COURT OF APPEALS DECISION DATED AND FILED December 27, 2007 Clerk of Court of Appeals |
|
NOTICE |
|
|
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. |
|
Appeal No. |
|
|||
STATE OF |
IN COURT OF APPEALS |
|||
|
DISTRICT I |
|||
|
|
|||
|
|
|||
State of Plaintiff-Respondent, v. Defendant-Appellant. |
||||
|
|
|||
APPEAL
from a judgment and an order of the circuit court for
Before
¶1 FINE, J.
I.
¶2 Prather was charged with first-degree reckless injury,
conspiracy to commit robbery, and conspiracy to commit burglary for trying to
rob Elsie Wessel. At Prather’s trial, Wessel
testified that a man rang her doorbell, came into her house, and asked if he could
use her telephone. According to Wessel, after
she said no, she hit his arm because she saw him “reach behind.” The man then shot her in the mouth. Wessel told the jury that after the man shot
her, he “stepped back out the front door,” and she called
¶3 A Milwaukee police detective testified that when he interviewed Prather, Prather told him that he and three others planned to rob Wessel because “she was old and she probably had lots of money in her house.” Prather also told the detective that:
Their plan was to go to the lady’s house[. Prather] was the one that was going to knock on the door and the others were going to be lookouts. Once he forced his way inside the victim’s residence, he was suppose [sic] to make the victim lie down on her stomach while he guarded her with the handgun and the others were to look for guns, cash, credit cards and identification.
According to Prather, he and the others went to Wessel’s house to carry out their plan. Prather told the detective that instead of lying down, Wessel hit him and his gun went off.
¶4 Prather was charged with attempted armed robbery for trying
to rob
¶5 Prather admitted to police that he and five others tried to rob Immekus. According to Prather, he pointed a gun at Immekus and told her to put her hands in the air. Prather said that one of the others then told Prather that he saw what looked like a detective’s car, and Prather and the others ran away.
¶6 As we have seen, the jury found Prather guilty. The trial court sentenced Prather to a total of thirty-five years in prison, with an initial confinement of twenty-five years and ten years of extended supervision.
II.
A. Multiplicity.
¶7 Prather claims that the conspiracy to commit robbery and the conspiracy
to commit burglary charges are multiplicitous.
See State v. Davison, 2003 WI 89, ¶32, 263
¶8 We begin with whether the crimes underlying the conspiracy
charges—robbery by threat of force and burglary with intent to steal—are
identical in law and fact. See Wis. Stat. § 939.31 (crime of conspiracy
incorporates elements of underlying crime).
See Lechner, 217
¶9 Under Wis. Stat. § 943.32(1)(b), a person commits robbery by threat of force when he or she “with intent to steal, … threaten[s] the imminent use of force against the person of the owner or of another who is present with intent thereby to compel the owner to acquiesce in the taking or carrying away of the property.”
¶10 Under Wis. Stat. § 943.10(1m)(a) & (2)(a), a person commits burglary with intent to steal when he or she “with intent to steal or commit a felony” “intentionally enters … [a]ny building or dwelling.”
¶11 These crimes do not have an element in common other than the
requisite “intent to steal.” Prather acknowledges
this, but contends that the charges are multiplicitous because they “rely on
the exact same facts.” This argument lacks
merit. “‘It is well settled that a
single transaction can give rise to distinct offenses under separate statutes
without violating the Double Jeopardy Clause.’”
State v.
¶12 Legislative intent is determined by examining the statutory language,
legislative history and context, nature of the proscribed conduct, and
appropriateness of multiple punishment. Lechner,
217
[W]hoever, with intent that a crime be committed, agrees or combines with another for the purpose of committing that crime may, if one or more of the parties to the conspiracy does an act to effect its object, be fined or imprisoned or both not to exceed the maximum provided for the completed crime; except that for a conspiracy to commit a crime for which the penalty is life imprisonment, the actor is guilty of a Class B felony.
Thus, there are three
elements: (1) the defendant intended
that a crime be committed; (2) the defendant was a member of a conspiracy to
commit that crime; and (3) one or more of the conspirators did something to
facilitate that crime. As we stated in
The[] elements [of criminal conspiracy] incorporate each criminal offense that is the criminal object of the conspiracy. This means that when a conspiracy has as its object the commission of multiple crimes, separate charges and convictions for each intended crime are permissible. Thus, § 939.31 expresses the Wisconsin Legislature’s intent to permit multiple punishments.
¶13 Prather argues that Jackson is distinguishable, however,
because the defendant in Jackson was charged with the
“substantially different” crimes of conspiracy to commit arson and conspiracy
to commit murder, while he was charged with crimes that are “near[ly]
identical.”[3] See
id.,
2004 WI App 190, ¶9, 276
B. Sentencing.
¶14 Prather claims that his sentences are harsh and excessive. He contends that the trial court did not
explain the rationale for its sentences or give sufficient consideration to the
primary sentencing factors. See McCleary
v. State, 49
¶15 Sentencing is within the discretion of the trial court, and our
review is limited to determining whether the trial court erroneously exercised
that discretion.
¶16 In addition to the three primary sentencing factors, the trial court may also consider the following factors:
“(1) Past record of criminal offenses; (2) history of undesirable behavior pattern; (3) the defendant’s personality, character and social traits; (4) result of presentence investigation; (5) vicious or aggravated nature of the crime; (6) degree of the defendant’s culpability; (7) defendant’s demeanor at trial; (8) defendant’s age, educational background and employment record; (9) defendant’s remorse, repentance and cooperativeness; (10) defendant’s need for close rehabilitative control; (11) the rights of the public; and (12) the length of pretrial detention.”
State
v. Harris, 119 Wis. 2d 612, 623–624, 350 N.W.2d 633, 639 (1984) (quoted
source omitted); see also State
v. Gallion, 2004 WI 42, ¶¶59–62, 270 Wis. 2d 535, 565–566, 678
N.W.2d 197, 211 (applying the main McCleary factors—the seriousness of
the crime, the defendant’s character, and the need to protect the public—to
Gallion’s sentencing). The weight given
to each of these factors is also within the trial court’s discretion. Ocanas, 70
¶17 The trial court considered the appropriate factors. It considered Prather’s failed plan to steal from Wessel, describing the crimes as “horrible.” It noted that Prather “targeted” Wessel because she was “vulnerable,” and stated that “the most difficult part of this case” was that Prather “went into this lady’s home and shot her in the face ... [a]nd quite remarkably she lived through it.” The trial court also considered the attempt to rob Immekus, finding that Prather was “lucky” because the crime was interrupted when “the police drove by.”
¶18 The trial court also considered Prather’s character, noting that Prather did not have a criminal record and reading a positive letter from one of Prather’s teachers. It considered and rejected probation because it determined that Prather needed to go to prison for both punishment and rehabilitation. It also opined that it hoped Prather’s sentences would deter others because the community needed to be protected:
[W]e have people committing … crimes, many of them young people like Mr. Prather who are committing crimes of unspeakably grave dimensions. We have people who are vulnerable being targeted.
And so I hope that part of what is understood from a sentence like this by everyone who meets Mr. Prather or hears of what happened to him, is that the repercussions, the penalty to be paid for senseless crimes like this where human life is either taken or dealt with, with utter disregard, I mean, that was [the] charge in Count 1, reckless injury, first degree, while armed, acting recklessly and showing utter disregard for human life, the repercussions will be very, very severe.
The trial court fully explained Prather’s sentences and the reasons for them. It acted well within its discretion.
By the Court.—Judgment and order affirmed.
Publication in the official reports is not recommended.
[1]
The Honorable Elsa C. Lamelas presided over
[2] The “elements only” test from Blockburger v. United States, 284 U.S. 299 (1932), was codified under Wis. Stat. § 939.66, which provides, as material:
Conviction of included crime permitted. Upon
prosecution for a crime, the actor may be convicted of either the crime charged
or an included crime, but not both. An
included crime may be any of the following:
(1) A crime which does not require proof of any fact in addition to those which must be proved for the crime charged.
[3]
Prather also claims that State v.