COURT OF APPEALS DECISION DATED AND RELEASED March 20, 1997 |
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. 96-0879-CR-NM
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT IV
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
KEVIN D. WAITE,
Defendant-Appellant.
APPEAL from a judgment
of the circuit court for Dane County:
MARK A. FRANKEL, Judge. Affirmed.
Before Dykman, P.J.,
Vergeront and Deininger, JJ.
PER
CURIAM. Kevin Waite appeals from his convictions for burglary,
robbery, false imprisonment, fleeing an officer, and conspiracy to commit
robbery, the first four convictions as a party to the crime. He pleaded no contest to the charges and
received concurrent and consecutive sentences totaling forty-four years in
prison. Waite's convictions resulted
from a one-day crime spree in which he and an accomplice broke into the rural
home of a young woman and her eleven-day-old baby. They terrorized the woman, held a handgun to her head, taped her
to a chair with duct tape, stole her car for use in a bank robbery, and led
police on a highway chase at speeds over one hundred miles per hour. Waite's counsel has filed a no merit report
under Anders v. California, 386 U.S. 738 (1967). Waite received a copy of the report and has
filed a response.
Counsel's no merit
report raises two basic arguments:
(1) the prosecution improperly charged Waite twice for the same
offense; and (2) the sentence was excessive for various reasons. In his response, Waite challenges his
sentence on various grounds. We will
address counsel's and Waite's pro se sentencing arguments together. Upon review of the record, we are satisfied
that the no merit report properly analyzes these issues, that Waite's response
raises no viable issues, and that the appeal has no arguable merit. Accordingly, we adopt the no merit report,
affirm the convictions, and discharge Waite's appellate counsel of his
obligation to represent Waite further in this appeal.
Waite's counsel first
argues that the prosecution may have improperly charged Waite with both robbery
as a party to the crime and with conspiracy to commit robbery. Section 939.72(2), Stats., bars such twin charges for the same offense. The record shows, however, that the
prosecution did not pursue such dual charges.
The robbery charge embraces Waite's theft of the victim's car. The conspiracy charge embraces the planned
robbery of the bank. If Waite and his
accomplice had succeeded in carrying out their plans, the two completed
robberies would have involved different acts against different victims. In short, this argument provides no basis
for further proceedings. See also
Austin v. State, 86 Wis.2d 213, 222-23, 271 N.W.2d 668, 672
(1978).
Waite and his counsel next challenge various
aspects of Waite's sentence. The trial
court's sentencing decision was discretionary.
State v. Macemon, 113 Wis.2d 662, 667, 335 N.W.2d 402, 405
(1983). Sentencing courts have discretion
to determine the weight to give to each of the relevant factors, Ocanas
v. State, 70 Wis.2d 179, 185, 233 N.W.2d 457, 461 (1975), and may base
their sentences on any of the factors after all have been reviewed. Anderson v. State, 76 Wis.2d
361, 366-67, 251 N.W.2d 768, 771 (1977).
Relevant sentencing factors include the gravity of the offense, the
protection of the public, the rehabilitative needs of the defendant, and the
interests of deterrence. State v.
Sarabia, 118 Wis.2d 655, 673-74, 348 N.W.2d 527, 537 (1984).
Other relevant factors
are the defendant's age, character, personality, social traits, remorse,
repentance, cooperativeness, educational level, employment background, degree
of culpability, demeanor at trial, need for close rehabilitative control, the
rights of the public, and the vicious or aggravated nature of his crime. State v. Killory, 73 Wis.2d
400, 408, 243 N.W.2d 475, 481 (1976).
Like other discretionary matters, sentencing decisions must have a
reasonable basis in the record and demonstrate a logical process of reasoning
applying proper legal standards to the facts of record. McCleary v. State, 49 Wis.2d
263, 277, 182 N.W.2d 512, 519 (1971).
Waite first argues that
no one told him that the sentencing matrix did not bind the trial court. Waite is not arguing that this made his plea
involuntary. Rather, in essence, he is
asserting that the trial court erroneously failed to follow the sentencing matrix. He wants to apply the sentencing matrix to
reduce his sentence. This argument
provides no basis for further postconviction proceedings. Waite may not appeal the trial court's
departure from the matrix. See State
v. Dietzen, 164 Wis.2d 205, 214, 474 N.W.2d 753, 756 (Ct. App. 1991);
§ 973.012, Stats. The legislature has barred appellate courts
from considering such issues in reviewing sentences. As a result, Waite may not attack his sentence on the ground that
the trial court failed to follow the sentencing matrix.
Waite states that he did
not know he had the right to call witnesses at the sentencing hearing. This provides no basis for
resentencing. If Waite is claiming
ineffective assistance of trial counsel, he needs to show not only that trial
counsel omitted relevant evidence, but also that the evidence's absence was prejudicial
to his case's outcome. See Strickland
v. Washington, 466 U.S. 668, 687 (1984). Waite has not shown that he had any witnesses who could provide
relevant testimony and bring about a lower sentence. He has not identified any witnesses or what their testimony would
have been. Litigants may not base
postconviction claims on vague fact-based allegations. See State v. Saunders,
196 Wis.2d 45, 49-50, 538 N.W.2d 546, 548 (Ct. App. 1995).
Waite states that his
accomplice falsified facts at the accomplice's sentencing hearing and that
Waite lacked a meaningful opportunity to respond to these falsifications at his
own sentencing. At the accomplice's
sentencing hearing, the accomplice's counsel portrayed Waite as the leader in
the incident. This provides no basis
for further proceedings. Waite does
have a right to sentencing on the basis of correct information. See State v. Perez, 170
Wis.2d 130, 138, 487 N.W.2d 630, 633 (Ct. App. 1992). Here, however, the record contains no indication that the trial
court based Waite's sentence on the information from the accomplice's
sentencing hearing. Rather, the trial
court relied on information from Waite's case, such as the victim's account and
Waite's admitted significant role in the crimes.
Waite next claims a
disparity in sentencing. He points out
that his accomplice received a lesser sentence despite the fact that the
accomplice had a criminal record, while Waite had none. Not every disparity in sentencing is
impermissible. Sentencing courts have
the power to issue different sentences after applying the relevant sentencing
factors. See Perez,
170 Wis.2d at 144, 487 N.W.2d at 635.
Here, we see no impermissible disparity. As the trial court noted, Waite provided the weapons and masks,
committed the terrorizing acts against the young baby's mother, drove the
bank-robbery vehicle, and conceived the plans for the crimes. These factors can outweigh such factors as
comparative criminal records, justifying a greater sentence. Sentencing courts have the power to issue
harsher sentences to co-perpetrators who assume the leading role in a crime.
Waite next states that
the sentencing court minimized mitigating factors and issued a sentence that
shocks the public's conscience. Waite
points out that he had a good work history and no prior criminal record. He also claims that the crimes constituted
one continuous offense. Trial courts
may not issue sentences that shock the public's conscience. See State v. Killory,
73 Wis.2d 400, 408, 243 N.W.2d 475, 481 (1976). Here, however, the trial court based its sentence primarily on
the seriousness of the offense, the public's need for protection, and the
interests of deterrence. This analysis
represented a proper exercise of sentencing discretion. Considered against these factors, Waite's
commendable work history, his crime-free background, and the crimes' unified
progression gave the court relatively little mitigation to consider. Waite's forty-four year sentence does not
shock the public conscience.
Finally, Waite argues
that the trial court improperly based his sentence on his unproven association
with militia-type, paramilitary organizations.
At the beginning of the sentencing hearing, the trial court expressed
considerable concern over Waite's possible militia-group connection. The trial court then adjourned the hearing
to allow the prosecution to investigate Waite's paramilitary activities, which
the court stated cast a cloud over him.
At that time, the trial court hypothesized that it would view the same
crimes in a substantially different cast when committed by "two drunken
guys smoking pot" than when committed by paramilitary-group members to
finance their organizations and operations.
In the trial court's view, the same crimes, when committed by
militia-group members for such purposes, posed a broader, more serious social
threat than the crimes would when committed by drunken pot smokers. Later, the trial court incidentally referred
to militia groups as "right-wing," indirectly using a political term
extraneous to sentencing proceedings.
After reviewing the
record, we are satisfied that the trial court punished Waite on the basis of
factors other than a possible militia-group connection. Near the close of the sentencing hearing,
the trial court clarified the role that Waite's militia-group sympathies had
taken in the court's sentencing calculus.
The trial court reviewed the evidence on the subject and explicitly
stated that it was not basing Waite's sentence on his possible militia-group
connection. The court continued that it
saw no direct nexus between Waite's crimes and an attempt to finance
paramilitary organizations. In the
court's view, this fact eliminated Waite's possible militia-group activities as
a relevant sentencing factor. The
court's remaining sentencing findings concentrated on the gravity of Waite's
crimes, his character, and the public's need for protection, with no reference
to militia-group activities. Viewed in
their entirety, the court's findings make plain that Waite's possible
militia-group activities or sympathies ultimately had no bearing on his
sentence.
Further, when the trial
court made its militia-group comments, we believe that the court was
intrinsically referring only to militia groups engaging in illegal activities,
not law-abiding militia groups or militia groups per se. We do not read trial court findings in a
vacuum. See Movible
Offshore, Inc. v. M/V Wilken A. Falgout, 471 F.2d 268, 272 (5th Cir.
1973). Here, the trial court made its
comments in the weeks after the April 1995 Oklahoma City federal-building
bombing, and the parties spent part of the initial sentencing hearing
discussing news coverage of the Michigan Militia, which some in the news media
suspected might have had a role in the bombing. Underlying the court's entire discussion was a concern over
terrorism, with which Waite's particular crimes were consistent. Understood in this context, the trial
court's militia comments reflect a legitimate concern over terrorist militia
groups, not law-abiding militia groups or militia groups in general. Accordingly, Waite's appellate counsel is
discharged.
By
the Court.—Judgment affirmed.