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COURT OF APPEALS DECISION DATED AND RELEASED June 18, 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. 96-0439-CR
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT I
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
DAMON ROUNDTREE,
Defendant-Appellant.
APPEAL from a judgment
and an order of the circuit court for Milwaukee County: CHARLES F. KAHN, JR., Judge. Affirmed.
WEDEMEYER, P.J.[1] Damon Roundtree appeals from his judgment
of conviction for disorderly conduct in violation of § 947.01, Stats., and from an order denying his
postconviction motion to modify his sentence.
Roundtree claims two instances of trial court error warranting
resentencing: (1) the trial court erroneously exercised its sentencing
discretion by imposing an excessive sentence; and (2) the trial court
violated his right to due process by relying on untrue or incorrect information
in determining his sentence. Because
the trial court did not erroneously exercise its sentencing discretion and
because the basis for the trial court's sentence was accurate and properly
considered, this court affirms.
I. BACKGROUND
Roundtree was charged
with one count of disorderly conduct, a misdemeanor, in violation of
§ 947.01, Stats. On March 30, 1995, Roundtree pled
guilty to the charge. He stipulated to
the following facts: (1) that he
violated a court order to stay away from the victim; and (2) that the
circumstances of this incident were argumentative and frightened the
victim. The trial court found him
guilty and sentenced him to the maximum sentence of ninety days in the House of
Correction. He filed a postconviction
motion challenging the sentence, which the trial court denied. Roundtree now appeals.
II. DISCUSSION
A. Excessive
Sentence.
Roundtree first claims
the trial court erroneously exercised its sentencing discretion by imposing an
excessive sentence. To lend support for
his assertion, he argues the sentence which he received is not supported by the
facts and information of record. In
addition, he argues that the trial court gave undue weight to unsubstantiated
statements of the victim, while ignoring Roundtree's character and the
stipulated facts of the offense.
Standard of Review
Sentencing is a function
of trial court discretion. State v.
Harris, 119 Wis.2d 612, 622, 350 N.W.2d 633, 638 (1984). We are reluctant to interfere with a trial
court's sentence because it has a great advantage in considering the relevant
factors and the demeanor of the defendant.
Id. There is a
presumption that a trial court acted reasonably when sentencing. Id. Thus, to demonstrate an erroneous exercise of sentencing
discretion, the defendant must show some unreasonable or unjustifiable basis in
the record for the sentence imposed. State v.
Echols, 175 Wis.2d 653, 681-82, 499 N.W.2d 631, 640, cert. denied,
114 S.Ct. 246 (1993).
Analysis
When sentencing, the
trial court must consider the following three factors: (1) the gravity of the offense;
(2) the character and rehabilitative needs of the offender; and
(3) the need for protection of the public. State v. Sarabia, 118 Wis.2d 655, 673, 348 N.W.2d
527, 537 (1984). The significance of
each factor, however, in the total sentencing process lies solely within the
sentencing court's discretion as demonstrated by the record. State v. Patino, 177 Wis.2d
348, 385, 502 N.W.2d 601, 616 (Ct. App. 1993).
Moreover, this court will not find that the sentence imposed by the
trial court was excessive unless “the sentence is so excessive and unusual and
so disproportionate to the offense committed as to shock public sentiment and
violate the judgment of reasonable people concerning what is right and proper
under the circumstances.” State v.
Dietzen, 164 Wis.2d 205, 213, 474 N.W.2d 753, 756 (Ct. App. 1991).
When considering the three
primary factors, the sentencing court may also take into account: the vicious
and aggravated nature of the crime; the past record of criminal offenses; any
history of undesirable behavior patterns; the defendant's personality,
character and social traits; the results of a presentence investigation; the
degree of the defendant's culpability; the defendant's demeanor at trial; the
defendant's age, educational background and employment record; the defendant's
remorse, repentance and cooperativeness; the defendant's need for
rehabilitative control; the right of the public; and the length of pretrial
detention. State v. Borrell,
167 Wis.2d 749, 773-74, 482 N.W.2d 883, 891 (1992).
From a review of the
sentencing transcript, this court is satisfied that the trial court properly
exercised its discretion in sentencing Roundtree. Prior to sentencing, the trial court, with inquiring diligence,
listened to the presentencing remarks of the district attorney, Roundtree's counsel
and the victim. It also considered
Roundtree's elocution. It then rendered
its oral sentence which we recite in toto:
THE
COURT: What I have to do is consider Mr. Roundtree's background and
character. I take into account his
education, his additional college football scholarship, work history, energetic
history of work, and I take into account his willingness to abuse this woman
repeatedly to disregard humanity to beat up someone who is not as strong as he
and to lie here in court by denying all of this conduct.
The
crime here is disorderly conduct for terrorizing Ms. Smitts on one day. The history is much more serious than that,
and I take all of this into account as I'm required to under law.
I
am not assuming that Mr. Roundtree is guilty of the other crimes that he's
accused of. We'll have a [trial] on
that beginning next Tuesday, but at this particular time it was committed at a
time when Mr. Roundtree was out on bail for the other offense.
Balancing all the factors, it is the sentence
of this court that Mr. Roundtree serve a term of ninety days in the House of
Correction straight time at the House of Correction beginning now.
Further explication is
not necessary. It is self evident that
the trial court considered the mandatory factors and then also took into
account optional factors in imposing its sentence. Based on the circumstances in this case, this court cannot say
that a ninety sentence is so excessive and disproportionate so as to “shock
public sentiment.” Moreover, the
sentence did not exceed the maximum sentence, and accordingly, was not
excessive. See Ocanas v.
State, 70 Wis.2d 179, 233 N.W.2d 457 (1975). This court concludes, therefore, that the trial court did not
erroneously exercise its sentencing discretion.
B. Due
Process.
Roundtree also claims
that his due process rights were violated when the sentencing court relied on
untruthful or incorrect information as a basis for its sentencing.
Standard of Review
The constitutional
question of whether Roundtree's rights to due process were protected presents a
question of law which we review de novo. State v. Littrup, 164 Wis.2d 120, 126, 473 N.W.2d
164, 166 (Ct. App. 1991). To “establish
a due process violation in the sentencing process, a defendant has the burden
of proving by clear and convincing evidence both” the inaccuracy of information
relied upon by the sentencing court and that the reliance was prejudicial. Id. at 132, 473 N.W.2d at
168. Whether a defendant has met his or
her burden of proof is also a question of law, which is reviewed de novo. Id. at 126, 473 N.W.2d at 166;
State v. Windom, 169 Wis.2d 341, 349, 485 N.W.2d 832, 834 (Ct.
App. 1992).
Analysis
The bases for this claim
of error are the contents of statements made by the victim of the disorderly
conduct offense which included information about abuse she had received at the
hands of Roundtree prior to and after the present offense. Her statements were supported by pictures
offered to the trial court. The record
of the sentencing modification hearing, however, refutes Roundtree's assertion
that this evidence was untruthful or incorrect. Succinctly, the trial court stated:
Ms.
Schmitz reported about some of the other things that Mr. Roundtree did to her,
but that's not what I sentenced him for.
What I sentenced him for was his background and his character and
primarily how to protect the people of the community in the future.
There is nothing in the
record to demonstrate that the sentencing court based its disposition on
anything but proper factors. Accordingly,
Roundtree's claim fails. This court
affirms the sentencing of the trial court.
By the Court.—Judgment
and order affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)4, Stats.