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COURT OF APPEALS DECISION DATED AND FILED July 11, 2006 Cornelia G. Clark Clerk of Court of Appeals |
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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 from an order of the circuit court for Milwaukee County:� Daniel L. Konkol, Judge.� Affirmed.�
����������� Before Wedemeyer, P.J., Fine and Kessler, JJ.
�1����������������������� PER CURIAM. Carmen L. Harrell appeals from an order following our remand, again denying his sentence modification motion.� The issues are whether the trial court erroneously exercised its discretion:� (1) by deciding that the new(ly declared) factor did not frustrate the sentencing court�s original intent; and (2) by considering Truth-in-Sentencing for offenses preceding its applicability.� We conclude that the trial court properly exercised its discretion when it:� (1) explained that the unforeseen consequences of imposing a lengthy sentence�postponing prompt drug treatment�did not frustrate its original sentencing intent; and (2) mentioned Truth-in-Sentencing in its remarks.� Therefore, we affirm.
�2����������������������� Our remand order provides much of the background for this appeal.� See State v. Harrell, No. 01-2064-CR, unpublished slip op. (WI App Sept. 27, 2002). ��Harrell pled guilty to five counts of robbery with the use of force, contrary to Wis. Stat. � 943.32(1)(a) (1997-98).� The trial court imposed four, ten-year consecutive sentences, and a five-year consecutive sentence.�� Id., unpublished slip op. at 2.� It imposed �a lengthy prison sentence to facilitate its dual objectives of rehabilitation and community protection.�� Id., unpublished slip op. at 4.�
�3����������������������� �Harrell moved for sentence modification, contending that the lengthy sentence frustrated rather than facilitated his treatment while in prison.�� Id., unpublished slip op. at 3.� We summarily reversed the trial court�s order denying sentence modification, holding that the unforeseen consequences of Harrell�s lengthy sentence �actually postponed rather than facilitated his prompt drug treatment,� and thus, constituted a new factor.� See id., unpublished slip op. at 4.� We also remanded for the trial court to exercise its discretion in the context of our new factor ruling, to determine whether the �misperceived ramifications of the sentence it imposed,� frustrated its original sentencing intent.� See id., unpublished slip op. at 4-5.�
�4����������� We do not reiterate the standards for sentence modification since we previously explained why Harrell had established a new sentencing factor.� We focus on the standard relevant to our remand:� whether the new factor �frustrate[d] the sentencing court�s original intent.�� Harrell, unpublished slip op. at 4 (quoting State v. Toliver, 187 Wis. 2d 346, 362, 523 N.W.2d 113 (Ct. App. 1994)).� Once the �defendant has demonstrated the existence of a new factor, then the [trial] court must undertake the second step in the modification process and determine whether the new factor justifies modification of the sentence.�� State v. Franklin, 148 Wis. 2d 1, 8, 434 N.W.2d 609 (1989).� �The trial court then must determine whether there is �a nexus between the new factor and the sentence, i.e., the new factor must operate to frustrate the sentencing court�s original intent when imposing sentence.��� Harrell, unpublished slip op. at 4 (quoting Toliver, 187 Wis. 2d at 362).�
�5����������� �This court reviews that determination for an erroneous exercise of discretion.�� Harrell, unpublished slip op. at 4 (citing Franklin, 148 Wis. 2d at 8).� A proper exercise of discretion �contemplates a process of reasoning� in which the trial court reaches a reasoned and reasonable conclusion.� McCleary v. State, 49 Wis. 2d 263, 277, 182 N.W.2d 512 (1971).� The fact that the trial court exercised its discretion differently than Harrell hoped, however, does not constitute an erroneous exercise.� See Hartung v. Hartung, 102 Wis. 2d 58, 66, 306 N.W.2d 16 (1981) (our inquiry is whether discretion was exercised, not whether it could have been exercised differently).�
�6����������������������� On remand, the trial court clarified its original remarks to explain why the unforeseen circumstances (our newly declared factor) did not frustrate its original sentencing intent.� The trial court explained that while it sent Harrell to prison for drug treatment, �[t]he major component that [the trial court] � looked at was also the need for community protection.�� The trial court clarified that the unavailability of prompt drug treatment did not �undermine[] what [it] was trying to do [or] in any way frustrate[] [the trial court�s] original intent in imposing the sentence.��
�7����������������������� We directed the trial court on remand, to exercise its discretion to determine whether the unforeseen circumstances (that a lengthy sentence postponed rather than facilitated prompt drug treatment) frustrated its original sentencing intent.� See Harrell unpublished slip op. at 4-5.� The trial court considered the issue as directed, and exercised its discretion in doing so.
�8����������������������� Harrell also contends that the trial court improperly considered Truth-in-Sentencing, despite its inapplicability to his sentence.� Truth-in-Sentencing became effective for offenses committed after December 31, 1999, and required imposition of determinate sentences.� See 1997 Wis. Act 283.� Prior to that time, an inmate became eligible for parole after serving part of the then-imposed indeterminate sentence.� See Wis. Stat. � 304.06(1)(b) (1999-2000).�
�9����������������������� Harrell�s offenses occurred before the advent of Truth-in-Sentencing, and the trial court properly imposed an indeterminate sentence.� On remand, the trial court explained why it was again denying Harrell�s sentence modification motion.� In doing so, it
emphasized that at the time of doing [Harrell�s] sentence [the trial court] was doing sentencings for [T]ruth[-]in[-S]entencing� cases that had no possibility of parole in which [the trial court] could give a definite determined sentence, that [it] knew exactly how long somebody [wa]s going to stay in the prison.� And [the trial court] was also doing cases like this that are indeterminate sentenc[es] where frankly [the trial court was] not sure what portion the defendant [wa]s going to serve [in prison].�
�10����������������������� The trial court did not improperly apply Truth-in-Sentencing to Harrell.� It explained that it was imposing determinate and indeterminate sentences depending on the date of the offense.� In Harrell�s circumstance, it was imposing an indeterminate sentence.� Thus, Harrell would be eligible for parole at some juncture when his rehabilitative progress or concerns could be addressed.� Reviewing the trial court�s remarks in their entirety demonstrates that Harrell�s criticism that the trial court erroneously considered Truth-in-Sentencing when it imposed his sentence is unfounded.
����������������������� By the Court.�Order affirmed.
����������������������� This opinion will not be published.� See Wis. Stat. Rule 809.23(1)(b)5 (2003-04).������