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COURT OF APPEALS DECISION DATED AND RELEASED December 4, 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. 96-1743-CR
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT II
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
JOSE G. ARAUJO,
Defendant-Appellant.
APPEAL from a judgment
of the circuit court for Waukesha County:
JOSEPH E. WIMMER, Judge. Affirmed.
SNYDER, J. Jose
G. Araujo appeals from a judgment of conviction for disorderly conduct,
contrary to § 947.01, Stats. He challenges the propriety of the trial
court's imposition of forty days condition time, claiming that the sentencing
court misused its discretion. We
disagree and conclude that the trial court properly considered multiple factors
in crafting a sentence for Araujo.
A criminal complaint was
issued in August 1995 charging Araujo with disorderly conduct for an incident
that occurred the previous December.
The complaint alleged that Araujo engaged in an altercation with Shelley
Heilert at her apartment. Araujo, a physician,
and Heilert, his office manager, had been engaged; the argument concerned the
return of certain items belonging to Araujo, including an engagement ring.
In January 1996, Araujo
pled no contest to the disorderly conduct charge with the understanding that
the State would recommend a twelve-month period of probation, but no jail or
condition time.[1] Sentencing was adjourned until May 1996, at
Araujo's request, due to an upcoming trial in a civil suit that Heilert had
filed against Araujo.[2]
At the sentencing
hearing, the prosecutor recommended probation without any jail time. She also stated that she did not believe
that she “could prove under the circumstances that [Araujo] intended to cause
[Heilert] any injury”; therefore, she had not sought a battery charge against
Araujo. Counsel for Araujo made a
parallel sentencing recommendation to the court.
At the sentencing
hearing, the trial court also heard a statement by Heilert, who expressed her
unhappiness with the prosecutor's charging decision and sentence
recommendation.[3] During Heilert's statement, the court noted
that while medical reports indicated that there were some injuries which were
the result of the incident, it was unclear “as to whether or not [Araujo]
intended to -- to cause those injuries or whether it was more or less of an
accident that you fell down the steps, I don't know.” The court directed Heilert to confine her statement to a
description of the struggle that took place during the altercation.
After hearing Heilert's
statement, as well as the sentencing recommendations from the prosecutor and
defense counsel, the court then directed the following comments to the
defendant:
Mr.
Araujo, you just simply cannot force your way into another person's
apartment. The Court notes that at
about 2:10 a.m., ... you telephoned Shelley Heilert and accused her of various
things. ... You then drove over to her
apartment at that time of night, rang the doorbell. When she answered the door you forced your way into the residence
and you again shouted various
obscenities at her. ... [Y]ou did engage
in some physical contact with her.
The
trial court also concluded that “clearly ... there is a strong possibility that
[Araujo] did engage in--or could have been convicted of a battery charge.” Consequently, the court determined that
“some considerable punishment is necessary” and then imposed a one-year period
of probation with forty days condition time.
Araujo now appeals the imposition of condition time, claiming that the
trial court impermissibly considered the allegations that formed the basis for
a portion of Heilert's civil lawsuit.
Sentencing is left to
the discretion of the trial court, and our review is limited to determining
whether the trial court has misused its discretion. State v. Roubik, 137 Wis.2d 301, 310, 404 N.W.2d
105, 108 (Ct. App. 1987). There is a
strong public policy against interfering with the trial court's sentencing
discretion; the trial court has a great advantage in considering the relevant
factors. Id. Furthermore, a sentencing court is presumed
to have acted reasonably, and the defendant bears the burden of showing an
unjustifiable basis in the record for the sentence. Id.
A trial court must
consider a variety of factors when imposing sentence. See State v. Paske, 163 Wis.2d 52, 62, 471
N.W.2d 55, 59 (1991). Consideration of
the comments and even “wishes” of a victim is within a sentencing court's
prerogative. State v. Johnson,
158 Wis.2d 458, 465, 463 N.W.2d 352, 356 (Ct. App. 1990). The fact that a victim may not be objective
in the matter is of little import; bias and personal interest should not cause
a victim's comments to be disregarded. See
id. at 465, 463 N.W.2d at 355.
Trial courts are not “rubber stamps”; they accept recommendations only
if they can independently conclude that the recommended sentence is appropriate
in light of the facts of the case. Id.
Our independent review
of the record leads us to conclude that the trial court properly exercised its
discretion in sentencing Araujo. The
trial court considered all of the factors placed before it and concluded that
because Araujo's actions were violent and that he presented a danger to Heilert
on the night in question, the sentence imposed must serve as “a deterrent to
[Araujo] ... to refrain from engaging in these types of actions.” In fashioning the sentence, the court noted
that its dual purpose was to “entice [Araujo] to remain on probation and yet
punish [him] accordingly.”
We conclude that as
outlined in Johnson, the trial court properly fashioned a
sentence which was “appropriate in light of the acknowledged goals of
sentencing as applied to the facts of the case.” Id. The
trial court heard statements that while Araujo was charged with disorderly
conduct, there was some physical contact during the altercation and evidence
from medical professionals that Heilert had been injured as a result. The trial court commented on the “volume” of
information it had received from the victim and specifically inquired as to
whether defense counsel had had an opportunity to review that document.[4] The trial court provided a fair opportunity
for all parties to present any information deemed relevant to sentencing.
In sum, we conclude that
the trial court properly exercised its discretion and sentenced Araujo on the
basis of the aggravated nature of the disorderly conduct charge. The trial court considered multiple factors
and ultimately fashioned a sentence that was based on the nature of the case before
it.
By the Court.—Judgment
affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)4, Stats.
[1] The plea agreement Araujo initialed and signed included the standard language, “I understand that the Judge is not bound to follow any plea agreement or any recommendations made by the attorneys or by myself. I understand that the Judge is free to sentence me to the maximum possible penalties in this case.” The maximum penalty for the disorderly conduct charge was ninety days imprisonment and a fine of $1000. See §§ 947.01 and 939.51(3)(b), Stats.
[3]
The court, however, properly noted the following:
Let me point out that the Court
does not charge people. I don't have
anything to do with the charging. The
District Attorney's Office makes an evaluation and they charge, and then this
Court, if the person is found guilty of that charge, this Court has to sentence
on that charge. ...
So as to sentencing today, I'm faced with a disorderly conduct charge. That's what's before me today.