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COURT OF APPEALS DECISION DATED AND RELEASED JUNE 25, 1996 |
NOTICE |
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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. 96-0030-CR
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT III
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
KENNETH G. GERING,
Defendant-Appellant.
APPEAL from an order of
the circuit court for Florence County:
JAMES B. MOHR, Judge. Affirmed.
Before Cane, P.J.,
LaRocque and Myse, JJ.
PER
CURIAM. Kenneth Gering appeals an order denying his motion to
modify his sentence.[1] As part of a plea agreement, Gering pleaded
no contest to one count of second-degree sexual assault for which he was
sentenced to six years in prison. He
also pleaded no contest to two counts of burglary for which he was sentenced to
a consecutive five years' probation term.
Numerous other counts were dismissed and read in for sentencing
purposes. Gering argues that the trial
court erroneously exercised its discretion when it considered an inaccurate and
misleading presentence report, that he was denied effective assistance of
counsel when his attorney failed to challenge aspects of the presentence
report, and that regardless of the propriety of his sentence, he is entitled to
an accurate presentence report because of other uses of the report by the
Department of Correction. We reject
these arguments and affirm the order.
Due process entitles a
defendant to be sentenced according to accurate information. State v. Johnson, 158 Wis.2d
458, 468, 463 N.W.2d 353, 357 (Ct. App. 1990).
Absent a clear showing that discretion was erroneously exercised, this
court will not interfere with the trial court's sentencing. State v. Thompson, 172 Wis.2d
257, 263, 493 N.W.2 729, 732 (Ct. App. 1992).
This court presumes that the trial court acted reasonably in determining
the sentence. State v. Scherreiks,
153 Wis.2d 510, 517, 451 N.W.2d 759, 762 (Ct. App. 1989).
The record does not
support Gering's argument that the court considered any of the allegedly false
or misleading information contained in the presentence report. For that reason, Gering has also failed to
establish that he was prejudiced by his counsel's failure to correct any of these
defects. See Strickland v.
Washington, 466 U.S. 668, 687 (1984).
When the court imposed the sentences, it never mentioned any of the
disputed portions of the presentence report as a basis for its decision. Rather, it placed great weight on Gering's apparent
unwillingness to accept responsibility for the crimes to which he pled no
contest. Gering's attorney carefully
detailed his disagreements with the presentence report. Gering himself addressed the court and noted
his concerns. In the order denying the
motion to modify sentence, the trial court noted that the motion raised no new
issue that the court had not already heard.
When the court does not consider a disputed fact at sentencing, the
court is not required to resolve the dispute.
Gering's reliance on Fed. R.
Crim. P. 32(c)3(d) and cases implementing that rule is misplaced. The Federal
Rules of Criminal Procedure do not apply to state criminal
proceedings.
For policy reasons,
courts should not act to correct alleged errors in the presentence report in
order to affect matters within the purview of the Department of
Corrections. See State v.
Bush, 185 Wis.2d 716, 724, 519 N.W.2d 645, 648 (Ct. App. 1994). Gering has not demonstrated that he has
exhausted the administrative avenues available to address his concerns about
the presentence report. His only
specific complaints to the inmate complaint review investigator related to his
exclusion from certain treatment programs, not the inaccuracies of the presentence
report. A review of any final agency
determination is initiated by writ of certiorari, not a motion to modify the
sentence. Id.
By the Court.—Order
affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)5, Stats.