COURT OF APPEALS DECISION DATED AND FILED May 6, 2008 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 judgments and an order of the circuit court for
Before
¶1 FINE, J.
I.
¶2 Kuykendoll was arrested on
¶3 Kuykendoll pled guilty to burglary, and on
II.
A. Sentencing Discretion.
¶4 Kuykendoll claims that the circuit court erroneously exercised its sentencing discretion because it did not: (1) explain why his sentence was the minimum necessary to promote the objectives of sentencing; or (2) adequately consider what he alleges are mitigating sentencing factors, including: the burglary was not “aggravated”; he claims to have cooperated with the police; he says he showed remorse and accepted responsibility; he asserts that he had a “positive attitude” and wanted to obey the law in the future; and he had been employed.
¶5 Sentencing is within the discretion of the circuit court, and
our review is limited to determining whether the circuit court erroneously
exercised that discretion. McCleary
v. State, 49
¶6 The three primary factors a sentencing court must consider
are the gravity of the offense, the character of the defendant, and the need to
protect the public. State v.
“(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.”
¶7 The circuit court considered the appropriate factors when it sentenced Kuykendoll. It described the burglary as a serious offense that affected not only the owner of the daycare, but the people who lived and worked in the neighborhood because “they know the burglary occurred, and they’re fearful that their own businesses or homes would be burglarized.”
¶8 The circuit court also considered Kuykendoll’s character. It noted that Kuykendoll had a “long substantial prior criminal record that dates back to 1989.” It also commented that Kuykendoll’s parole or probation had been revoked many times, and that Kuykendoll had been given many chances:
You were given opportunities at treatment. You refused to go to the Rescue Mission and wanted
to participate in the Salvation Army.
You were at the
So
throughout this entire period of time, you’ve had treatment opportunities. You’ve been supervised. You’ve been in prison. You’ve been at the House of Corrections. You’ve been involved in programming at Winnebago,
at the [
The circuit court also observed that Kuykendoll stole from someone who was trying to help him; had a “strong substance abuse problem”; had many aliases, “reflecting somebody who’s involved in substantial criminal conduct”; and fought with the arresting police officer.
¶9 Finally, the circuit court found that there was a “strong
need” to protect the public. It
concluded that a prison sentence was warranted under all of the factors and
circumstances of Kuykendoll’s case:
“[U]nfortunately, … you can’t be supervised in the community; that to
not incarcerate you would unduly depreciate the seriousness of the offense[]; …
you have rehabilitative needs that have to be addressed in a structured,
confined setting.” The circuit court
fully explained Kuykendoll’s sentence and the reasons for it. See State v. Taylor, 2006 WI 22, ¶30,
289
B. Eligibility for Challenge Incarceration and Earned
Release Programs.
¶10 A circuit court’s determination of whether a defendant is eligible for the Challenge Incarceration or Earned Release Program involves: (1) a threshold determination of whether the defendant is statutorily eligible under Wis. Stat. §§ 302.045(2) or 302.05(3)(a), and then, (2) an exercise of discretion showing the circuit court’s reasons for its decision on a defendant’s ultimate eligibility. See Wis. Stat. § 973.01(3g), (3m); State v. Steele, 2001 WI App 160, ¶8, 246 Wis. 2d 744, 749, 632 N.W.2d 112, 115.
¶11 Here, the circuit court determined that: “Considering all of the factors and circumstances, the Court’s going to find the defendant is not eligible for the Challenge Incarceration [P]rogram, nor is he eligible for the Earned Release [P]rogram.” Neither party disputes that Kuykendoll was statutorily eligible for the programs. Rather, the nub of Kuykendoll’s argument is that the circuit court erroneously exercised its discretion because it did not explain its reasons for finding him ineligible. We disagree.
¶12 While a circuit court must state whether the defendant is
eligible or ineligible for the Challenge Incarceration and Earned Release
Programs, it is not required to make “completely separate findings” as long as
“the overall sentencing rationale also justifies” its eligibility
determination. State v.
C. Allegedly Inaccurate and Incomplete Information.
¶13 A defendant claiming that a sentencing court relied on
inaccurate information must show that:
(1) the information was inaccurate; and (2) the sentencing court
actually relied on the inaccurate information.
State v. Tiepelman, 2006 WI 66, ¶26, 291
¶14 Kuykendoll contends that the circuit court erroneously
concluded that he did not have a high school equivalency diploma when it
ordered him to “obtain [his] G[eneral] E[ducational Development] D[iploma] or H[igh]
S[chool] E[quivalency] D[iploma]” as a condition of extended supervision, even
though the sentencing guidelines worksheet for Kuykendoll shows that he had a
general educational development diploma or high school equivalency diploma. Significantly, the circuit court did not reference
Kuykendoll’s educational status as part of its sentencing rationale, and,
although the circuit court evidently missed the worksheet’s reference to Kuykendoll’s
equivalency educational attainments, Kuykendoll does not explain how or why
this de minimis oversight negated the
accuracy of the circuit court’s actual sentencing analysis. See State
v. Allen, 2004 WI 106, ¶22, 274
¶15 Kuykendoll also claims that the circuit court had an inaccurate impression of his character and rehabilitative needs because it did not have his medical records or full treatment history. He also contends that the presentence investigation report was incomplete because it did not contain “a health history drawn from [his] medical records.” In support, Kuykendoll points to: (1) medical records primarily from 2005 and 2006 submitted with his postconviction motion showing that he suffered from, among other things, depression, polysubstance abuse, anxiety, a hernia, and kidney stones; and (2) a letter from the director of the Milwaukee Rescue Mission, also submitted with his postconviction motion, stating that while Kuykendoll was dismissed from its discipleship/recovery program in 2005 because he had legal and medical issues, he could return to the program if he wanted to. Kuykendoll argues that, had the circuit court been aware of these issues, “it would not have thought that he rejected programs or needed to be confined to participate.” We disagree.
¶16 First, a defendant claiming that a sentencing court erred in not considering matters material to a fair and just sentence must either show that the matters are new, or, if not new, that his or her trial lawyer gave him ineffective assistance of counsel by not bringing those matters to the sentencing court’s attention.
Whether facts constitute a new factor is a question of law we review de novo. A new factor is a fact or set of facts highly relevant to the imposition of sentence, but not known to the trial court at the time of original sentencing, either because it was not then in existence or because it was unknowingly overlooked by the parties. The new factor not only must be previously unknown, but it must also strike at the very purpose of the original sentence.
State v. Slagoski, 2001
WI App 112, ¶10, 244
¶17 Second, Kuykendoll does not show how his medical history would have affected the circuit court’s sentencing analysis given what the circuit court noted was his substantial history of unsuccessful treatment. As the circuit court succinctly explained in its written decision and order denying Kuykendoll’s postconviction motion, “the fact that [Kuykendoll] had medical problems in 2005 and 2006 does not sufficiently address his inability to conform his conduct … over the course of more than ten years.” Moreover, the circuit court’s decision to confine Kuykendoll was not based solely on Kuykendoll’s treatment needs. As noted, the circuit court explained that confinement was necessary due to the seriousness of the crime, Kuykendoll’s extensive criminal history, and the need to protect the public.
¶18 Finally, Kuykendoll argues that the presentence report was incomplete because it did not have a statement from the victim. Although the presentence report indicates that its writer was unable to contact the owner of the daycare center, the owner submitted to the sentencing court a letter on behalf of Kuykendoll asking for leniency. Kuykendoll does not show how an additional statement from the owner of the daycare center would have added anything to the circuit court’s sentencing analysis. The circuit court did not erroneously exercise its discretion in denying Kuykendoll’s sentence-modification motion.[1]
D. Sentence Credit.
¶19 At the sentencing hearing, the circuit court awarded 185 days of sentence credit to Kuykendoll. In its decision and order denying Kuykendoll’s postconviction motion, the circuit court sua sponte reduced Kuykendoll’s sentence credit from 185 days to 130 days, and amended the judgment of conviction:
[Kuykendoll] was sentenced by the court on
In a footnote, the circuit court explained:
The defendant received 185 days of sentence credit for
the period
Kuykendoll does
not challenge these factual findings. Accordingly,
our review is de novo. See State v. Lange, 2003 WI App 2, ¶41,
259
¶20 Kuykendoll contends that he is entitled to the fifty-five days
of sentence credit from May 21, 2006, to July 14, 2006, under Wis. Stat. § 973.155(1)(a).[2] To receive sentence credit under §
973.155(1)(a), a defendant must establish that:
(1) he or she was in custody; and (2) the custody was in connection
with the course of conduct for which the sentence was imposed.
¶21 It is undisputed that Kuykendoll was in custody from
¶22 Kuykendoll also claims that the reduction in his sentence
credit violated his double-jeopardy rights.
See
By the Court.—Judgment, amended judgment, and order affirmed.
Publication in the official reports is not recommended.
[1]
Kuykendoll also claims that the circuit court had incorrect and incomplete
information “concerning … his reaction to the police at the time of his
arrest.” This claim is conclusory and
undeveloped. Kuykendoll does not explain
what the allegedly incorrect or missing information was or how it would have
affected the circuit court’s sentencing analysis. Accordingly, we decline to address this
issue. See Barakat v. Department of Health & Soc. Servs., 191
[2]
(1) (a) A convicted offender shall be given credit toward the service of his or her sentence for all days spent in custody in connection with the course of conduct for which sentence was imposed. As used in this subsection, “actual days spent in custody” includes, without limitation by enumeration, confinement related to an offense for which the offender is ultimately sentenced, or for any other sentence arising out of the same course of conduct, which occurs:
1.
While the offender is awaiting trial;
2. While the offender is being tried; and
3. While the offender is awaiting imposition of sentence after trial.
(b) The categories in par. (a) and sub. (1m) include custody of the convicted offender which is in whole or in part the result of a probation, extended supervision or parole hold under s. 302.113 (8m), 302.114 (8m), 304.06 (3), or 973.10 (2) placed upon the person for the same course of conduct as that resulting in the new conviction.