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COURT OF APPEALS
DECISION
DATED AND FILED
September 30, 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 I
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State of Wisconsin,
Plaintiff-Respondent,
v.
Alfonzo Emmanuel Washington,
Defendant-Appellant.
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APPEAL
from a judgment and an order of the circuit court for Milwaukee County: william
w. brash, iii, Judge. Affirmed.
Before Fine, Kessler, JJ., and Daniel L. LaRocque, Reserve
Judge.
¶1 PER CURIAM. Alfonzo E. Washingon pled
guilty to one count of felony murder (armed robbery), party to a crime. See
Wis. Stat. §§ 940.03, 939.05 (2005-06). The circuit court imposed a bifurcated
sentence of forty years, comprised of thirty years of initial confinement and
ten years of extended supervision. The
circuit court denied Washington’s
postconviction motion for sentence modification. On appeal, Washington renews the arguments
made in his postconviction motion, namely, (1) the circuit court erroneously
exercised its sentencing discretion and the sentence was unduly long and
excessive; (2) the circuit court erred when it did not explain why it did not
adopt the sentencing recommendation made in the presentence investigation
report; and (3) the circuit court denied him equal protection by imposing a
harsher sentence on him than the sentence meted out to one of his
co-actors. Because the record shows that
the circuit court properly exercised its sentencing discretion, we affirm.
BACKGROUND
¶2 Kevin Bohannon was walking home from work after working a
late shift. He was wearing tennis shoes
and listening to an MP-3 player as he walked through a park. Washington, Corey Young, and John Luckett
were driving around looking for people to rob.
Luckett was the driver. Young
noticed Bohannon because of the MP-3 earphones, and Washington and Young approached
him. They took Bohannon’s shoes and hat,
the MP-3 player, and a small amount of money.
During the robbery, Young shot and killed Bohannon. Washington and Young then left the scene in
the car driven by Luckett. The three men
had committed another robbery earlier in the night. As noted, Washington pled guilty to one count of
felony murder (armed robbery), party to a crime.
DISCUSSION
¶3 Washington first contends that the circuit court erroneously
exercised its sentencing discretion by not adequately considering various
mitigating factors such as his lack of a prior adult criminal record and the
acceptance of responsibility as evidenced by his guilty plea. Washington
points to the “favorable character evidence” presented in his sentencing
memorandum and contends that the circuit court “did not meaningfully consider …
[his] less involved role in the robbery, his cooperation, admission and
initiative in turning himself in.” Washington complains
that the circuit court “emphasized [the] seriousness of the offense and [the]
impact on the victim to the exclusion of other worthwhile factors.” Washington
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 was
needed to meet” the sentencing objectives.
Finally, Washington
contends that the sentence is “unduly long and excessive.” We reject Washington’s contentions.
¶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. See State v.
Spears, 227 Wis.
2d 495, 507, 596 N.W.2d 375 (1999).
Appellate review of sentencing 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. “When discretion is
exercised on the basis of clearly
irrelevant or improper factors, there is an erroneous exercise of
discretion.” Id. When the exercise of discretion has been
demonstrated, we follow “a consistent and strong policy against interference
with the discretion of the trial court in passing sentence.” Id.,
¶18 (citation omitted). “Sentencing
decisions of the circuit court are generally afforded a strong presumption of
reasonability because the circuit court is best suited to consider the relevant
factors and demeanor of the convicted defendant.” Id. (citation
and brackets omitted). 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.” Id.,
¶23 (citation omitted).
¶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.” Id.,
¶40. Also, under truth-in-sentencing,
the legislature has mandated that the court shall consider the protection of
the public, the gravity of the offense, the rehabilitative needs of the
defendant and other aggravating or mitigating factors. Id.,
¶40 n.10.
¶6 The court considered the nature of the offense, describing it
as an “appalling, atrocious act” that was “aggravated” because Bohannon was
killed. The court considered the
relative levels of culpability for the three participants, noting that “by all
accounts” the three men discussed and planned to commit a series of
robberies. The court stated that all
three men were responsible for the crime, stating that “everybody knew what was
going to happen, and, … should have known … what could happen any time you take
a firearm, stick it in somebody’s face, and demand their possessions.” The court noted that Washington “was a willing participant” in
the robbery who “struck Mr. Bohannon in the head, knocking him to the ground,
[where] Young shot him.” The court
acknowledged that Washington
was not the “trigger man” but that his culpability was closer to Young’s than
Luckett’s because “he was there … [and] was one of two primary actors.” The court also considered the impact of the
crime on the victim, noting that Bohannon was “a young man who [wa]s doing all
of the things that he needed to do to go forward in life.”
¶7 The circuit court also discussed Washington’s character. The court specifically considered Washington’s background,
stating that he “didn’t have the best childhood” but he had graduated from high
school and had been employed. The court
further noted that Washington
appeared remorseful. The court noted
that, of the three co-actors, Washington’s
criminal record was the least serious, but stated that a defendant’s criminal
record is “only one component factor that the court looks at.”
¶8 As required by Gallion, the court identified its
sentencing objectives—protection of the community, punishment, deterrence of
others and Washington’s
rehabilitative needs. See id., ¶40. The court stated that the community’s need
for protection was “paramount” and that punishment was “right up there.” The court further stated that Washington’s
rehabilitative needs must be addressed by the sentence.
¶9 The record shows that the circuit court identified the
various factors that it considered in fashioning its sentence. The circuit court identified its sentencing
objectives. Contrary to Washington’s appellate
argument, the circuit court considered the relevant mitigating factors. While Washington
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 Wis. 2d 339, 355, 348
N.W.2d 183 (Ct. App. 1984). The circuit
court did not erroneously exercise its sentencing discretion.
¶10 The potential sentence for the crime to which Washington pled was fifty-five years of
imprisonment, comprised of forty-one years and three months of initial
confinement and thirteen years and nine months of extended supervision. See
Wis. Stat. §§ 940.03(1),
943.32(2), & 973.01(2)(b)3. 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 Wis. 2d 179, 185, 233
N.W.2d 457 (1975). Given the potential
sentence facing Washington
and the overall circumstances of the crime, the sentence imposed is neither
unusual nor disproportionate.
¶11 Washington
next contends that the circuit court did not adequately explain why it rejected
the sentencing recommendations made in the presentence investigation report and
in the defense sentencing memorandum.
The court stated that the two recommendations were “inappropriate,”
because they “don’t … truly address the issues of this particular act.” Because “a sentencing court is not required
to give any particular level of deference to … sentencing recommendations …
included in presentence investigation reports,” State v. Brown, 2006 WI
131, ¶24, 298 Wis. 2d 37, 725 N.W.2d 262, the circuit court did not err when it
rejected the sentencing recommendations without further explanation.
¶12 Washington
also complains that his constitutional right to equal protection was violated
because his sentence was more severe than that imposed on Luckett. The court sentenced Luckett to twenty-eight
years of imprisonment, comprised of eighteen years of initial confinement and
ten years of extended supervision, and Washington argues that the court “should
have imposed the same or lesser sentence” on him because he had “no criminal
convictions, no drug charges or drug issues and had tried to work.” Additionally, Washington points to his high school
education, remorse, cooperation and that “[h]e intended only on committing a
robbery and did not know that Corey Young was going to harm or kill the
victim.”
¶13 Although equal protection “requires substantially the same
sentence for substantially the same case histories, it does not preclude different
sentences for persons convicted of the same crime based upon their individual
culpability and need for rehabilitation.”
Drinkwater v. State, 73 Wis.
2d 674, 679, 245 N.W.2d 664 (1976). As
noted above, the court considered the relative degrees of culpability between
the three men, concluding that Young, who fired the gun, was the most culpable
and Luckett, who stayed in the car, was the least culpable. The court considered relevant and proper
factors when imposing sentence, and any disparity in sentence arises from the
court’s reasoned consideration. Thus, Washington’s argument
fails. See id. at 680 (circuit court did not err when “the disparity
between the sentences … was the result of the trial judge’s consideration of
factors pertinent to sentencing procedure”).
By the Court.—Judgment and order
affirmed.
This
opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)5.