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COURT OF APPEALS DECISION DATED AND FILED September 4, 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. Terrence Jerneal Heron,
Defendant-Appellant. |
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APPEAL
from a judgment and an order of the circuit court for
Before Dykman, Vergeront and Bridge, JJ.
¶1 PER CURIAM. Terrence Heron appeals a judgment convicting him of possessing cocaine with intent to deliver, and carrying a concealed weapon. He also appeals an order denying postconviction relief. The issues are whether the trial court properly exercised its sentencing discretion, and whether the court sentenced him upon inaccurate information. We affirm.
¶2 The complaint alleged that police identified Heron as the man responsible for firing numerous rifle shots into the air on a city street. When officers searched his house with a warrant, they discovered two rifles, one concealed under a mattress, and cocaine packaged for sale. The complaint charged him with possessing a firearm in a school zone and possessing with intent to deliver between one and five grams of cocaine. He subsequently entered guilty pleas to the drug charge and the amended weapons charge.[1]
¶3 In sentencing Heron the court primarily considered the damage to the community from dealing drugs and the danger to the community posed by possessing firearms and discharging them in public. The court also noted that Heron was issued a bench warrant for failure to appear at a hearing, “and that calls into question whether or not you would be willing to comply with the rules and be supervised in the community.” In mitigation the court noted that Heron had no criminal record and had participated in programs offered at the Milwaukee County House of Corrections. The court concluded that a prison sentence was necessary to address Heron’s rehabilitative needs in a structured setting and to protect the community. The court imposed two years of initial confinement followed by four years of extended supervision on the drug charge and nine months in jail on the weapons charge, concurrent.
¶4 In a postconviction motion, Heron contended that the trial court erroneously exercised its sentencing discretion by failing to properly consider and weigh the various sentencing factors, and by imposing an excessive sentence in view of those factors. He also contended that the court improperly considered his failure to appear at a hearing and subsequent bench warrant because he was incarcerated when he failed to appear and was therefore blameless for his absence.
¶5 We have a strong policy of deferring to the sentencing
court’s discretion, and we presume a sentence is reasonable unless the
defendant can demonstrate from the record that the court acted unreasonably. State v. Mosley, 201
¶6 The trial court properly exercised its sentencing
discretion. It primarily considered the
seriousness of dealing cocaine and firing guns in public and the dangerous
combination of drugs and guns. These
were reasonable and proper factors to consider, and the trial court adequately
explained its reliance on them at the sentencing hearing. They justify sentences that require Heron to
serve two years of initial confinement, out of a maximum of seven and one-half
years, and four years of extended supervision, out of a maximum of five years,
with jail time concurrent. Heron’s
contention is, essentially, that the court failed to give adequate weight to
mitigating factors, such as the fact (noted by the trial court) that Heron had
no prior record. However, the sentencing
court has discretion to balance the various factors as it sees fit. State v. Jones, 151
¶7 Heron also contends that the trial court failed to adequately explain the objectives of the sentence. We disagree. The court made it clear that protecting the public was the predominant objective which is, again, a decision within the court’s discretion.
¶8 Heron next contends that the court sentenced him upon inaccurate
information when it noted that bench warrants had issued after he failed to
appear at hearings. Heron only discusses
one of two times he was the subject of a bench warrant.[2] In that instance he failed to appear because
he had been jailed. He argues that the
court failed to consider that the bench warrant was not his fault, although
counsel had so informed the court.
However, the court mentioned the bench warrant in the context of
questioning whether Heron was a proper candidate for probation. The court could have reasonably treated the
fact that Heron was jailed as a negative in considering whether to place him on
probation. In any event, if the court
has received inaccurate information, the defendant must also show that the
sentencing court actually relied on the inaccurate information. Tiepelman, 291
¶9 Heron raises the same issue in the context of a new factor
analysis, with the new factor being his inability to attend the hearing due to
his incarceration. However, it is not a
new factor because it was known to the trial court at sentencing, even if not
acknowledged. Additionally, as noted,
Heron has not demonstrated that the warrants were highly relevant to his
sentence. See Rosado 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.