COURT OF APPEALS DECISION DATED AND RELEASED JUNE 25, 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. 95-3617
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT III
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
DELTON D. DAY,
Defendant-Appellant.
APPEAL from an order of
the circuit court for Outagamie County:
DENNIS C. LUEBKE, Judge. Affirmed.
Before Cane, P.J.,
LaRocque and Myse, JJ.
PER
CURIAM. Delton Day appeals a trial court order that denied his
1995 motion to modify the ninety-six month concurrent sentences for child
enticement and sexual assault of a child he received in 1993. Day argued that the sentencing court wrongly
issued a prison term without first expressly considering a fine as an alternative
sentence. Day raises similar arguments
on appeal. We agree with the trial
court that Day's sentence modification motion had no merit. We therefore affirm the trial court's order
denying Day's motion.
First, the sentencing
court stated that Day's crime, character, attitude, probation failures, and
criminal history rendered incarceration the only viable sentence. By its express terms, this statement overtly
rejected all alternative sentences, including fines, regardless of the fact
that it did not specifically mention the term "fine." This shows that the trial court did in fact
rule out a fine as a possible sentence, in light of the crimes' gravity, Day's
character, and his dangerousness to society.
See State v. Sarabia, 118 Wis.2d 655, 673-74, 348
N.W.2d 527, 537 (1984).
Second, if the trial
court had not clarified Day's need for incarceration, we could still examine
the record for anything that would have excluded a fine as a viable alternative
sentence. Here, the severity of Day's
sentence itself demonstrates the fallacy of Day's argument in favor of a
fine. His sentence's severity directly
shows how the trial court viewed his crime, character, and dangerousness. Day's time in prison is directly proportional
to his crime, character, and dangerousness.
By implication, his incarceration's relative severity excluded a fine as
a viable alternative.
Last, Day's motion was
untimely. It was too late to qualify as
a statutory motion to modify sentence under § 973.19, Stats., and it did not state any new
factor that might have qualified it as new factor based motion to modify
sentence. See State v.
Franklin, 148 Wis.2d 1, 8, 434 N.W.2d 609, 611 (1989). Rather, it sought to raise a matter Day
should have raised at the time of sentencing or by direct appeal from his
conviction. In sum, Day had no basis to
seek modification of his sentence, and the trial court properly denied his
motion.
By the Court.—Order
affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)5, Stats.