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COURT OF APPEALS
DECISION
DATED AND FILED
May 20, 2008
David R. Schanker
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.
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STATE OF WISCONSIN
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IN COURT OF
APPEALS
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DISTRICT I
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State of Wisconsin,
Plaintiff-Respondent,
v.
Jesse J. Franklin, Jr.,
Defendant-Appellant.
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APPEAL
from a judgment and an order of the circuit court for Milwaukee County: william
sosnay and timothy m. witkowiak,
Judges. Affirmed.
Before Curley, P.J., Wedemeyer and Kessler, JJ.
¶1 CURLEY, P.J. Jesse J. Franklin, Jr.,
appeals from a judgment of conviction and an order denying his postconviction
motion. A jury found Franklin guilty of one count of possession
with intent to deliver tetrahydrocannabinols (THC), contrary to Wis. Stat. § 961.41(1m)(h)2. (eff.
Feb. 1, 2003); one count of possession with intent to deliver cocaine, contrary
to § 961.41(1m)(cm)3. (eff. Feb. 1, 2003); and one count of being a felon
in possession of a firearm, contrary to Wis.
Stat. § 941.29(2)(a) (eff. Feb. 1, 2003).
¶2 On appeal, Franklin
argues that Attorneys Kohn and Smith were ineffective for failing to fully
communicate with him; failing to preserve his speedy trial demand; and failing
to follow through and file a Terry stop motion. He argues that Attorney Toran was ineffective
for failing to investigate and for failing to file a Terry stop motion when Franklin requested him to
do so. In addition, he makes the
following claims: he was denied his
right to a speedy trial; the trial court erred when it concluded that the
police officers had reasonable suspicion for an investigative stop and probable
cause for his arrest; and the trial court erroneously exercised its discretion
in sentencing him. We conclude that Franklin’s trial attorneys
were not ineffective, he was not denied his right to a speedy trial, and the
trial court properly denied his suppression motion. Finally, because the trial court properly
exercised its sentencing discretion, we affirm.
I. Background.
¶3 The underlying facts are that on July 23, 2003, at
approximately 3:30 p.m., two uniformed officers in an unmarked squad car
were patrolling the area near 29th and Clybourn Streets in Milwaukee following
complaints and recent information they had received pertaining to drug dealing
in that area. The officer who was
driving the squad car observed Franklin
standing in the middle of 29th
Street engaged in what appeared to be a drug
transaction. Specifically, the officer
saw Franklin standing near the driver’s side of
a vehicle that was stopped in the middle of the street, and Franklin was reaching his right hand through
the window. The officer acknowledged
that he did not see Franklin
either retrieve or give anything to the driver of the vehicle.
¶4 The officers circled around the block and proceeded to park
on 29th Street. When they pulled up, Franklin was standing at the passenger-side,
front window of a van parked on the street.
The officer testified that Franklin
immediately reached his right hand into the open window and pulled his hand
back quickly. Franklin then stepped backwards putting his
hands up and throwing a set of keys to the ground while saying, “I didn’t do anything,
I didn’t do anything.”
¶5 One of the officers conducted a pat-down search of Franklin, while his
partner looked in the van’s window. His
partner saw a plastic shopping bag on the front passenger seat that contained a
green leafy material he believed was marijuana.
Franklin
was arrested. It was later discovered
that the plastic shopping bag also contained a box of sandwich baggies, a
digital scale, and an off-white chunky substance believed to be cocaine
base. Additionally, following a search
of the van, the officers found a loaded .9-mm semiautomatic pistol in the
console.
¶6 At his preliminary hearing, Franklin’s attorney requested a speedy trial. Afterward, Franklin moved to substitute Attorney Kohn
and his law firm for the attorney who represented him at the preliminary
hearing. The trial court granted his
request. At the hearing on Franklin’s motion for
substitution, the trial court noted that the record reflected that a speedy
trial demand was made, and in response, both Attorney Kohn and the prosecutor
advised the court that they were unaware of the demand. The trial court stated that it was not going
to honor the request, which had been made to the court commissioner who
presided over the preliminary hearing instead of the trial court judge. Notwithstanding, the trial court gave Attorney
Kohn the opportunity to enter a speedy trial demand. Attorney Kohn declined to do so and informed
the court that he believed the motion to suppress physical evidence obtained
from the scene, which had been filed on Franklin’s
behalf, would be dispositive.
¶7 At the subsequent suppression hearing, the trial court
determined that Franklin
lacked standing to challenge the search of the vehicle. Attorney Smith, Franklin’s attorney at the time, then
scheduled a Terry stop motion for the court’s calendar. Two days before the motion was to be heard,
Attorney Smith filed a motion to withdraw as counsel. In his affidavit supporting his withdrawal,
Attorney Smith advised the trial court that his request was made following Franklin’s representations
to the court that counsel was not working in his best interest and following
Attorney Smith’s discovery of a confidential situation creating a conflict of
interest. The trial court granted
Attorney Smith’s request, and Franklin
retained Attorney Toran.
¶8 Attorney Toran pursued the motion challenging the officers’ Terry
stop, however, the hearing did not take place until after several adjournments. The trial court concluded that the officers had
reasonable suspicion to believe that Franklin
had or was about to commit a crime and that the officers had probable cause to
arrest him. Consequently, the trial
court denied Franklin’s
request to suppress the evidence obtained.
¶9 On the day that trial was to begin, the court acknowledged
that Franklin
had filed a motion requesting new counsel, but refused to allow him to obtain
another attorney given the numerous adjournments that had occurred and the fact
that Attorney Toran was his third attorney.
The trial was subsequently adjourned, and on the adjourned trial date, Attorney
Toran requested to withdraw as Franklin’s
attorney. Franklin advised the court that he did not
want Attorney Toran to represent him. The
trial court again denied the request, concluding that what Franklin “[was]
really asking for is additional time and that’s really what has been going on
here, and this Court, based upon the number of adjournments and the record …
doesn’t feel that a further adjournment is warranted here.” The jury trial commenced, and Franklin was subsequently
found guilty of all the charges against him.
¶10 At the sentencing hearing, the trial court concluded that
probation was not appropriate based on the serious nature of the offenses and Franklin’s prior record. As a result, it sentenced Franklin to the
following: four years of imprisonment on
count one, possession with intent to deliver THC, comprised of two years of
initial confinement and two years of extended supervision; eight years of
imprisonment on count two, possession with intent to deliver cocaine, comprised
of three years of initial confinement and five years of extended supervision,
to run consecutive to the sentence on count one; and three-and-one-half years
of imprisonment on count three, felon in possession of a firearm, comprised of eighteen
months of initial confinement and two years of extended supervision, to run
consecutive to the sentence on count two.
¶11 Franklin filed a motion for postconviction relief requesting a Machner
hearing to determine if his trial attorneys were ineffective; asking that the
trial court examine whether his right to a speedy trial was denied; and seeking sentence
modification. In its decision and order denying Franklin’s postconviction motion, the court concluded that
Franklin’s
allegations of ineffective assistance on the part of his trial attorneys were
“conclusory and insufficient to warrant a Machner hearing.” The court also held that Franklin “[could] not assert that he was
denied his constitutional right to a speedy trial when the delays were
occasioned almost entirely by the defense.”
Lastly, the court determined that the trial court properly exercised its
discretion in sentencing Franklin
such that modification of his sentence was not warranted. Franklin
now appeals. Additional facts are
provided in the remainder of this opinion as needed.
II. Analysis.
A. Franklin’s trial attorneys
were not ineffective.
¶12 Franklin
claims that three of his trial attorneys were ineffective. In order to substantiate his claim, he must
make two showings: (1) that counsel’s
performance was deficient; and (2) that this deficient performance prejudiced
his defense. Strickland v. Washington,
466 U.S.
668, 687 (1984). “Although we give
deference to the trial court’s findings of historical fact, whether the facts
found by the trial court show that the lawyer’s performance was deficient and,
if so, whether the deficient performance was prejudicial, are legal issues that
we decide independent of the trial court’s determination.” State v. Flynn, 190 Wis. 2d 31, 47, 527 N.W.2d 343 (Ct. App. 1994), cert. denied, 514 U.S. 1030 (1995).
¶13 “An attorney’s performance is not deficient unless it is shown
that, ‘in light of all the circumstances, the identified acts or omissions were
outside the wide range of professionally competent assistance.’” State v. Guck, 170 Wis. 2d 661, 669, 490 N.W.2d 34 (Ct. App. 1992) (citation omitted). To establish prejudice, “[t]he defendant must
show that there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability
sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at
694. We need not address both of these factors
if Franklin
insufficiently demonstrates one. See id.
at 697 (holding that “there is no reason for a court deciding an ineffective
assistance claim … to address both components of the inquiry if the defendant
makes an insufficient showing on one”).
¶14 First, Franklin
argues that Attorneys Kohn and Smith were ineffective for failing to
communicate with him and for not preserving his speedy trial demand. As the State points out, it is not clear what
information Franklin believes was not
communicated to him, and because Franklin
did not submit a reply brief, he provides no insight or clarification on this
point. Thus, he falls short of
establishing that his attorneys’ conduct was “‘outside the wide range of professionally
competent assistance’” in this regard. Guck,
170 Wis. 2d
at 669 (citation omitted). As for his
attorneys’ decision to pursue a suppression motion, which potentially would
have been dispositive of Franklin’s case, in lieu of a speedy trial demand,
tactical decisions regarding trial strategy are entrusted to the attorney. See State v. Ambuehl, 145 Wis. 2d 343,
351, 425 N.W.2d 649 (Ct. App. 1988) (explaining that this court “‘must indulge
a strong presumption that counsel’s conduct falls within the wide range of
reasonable professional [legal] assistance’” which could be considered sound
trial strategy) (quoting Strickland, 466 U.S. at 689). We cannot conclude that this performance was
deficient.
¶15 Franklin next argues the
Attorneys Kohn and Smith were ineffective for failing to follow through with a Terry
stop motion after it was clear, following the suppression hearing, that
Franklin did
not have standing. The record reflects
that a stop motion was calendared while Franklin
was represented by Attorneys Kohn and Smith.
Two days before the motion was to be heard, Attorney Smith filed a
motion requesting that his firm be allowed to withdraw as counsel. On the date the stop motion was to take place,
Attorney Smith advised the court that Franklin
had taken action that created what Attorney Smith believed to be “an absolute
conflict.” The trial court inquired
whether there would be a problem if it conducted the stop motion and then allowed
Attorney Smith to withdraw. Attorney
Smith concluded that proceeding in such a fashion would be problematic, and, as
a result, the trial court allowed him to withdraw before it would hear the
motion. Based on this sequence of events,
we likewise cannot conclude that Attorneys Kohn and Smith were ineffective for
failing to go ahead with the Terry stop motion.
¶16 Franklin faults Attorney Toran
for failing to investigate and for failing to file a Terry stop motion when Franklin requested him to
do so. He asserts that the delay in time
before he was able to have the stop motion hearing made it difficult for him to
find witnesses and discover other evidence.
Franklin
does not elaborate or provide any details as to who the witnesses were or what
the other evidence he references would have been. “‘[A] defendant who alleges a failure to
investigate on the part of his counsel must allege with specificity what the
investigation would have revealed and how it would have altered the outcome of
the [hearing].’” Flynn, 190 Wis. 2d at 48 (citation
omitted). Franklin has failed to meet his burden in
this regard as it is unclear what further investigation would have uncovered or
how the outcome would have differed.
¶17 Moreover, Franklin
has not established prejudice by showing a reasonable probability that but for
his allegations of errors made by trial counsel “the result of the proceeding
would have been different.” See Strickland,
466 U.S. at 694; see also State v. Wirts, 176 Wis. 2d 174, 187, 500
N.W.2d 317 (Ct. App. 1993) (“A criminal defendant who claims ineffective
assistance of counsel cannot ask the reviewing court to speculate whether
counsel’s deficient performance resulted in prejudice to the defendant’s
defense. The defendant must
affirmatively prove prejudice.”). Because
Franklin has
failed to show that his trial attorneys’ performance was deficient and that he was
prejudiced, we conclude he was not denied the effective assistance of counsel.
B. Franklin’s right to a speedy
trial was not violated.
¶18 Franklin
contends he was denied his right to a speedy trial. He offers a chronology of the case and references
eight delays and adjournments:
(1) “The original
delay was due to the court and trial counsel for failing to recognize the
original demand for a speedy trial.”
(2) “The second delay
was caused by ineffective trial counsel when he requested an adjournment without
speaking with Mr. Franklin.”
(3) “The third delay
was again caused by ineffective trial counsel when he determined he would
withdraw and not follow through with filing any motion that would expedite the
case.”
(4) “The fourth delay
can be attributed to both the defense and the [S]tate,” because it was the
result of newly discovered evidence brought forth by the State, which defense
counsel needed time to review.
(5) “The fifth delay
… could be attributed to defense counsel, as he had another case and that case
had to be addressed first.”
(6) “The sixth delay
can also be attributed to defense counsel and defense counsel only.”
(7) The seventh
delay, Franklin
contends, can be attributed to the State due to the unavailability of its
witness.
(8) “The final delay
can be attributed to the defense as counsel was unprepared to proceed.”
¶19 Both the Sixth Amendment to the United States Constitution and article
I, section 7 of Wisconsin’s Constitution protect a defendant’s right to a
speedy trial. We independently determine
the constitutional question of whether Franklin
has been denied his right to a speedy trial.
See State v. Leighton, 2000 WI App 156, ¶5, 237 Wis. 2d 709, 616 N.W.2d 126. We review with deference, however, the trial
court’s underlying findings of historical facts. Id.
¶20 There are four considerations to balance when determining
whether a defendant’s right to a speedy trial has been violated: “(1) the length of the delay; (2) the reason
for the delay, i.e., whether the government or the defendant is more to blame
for the delay; (3) whether the defendant asserted the right to a speedy trial;
and (4) whether the delay resulted in any prejudice to the defendant.” Id.,
¶6. “The right to a speedy trial is not
subject to bright-line determinations and must be considered based on the
totality of circumstances that exist in the specific case.” State v. Urdahl, 2005 WI App 191,
¶11, 286 Wis.
2d 476, 704 N.W.2d 324. Where a
violation is established, the sole remedy is dismissal of the charges. Id.
¶21 First, because we have already determined that Franklin’s
trial attorneys were not ineffective, we are not persuaded that any delays that
Franklin
attributes to the purported ineffectiveness of his attorneys violated his right
to a speedy trial. Furthermore, the
record does not support Franklin’s
characterization of the original delay in his trial, which he blames on “the
court and trial counsel for failing to recognize the original demand for a
speedy trial.” The record is clear that
the trial court acknowledged the speedy trial demand made at the preliminary
hearing, brought it to the attention of counsel, and gave Franklin’s attorney at the time the
opportunity to renew the demand, which he declined. Notwithstanding, we will address the four
considerations in turn to determine whether any delays attributable to the
State violated Franklin’s right to a speedy trial. See
Norwood
v. State, 74 Wis.
2d 343, 354, 246 N.W.2d 801 (1976) (“If the delay can be attributed to the
actions of the defendant, he cannot be heard to claim that that period of time
be considered in deciding whether he has been denied a speedy trial.”).
¶22 For the first consideration, “length of the delay,” Leighton,
237 Wis. 2d 709, ¶6, the State
acknowledges that the two and one-half year delay between Franklin’s arrest and the start of his jury
trial is presumptively prejudicial. Due
to this concession, we turn our attention to the remaining three factors.
¶23 The second consideration, “the reason for the delay,” id.,
does not favor Franklin
as the vast majority of the adjournments were directly attributable to the
defense. We disagree with Franklin’s representation
pertaining to the fourth adjournment, which he ascribes to both the defense and
the State. The record reflects that Franklin’s attorney
requested this adjournment. Although the
State did not oppose the request, the prosecutor advised the trial court that
she was ready to proceed with the scheduled jury trial. For any remaining adjournments attributable
to the State, we agree with the State’s summation that it requested only two, both
of which were due to the unavailability of necessary witnesses. We also agree with the State’s argument that
any delay related to those adjournments does not weigh against it for purposes
of our speedy trial analysis. See Hadley
v. State, 66 Wis.
2d 350, 362, 225 N.W.2d 461 (1975) (recognizing that “[a] missing witness or an
ill witness cannot be supplied by the fiat of th[e] court” and can amount to a
valid reason for a delay). Because the
State justified its adjournments contributing to the delay, we do not consider
those periods. Cf. Norwood, 74 Wis. 2d at 354 (“If the [S]tate
cannot justify the delay, then that period must be considered in deciding the
issue of lack of speedy trial.”).
¶24 The third consideration, “whether the defendant asserted the
right to a speedy trial,” Leighton, 237 Wis.
2d 709, ¶6, also does not weigh in Franklin’s
favor. Following the initial abandonment
of the speedy trial issue, it was never formally renewed by Franklin’s attorneys. As previously noted, the decision not to
renew the speedy trial demand “is one of those ‘tactical’ decisions regarding
trial strategy that ‘counsel is entrusted with the authority to make.’” State v. Williams, 2004 WI App 56,
¶38 n.4 & ¶40 n.5, 270 Wis.
2d 761, 677 N.W.2d 691 (citation omitted).
Franklin
“‘is deemed bound by the acts of his lawyer-agent.’” Id.
(citation and bracketed material omitted).
¶25 This principle also applies to Franklin’s contention that some of the
adjournment requests made by defense counsel when he was not present cannot be
weighed against him. See id. Furthermore, even though there is a pro se motion and a letter written by Franklin in the record reiterating a demand for a speedy
trial, the State properly contends that these documents cannot be treated as a request
for a speedy trial because Franklin
was represented when he filed them. See
Robinson v. State, 100 Wis. 2d
152, 164-65, 301 N.W.2d 429 (1981) (a defendant has the right to be represented
by counsel or to proceed pro se but
not both).
¶26 Finally, we consider “whether the delay resulted in any
prejudice to the defendant,” Leighton, 237 Wis.
2d 709, ¶6, even though Franklin’s
brief provides no analysis on this point.
The relevant inquiry to make this determination focuses on “‘(1)
preventing oppressive pretrial incarceration; (2) minimizing the accused’s
anxiety and concern; and (3) limiting the possibility that the defense will be
impaired.’” Id., ¶22 (citation omitted).
¶27 We agree with the State that the only statement pertinent to
the prejudice consideration that we can glean from Franklin’s briefing is that he “was
incarcerated for a majority of the delay, both on this matter and another matter,”
and was not able to post bail until well after ninety days following the
original speedy trial request. This is insufficient to establish “oppressive
pretrial incarceration,” id., particularly given that no
details are provided regarding how long he was incarcerated for each “matter”
and the circumstances surrounding the incarceration. Franklin
does not address the other factors relating to his anxiety and concern and the impairment
of his defense, see id., ¶22, in the portion of his brief devoted to his argument
that he was denied his right to a speedy trial.
We nevertheless conclude that neither inquiry supports a conclusion that
he was prejudiced by the delay.
¶28 Here, the record strongly supports the conclusion that Franklin did not want a
speedy trial where much of the delay was necessitated by the substitution and
withdrawal of several of his attorneys and was allowed to afford the defense
additional time to locate witnesses. “‘[B]arring
extraordinary circumstances, we would be reluctant indeed to rule that a
defendant was denied this constitutional right on a record that strongly
indicates … that the defendant did not want a speedy trial.’” Id.,
¶17 (citation omitted). After
considering all the factors, despite the presumptively prejudicial two and
one-half year delay, we conclude that the totality of the circumstances
establish that Franklin’s
right to a speedy trial was not violated.
C. The trial court properly denied
Franklin’s
suppression motion.
¶29 Franklin
argues that the investigative stop resulting in his arrest violated the
principles set forth in Terry v. Ohio, 392 U.S. 1 (1968),
and as such, the trial court erred when it denied his suppression motion. He contends that the trial court’s findings
of fact are erroneous and should be overturned.
¶30 “The Fourth Amendment of the United States Constitution and Article
I, Section 11 of the Wisconsin Constitution protect people from unreasonable
searches and seizures.” State
v. Young, 2006 WI 98, ¶18, 294 Wis. 2d
1, 717 N.W.2d 729 (footnotes omitted).
We review with deference a trial court’s factual findings on a motion to
suppress evidence. State v. Eskridge, 2002
WI App 158, ¶9, 256 Wis.
2d 314, 647 N.W.2d 434. We independently
decide whether the facts establish that a particular search or seizure occurred
and, if so, whether it violated constitutional standards. State v. Richardson,
156 Wis. 2d
128, 137-38, 456 N.W.2d 830 (1990).
¶31 An investigative stop is permissible if the law enforcement
officers reasonably suspect, considering the totality of the circumstances,
that some type of criminal activity either is taking place or has
occurred. Terry, 392 U.S. at 22 (“police
officer may in appropriate circumstances and in an appropriate manner approach
a person for purposes of investigating possibly criminal behavior even though
there is no probable cause to make an arrest”); see also Wis. Stat. § 968.24
(codifying the standard for an investigative stop); Richardson, 156 Wis. 2d at 139. In order to establish reasonable suspicion,
“a police officer [must] possess specific and articulable facts that warrant a
reasonable belief that criminal activity is afoot.” Young, 294 Wis. 2d 1, ¶21.
¶32 The trial court found that the officers observed Franklin
standing in a roadway talking to another individual who was in a car, in an
area known for drug activity. After
circling the block and parking, the trial court found that the officers
observed Franklin, who had reached into the front passenger window of a van,
back away, and drop his keys while appearing nervous and stating something to
the effect of, “I didn’t do anything. I
was just talking to my friend Tyrone.” For
his safety, one officer patted Franklin
down while the other officer looked into the van window and observed a plastic
bag in plain view, which appeared to contain marijuana. We conclude that these facts and the totality
of the circumstances supported “a reasonable belief that criminal activity [was]
afoot.” Id.
¶33 Next, we must determine whether the police had probable cause
to arrest Franklin.
The State argues that the police had
probable cause to arrest Franklin for violating Milwaukee, Wis.,
Ordinance § 101-3, which
adopts Wis. Stat. § 346.29(2)
prohibiting a person from standing or loitering on any roadway “if such act
interferes with the lawful movement of traffic.” Id. We agree.
¶34 Wisconsin Stat. § 800.02(6) provides, “A person
may be arrested without a warrant for the violation of a municipal ordinance if
the arresting officer has reasonable grounds to believe that the person is
violating or has violated the ordinance.”
“[T]he reasonable grounds standard as stated in sec. 800.02(6), Stats.,
is … synonymous with the constitutional standard of probable cause.” City of Milwaukee
v. Nelson, 149 Wis.
2d 434, 455, 439 N.W.2d 562, cert. denied,
493 U.S. 858 (1989).
¶35 The trial court found that the officers observed Franklin standing in a roadway talking to another individual
who was in a car, a fact which Franklin
admitted. It follows then that these
findings are not clearly erroneous.
Consequently, we are satisfied that the officers had reasonable
suspicion to support the initial stop and that they also had probable cause to
arrest Franklin. Accordingly, we affirm the trial court’s
decision to deny the motion to suppress.
D. The trial court properly
exercised its sentencing discretion.
¶36 Franklin bases his argument that the trial court erroneously
exercised its discretion in sentencing him on the following: “[he] had not been in trouble with the law
for nearly four years at the time of this offense”; he is the father of two
children and “was attempting to help support the children”; he was “seeking
employment so that he could continue with his life”; and, that while he
maintained his innocence during the trial, “[he] did apologize to his family
for having to be involved with the entire situation.” This argument is unavailing.
¶37 Trial courts are vested with discretion at sentencing;
consequently, we review sentencing decisions only to determine whether that
discretion was erroneously exercised. State
v. Gallion, 2004 WI 42, ¶17, 270 Wis.
2d 535, 678 N.W.2d 197. “When discretion
is exercised on the basis of clearly irrelevant or improper factors, there is
an erroneous exercise of discretion.” Id. However, where it is evident that the trial
court exercised its discretion, we “‘follow[] a consistent and strong policy
against interference with the discretion of the trial court in passing
sentence.’” Id., ¶18 (citation omitted). “‘[S]entencing decisions of the [trial] court
are generally afforded a strong presumption of reasonability because the [trial]
court is best suited to consider the relevant factors and demeanor of the
convicted defendant.’” Id. (citation omitted).
¶38 Trial courts are to explain on the record the reasons for and objectives
of the sentence imposed. Id., ¶¶39-40; see
McCleary
v. State, 49 Wis. 2d
263, 280-81, 182 N.W.2d 512 (1971). The
primary factors for the court to consider in sentencing “are the gravity of the
offense, the character of the offender, and the need for protection of the
public.” State v. Harris, 119 Wis. 2d 612, 623, 350
N.W.2d 633 (1984). Courts also can
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, repentence and cooperativeness; (10) defendant’s need for close
rehabilitative control; (11) the rights of the public; and (12) the length
of pretrial detention.”
Id. at
623-24 (citation omitted).
¶39 Here, the trial court addressed the serious nature of the
offenses. The court stated: “[Cocaine] causes harm to the people that use
it, and it affects the lives of the people that are around them, their family
in particular. It affects the
neighborhoods, and it has an impact on our community.” In addition, the trial court referenced the
significant amount of marijuana Franklin
had—over 300 grams—which would have been distributed in the community and
caused harm. The court noted that
marijuana “leads [people], at the very least, very often, to try other drugs,
and I can say that with some certainty having heard cases for as many years
concerning this.”
¶40 With respect to Franklin’s
character, the trial court found that he was an intelligent man, who was
thirty-seven at the time of sentencing and had graduated from high school. The trial court was aware that Franklin was a certified
welder and has two children. The trial
court went on to point out Franklin’s
prior record and that he was being supervised when he committed the offenses at
issue. The trial court also said that it
did not find Franklin’s
trial testimony to be credible.
¶41 In considering the protection of the community, the trial court
indicated that probation was not appropriate based on the serious nature of the
offenses and Franklin’s
prior record. When it ordered the
sentence imposed on the charge of possession with intent to deliver cocaine to
run consecutive to the sentence imposed on the charge of possession with intent
to deliver THC, the court stated a sentence of consecutive terms was necessary
because to do otherwise “would depreciate the seriousness of that offense
[possession with intent to deliver cocaine] in the eyes of the community.” Similarly, when it imposed a sentence on the
felon in possession of a firearm charge to run consecutive to the sentences
imposed on the other two charges, the trial court again explained the serious
nature of the charge and concluded, “if I were to give a concurrent sentence,
there, again, I believe I would be depreciating the seriousness in the eyes of
the community.”
¶42 On appeal, Franklin
argues, in essence, that the trial court should have placed more emphasis on
those traits, which he deems to be favorable to his character. This argument overlooks that “[i]t remains
within the discretion of the [trial] court to discuss only those factors it
believes are relevant, and the weight that is attached to a relevant factor in
sentencing is also within the wide discretion of the [trial] court.” State v. Stenzel, 2004 WI App 181,
¶16, 276 Wis.
2d 224, 688 N.W.2d 20 (citation omitted).
¶43 The record reflects that the trial court identified the various
factors it considered in fashioning Franklin’s
sentence. The factors were relevant and
proper. The sentences imposed are not “so
excessive and unusual and so disproportionate to the offense[s] committed as to
shock public sentiment and violate the judgment of reasonable people concerning
what is right and proper under the circumstances.” Ocanas v. State, 70 Wis. 2d 179, 185, 233
N.W.2d 457 (1975).
¶44 Based on the foregoing, we affirm the judgment of conviction
and the order denying Franklin’s
postconviction motion.
By the Court.—Judgment and order
affirmed.
Not
recommended for publication in the official reports.