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COURT OF APPEALS
DECISION
DATED AND FILED
August 13, 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 II
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State of Wisconsin,
Plaintiff-Respondent,
v.
Johnny Trinidad, Jr.,
Defendant-Appellant.
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APPEAL
from a judgment and an order of the circuit court for Racine County: Gerald
P. Ptacek, Judge. Affirmed.
Before Brown, C.J., Snyder and Neubauer, JJ.
¶1 PER CURIAM. Johnny Trinidad, Jr., appeals
from a judgment of conviction for two counts of incest with a child and an
order denying his motion for postconviction relief seeking resentencing and sentence
modification. Because we disagree that the
trial court sentenced Trinidad based on
materially inaccurate information, we affirm.
¶2 Trinidad was charged with
five counts of incest with a child, contrary to Wis. Stat. § 948.06(1) (2005-06). The incidents occurred when the victim, Trinidad’s natural daughter, was fifteen and sixteen
years old. Trinidad
maintained that the incidents were “instructional” and meant to teach his
daughter responsibility. Pursuant to a
plea agreement, he pled guilty to two counts; the remaining three counts would
be dismissed but read in at sentencing.
He faced forty years’ imprisonment (twenty-five years’ initial
confinement, fifteen years’ extended supervision) and/or a $100,000 fine on
each count.
¶3 The trial court ordered a presentence investigation
(PSI). The PSI report recommended
consecutive sentences of eleven to fourteen years of imprisonment, consisting
of six to eight years of initial confinement and five to six years of extended
supervision on each count, for a total of twenty-two to twenty-four years, with
twelve to sixteen years of initial confinement.
The State recommended concurrent thirty-year prison sentences, with
twenty years of initial confinement and ten years of extended supervision, for
a total of twenty years of imprisonment.
Trinidad’s counsel recommended
concurrent twenty-year prison sentences, with ten years of initial confinement
and ten years of extended supervision, for a total of ten years of
imprisonment. The trial court sentenced
him to two consecutive fifteen-year prison terms, nine years of initial
confinement and six years of extended supervision each, for a total of eighteen
years of initial confinement and twelve years of extended supervision.
¶4 Postconviction, represented by new counsel, Trinidad
moved for resentencing or sentence modification. Trinidad asserted that the circuit court
sentenced him in reliance on inaccurate information, namely the PSI writer’s
conclusion that Trinidad posed a medium risk
to reoffend and that his rationalization and minimization of the offense “would
only appear to increase that risk.” The
motion cited a “new factor,” a prison psychologist’s testimony that Trinidad’s risk of reoffense actually was low and that
rationalization and minimization present treatment issues but have not been
shown to increase risk of reoffense. Trinidad also asserted that the sentence was unduly harsh
compared to those imposed for similar offenses.
¶5 PSI writer Michael Musurlian testified at the postconviction
motion hearing at the court’s request.
Musurlian testified that he used a “PSI Risk Assessment” to make his
sentencing recommendation. Ten areas of
inquiry, including recent address changes, employment history, drug or alcohol
usage and prior offenses, are scored and tallied to provide a numeric “risk score.”
The risk score determines whether the subject’s
general risk to reoffend is considered low (0-9), medium (10-22) or high (23
and above). Trinidad’s
score was 12.
¶6 Two psychologists testified on Trinidad’s
behalf. Dr. Christopher Tyre supervises
the Department of Corrections’ Wis.
Stat. ch. 980 forensic evaluation unit, which performs risk assessments
of sex offenders who are about to be released from prison and are being considered
for commitment as sexually violent. Dr.
Tyre acknowledged that he is unfamiliar with the standards used for PSI
evaluations and has “no idea” what the low, medium and high risk assessments
mean in the PSI evaluations.
¶7 Dr. Robert DeYoung, the psychologist supervisor at Dodge
Correctional Institution where Trinidad was
incarcerated, assesses incoming offenders and recommends custody levels,
placement and treatment programs. Dr.
DeYoung evaluated Trinidad shortly after he arrived at Dodge and, although he
did not himself assess Trinidad’s risk to reoffend, he would have said Trinidad manifested a low risk of reoffending
sexually. He also noted that recent
studies have not shown rationalization and minimalization to be associated with
a risk to reoffend. Dr. DeYoung also
testified that he is “not real familiar with” the assessment tools PSI writers
use and did not know whether the instrument Musurlian used was accurately
scored or developed.
¶8 The trial court denied the motion. It concluded that, as completed by Musurlian,
the PSI risk assessment tool was not inaccurate. Comparing the presentence and prison sex
offender risk assessment tools, the court said, was “talking … apples and
oranges.” Prison sex offender tools are
designed to measure sex offenders’ risk to reoffend sexually. The PSI instrument, on the other hand, assesses
all offenders. Further, the court
concluded that the sentencing recommendation also was based on the combined
expertise of Musurlian and his supervisor who approved it.
¶9 On appeal, Trinidad again
seeks resentencing. A motion for
resentencing based on a trial court’s alleged reliance on inaccurate
information, a defendant must establish (1) that the sentencing court had
before it inaccurate information (2) upon which it actually relied. State v. Tiepelman, 2006 WI 66, ¶31,
291 Wis. 2d 179,
717 N.W.2d 1. A court actually relies on
inaccurate information when the court gives it “explicit attention” or
“specific consideration” such that the misinformation “form[s] part of the
basis for the sentence.” Id., ¶14
(citation omitted). If the defendant makes
the dual showing, the burden shifts to the State to show that the error was
harmless. Id., ¶3. We review de novo the constitutional issue whether
Trinidad was denied his due process right to
be sentenced upon accurate information. See id., ¶9. We will not disturb the trial court’s factual
findings unless they are clearly erroneous.
See State v. Delgado, 194 Wis. 2d 737, 749-50, 535 N.W.2d 450 (Ct.
App. 1995).
¶10 Trinidad’s accuracy challenge
is multiple. He contends that Musurlian
incorrectly: (1) scored the employment and probation criteria of the PSI risk
assessment and gave him five too many points, causing him to be deemed a medium
risk to reoffend; (2) recommended consecutive sentences, resulting in a
recommendation four and a half times longer than the median sentence for other
Class C felonies and than the median prison sentence imposed in Racine and
Kenosha counties for second-degree sexual assault of a child; and (3) stated
that Trinidad’s minimization of the offense increases the risk of reoffending.
¶11 The employment criterion asks about percent time employed in
the previous year. Three scoring options
are available: “0” for 60% or more; “1”
for 40% to 59%; and “2” for under 40%. Trinidad
claims Musurlian should have given him a “0” instead of a “1.” Trinidad’s mother
testified that he worked “like 60 hours a week” in the year before his arrest. Musurlian testified, however, that to his
best recollection Trinidad told him he had worked the full year but it was a
“kind of on[-]and[-]off type thing or he had been part-time, then full-time and
then part-time, something to that effect.”
The PSI report states that Musurlian attempted to contact Trinidad’s work supervisor but that person was
unavailable for comment. Trinidad did not testify.
¶12 Trinidad also challenges his
score on the number of prior periods of probation/parole supervision criterion. Trinidad told Musurlian that in 1997 he was
placed on a two-week period of “what was like probation” in Tennessee until he paid fines and fees
stemming from a first-offense misdemeanor conviction for driving while
intoxicated. Two scoring choices are
available: “0” for none, and “4” for one
or more. Musurlian gave Trinidad a “4.”
Trinidad argues that first-offense OWI is not a criminal offense in Wisconsin so probation could not even be ordered; if
there were probation, the minimum in Wisconsin
is six months, not two weeks, see Wis. Stat. § 973.09(2); and
something “like probation” in Tennessee
cannot reasonably be considered tantamount to the probation the risk assessment
form contemplates to justify an increased score.
¶13 Trinidad also contends
Musurlian erroneously recommended consecutive rather than concurrent
sentences. Trinidad
bases his argument on the DOC’s “Bifurcated Sentence Recommendation Grid” instructions
which provide:
Legislation and case law presume that in multiple[-]case
situations, sentences will be concurrent unless specifically ordered
consecutive. Agents are directed to
start with the presumption of concurrent recommendations. However, in extremely aggravated cases or
when it is in the best interests of victims to order consecutive cases, the
agent/Supervisor should consult with other staff to insure that the sentence
structure recommended will accomplish the intended goals.
Trinidad
also emphasizes that the victim, his daughter, did not request lengthy
incarceration or consecutive sentences and, in fact, wrote to the court asking
it to reconsider the sentence it imposed.
¶14 Musurlian acknowledged that Trinidad’s
was not an “extremely aggravated” case.
He testified that he based his recommendation in part on the case’s
numerous aggravating factors, such as that Trinidad
committed multiple incestuous acts over a period of time and justified his
behavior as “instructional.” Musurlian testified
he also considered the victim’s best interests, including her vulnerability and
her ongoing treatment. He then reviewed
the sentence structure with his field supervisor, and the two jointly made the recommendation.
¶15 Trinidad has not established
that any of these claimed errors are, in fact, inaccuracies. Musurlian testified that his “best
recollection” was that Trinidad’s employment history was somewhat on and off; Trinidad’s mother testified otherwise. Trinidad self-reported
having been on something like probation, for which Musurlian selected the scoring
choice that seemed most apt. The PSI
report contains a variety of areas where the PSI writer makes discretionary
determinations. See State v. Howland, 2003 WI App 104, ¶34, 264 Wis. 2d 279, 663 N.W.2d 340. Moreover, Trinidad
might have testified to explain his work history or the nature of the
probation, but did not. In addition, the
victim’s desire for a shorter sentence for her father does not establish that
Musurlian misjudged her best interests.
Children’s wishes and their best interests do not always coincide. See
Wiederholt
v. Fischer, 169 Wis.
2d 524, 536, 485 N.W.2d 442 (Ct. App. 1992).
Finally, the time to challenge the PSI and its recommendation was at
sentencing. Trinidad
did not. Indeed, his counsel assured the
court that he had reviewed the PSI “word for word” with Trinidad
and they had no additions or corrections.
We find no error in the trial court having considered matters in the
presentence report that went unchallenged at sentencing. See State v.
Johnson, 158 Wis.
2d 458, 470, 463 N.W.2d 352 (Ct. App. 1990).
In any event, a PSI sentencing recommendation is not binding on the
sentencing court. Id. at 469.
¶16 Finally, we agree with the trial court that Dr. Tyre’s and Dr.
DeYoung’s opinions that Trinidad presents a
low risk to reoffend does not establish that the DOC’s assessment was
inaccurate. Trinidad
claimed in his postconviction motion that Dr. DeYoung’s opinion constituted a
“new factor.” A new factor is a fact
relevant to the imposition of the sentence and unknown to the trial court at
the time of sentencing, State v. Kaster, 148 Wis. 2d 789,
803, 436 N.W.2d 891 (Ct. App. 1989), or which frustrates the sentencing court’s
intent. See State v. Michels, 150 Wis. 2d 94, 99, 441 N.W.2d 278 (Ct. App.
1989). Whether a fact constitutes a new
factor is a question of law. Id. at
97.
¶17 The psychologists’ risk opinions arose from the assessment tools
geared toward sex offenders. They use
the tools in a prison setting to channel sex offenders into appropriate housing
and treatment groups and to predict the risk of future sexual offenses. The presentence risk assessment, by contrast,
is designed, tested and validated for use with all offenders as an aid to
determine what to recommend in the way of sentence structure and to assess the
person’s general risk of reoffense. We
note that the chance Trinidad would reoffend,
generally or otherwise, was not the prime focus of the court’s sentencing
rationale. Dr. DeYoung’s opinion did not
frustrate the original sentence. Trinidad has not established that the sentencing court
had before it inaccurate information.
Therefore, we need not consider his claim that the court actually relied
on it.
¶18 The State asserts that Trinidad’s
real challenge is to the PSI writer’s recommendations. To the extent that is true, if at all, we do
not review those recommendations. See State v. Miller, 180 Wis. 2d 320, 325, 509 N.W.2d 98 (Ct. App.
1993). We review only the trial court’s exercise
of its sentencing discretion. Id. at
325-26. Our review is limited to
determining if discretion was erroneously exercised. State v. Gallion, 2004 WI 42, ¶17,
270 Wis. 2d
535, 678 N.W.2d 197. We generally afford
a strong presumption of reasonability because the trial court is best suited to
consider the relevant factors. Id., ¶18. If the record demonstrates a proper exercise
of discretion, we will not substitute our preference even if we might have
meted out a different sentence. Id.
¶19 Here, the trial court considered the primary factors: (1) the gravity
of the offense, including the effect on the victim, (2) the character and
rehabilitative needs of the offender, and (3) the need to protect the
public. See State v. Spears, 227 Wis. 2d 495, 507, 596 N.W.2d 375
(1999). It also considered mitigating
factors, such as Trinidad’s age, education,
work history, his role as a single parent and the absence of other undesirable
behaviors. The court focused, however,
on the “vicious and aggravated” nature of the offense, the long-term
devastation wreaked on the victim and the family, and Trinidad’s
rationalization. The emphasis placed on
the factors, or even on a single primary factor, is within the sentencing
court’s wide discretion. See id.
at 507-08. Further, Trinidad’s sentence
was well within the permissible limits, especially in light of his agreement to
have three counts read in, exposing him to the risk of a longer sentence within
the statutory allowance. See Austin v.
State, 49 Wis.
2d 727, 732, 183 N.W.2d 56 (1971).
By the Court.—Judgment
and order affirmed.
This opinion will not be published. See
Wis. Stat. Rule 809.23(1)(b)5.