather, the record reflects that the court acknowledged the guidelines but determined they were not appropriate in this case.
�12����� The court began Weaver�s sentencing hearing by reviewing the guidelines but then noted, �You know, we have become almost slavish to the guidelines.� And we forget that the guidelines are the guidelines.� There�s a 45 day minimum and one-year maximum for this offense.�� The court further explained:
As I mentioned a few moments ago, when we impose OWI sentences, they�re usually a rote endeavor.� We follow the guidelines.� Everybody is happy with the guidelines.� But we don�t consider the four primary sentencing factors of the seriousness of the offense, the need to protect the public, the rehabilitative needs of the offender, and the character of the offender.�
I think as I read the probable cause portion of the Criminal Complaint and the Amended Criminal Complaint, I have to consider those four things in this particular circumstance and not be a slave to the guidelines.� �
(Emphasis added.)�
�13����� The circuit court discussed its justification for not following the guidelines.� Regarding the need to protect the public, the court stated, �I, not only have to consider the regular 110 days [in the guidelines] that we put in, but I need to address the accompanying behavior.��
To say that ... Weaver was uncooperative both physically and verbally with the law enforcement officers that morning is an understatement.� He used exceedingly foul and descriptive language, not that that�s in and of itself a crime.� He certainly endangered law enforcement officers and made their job more difficult in that he was physically and verbally uncooperative.� He spit at law enforcement officers, according to the probable cause portion of the Criminal Complaint.� He wanted to fight with one or more officers.� He threatened at least obliquely the law enforcement officers all in connection with a�what I will call a simple drunk driving stop.�
The court described this conduct
as �remarkable in an alarming way.��
�14����� The court also considered Weaver�s character. �In particular, the court looked at Weaver�s �extensive criminal record.��
Going down the list, again, he�s got a disorderly conduct, a misdemeanor theft, felony delivery of cocaine, resisting or obstructing, a felony escape, a felony failure to support, a felony false imprisonment, a felony substantial battery, another resisting and obstructing, another resisting obstructing, and, finally, an operating after revocation, which isn�t any�which isn�t of any significance. �� These are the kinds of prior convictions that are somewhat related or they mimic or I should say Mr. Weaver�s conduct the early morning hours of December 6th, 2013, mimics this kind of violent and dangerous behavior.�
The court concluded, in light of the �aggravating circumstances� discussed on the record, including Weaver�s blood alcohol level of .240, �for the purposes of an OWI conviction, I think it�s a serious OWI conviction.��
�15����� Clearly, the circuit court did not believe the guidelines adequately addressed the nature of the offense or Weaver�s conduct after the traffic stop.[5]� In further support of this conclusion, during the postconviction hearing, the circuit court commented that it did not know whether the guidelines took into consideration the sentencing factors; nonetheless, the circuit court explained:
whether or not the�the guidelines take into account the need to protect the public, the person�s rehabilitative needs, the seriousness of the offense, and, also, a person�s character, all those things that are � in the guidelines are trumped by the observations I made on the day of sentencing.� I�m not bound by guidelines.
Contrary to Weaver�s claims, the record clearly indicates the court�s decision to sentence Weaver to the statutory maximum of one year in jail was not based on a mistaken belief that the guidelines did not account for the primary sentencing factors. �Rather, circumstances in this case�as in particular Weaver�s unruly conduct�warranted a departure from those guidelines.� The guidelines �are not mandatory, and a court may disregard them if it so chooses.�� Smart, 257 Wis. 2d 713, �15.� Here, the circuit court properly did so.[6]
�16����� Weaver further argues that by disregarding the guidelines, the court �failed to take into account the important sentencing purpose of imposing similar sentences for similar crimes.�� Citing to Jorgenson, 264 Wis. 2d 157, �42, Weaver describes that purpose as eliminating disparity at sentencing.� While that may be a purpose of the guidelines, the court here decided Weaver was not similarly situated to other third-offense OWI defendants.� The court noted �this is an unusual and aggravated OWI third.�� The court was free to make protecting the public its primary goal in fashioning Weaver�s sentence.� See State v. Stenzel, 2004 WI App 181, �8, 276 Wis. 2d 224, 688 N.W.2d 20 (�[The circuit court] must identify the general objectives of greatest importance, which may vary from case to case.�).� �
�17����� We remand the cause to the trial court to determine if there is an inconsistency and, if necessary, correct the amount due for fines, surcharges and costs.�
����������������������� By the Court.�Judgment and order affirmed and cause remanded with directions.�
����������� This opinion will not be published.� See Wis. Stat. Rule 809.23(1)(b)4.
[1] This appeal is decided by one judge pursuant to Wis. Stat. � 752.31(2).� All references to the Wisconsin Statutes are to the 2013-14 version unless otherwise noted.
[2] Weaver uses the phrase �misuse of discretion�; however, since 1992, Wisconsin appellate courts have used �erroneous exercise of discretion� to avoid unjustified negative connotations.� See Hefty v. Hefty, 172 Wis. 2d 124, 128 n.1, 493 N.W.2d 33 (1992).
[3] Wisconsin Stat. � 346.65(2m)(a) authorizes the chief judge in each judicial district to adopt these guidelines, which are to take into consideration aggravating and mitigating factors.� The current version of the Tenth Judicial District OWI Guidelines is available on the Wisconsin Court System website at http://www.wicourts.gov/publications/fees/docs/d10owi.pdf (last updated Jan. 1, 2014).
����������� [4] The circuit court ordered Weaver to pay the amount of $3,014.� This is the amount provided by the guidelines for fines, surcharges and costs.� The judgment of conviction in the record provides for fines, forfeitures and costs totaling $2,996.� Therefore we remand the cause to the circuit court to determine if there is an inconsistency and, if necessary, correct the amount due for fines, surcharges and costs.�
[5] Neither party argues that the circuit court improperly considered Weaver�s conduct related to the disorderly conduct charge.� Under State v. Frey, 2012 WI 99, �5, 343 Wis. 2d 358, 817 N.W.2d 436, a circuit court �may consider the dismissed charges in imposing a sentence.�
[6] While neither party raised the argument, the supreme court in State v. Jorgenson, 2003 WI 105, 264 Wis. 2d 157, 667 N.W.2d 318, concluded that �under the plain language of [Wis. Stat.] � 346.65(2m)(a) [(1999-2000)], the sentencing guidelines apply only to Wis. Stat. � 346.63(1)(b), not Wis. Stat. � 346.63(1)(a).�� Id., �2.� Weaver was convicted of violating � 346.63(1)(a); accordingly, following Jorgenson, the guidelines did not apply to Weaver�s case.� While the court in Jorgenson further concluded �reference to the sentencing guidelines in a � 346.63(1)(a) case does not constitute error,� id., it also noted, �[s]ince the legislature specified that guidelines were to be established for use in sentencing under � 346.63(1)(b), not � 346.63(1)(a), circuit courts should not apply the guidelines by rote to (1)(a) convictions.�� Id., �27.� The court likewise explained, �because the legislature has specifically delineated the offense to which the guidelines apply, it is inappropriate for a circuit court to simply apply the guidelines as the sole basis for its sentence in a � 346.63(1)(a) case.�� Id.� Under Jorgenson, the circuit court was correct to look beyond the guidelines to the primary sentencing factors.