COURT OF APPEALS DECISION DATED AND RELEASED December 18, 1996 |
NOTICE |
A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals. See § 808.10 and
Rule 809.62, Stats. |
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports. |
No. 95-3432-CR
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT II
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
GINIENE P. QUICK,
Defendant-Appellant.
APPEAL from a judgment
of the circuit court for Green Lake County:
WILLIAM M. MC MONIGAL, Judge. Affirmed.
Before Anderson, P.J.,
Nettesheim and Snyder, JJ.
PER
CURIAM. Giniene P. Quick appeals from an amended judgment of
conviction[1]
and challenges her sentence. Because we
conclude that the trial court properly exercised its sentencing discretion, we
affirm.
Quick was convicted of
one count of delivering a controlled substance (tetrahydrocannabinol or THC)
within 1000 feet of a school. For this
crime, the legislature has imposed a minimum three-year sentence. See §§ 161.41(1)(h)1 and
161.49(2)(a), Stats. Under these statutes, a defendant is not
eligible for parole until the minimum three-year term has been served. However, under § 161.438, Stats., a trial court may impose a
sentence less than the minimum or may impose probation if the court finds
"that the best interests of the community will be served and the public
will not be harmed and if it places its reasons on the record."[2] Id.
Quick entered a guilty
plea to the charge.[3] She filed a sentencing memorandum arguing
facts which supported less than the minimum penalty. She stressed that she did not sell THC to children, during school
hours or near the school, although her home, where the one-time sale to an
undercover officer occurred, is approximately one block from a high
school. She argued that probation was
appropriate and in the community's best interests because she is purchasing a
home and is a single mother with two children.
She also cited her employment history and lack of previous criminal
activity. She requested a three-year
sentence, stayed in favor of three years of probation, with a jail sentence and
Huber privileges as a condition of probation, a fine and community
service.
At sentencing[4]
the State argued that the drug sale occurred near a school and that the
legislature had expressed its intent to impose a minimum sentence on such
offenders. The State sought three years
in prison without parole. Quick renewed
the arguments she made in her sentencing memorandum and presented character
testimony in support of her request for probation.
In its sentencing
remarks, the court noted that it had to determine whether probation would be in
the best interests of the community and whether the community would be harmed
by such a disposition. The court noted
that to be a deterrent, the enhanced penalty for drug activity within 1000 feet
of a school "[has] to be given appropriate weight and significance and
applied where appropriate." In
considering whether there would be harm to the community in imposing less than
the minimum sentence, the court had to be convinced that there was no chance
whatsoever of any further criminal activity, especially drug activity, aside
from Quick's assurance that she would no longer engage in such activity. The court found that if Quick resumed her
drug activity, the community would be endangered.
With regard to the best
interests of the community, the court stated that certain consequences flow
from criminal conduct and that rescuing a defendant from those consequences is
not necessarily in the community's best interests. The court noted that while Quick's personal circumstances might
support deviation from the minimum sentence, those hardship factors which might
warrant deviation from the minimum sentence were within Quick's control at the
time she committed the crime. The court
found that the facts supporting the penalty enhancer (the size of the drug
transaction, the location of the transaction and whether to transact drugs at
all) were within Quick's control. The
court further stated:
The
Court finds it impossible to deem that it's in the community's best interest to
have that type of conduct permitted, and to vary from the prescribed sentence
as the State has indicated, and as the Court indicated previously, signals to a
community that demand tough law enforcement, particularly in drug enforcement,
that if you have special circumstances that were present before you took the
risk, you can manipulate those and present those in a matter that constitutes a
mitigation. You can turn reasons that
should have kept you out of the conduct to begin with into reasons why you
shouldn't be punished for the conduct.
And this Court simply is unwilling to be brought into that type of
circumstance.
The
court then sentenced Quick to three years imprisonment without parole and the
minimum mandatory $500 fine. Quick
appeals.
Public policy strongly
disfavors appellate courts interfering with the sentencing discretion of the
trial court. State v. Teynor,
141 Wis.2d 187, 219, 414 N.W.2d 76, 88 (Ct. App. 1987). We review whether the trial court misused
its sentencing discretion. State
v. J.E.B., 161 Wis.2d 655, 661, 469 N.W.2d 192, 195 (Ct. App. 1991), cert.
denied, 503 U.S. 940 (1992). We
presume that the trial court acted reasonably, and the defendant must show that
the trial court relied upon an unreasonable or unjustifiable basis for its
sentence. Id. The weight given to each of the sentencing
factors is within the sentencing judge's discretion. Id. at 662, 469 N.W.2d at 195.
The trial court examined
Quick's character, the gravity of the offense and the need to protect the
public, appropriate factors in sentencing, see State v. Paske,
163 Wis.2d 52, 62, 471 N.W.2d 55, 59 (1991), and determined that probation was
not appropriate after considering the § 161.438, Stats., criteria for probation or less than the minimum
sentence. The weight to be accorded
these sentencing factors is for the sentencing court to determine in its
discretion. See State v.
Spears, 147 Wis.2d 429, 446, 433 N.W.2d 595, 603 (Ct. App.
1988). Quick did not persuade the trial
court that anything other than the minimum sentence would be in the public's
best interests. We discern no misuse of
discretion in declining to place Quick on probation or imposing less than the
minimum sentence.
Quick argues that the
trial court erroneously believed it lacked discretion to deviate from the
minimum sentence and that imposition of the minimum sentence was unjust. As is apparent from our summary of the trial
court's sentencing remarks, the court was fully aware that it had discretion to
deviate from the minimum sentence and on two occasions discussed the factors it
would consider in deviating and its reasons for finding those factors
insufficient. While the court lamented
the minimum sentence statute as detracting from its sentencing discretion, the
court also gave its reasons for sentencing in this case within the framework
the legislature had created. The court
considered that legislative directive, weighed and balanced the facts which
might have favored a less harsh sentence, and concluded that the facts were not
sufficient. This was a proper exercise
of the trial court's discretion.
By the Court.—Judgment
affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)5, Stats.
[1] Quick filed a motion to modify her sentence on the grounds that it was excessive. The motion was denied as memorialized by the amended judgment of conviction.
[2] Section 161.438, Stats., effectively transforms what would otherwise be mandatory minimum penalties in ch. 161 into presumptive minimum penalties. State v. DeLeon, 171 Wis.2d 200, 203, 490 N.W.2d 767, 769 (Ct. App. 1992).