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COURT OF APPEALS DECISION DATED AND RELEASED November 26, 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. 96-1194-CR
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT I
State of Wisconsin,
Plaintiff-Respondent,
v.
Eugene Nichols,
Defendant-Appellant.
APPEAL from a judgment
of the circuit court for Milwaukee County:
BONNIE L. GORDON, Judge. Affirmed.
WEDEMEYER, P.J.[1] Eugene Nichols appeals from a judgment
entered after a jury convicted him of theft, entry into a locked vehicle, and
criminal damage to property, all as party to a crime, contrary to
§§ 943.20(1)(a), 943.20(3)(a), 943.11, 943.01 and 939.05, Stats.
He claims that the trial court erroneously exercised its sentencing
discretion when it imposed a twenty-one month jail term. Because the trial court did not erroneously
exercise its sentencing discretion, this court affirms.
I. BACKGROUND
Nichols was convicted
for breaking into Tesa Santoro's parked car on May 26, 1994, and for
stealing a CD player, a checkbook and some other miscellaneous items that were
in the car. After the jury convicted
him, the trial court sentenced him to twenty-one months in prison. Nichols now appeals.
II. DISCUSSION
Nichols claims that his
sentence should be reversed because it violates the equal protection clause of
the Constitution, because it constitutes cruel and unusual punishment and
because it is unduly harsh.
Our standard of review
when reviewing a criminal sentencing is whether or not the trial court
erroneously exercised its discretion. State
v. Plymesser, 172 Wis.2d 583, 585-86 n.1, 493 N.W.2d 367, 369 n.1
(1992). Indeed, there is a strong
policy against an appellate court interfering with a trial court's sentencing
determination, and an appellate court must presume that the trial court acted
reasonably. State v.
Wickstrom, 118 Wis.2d 339, 354, 348 N.W.2d 183, 191 (Ct. App.
1984). When a defendant argues that his
or her sentence is unduly harsh or excessive, we will find an erroneous
exercise of discretion “only where 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.” Ocanas
v. State, 70 Wis.2d 179, 185, 233 N.W.2d 457, 461 (1975).
Nichols's first argument
is based in the fact that his co-conspirator, who pleaded guilty, only received
thirty days in the House of Correction, twenty-five hours of community service
and probation. He claims the equal
protection clause was violated based on this disparity—the co-conspirator
receiving only a one-month term, while he received a twenty-one-month term for
the same crimes. This court is not
persuaded by Nichols's argument.
We will not find a
misuse of sentencing discretion simply because one trial court gave a defendant
a sentence different than another trial court gave a co-defendant.
By its very nature, the exercise of discretion
dictates that different judges will have different opinions as to what should
be the proper sentence in a particular case.
As a result, a judge imposing a sentence in one case cannot be bound by
the determination made by a judge in another case.
Ocanas, 70
Wis.2d at 187-88, 233 N.W.2d at 462 (citation omitted); see also State v.
Perez, 170 Wis.2d 130, 144, 487 N.W.2d 630, 635 (Ct. App.), cert.
denied, 506 U.S. 957 (1992).
Further, there is no
evidence that the trial court here imposed a longer sentence because Nichols
exercised his right to a jury trial or that the co-conspirator received a
shorter sentence because he entered a guilty plea. Nichols received a longer sentence based on the appropriate
factors, which were considered by the trial court. See State v. Harris, 119 Wis. 2d 612, 623-24,
350 N.W.2d 633, 639 (1984) (The sentencing court must consider three primary
factors: (1) the gravity of the offense, (2) the character of the
offender, and (3) the need to protect the public.).
Nichols's remaining two
arguments are essentially the same:
that the sentence imposed was too harsh in comparison to the crimes
committed. This court rejects this
argument as well. Nichols was sentence
to seven months, consecutive for each of the three counts, for a total of
twenty-one months. He faced a potential
of nine months in prison on each count, plus additional fines. The trial court did not impose the maximum
sentence which, according to some case law, automatically means that the
sentence was not unduly harsh. See
State v. Daniels, 117 Wis.2d 9, 22, 343 N.W.2d 411, 417-18 (Ct.
App. 1983) (“A sentence well within the limits of the maximum sentence is not
so disproportionate to the offense committed as to shock the public sentiment
and violate the judgment of reasonable people concerning what is right and
proper under the circumstances.”).
Further, although at
first glance a twenty-one month sentence for an auto break-in may seem
excessive, a deeper examination indicates otherwise. Nichols was not a first-time offender in these crimes. He has a long history of similar offenses,
where he was given lighter sentences.
The lighter sentences, however, obviously did not rehabilitate
Nichols. Once back on the street, he
continued his criminal ways. Given his
history, this court cannot say that the sentenced imposed is out of proportion
to the crimes committed. Accordingly,
the sentence was not harsh nor does it constitute cruel or unusual punishment.
By the Court.—Judgment
affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)4, Stats.