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COURT OF APPEALS DECISION DATED AND FILED June 21, 2006 Cornelia G. Clark Clerk of Court of Appeals |
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NOTICE |
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This opinion is subject to further editing. If published, the official version will appear in the bound volume of the Official Reports. A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals. See Wis. Stat. 808.10 and Rule 809.62. |
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Appeal No. |
Cir. Ct. No.
2002CF574 |
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STATE OF WISCONSIN |
IN COURT OF APPEALS |
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DISTRICT II |
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State of Wisconsin, Plaintiff-Respondent, v. Jess K. Quinn, Defendant-Appellant. |
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APPEAL from a judgment and an order of the circuit court for Walworth County: ROBERT J. KENNEDY, Judge. Affirmed.
Before Snyder, P.J., Brown and Anderson, JJ.
1 PER CURIAM. Jess K. Quinn has appealed from a judgment convicting him of twenty-five counts of failure to pay child support, and from an order denying his motion for postconviction relief. We affirm the judgment and order.
2 Quinns first argument is that the trial court erroneously sentenced him to consecutive periods of probation. A trial court may not order that a term of probation be consecutive to another term of probation. See State v. Pierce, 117 Wis. 2d 83, 85, 342 N.W.2d 776 (Ct. App. 1983). However, a sentencing court may impose probation consecutive to a sentence. Id. It may also impose a probation term concurrent to a prison sentence. State v. Aytch, 154 Wis. 2d 508, 511-12, 453 N.W.2d 906 (Ct. App. 1990).
3 The trial court did not violate these provisions. It sentenced Quinn to consecutive one-year prison terms for the first four counts. It withheld sentence on counts thirteen through fifteen, and placed Quinn on ten years of probation for those counts, concurrent to the prison terms for counts one through four. It withheld sentence on the remaining counts, five through twelve and sixteen through twenty-five. It placed Quinn on ten years of probation for these counts, consecutive to the prison terms for counts one through four.
4 The prison sentences are the anchor for the sentencing structure. All terms of probation are either concurrent to the prison sentences, or consecutive to them. Because a trial court may impose probation concurrent or consecutive to a prison sentence, no basis exists to disturb the terms of probation ordered in this case.
5 Quinns next argument is that the trial court erroneously exercised its sentencing discretion by imposing a sentence designed to punish him for uncharged crimes of tax evasion and sexual misconduct with a child. We conclude that the trial court acted within the scope of its sentencing discretion.
6 Sentencing is left to the discretion of the trial court and appellate review is limited to determining whether there was an erroneous exercise of discretion. State v. Gallion, 2004 WI 42, 17, 270 Wis. 2d 535, 678 N.W.2d 197. When the trial court has properly exercised its discretion, we follow a consistent and strong policy against interference with the discretion of the trial court, and we afford a strong presumption of reasonability to the courts sentencing determination because the court is best suited to consider the relevant factors and demeanor of the convicted defendant. State v. Ziegler, 2006 WI App 49, 22, __ Wis. 2d __, 712 N.W.2d 76, review denied, 2006 WI 39, __ Wis. 2d __, __N.W.2d __.
7 The principal objectives when imposing sentence include, but are not limited to, protection of the community, punishment of the defendant, rehabilitation of the defendant, and deterrence of others. Id., 23. The primary sentencing factors that a trial court must consider are the gravity of the offense, the character of the defendant, and the need to protect the public. Id. Other factors that may be relevant to sentencing include, but are not limited to, the defendants past criminal record and history of undesirable behavior patterns; his [or her] personality, character and social traits; the presentence investigation report; the defendants culpability for the crime and its vicious or aggravated nature; the defendants demeanor, age, educational background and employment record; the defendants remorse, repentance and cooperativeness; the rights of the public; and the defendants need for close rehabilitative control. Id.
8 In evaluating a defendants character, a trial court may consider uncharged or unproven offenses as evidence of a pattern of behavior and character. Elias v. State, 93 Wis. 2d 278, 284, 286 N.W.2d 559 (1980). Quinn acknowledges that the trial court was entitled to consider his failure to pay taxes and the allegations against him concerning underage females as they relate to his character and the protection of the public. However, he contends that the trial court exceeded the scope of its authority and sentenced him for the uncharged crimes.
9 Based upon our review of the trial courts sentencing decision, we reject Quinns argument. The trial court gave a detailed and lengthy explanation of its sentencing decision, discussing the primary sentencing factors and the secondary factors relevant to the primary factors. It considered Quinns positive attributes, including his employment history, intelligence, positive demeanor, and lack of prior criminal convictions. However, it also considered Quinns culpability for his lengthy failure to support his child, the seriousness of failure to support, and the effect of the crimes on the child, the childs mother, and society. It concluded that close rehabilitative control was necessary to change Quinns attitude toward his responsibility for paying support. Based upon these factors, it concluded that incarceration and lengthy probation were required.
10 Contrary to Quinns contention, in its sentencing decision the trial court did not dwell on Quinns admitted failure to pay taxes and his inappropriate contact or correspondence with two early- or pre-adolescent girls. The trial court indicated that it was not its role to sentence Quinn for these activities, or to protect the public from his failure to pay taxes. It limited its consideration of these activities to its assessment of Quinns ability to pay support, and his character and social traits, concluding that the activities evinced a willingness to violate the law. The trial courts conclusions were reasonable, and were properly considered by it in determining Quinns sentence. No basis therefore exists to disturb its sentencing decision.
11 Quinns final argument is that he is entitled to a new trial because his claim of inaccuracies or omissions in the trial transcript constitutes a colorable claim of prejudicial error. In support of this argument, Quinn relies on his postconviction affidavit and testimony, alleging that the transcript of the August 4, 2003 hearing on a pretrial motion in limine does not accurately reflect the trial courts statements and his response. Based on his testimony that the transcript is inaccurate, Quinn contends that he is entitled to a new trial under State v. DeLeon, 127 Wis. 2d 74, 377 N.W.2d 635 (Ct. App. 1985).
12 Quinns reliance on DeLeon is misplaced. In DeLeon, 127 Wis. 2d at 76, trial court proceedings were recorded, but the reporters notes for a portion of the proceedings were lost. In contrast, the court reporters notes are not lost or missing in this case. Quinn merely contends that the court reporter did not accurately transcribe what transpired at the August 4, 2003 proceeding.
13 At the postconviction hearing, Quinn testified concerning his version of what was said at the August 4, 2003 proceeding. The court reporter who recorded the August 4, 2003 proceeding also testified. She testified that the transcript was typed from her notes, and that her notes comprise a verbatim account of what was stated in court. She testified that the transcript reflected what was said in the courtroom, and that her notes do not support Quinns claim that something different was said.[1]
14 The trial court denied Quinns motion, finding that there was nothing missing from the record and that no basis existed to believe that the transcript was inaccurate. The trial court thus implicitly believed the testimony of the court reporter who recorded the August 4, 2003 proceeding rather than the testimony of Quinn.
15 The determination of the credibility of the witnesses at the postconviction hearing was for the trial court. See State v. Kimbrough, 2001 WI App 138, 29, 246 Wis. 2d 648, 630 N.W.2d 752. A trial courts factual findings will not be disturbed unless they are clearly erroneous. Noll v. Dimicelis, Inc. 115 Wis. 2d 641, 643, 340 N.W.2d 575 (Ct. App. 1983). Because the court reporters testimony supports the trial courts finding that the August 4, 2003 transcript was accurate, no basis exists to disturb the trial courts order denying postconviction relief.[2]
By the Court. Judgment and order affirmed.
This
opinion will not be published. See
Wis. Stat. Rule 809.23(1)(b)5.
(2003-04). 