COURT OF APPEALS DECISION DATED AND FILED October 15, 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. Robert Howard Burnett, Jr., Defendant-Appellant. |
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APPEAL
from a judgment and an order of the circuit court for
Before Curley, P.J., Fine and Kessler, JJ.
¶1 PER CURIAM. Robert Howard Burnett, Jr., appeals from a judgment of conviction and an order denying his postconviction motion. Burnett claims that the circuit court erroneously exercised its sentencing discretion in several respects. We reject his contentions and affirm.
Background
¶2 Burnett pled guilty to one count of attempted armed robbery by threat of force, as a party to a crime. The criminal complaint reflects that Burnett and two companions armed themselves with a loaded revolver and attempted to rob a group of men working at an automobile repair shop. One victim ran into the road to escape and sustained injuries when he was struck by an oncoming vehicle.
¶3 Pursuant to the parties’ plea bargain, the State recommended a prison term but made no recommendation as to the length of the sentence. Burnett requested twenty-four months of initial confinement, followed by an unspecified term of extended supervision. The circuit court imposed a six-year term of imprisonment, bifurcated as three years of initial confinement and three years of extended supervision.[1]
¶4 Burnett filed a postconviction motion, claiming that the circuit court improperly assessed the relevant sentencing factors and failed to specify the objectives of the sentence imposed. The circuit court denied the motion without a hearing, and this appeal followed.
Discussion
¶5 Burnett asserts that the circuit court erroneously exercised
its sentencing discretion. Our review is
deferential. “[W]e start with the
presumption that the circuit court acted reasonably.” State v. Lechner, 217
¶6 The circuit court must consider the primary sentencing
factors of “the gravity of the offense, the character of the defendant, and the
need to protect the public.” State
v. Ziegler, 2006 WI App 49, ¶23, 289
¶7 Here, Burnett asserts that the circuit court improperly
assessed the primary sentencing factors by giving inadequate consideration to
his character. We disagree. The circuit court characterized Burnett as “a
bright guy,” but concluded that he was squandering his investment in training
and education. The court discussed
Burnett’s inability to be “consistent in managing his affairs.” Additionally, the court took into account
Burnett’s five prior convictions. See State v. Fisher, 2005 WI App 175,
¶26, 285
¶8 The circuit court also discussed the gravity of the attempted armed robbery, noting that one of the victims was so frightened at the sight of a gun that he ran into traffic. As to the public’s need for protection, the circuit court observed that Burnett was on extended supervision at the time of the offense. The court concluded that Burnett was “not getting the message” in a community setting. We are satisfied that the circuit court appropriately considered the primary sentencing factors in this case.
¶9 Burnett next contends that the circuit court did not consider a variety of mitigating factors. He emphasizes that he was the lookout rather than the gunman in the attempted armed robbery, and he asserts that the circuit court should therefore have deemed his personal culpability “minimal.” This argument understates Burnett’s role. The criminal complaint—the accuracy of which Burnett conceded during his guilty plea—reflects that Burnett was also involved in planning the crime. Burnett points to nothing requiring the circuit court to view one of the masterminds of an offense as a minor participant.
¶10 Burnett further argues that the circuit court gave inadequate
consideration to his childhood sexual abuse, his cocaine addiction, his
education, and his employment history. Burnett
fails to acknowledge, however, that the circuit court has discretion to
determine both the factors that it believes are relevant in imposing sentence
and the weight to assign to each relevant factor. See State v. Stenzel, 2004 WI App 181,
¶16, 276
¶11 The circuit court did consider Burnett’s education and skills
as significant to the disposition, but it did not view these as mitigating
factors. Rather, the court was disturbed
because Burnett had “much on the ball,” and had “put something into his life …
in terms of education,” but had failed to capitalize on his abilities. The court has discretion to determine whether
it will view any particular factor as mitigating or aggravating in light of the
individual defendant and the facts of the case.
State v. Thompson, 172
¶12 Burnett next contends that the circuit court failed to explain
the objectives of the sentence. We are
not persuaded. The circuit court stated that
it would impose the punishment that Burnett deserved. See
Gallion,
2004 WI 42, ¶40, 270
¶13 Burnett complains that the circuit court failed to explain why
it did not adopt the defense recommendation for two years of initial
confinement. In fact, the circuit court
had no obligation to give such an explanation.
See State v. Johnson, 158
¶14 Burnett’s related complaint that the circuit court failed to
justify the three-year term of confinement imposed is also unavailing. The circuit court considered the primary
sentencing factors as well as additional factors that it found relevant. The court identified appropriate goals and it
imposed a sentence to meet those goals. While
Burnett believes that the circuit court’s sentencing rationale does not justify
three years of incarceration, “no appellate-court-imposed tuner can ever
modulate with exacting precision the exercise of sentencing discretion.” See State v. Ramuta, 2003 WI App 80,
¶25, 261
¶15 Moreover, the six-year term of imprisonment imposed by the
circuit court was far less than the twenty-year maximum Burnett faced. Accordingly, the sentence was neither
excessive nor unduly harsh. “‘[A]
sentence well within the limits of the maximum sentence is not so
disproportionate to the offense committed as to shock the public sentiment and
violate the judgment of reasonable people concerning what is right and proper
under the circumstances.’” State
v. Grindemann, 2002 WI App 106, ¶31, 255
¶16 Burnett last asserts that his postconviction motion for sentence modification was improperly denied in the face of “clearly identified … misuses of the [circuit] court’s discretion.” Because we conclude that the circuit court appropriately exercised its sentencing discretion, we reject this contention.
By the Court.—Judgment and order affirmed.
This opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)5. (2005–06).
[1] In
addition to imprisonment, the circuit court imposed a $500 fine. Burnett has not contested the fine, either in
his postconviction motion or on appeal.
Accordingly, any potential issue in this regard is waived.