COURT OF APPEALS DECISION DATED AND FILED December 11, 2007 David R. Schanker 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 No. |
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STATE OF WISCONSIN |
IN COURT OF APPEALS |
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DISTRICT I |
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State of Plaintiff-Respondent, v. Verdale D. Armstrong, Defendant-Appellant. |
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APPEAL
from a judgment and an order of the circuit court for
Before Fine, Wedemeyer and Kessler, JJ.
¶1 PER CURIAM. Verdale D. Armstrong appeals from a judgment of conviction and from an order denying his motion for sentence modification. He claims that the circuit court erroneously exercised its sentencing discretion. We reject his contentions and affirm.
Background
¶2 Armstrong pled no-contest to one count of endangering safety by use of a dangerous weapon as party to a crime. See Wis. Stat. §§ 941.20(2)(a), 939.05 (2005–06).[1] Evidence at the preliminary hearing included Armstrong’s confession that he fired a 9-millimeter pistol into a residential building. At sentencing and in his postconviction filings, Armstrong described the incident as retaliation for an earlier shooting into his own home by, among others, Kenneth Burns.
¶3 Burns, like Armstrong, was convicted of endangering safety by use of a dangerous weapon. By the time of Armstrong’s sentencing, the circuit court had sentenced Burns to one year in the House of Corrections, stayed that sentence and placed Burns on probation for three years, with six months of confinement as a condition.[2]
¶4 Armstrong sought a disposition similar to Burns’s during his
own sentencing before a different branch of the Milwaukee County Circuit Court.[3] Armstrong argued that both he and Burns were
young men without prior records
who committed related offenses and who should receive comparable
punishments. Armstrong asked the court
to impose and stay a prison sentence of unspecified length and to place him on
probation; to impose some period of confinement as a condition of probation in
the event that the court felt incarceration necessary; and to permit release
privileges during any probation confinement. The State, by contrast,
recommended a thirty-six month term of imprisonment.
¶5 The circuit court adopted neither party’s recommendation in full. It sentenced Armstrong to a four-year term of imprisonment, bifurcated as two years of initial confinement and two years of extended supervision. The court stayed the sentence and placed Armstrong on probation for a three-year term with various conditions, including five months of probation confinement without release privileges.
¶6 Armstrong moved for postconviction relief, asserting that the sentence imposed was unduly harsh and excessive, and that the circuit court erroneously exercised its sentencing discretion. He claimed that the court: (1) relied on inaccurate information by concluding that Armstrong had not fully accepted responsibility for the offense; (2) failed to properly consider and weigh relevant factors; (3) failed to explain its denial of release privileges during probation confinement; and (4) failed to explain the disparity between Armstrong’s and Burns’s sentences. The court denied the motion and this appeal followed.[4]
Analysis
¶7 We begin with Armstrong’s contention that the circuit court relied on inaccurate information when it found that “there really has not been an acceptance of responsibility with regard to this [offense].” Armstrong points to his in-court apology, his expressions of remorse, and his custodial confession as proof that he accepted responsibility and that the circuit court erred in finding otherwise.
¶8 A defendant has a due process right to be sentenced upon
accurate information. State
v. Tiepelman, 2006 WI 66, ¶9, 291
¶9 During the
sentencing proceeding, Armstrong denied the core component of the charge
against him, namely, shooting a gun into a building. While he admitted to being at the scene and
breaking a window, he told the court, “I ain’t shoot though.” He further attempted to distance himself from
the events by telling the court that “it was all [the co-defendant’s]
drama. I didn’t know nothing about
it.” The circuit court drew a reasonable
conclusion in finding that Armstrong had not fully accepted responsibility.
¶10 We next address Armstrong’s claims that the court failed to give due consideration to relevant sentencing factors and that it inadequately explained its sentencing rationale. We are not persuaded.
¶11 This court will uphold a sentence unless the circuit court
erroneously exercised its discretion. State
v. Gallion, 2004 WI 42, ¶17, 270
¶12 “Circuit courts are required to specify the objectives of the
sentence on the record. These objectives
include, but are not limited to, the protection of the community, punishment of
the defendant, rehabilitation of the defendant, and deterrence to others.”
¶13 “The primary [sentencing] factors are the gravity of the
offense, the character of the offender, and the need for protection of the
public.” State v. Larsen, 141
¶14 Here, the
circuit court emphasized the gravity of the offense and the need to protect the
public. It pointed out that while no one
was injured during the offense, the gunfire could have ended with a murder. The court described the community as
“besieged” by such incidents and stated that the behavior was “simply
unacceptable.”
¶15 We reject
Armstrong’s claim that the circuit court failed to give meaningful
consideration to his character. On the
contrary, the court expressed concern about “a certain nonchalance” and “a
certain cavalier approach to this ….
[Y]ou shot up my house, I think I’ll just go shoot up their [sic] house.” At the same time, the court recognized as
positive that Armstrong had finished high school and enrolled in a
post-secondary education program. The
court considered additional mitigating factors as well, including Armstrong’s
lack of a prior record, his relative youth, and his support from family,
school, and church.
¶16 The court
prioritized its sentencing objectives.
It identified deterrence as a matter of particular importance, stating
that it “want[ed] to send a message that your kind of behavior is simply not
acceptable period.” It further stated
that “there is a punishment component to this.”
We reject as meritless Armstrong’s contention that the circuit court
erroneously exercised its discretion because it did not explain exactly why its
objectives warranted a sentence that differed from both parties’
recommendations. The court is not
required to provide such an explanation.
State v. Johnson, 158
¶17 Armstrong asserts that the circuit court’s sentencing remarks
inadequately explained its denial of release privileges during probation
confinement. We observe that the court
had the opportunity to clarify its sentence further in its postconviction
order.
¶18 In sum, the court discussed appropriate factors and then
fashioned a sentence to meet its objectives of deterrence and punishment while
imposing the least amount of confinement consistent with the factors
enumerated. Armstrong complains that the
court’s explanation for its sentence was insufficiently precise, but defendants
are not entitled to a mathematical analysis of how each factor considered by
the court resulted in a specific term of confinement. See State
v. Fisher, 2005 WI App 175, ¶¶21–22, 285
¶19 We next consider
whether the circuit court erroneously exercised its discretion when it imposed
a harsher penalty on Armstrong than a different branch of the circuit court
imposed on Burns. We hold that it did
not. Mere differences in sentences, even
between co-defendants, will not support a finding of undue disparity. State v. Perez, 170
¶20 Moreover, the
record reflects that Burns and Armstrong were differently situated. First, Burns was a juvenile, barely seventeen
at the time he was charged, while Armstrong was an adult. Second, the court observed that Burns’s
actions posed a lesser threat of fatal injury than Armstrong’s because Burns
used buckshot while Armstrong discharged a 9-millimeter pistol. Third, the court noted with concern that
Armstrong’s offense involved retaliation.
A court’s conclusion that vigilantism heightened the danger of the
offender and the offense may justify a harsher sentence than that imposed on an
otherwise similarly-situated defendant.
¶21 We turn to
Armstrong’s claim that the circuit court erroneously resolved his
postconviction motion for sentence modification. He contends that he is entitled to sentence
modification because the court based its original sentence on “unjustifiable
factors and [] unjustifiable reasoning” and did not “adhere to established
sentencing principles.” Because we hold
that the court properly exercised its sentencing discretion, we reject these
arguments.
¶22 Armstrong
further contends that the circuit court should have modified the original
sentence because it was unduly harsh or unconscionable. We disagree.
“As long as the trial court considered the proper factors and the
sentence was within the statutory limitations, the sentence will not be
reversed unless it is so excessive as to shock the public conscience.” State v. Owen, 202
¶23 Armstrong faced ten years in prison. See
Wis. Stat. §§ 941.20(2)(a),
939.50(3)(g). The circuit court considered appropriate factors and imposed a four-year prison
term, which it stayed in favor of probation.
This sentence is well within the maximum and is not harsh. See
State
v. Scaccio, 2000 WI App 265, ¶18, 240
By the Court.—Judgment and order affirmed.
This opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)5.
[1] All references to the Wisconsin Statutes are to the 2005–06 version unless otherwise noted.
[2] We have assembled the facts surrounding Burns’s conviction and sentence from various sources in the record, but we note that Burns’s sentencing transcript was not before the circuit court and is not part of the appellate record.
[3] The Honorable David A. Hansher sentenced Burns. The Honorable William W. Brash III sentenced Armstrong.
[4] The
State suggests that Armstrong should not be heard to complain about his
sentence because the circuit court largely imposed the terms he requested. Cf.
State
v. Magnuson, 220