COURT OF APPEALS DECISION DATED AND FILED June 25, 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 II |
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State of
Plaintiff-Respondent, v. John A. Kinard,
Defendant-Appellant. |
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APPEAL
from a judgment and an order of the circuit court for
Before
¶1 PER CURIAM. John A. Kinard has appealed from a judgment convicting him upon a guilty plea of third-degree sexual assault in violation of Wis. Stat. § 940.225(3) (2005-06).[1] In exchange for Kinard’s guilty plea, a charge of second-degree sexual assault in violation of Wis. Stat. § 940.225(2)(b) was dismissed and read-in for purposes of sentencing.
¶2 The trial court sentenced Kinard to a bifurcated sentence of
six years and six months, consisting of one year and six months of initial
confinement, followed by five years of extended supervision. Kinard moved for postconviction relief from
the sentence, and the trial court denied the motion. We affirm the
judgment and the order denying postconviction relief.
¶3 Kinard
was convicted of having sexual intercourse with his ex-wife, Charli Kinard,
without her consent on April 7, 2005. The
read-in offense involved an allegation that he had sexual intercourse with
Charli without her consent in August 2004, causing injury to her.
¶4 On
appeal, as in his postconviction motion, Kinard argues that the trial court
abused its discretion by imposing a sentence that was unduly harsh. He appears to contend that probation should
have been imposed, and that the trial court improperly based the sentence on
the public’s negative reaction to charges of sexual assault. We reject Kinard’s arguments.
¶5 Sentencing
is left to the discretion of the trial court and appellate review is limited to
determining whether there was an erroneous exercise of discretion. State v. Gallion, 2004 WI 42,
¶17, 270
¶6 To
properly exercise its discretion, a trial court must provide a rational and
explainable basis for the sentence. State
v. Stenzel, 2004 WI App 181, ¶8, 276
¶7 The
primary sentencing factors that a trial court must consider are the gravity of
the offense, the character of the defendant, and the need to protect the
public.
¶8 The
“sentence imposed in each case should call for the minimum amount of custody or
confinement which is consistent with the protection of the public, the gravity
of the offense and the rehabilitative needs of the defendant.” Gallion,
270
¶9 Contrary
to Kinard’s contentions, the trial court did not erroneously exercise its
discretion at sentencing. Instead, it
engaged in a textbook example of sentencing, and is to be commended.
¶10 At
sentencing, the trial court considered the sentencing objectives of punishment,
deterrence, rehabilitation, and protection of the community. It discussed the gravity of the offense,
Kinard’s character, and the need to protect the public. Within the context of considering these
factors, it considered Kinard’s past history, character and demeanor, his
degree of culpability and remorse, the
PSI recommendation of probation, and the nature of the crime. It acknowledged Kinard’s lack of a prior
criminal record, his steady employment history, and his appropriate demeanor in
court.
¶11 The
trial court acknowledged that this sentencing was difficult, and that it was
obligated to impose the minimum sentence consistent with the protection of the
public, the rehabilitation of the defendant, and the gravity of the
offense. While acknowledging the
victim’s statement that she feared Kinard, it ultimately concluded that
confinement was not necessary to protect the community from him and that his
treatment needs did not necessitate confinement. It also considered imposing probation as
recommended in the PSI. However, it
rejected this option on the ground that to do so would unduly depreciate the
seriousness of the offense.[2]
¶12 No
basis exists to disturb the trial court’s conclusion. As noted by the trial court, the third-degree
sexual assault conviction was based on allegations that Kinard locked the
victim in a bedroom, choked her, and engaged in sexual intercourse with her
without her consent. The trial court
noted that Kinard lied to the police when questioned as to whether intercourse
had occurred. It also noted that in a
telephone conversation recorded by the police on the day of the assault, Kinard
made no exculpatory statements, and his responses confirmed the victim’s
contention that he told her to take actions that were designed to cover up the
offense.[3]
¶13 Based
on its conclusion that the April 2005 sexual assault was a serious and violent
offense, the trial court determined that probation was unwarranted and a period
of confinement was necessary to avoid unduly depreciating the seriousness of
the crime.[4] However, based on its determination that
confinement was unnecessary to protect the public or rehabilitate Kinard, it
concluded that a lengthy period of confinement was not required. It therefore ordered eighteen months of
initial confinement, followed by five years of extended supervision.
¶14 The
sentence imposed by the trial court was significantly less than the ten year
sentence that could have been imposed. See Wis. Stat. § 939.50(3)(g) and § 940.225(3).
Because the sentence was not so excessive, unusual, and disproportionate
to the offense as to shock public sentiment and violate the judgment of
reasonable people concerning what is right and proper under the circumstances,
it cannot be deemed unduly harsh. See
State
v. Taylor, 2006 WI 22, ¶19, 289
¶15 In reaching this conclusion, we note that the trial court’s failure to give particular factors the weight that Kinard
wished does not constitute an erroneous exercise of discretion. See
Stenzel,
276
¶16 Kinard appears to allege that the trial court was biased
against him because it had been the subject of public criticism concerning a
previous sexual assault sentence.
However, Kinard never moved for recusal of the trial court judge and
therefore waived any claim that the judge should have recused or disqualified
himself based on bias. See State
v. Lipke, 186
¶17 Even if we consider the issue, nothing in the record supports a
claim that the trial court judge was biased against Kinard or sentenced him
based on an improper factor. At
sentencing, the trial court merely acknowledged that the public is sensitive to
the seriousness of sexual assault and that, while this is not a factor
warranting tremendous weight, it is a factor to consider in assessing whether a
particular sentence would unduly depreciate the seriousness of the
offense. In the context of its entire
sentencing decision, including its extensive explanation of the reasons for the
individualized sentence imposed here, its comments were permissible.
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.
[2] “Trial courts … are not required to blindly
accept or adopt sentencing recommendations from any source.” State v. Trigueros, 2005 WI
App 112, ¶9, 282
[3] Kinard attacks the credibility of the victim in his appellant’s brief. However, he pled guilty to third-degree sexual assault and cannot now contend that the trial court should have imposed a more lenient sentence based on the alleged lack of credibility of the victim. This is particularly true based on the trial court’s determination that the victim’s version of the April 2005 assault was credible, and Kinard’s was not.
[4] In its sentencing discussion, the trial court also discussed the read-in offense. Because of factual issues underlying that offense, the trial court stated that it was difficult to decide whether it should have a major impact on the sentence. Ultimately, it concluded that even disregarding the read-in offense, Kinard committed a serious sexual assault in April 2005 and needed to be sentenced accordingly.
[5] When
this court reviews a sentence, we look
to the entire record, including the reasons given by the trial court in denying
postconviction relief.