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COURT OF APPEALS
DECISION
DATED AND FILED
May 4, 2010
David
R. Schanker
Clerk of Court of Appeals
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NOTICE
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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.
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Appeal No.
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STATE OF WISCONSIN
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IN COURT OF
APPEALS
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DISTRICT I
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State of Wisconsin,
Plaintiff-Respondent,
v.
Mark W. Sterling,
Defendant-Appellant.
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APPEAL
from a judgment and an order of the circuit court for Milwaukee County: jeffrey
a. kremers and kevin e. martens,
Judges. Affirmed.
Before Curley, P.J., Fine and Brennan, JJ.
¶1 BRENNAN, J. Mark W. Sterling appeals a
judgment entered after a jury found him guilty of attempted first-degree
intentional homicide and false imprisonment, and an order denying his
postconviction motions. Sterling argues that: (1) he was deprived of effective assistance of
trial counsel because his trial counsel failed to object to the trial court’s
alleged improper interference with the prosecutor’s charging decision; (2) he
was deprived of an impartial tribunal when the trial court allegedly improperly
interfered with the prosecutor’s charging decision; (3) he was deprived of his
Sixth Amendment right to confront the witness against him when the trial court
prohibited him from questioning Demetrius Gaines (the victim) about his motives
for testifying; and (4) he is entitled to a new sentencing hearing because the
trial court erred when it failed to consider on the record whether to order a
presentence investigation report (“PSI”).
We affirm.
Background
¶2 On November 25, 2007, Gaines was exiting his vehicle after
parking it on the street in front of his home on West Custer Avenue in Milwaukee.
Upon exiting the vehicle, he observed a dark colored SUV approaching
him. Gaines testified that he recognized
the SUV as belonging to Shekita Bell. Bell testified that on
November 25, 2007, she loaned her SUV to her cousin, Earl Stewart.
¶3 Gaines testified that the SUV stopped approximately five to
seven feet in front of him and that when the rear driver’s side door of the SUV
opened he observed Charles Lamar sitting behind the driver’s seat, pointing a
gun at him. Gaines also recognized Sterling, who was driving
the SUV, and a man Gaines knew only as “Fat Dre” sitting in the back seat of
the SUV next to Lamar. Gaines did not
recognize a fourth man sitting in the front passenger’s seat. Gaines testified that Lamar instructed him to
“[g]et in” the SUV and that he got into the back seat of the SUV behind the
driver because: “I didn’t know if they
was going to do anything to me right there or whatever. So, … I’m thinking to get in the car or get
shot and killed right here. So, I chose
to get in the car.”
¶4 Gaines testified that after the SUV pulled away from the
curb, Lamar threatened him with a gun and began asking him, “[W]here is it
at? Where is it at?” Detective Mitchell Ward testified that when
he interviewed Gaines later, Gaines told him the men were referring to a
“chopper”—a street term for an assault rifle. Although Gaines told the men that he was
unaware of what they were asking about, the men continued to ask him, “Where
it’s at?” Gaines testified that the men
were also hitting him in the face and saying, “M.F[.], you going to die.” Gaines testified that at one point Lamar put a
gun to Gaines’ head and then to his “genital area . . . and said, ‘[m]other
fucker, I’ll blow your balls off. You
think we’re playing with you?’” Then the
front seat passenger said, “I’m tired of playing, let’s take him to the hood
and let’s finish this.”
¶5 Gaines testified that, fearing for his life, he “rampaged the
door” and jumped from the SUV as it was moving.
Gaines testified that he “fell in the street, … rolled about twice
... got to [his] feet and started running towards traffic.” Gaines saw the SUV make a U-turn to follow
him. As Gaines began running towards
traffic, he heard gunshots, and was hit by two cars. He then felt pain in his leg and fell. The SUV then pulled up next to him. While on the ground, Gaines noticed that the
windows on the passenger’s side of the SUV were open. Gaines then heard between four and six shots
ring out. Gaines was ultimately shot
four times—twice in the left leg, once in the right leg, and once in the lower
back. Gaines testified that when he felt
a burning sensation in his back, he put his “head down like [he] was dead and
that is when [he] heard them peel off.”
¶6 Detective Ward testified that he met Gaines at the hospital
the night Gaines was shot. Detective
Ward stated that Gaines was very cooperative during questioning and had no
trouble responding to any of his questions.
Although at trial Gaines denied remembering anything that he told the
police, Detective Ward testified that Gaines was able to identify Sterling and Lamar as passengers in the SUV and that
Gaines was able to identify the SUV as belonging to Bell.
¶7 On December 11, 2007, Sterling
was charged with first-degree reckless injury and false imprisonment. At a hearing on January 30, 2008, Sterling informed the
court that he turned down an initial offer from the State and that he had
decided to take the case to trial. The
trial court had the following exchange with the prosecutor:
THE COURT: Are these the charges [first-degree reckless
injury and false imprisonment] the State is going forward on if he’s going to
trial?
[PROSECUTOR]: Yes.
THE COURT: Why not attempted murder?
[PROSECUTOR]: Well, I thought under the circumstances this
was the best way to proceed. I can
reconsider. At this point this is --
THE COURT: I mean if the State believes this happened
the way that Mr. Gaines -- Gaines, is that his name?
[PROSECUTOR]: Yes.
THE COURT: Gain[e]s said [it] did, that the people in
the car did a U-turn, came back at him and were shooting at him and he got hit
four times, why isn’t that attempted murder with maybe a lesser included or an
additional charge of first degree recklessly -- reckless injury[?] I don’t understand that myself, but --
[PROSECUTOR]: Well, Judge,
there’s time between now and trial. I’m
certain those things will be considered yet again.
THE COURT: Well, there’s not much time between now and
trial.
[PROSECUTOR]: I understand.
THE COURT: Because there’s not going to be a final
pretrial.
¶8 Approximately two and one-half months later, on February 26,
2008, the prosecutor filed an amended information charging Sterling with attempted first-degree
intentional homicide and false imprisonment.
¶9 The case proceeded to trial, and on March 26, 2008, a jury
found Sterling
guilty of attempted first-degree intentional homicide and false imprisonment. Sterling
was sentenced to thirty-six years’ for count one (attempted first-degree
intentional homicide), consisting of twenty-two years of initial confinement
and fourteen years of extended supervision.
Sterling
was sentenced to six years’ for count two (false imprisonment), consisting of
three years of initial confinement and three years of extended supervision, to
be served concurrent to count one.
¶10 On May 1, 2008, Sterling
filed a Notice of Intent to Pursue Postconviction Relief. Sterling
then filed two postconviction motions.
The first argued that: (1) “the
[trial] judge improperly involved himself in suggesting that the charge against
Mr. Sterling be increased”; and (2) trial counsel was ineffective for failing
to object to the trial court’s interference.
The second motion argued for resentencing because the trial court failed
to state on the record why it did not order a PSI. Without holding a hearing, the postconviction
court denied both motions. Sterling
appeals.
Discussion
¶11 As previously noted, Sterling argues that: (1) he was deprived of effective assistance of
trial counsel because his trial counsel failed to object to the trial court’s
alleged improper interference with the State’s charging decision; (2) he
was deprived of an impartial tribunal when the trial court allegedly improperly
interfered with the State’s charging decision; (3) he was deprived of his Sixth
Amendment right to confront the witness against him when the trial court
prohibited him from questioning Gaines about his motives for testifying; and
(4) he is entitled to a new sentencing hearing because the trial court
erred when it failed to consider on the record whether to order a PSI. We will address each claim in turn.
A. Ineffective Assistance of Trial Counsel
¶12 Sterling first asserts that his
trial counsel was ineffective for failing to object to the trial court’s
alleged improper interference with the State’s charging decision when the trial
court asked the prosecutor why she was not charging Sterling with attempted murder. Specifically, Sterling asserts that his trial counsel was
deficient because he “did nothing when the judge goaded the prosecutor into
increasing the charges” and that, as a result of his trial counsel’s
deficiency, he was prejudiced because the trial court’s “pressure[] … escalated
the charges” and “increased [his] liability[,] result[ing] in a higher
sentence.” Sterling argues that if his trial counsel had
“object[ed] to the trial court’s appearance of bias” the prosecutor would not
likely have amended the information (to avoid a possible appellate issue). We disagree.
¶13 A defendant claiming ineffective assistance of counsel must
establish that: (1) the lawyer was
deficient; and (2) the defendant suffered prejudice as a result of the
deficiency. Strickland v. Washington,
466 U.S.
668, 687 (1984). Because a defendant
must show both deficient performance and prejudice, reviewing courts need not
consider one prong if the defendant has failed to establish the other. Id. at
697.
¶14 To prove deficient performance, the defendant must point to
specific acts or omissions of the lawyer that are “outside the wide range of
professionally competent assistance.” Id. at
690. There is “a strong presumption that
counsel acted reasonably within professional norms.” State v. Johnson, 153 Wis. 2d 121, 127, 449
N.W.2d 845 (1990). “‘Effective
representation is not to be equated, as some accused believe, with a not-guilty
verdict. But the representation must be
equal to that which the ordinarily prudent lawyer, skilled and versed in
criminal law, would give to clients who had privately retained his [or her]
services.’” State v. Felton, 110 Wis. 2d 485, 500-01, 329
N.W.2d 161 (1983) (citation omitted).
¶15 To satisfy the prejudice aspect of Strickland, the defendant
must demonstrate that the lawyer’s errors were sufficiently serious so as to
deprive him or her of a fair trial and a reliable outcome, id., 466 U.S. at 687, and
“must show that there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different,”
id.
at 694. “A reasonable
probability is a probability sufficient to undermine confidence in the
outcome.” Id.
¶16 We review the denial of an ineffective assistance of counsel
claim as a mixed question of fact and law.
Johnson, 153 Wis.
2d at 127. We will not reverse the trial
court’s factual findings unless they are clearly erroneous. Id. However, we review the two-pronged
determination of trial counsel’s performance independently as a question of
law. Id. at 128.
¶17 Sterling
claims the trial court interfered with the prosecutor’s charging
discretion. “‘In our system, so long as
a prosecutor has probable cause to believe that the accused has committed an
offense defined by statute, the decision whether … to prosecute, and what
charge to file … generally rests entirely in his [or her] discretion.’” State ex rel. Kalal v. Circuit Court for
Dane County, 2004 WI 58, ¶29, 271 Wis. 2d 633, 681 N.W.2d 110 (citation
omitted); see also Wis. Stat. § 968.02(1) (2007-08). “In general, ‘the prosecuting attorney is
answerable to the people of the state and not to the courts or the legislature
as to the way in which he [or she] exercises power to prosecute
complaints.’” Kalal, 271 Wis. 2d 633, ¶30
(citation omitted). A trial court judge
does not have the authority to direct a prosecutor to file a different charge
or an additional charge. State
ex rel. Unnamed Petitioner v. Circuit Court for Walworth
County, 157 Wis. 2d 157, 159-60, 458 N.W.2d 575
(Ct. App. 1990). In other words, “there
is no statute allowing a judge to second-guess [the prosecutor’s] discretionary
choice.” Id. at 160.
¶18 Here, the postconviction court found that the trial court did
not interfere with the prosecutor’s charging discretion when asking about the
attempted murder charge and that the trial court’s comments were merely meant
to “ensure[] that justice would be administered fairly and efficiently.” The postconviction court determined that the
trial court’s comments were an attempt to inform the prosecutor that if she
intended to amend the charging documents that she do so in a timely manner to
allow the trial to proceed as scheduled.
These findings are not clearly erroneous.
¶19 First, as noted by the postconviction court, the record is
clear that the trial court did not explicitly order the prosecutor to amend the
charges against Sterling. Rather, the trial court first asked the
prosecutor: “Are these the charges [first-degree
reckless injury and false imprisonment] the State is going forward on if [Sterling’s] going to
trial?” Then the trial court asked the
prosecutor if she believed “that the people in the car did a U-turn, came back
at [Gaines] and were shooting at him and he got hit four times, why isn’t that
attempted murder with maybe a lesser included or an additional charge of
first-degree recklessly -- reckless injury[?] I don’t understand that myself, but --.” Neither question ordered the prosecutor to
charge Sterling
with anything other than what was in the original information—first-degree
reckless injury and false imprisonment.
The court asked a question and made an observation supported by the
facts in the criminal complaint.
¶20 Second, the postconviction court reasonably concluded that the
trial court’s comments, when put into context, demonstrated that the trial
court’s purpose in asking about the attempted murder charge was not to pressure
the prosecutor into bringing that charge, but to ensure that if an additional
charge was brought it was brought in a timely manner. The context of the trial court’s comments was
that the case had been set that day for a projected guilty plea. Sterling’s
attorney advised the trial court that Sterling
had decided not to plead guilty and asked that the case be set for jury
trial. When the prosecutor noted that
“there’s time between now and trial” to consider bringing additional charges
and that she was “certain those things will be considered yet again,” the trial
court reminded the prosecutor that “there’s not much time between now and
trial” “[b]ecause there’s not going to be a final pretrial.” The context of the comment reveals that the
trial court was concerned that an untimely amendment to the information would
delay the jury trial. That purpose
became apparent in the next exchange between the prosecutor and the trial court
when the prosecutor told the judge that she wanted to try Sterling with his co-actor whose trial was
already set for March 24, less than two months away. In that context, it is a reasonable
interpretation of the trial court’s impromptu remarks that they were meant
merely to ensure that the case progressed and that the trial court’s calendar
remained intact.
¶21 Not only did the postconviction court reasonably conclude that
the trial court did not explicitly or implicitly order the prosecutor to charge
Sterling with attempted murder, Sterling has presented no evidence that the
trial court’s impromptu remarks actually affected the prosecutor’s decision to
amend the information. The prosecution
had ample evidence supporting the attempted murder charge—so much so, that Sterling was in fact
convicted by a jury. Further, the
prosecutor’s statement that she was “certain those things will be considered
yet again” provides evidence that the prosecutor knew the decision remained
hers to make. Sterling’s suggestion that an objection would
have prevented the prosecutor from amending the information is entirely
speculative.
¶22 Without demonstrating that the trial court’s remarks were
improper or otherwise improperly influenced the prosecutor’s charging decision,
Sterling has
failed to demonstrate that his trial counsel was deficient for failing to
object to the trial court’s comments.
Because Sterling
has failed to establish that his trial counsel’s failure to object was “outside
the wide range of professionally competent assistance,” we need not consider
whether Gaines was prejudiced by his trial counsel. See
Strickland, 466 U.S.
at 690, 697.
B. Impartial Tribunal
¶23 Next, Sterling asserts that the
trial court was biased and thereby denied Sterling
his due process right to an impartial tribunal.
More specifically, Sterling contends that
the trial court’s bias was revealed when the court “argued that the case should
be tried as attempted murder” and when it sentenced Sterling to thirty-six-years’ on the
attempted first-degree intentional homicide charge. We disagree.
¶24 “The right to an impartial judge is fundamental to our notion
of due process.” State v. Goodson, 2009 WI
App 107, ¶8, 320 Wis.
2d 166, 771 N.W.2d 385. “When analyzing
a judicial bias claim, we always presume that the judge was fair, impartial,
and capable of ignoring any biasing influences.” State v. Gudgeon, 2006 WI App 143,
¶20, 295 Wis.
2d 189, 720 N.W.2d 114. The presumption
of impartiality is, however, rebuttable.
Id. To determine “whether a defendant has
rebutted the presumption in favor of the court’s impartiality, we generally
apply two tests, one subjective and one objective.” Goodson, 320 Wis. 2d 166, ¶8. “Either sort of bias can violate a
defendant’s due process right to an impartial judge.” Gudgeon, 295 Wis. 2d 189, ¶20. Here, Sterling
only argues that the trial court displayed objective bias, and therefore, we
need not address subjective bias.
¶25 “[T]he objective [bias] test[] asks whether a reasonable person
could question the judge’s impartiality.”
Id.,
¶21. Objective bias can take two forms: actual bias or the appearance of bias. See Goodson, 320 Wis. 2d 166, ¶9. Actual bias occurs when “there are objective
facts demonstrating that ... the ‘trial judge in fact treated [the defendant]
unfairly.’” State v. McBride, 187 Wis. 2d 409, 416, 523
N.W.2d 106 (Ct. App. 1994) (citation omitted).
“[T]he appearance of bias offends constitutional due process principles
whenever a reasonable
person—taking into consideration human psychological tendencies and
weaknesses—concludes that the average judge could not be trusted to ‘hold the
balance nice, clear and true’ under all the circumstances.” Gudgeon, 295 Wis. 2d 189, ¶24. Whether the partiality of a trial court can
be questioned is a matter of law that we review de novo. See Goodson,
320 Wis. 2d
166, ¶7.
¶26 Sterling
has not demonstrated that the trial court was actually biased against him. As we previously stated, the trial court did
not direct or order the prosecutor to amend the charges to include the
attempted murder charge. The decision
remained within the prosecutor’s discretion.
Further, the trial court couched its question with the word “if,” asking
why the prosecutor was not charging attempted murder “if the State believes this happened the way that Mr. Gaines …
said [it] did.” (Emphasis added.) The trial court’s use of the word “if”
demonstrates that the trial court had no actual opinion on Sterling’s guilt but was merely trying to
ensure that justice was fairly and efficiently administered.
¶27 Nor has Sterling
demonstrated that a reasonable person could determine that the trial court
projected an appearance of impartiality.
In other words, a reasonable person could not “conclude[] that the
average judge could not be trusted to ‘hold the balance nice, clear and true’
under all the circumstances.” See Gudgeon,
295 Wis. 2d
189, ¶24. Sterling first argues that a reasonable
person would have interpreted the trial court’s remarks as “assistance” to the
prosecutor and would have determined that the trial court had a predetermined
interest in a particular outcome. As we
previously noted, however, the trial court’s use of the word “if” demonstrated
that it had not yet rendered an opinion on Sterling’s guilt or innocence. Further, we conclude that a reasonable person
could determine that the trial court’s comments were merely meant to ensure
that justice proceeded fairly and efficiently.
¶28 Sterling
also attempts to persuade us that the trial court projected an appearance of
bias when it imposed a thirty-six-year sentence for attempted first‑degree
intentional homicide, because the maximum sentence for the original charge
(first-degree reckless injury) was twenty-five years. See
Wis. Stat. §§ 940.23(1)(a),
939.50(3)(d). Sterling asserts that “[a] reasonable person
would conclude that the judge had made up his mind that if Mr. Sterling lost at
trial, the judge felt the maximum twenty-five years … was too lenient.”
¶29 To assert that a reasonable person would view the sentence as
revealing bias is entirely speculative and unsupported by the record. First of all, it is not reasonable to infer
from the sentence the trial court imposed on April 11, 2008, what the trial
court’s intentions were on January 30, 2008.
Secondly, there is an intervening significant fact that makes it
impossible to logically link the court’s sentence to the court’s earlier
comments, namely a jury verdict finding Sterling
guilty of attempted first-degree intentional homicide and false imprisonment,
both by use of a dangerous weapon. The
trial court was duty‑bound to sentence Sterling based on the jury’s findings.
¶30 And finally, the premise of Sterling’s bias argument, that the court
appeared to be looking for more sentencing exposure, is not supported by the
court’s ultimate sentence. Of the
possible seventy-six-year sentence that Sterling
faced at sentencing,
the trial court sentenced him to only thirty-six years—less than half, and only
five years more, than could have been imposed pursuant to the original charges. No reasonable person would assume on these
facts that the trial court was attempting to pressure the prosecutor’s charging
decision for the opportunity to sentence a defendant to an additional five-year
sentence.
¶31 For the foregoing reasons, we conclude that a reasonable person
would not believe that the trial court was biased against Sterling either based upon its comments to
the prosecutor or the sentence it imposed.
C. Cross-Examination on Gaines’ Motive for Testifying
¶32 Sterling also claims that the
trial court erred when it prohibited Sterling
from cross-examining Gaines regarding whether he expected consideration from
the prosecutor or the trial court testifying against Sterling.
At the time of Sterling’s trial, Gaines
was also facing criminal charges, pending before the same court presiding over Sterling’s case, for being
a felon in possession of a firearm.
Sterling argues that his Sixth Amendment right to confront the witness
against him permitted him to ask Gaines on cross‑examination whether
Gaines believed that he would “curry favor with the [S]tate [or] …impress the
judge” by testifying against Sterling.
The trial court prohibited Sterling
from asking Gaines about his motive for testifying on the grounds that the
information was irrelevant.
¶33 Following the shooting, when Gaines was interviewed by
Detective Ward at the hospital, Gaines agreed to allow police to search his
home for the missing assault rifle.
Police did not recover the missing assault rifle, but instead recovered
a different gun, drugs, and a scale.
Charges were subsequently brought against Gaines for being a felon in
possession of a firearm. At the time of
his testimony in Sterling’s
trial, the trial court had just completed a motion hearing in Gaines’ case and
a plea hearing was set for later in the week. It is undisputed that Gaines was not receiving
any consideration from the State for his testimony against Sterling.
¶34 “A Wisconsin criminal
defendant’s right to confront witnesses is guaranteed by the Sixth and
Fourteenth Amendments to the United States Constitution and article I, section
7 of the Wisconsin Constitution.” State v. Barreau, 2002 WI App 198,
¶47, 257 Wis.
2d 203, 651 N.W.2d 12 (footnote omitted).
“The right of confrontation includes the right to cross-examine adverse
witnesses to expose potential bias.” Id. “Although the [trial] court may limit
cross-examination when it seeks only irrelevant evidence, the Supreme Court has
held that the ‘partiality of a witness … is always relevant as discrediting the
witness and affecting the weight of his testimony.’” Id. (citations
and emphasis omitted; alteration in Barreau).
¶35 “Generally[,] the decision to admit or exclude evidence is
within the [trial] court’s discretion.” Id.,
¶48. This discretion, however, “may not
be exercised until the court has accommodated the defendant’s right of
confrontation.” Id.
And “[w]hether the limitation of cross-examination violates the
defendant’s right of confrontation is a question of law that we review de
novo.” Id.
¶36 In Barreau, we noted that “[i]t is generally recognized that
evidence of pending charges against a witness, even absent promises of leniency,
may reveal ‘a prototypical form of bias.’”
Id.,
¶55 (citations omitted). However, this
case is factually distinguishable from Barreau. Those factual differences lead us to conclude
that bias could not reasonably be inferred from the facts of this case, and
therefore, the trial court did not err by prohibiting the cross-examination on
relevancy grounds.
¶37 First, unlike the witness in Barreau, Gaines was not
merely a witness with information of the crime charged, but the victim. See id., ¶45. The actions of Sterling and his co-actors instilled such
fear in Gaines that he leapt from a moving SUV and ran into oncoming
traffic. As a result, he was hit by not
one, but two cars, before ultimately being chased down and shot four times by Sterling and his
co-actors. Unlike a witness with
information about a crime, Gaines had a vested interest in ensuring that the
men who shot him were properly prosecuted for their actions and no longer on
the streets to do him harm. Given that
vested interest, it makes little sense that he would testify falsely to
prosecute Sterling
in the mere hope of receiving a more
lenient sentence on his own pending charge.
¶38 Second, Gaines’ testimony at trial almost identically tracked
the statement he gave to Detective Ward immediately following the shooting—before police searched Gaines’ apartment
and recovered the illegal firearm and drug paraphernalia. At the time Gaines gave his initial
statement, Gaines had no reason to “curry favor” with either the State or the
trial judge. That his trial testimony
closely replicated that statement, further undercuts Sterling’s argument that the jury could have
determined that Gaines’ testimony was false.
¶39 Third, while it is certainly true that “evidence of pending
charges against a witness, even absent promises of leniency, may reveal ‘a prototypical form of
bias,’” id., ¶55 (citations omitted; emphasis added), it is still
notable that Gaines did not have an agreement of leniency with the
prosecutor. Sterling’s
theory that the mere hope for
leniency could make Gaines a bias or partial witness when weighed against the
violence perpetrated against him by Sterling
and his co‑actors is simply not reasonable.
¶40 We conclude, however, that even if Sterling’s right to confrontation had been
violated, the error would have been harmless.
See State v. Stuart, 2005 WI 47, ¶39, 279 Wis. 2d 659, 695 N.W.2d 259 (stating that a
“[v]iolation of the Confrontation Clause ‘does not result in automatic reversal,
but rather is subject to harmless error analysis’”) (citation omitted). “An error is harmless if the beneficiary of
the error proves ‘beyond a reasonable doubt that the error complained of did
not contribute to the verdict obtained.’”
Id.,
¶40 (citation omitted).
¶41 Here, if a Confrontation Clause violation occurred, the
violation was harmless because at most the jury would have heard that Gaines
was receiving no leniency for his testimony and that Gaines possessed a firearm
unrelated to the shooting. These
additional facts would not have cast any doubt on Gaines’ testimony, which was
almost entirely consistent with what he told police at the hospital before they
knew anything about the firearm.
D. Pre-sentence Investigation Report
¶42 Finally, Sterling contends that even though the trial court is
not required to order a PSI and even though Sterling did not request a PSI, the
trial court’s failure to explain on the record why it did not order a PSI
entitles Sterling to a new sentencing hearing.
Sterling’s
argument is entirely frivolous and without merit.
¶43 Appellate review of a sentencing decision is limited to
determining whether the trial court erroneously exercised its discretion in
imposing sentence. State v. Gallion, 2004 WI
42, ¶17, 270 Wis.
2d 535, 678 N.W.2d 197. To properly
exercise its sentencing discretion, a trial court must provide a rational and
explainable basis for the sentence. State
v. Stenzel, 2004 WI App 181, ¶8, 276 Wis. 2d 224, 688 N.W.2d 20. It must specify the objectives of the
sentence on the record, which include, but are not limited to, protection of
the community, punishment of the defendant, rehabilitation of the defendant,
and deterrence of others. Id.
¶44 The primary sentencing factors that a trial court must consider
are the gravity of the offense, the character of the defendant, and the need to
protect the public. State v. Ziegler, 2006 WI
App 49, ¶23, 289 Wis.
2d 594, 712 N.W.2d 76. Other factors
which may be relevant include, but
are not limited to, the defendant’s past record or history of undesirable
behavior patterns; the defendant’s personality, character, and social traits;
the PSI; the vicious or aggravated nature of the crime; the degree of the
defendant’s culpability; the defendant’s demeanor before the court; the
defendant’s age, educational background, and employment history; the
defendant’s remorse, repentance, and cooperation; the defendant’s need for
close rehabilitative control; and the right of the public. Id. The trial court need not discuss all
of these secondary factors, but rather only those relevant to the particular
case. Id.
The weight to be given to each sentencing factor remains within
the trial court’s wide discretion. Stenzel,
276 Wis. 2d
224, ¶9.
¶45 Sterling
does not argue that the trial court erroneously exercised its discretion when
issuing his sentence. Rather, his entire
argument is that he is entitled to a new sentencing hearing because the trial
court failed to explain on the record why it did not order a PSI. Sterling
cites no law to support his assertion because there is none.
¶46 “Wisconsin Stat. § 972.15 provides that,
after a felony conviction, the court ‘may’ order a [PSI] prepared by the
department of corrections.” State
v. Greve, 2004 WI 69, ¶10, 272 Wis. 2d
444, 681 N.W.2d 479. The statute does not
require a trial court to order a PSI nor does it require the trial court to
explain why it is or is not ordering a PSI in a given case. See § 972.15. Sterling’s
assertion that the trial court must explain its reasoning for not ordering a
PSI is contrary to the law. So long as
the trial court properly considers the factors set forth
above—and Sterling
does not contend the trial court did not—we will not disturb the sentence
imposed by the trial court.
By the Court.—Judgment and order
affirmed.
Not
recommended for publication in the official reports.