COURT OF APPEALS DECISION DATED AND FILED June 3, 2008 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. Rashad Samad Nealy, Defendant-Appellant. |
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APPEAL
from a judgment and an order of the circuit court for
Before Wedemeyer, Fine and Kessler, JJ.
¶1 PER CURIAM. Rashad Samad Nealy pled guilty to two counts of burglary to a building or dwelling as a party to a crime. The circuit court imposed concurrent six-year prison sentences, with Nealy to serve a minimum of three years in initial confinement and a maximum of three years on extended supervision. Nealy sought sentence modification, arguing that the circuit court erroneously exercised its sentencing discretion by: (1) failing to apply the appropriate sentencing factors; (2) failing to adequately explain its use of applicable sentencing guidelines; and (3) imposing a significantly harsher, and therefore unreasonable, sentence on him than on his co-actor. The circuit court denied Nealy’s motion, and Nealy appeals. We conclude that Nealy’s arguments are without merit, and we therefore affirm the judgment of conviction and the postconviction order.
¶2 In December 2006, Nealy and Jamal El-Campbell burglarized a liquor store four separate times. Nealy and El-Campbell each accepted the same plea bargain offered by the State: in exchange for their guilty pleas on two of the burglaries, the other two counts would be dismissed, but could be considered by the circuit court at sentencing. Nealy was sentenced to concurrent six-year sentences, of which he was to serve a minimum of three years in initial confinement. About one month later, the same judge imposed the same concurrent six-year sentences on El-Campbell, but the circuit court stayed El-Campbell’s sentences and placed him on probation for three years.
¶3 The disparity between Nealy’s and El-Campbell’s sentence was part of the basis for Nealy’s sentence modification motion. Nealy argued that he and El-Campbell should have received the same sentence given that they acted together in the burglaries. He also argued that the circuit court failed to give adequate consideration to mitigating factors, such as his cooperation with police, his decision to enter a plea agreement, and his acceptance of responsibility. Throughout the motion, Nealy argued that the circuit court had erroneously exercised its sentencing discretion by failing to explain its reasoning and the specific reasons underlying his sentence.
¶4 Sentencing
lies within the sound discretion of the circuit court, and a strong policy
exists against appellate interference with that discretion. State v. Mosley, 201
¶5 In
Gallion, the supreme court stated that
judges must explain the reasons for the particular sentence they impose. Gallion, 270
¶6 In
this case, the record shows that the circuit court considered all of the
required factors and thoroughly explained its reasons for imposing the sentence
it did. The circuit court indicated that
it was sentencing Nealy on the basis of the impact his crimes had on the
community and, in particular, the businesses in the community. It noted that Nealy had burglarized the same
business four times in less than three weeks.
The court further noted that Nealy had a substantial juvenile record,
including a burglary, and that apparently his involvement in the juvenile
system had not convinced him to obey the law.
In addition, the court commented on Nealy’s admitted alcohol-abuse
issues and his need for rehabilitation in “a structured, confined setting”
because he was not treating those issues while in the community. Finally, the court noted Nealy’s lack of
education, in particular his inability to read and write at adult levels. After indicating that it had considered the
sentencing guidelines, the circuit court sentenced Nealy. The record clearly shows that the circuit
court considered the appropriate sentencing factors and explained its reasons
for the sentences imposed on Nealy.
¶7 Nealy
also argued that he should be resentenced because the circuit court failed to
consider the applicable sentencing guidelines.
The record shows, however, that the circuit court considered the
guidelines when it imposed sentence. See State v. Grady, 2007 WI 81, ¶30, 302
¶8 Finally,
Nealy argues that the circuit court erroneously exercised its discretion by
failing to explain the differences between his sentence and that of
El-Campbell. It is well-settled that the
imposition of different sentences on persons convicted of the same offense does
not, in and of itself, constitute an erroneous exercise of discretion. State v. McClanahan, 54
By
the Court.—Judgment and order affirmed.
This opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)5. (2005-06).