COURT OF APPEALS DECISION DATED AND FILED July 29, 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. Eliseo Herrera, Defendant-Appellant. |
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APPEAL
from a judgment and an order of the circuit court for
Before Curley, P.J., Wedemeyer[1] and Fine, JJ.
¶1 PER CURIAM. Eliseo Herrera pled guilty to one count of causing mental harm to a child. See Wis. Stat. § 948.04(1) (2005-06).[2] The circuit court imposed a bifurcated sentence of five years and two months, comprised of twenty-six months of initial confinement and thirty-six months of extended supervision. Herrera filed a postconviction motion for sentence modification, arguing that the circuit court erroneously exercised its sentencing discretion and that the sentence was harsh and excessive. The circuit court denied the motion. Herrera appeals, and we affirm.
BACKGROUND
¶2 Herrera was charged with one count of repeated sexual assault of a child, one count of second-degree sexual assault by use or threat of force, and one count of incest with a child. Pursuant to a plea agreement, Herrera pled guilty to one count of causing mental harm to a child. The facts underlying the charge were Herrera’s photographing of the victim while she was naked from the waist up.
DISCUSSION
¶3 On appeal, Herrera contends that the circuit court erroneously exercised its sentencing discretion by not adequately considering various mitigating factors such as his lack of a prior criminal record, his history of employment, and his overall good character. Herrera contends that the circuit court’s general reference to some mitigating factors was insufficient because the court did not then explain “to what extent they were factored into the sentence.” Moreover, Herrera asserts that the crime had a “minimal impact” on the victim who was not physically harmed by Herrera’s conduct. Herrera complains that the circuit court’s emphasis on deterrence and protection of the public resulted in “the exclusion of other worthwhile and meaningful factors.” According to Herrera, the sentence “was not based on his character and … was not truly designed to rehabilitate him.” Finally, Herrera contends that the circuit court “did not explain how the sentencing objectives were met … and it did not explain how the particular length of prison chosen was needed to meet” its sentencing objectives.
¶4 Three primary sentencing factors should guide a circuit
court’s sentencing decision—the nature of the offense, the character of the
defendant, and society’s interest in punishment, deterrence and
rehabilitation.
¶5 “Circuit
courts are required to specify the objectives of the sentence on the
record. These objectives include, but
are not limited to, the protection of the community, punishment of the
defendant, rehabilitation of the defendant, and deterrence to others.”
¶6 In its sentencing comments, the circuit court first considered the nature of the offense and the impact on the victim. The circuit court described the offense as “very serious” and “egregious,” noting that Herrera had taken pictures of the victim, naked from the waist up, and then had taken the photographs with him while traveling.[3] Contrary to Herrera’s appellate assertion that the victim was not harmed, the circuit court pointed to the victim’s statements in a crime impact statement that Herrera’s conduct “hurts a lot” and that she “can’t get [the incident] out of [her] mind” and she “cr[ies] a lot.” The circuit court discussed Herrera’s character. The court specifically considered Herrera’s “history of employment [and] … of caring about people.” As required by Gallion, the court identified its sentencing objectives—to punish Herrera, to deter others, and to address Herrera’s rehabilitative needs. See id., ¶40. The circuit court noted that Herrera had spent a “significant period” of time incarcerated during the pendency of the case. The court noted, however, that Herrera did not receive any treatment during that preconviction incarceration and that “additional time [is] needed so [Herrera] can integrate back into the community with some extended supervision thereafter.”
¶7 The record shows that the circuit court indentified the
various factors that it considered in fashioning its sentence. The circuit court identified its sentencing
objectives. The circuit court’s
conclusion that additional incarceration was needed to punish Herrera and to
facilitate his rehabilitation was appropriate.
The circuit court’s determination that a period of extended supervision
was needed to ensure Herrera’s successful reintegration into the community is
supported by the record. Contrary to
Herrera’s appellate argument, the circuit court considered the relevant
mitigating factors. While Herrera may
disagree with the relative weight assigned to the various factors, “[t]he
weight to be given each factor is within the discretion of the [circuit]
court.” State v. Wickstrom, 118
¶8 The potential sentence for the crime to which Herrera pled
was twelve and one-half years of imprisonment, comprised of seven and one-half
years of initial confinement and five years of extended supervision. See
Wis. Stat. §§ 948.04(1),
939.50(3)(f), 973.01(2)(b)6m. A sentence is considered harsh or excessive “only
where the sentence is so excessive and unusual and so disproportionate to the
offense 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
By the Court.—Judgment and order affirmed.
This opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)5.
[1] This opinion was circulated and approved before Judge Wedemeyer’s death.
[2] All references to the Wisconsin Statutes are to the 2005-06 version unless otherwise noted.
[3] The circuit court expressly disavowed consideration of the nature of the original charges and stated that it was only considering the nature of the charge to which Herrera pled guilty.