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COURT OF APPEALS
DECISION
DATED AND FILED
November 25, 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.
Angel Moreno a/k/a Israel Valencia,
Defendant-Appellant.
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APPEAL
from a judgment and an order of the circuit court for Milwaukee County: WILLIAM SOSNAY, Judge. Affirmed.
Before
Curley, P.J., Kessler, J. and Daniel L. LaRocque, Reserve Judge.
¶1 PER CURIAM. Angel Moreno (also known as
Israel Valencia) appeals from a judgment of conviction for possessing over
forty grams of cocaine with intent to deliver, and from a postconviction order
denying his motion for resentencing. The
issues are whether the trial court actually relied on inaccurate information
when it sentenced Moreno, and whether Moreno’s sentence was unduly harsh and excessive when compared
to the relatively lenient disposition Moreno’s
co-defendant received. We conclude that
the trial court did not sentence Moreno
on inaccurate information, and that his sentence was not unduly harsh,
excessive or disparate compared to that of his co-defendant. Therefore, we affirm.
¶2 Moreno
and his co-defendant, Juan Beserra, were each charged with possessing with
intent to sell more than forty grams of cocaine as a party to the crime, in
violation of Wis. Stat. § 961.41(1m)(cm)4.
(amended Feb. 1, 2003) and 939.05 (2003-04). Police found approximately 5.4 grams of
cocaine on Moreno, approximately .64 grams of
cocaine powder on a dollar bill recovered from Beserra, and approximately
365.28 grams in Beserra’s pickup truck, in which he and Moreno were driving. Moreno
pled guilty and Beserra entered a no-contest plea to the charge. The same trial court judge sentenced both
Beserra and Moreno; Beserra was sentenced six
months before Moreno. Beserra was given a seven-year sentence,
which was imposed and stayed, in favor of a four-year probationary term
conditioned upon serving one year in the House of Correction (“condition
time”), which was later reduced to six months. Moreno
was sentenced to twenty years, comprised of ten-year periods of initial
confinement and extended supervision. Moreno moved for
resentencing, which the trial court denied.
Moreno
appeals.
¶3 The crux of Moreno’s
challenge is his claim that the trial court inaccurately recalled that it had
sentenced Beserra to a seven-year sentence, rather than having imposed and
stayed that sentence in favor of a probationary term that included condition
time of one year. Moreno
claims that had the trial court correctly recalled Beserra’s sentence, and that
it had imposed a four-year probationary term with one year of condition time,
it would not have imposed a twenty-year sentence on Moreno for the exact same offense. This claim underlies Moreno’s inaccurate information and his
disparate and unduly harsh challenges.
¶4 We first address Moreno’s
contention that the trial court actually relied on inaccurate information when
it imposed his sentence.
“A defendant who requests resentencing due to the
[trial] court’s use of inaccurate information at the sentencing hearing ‘must
show both that the information was inaccurate and that the court actually
relied on the inaccurate information in the sentencing.’” Once actual reliance on inaccurate
information is shown, the burden then shifts to the state to prove the error
was harmless.
State v. Tiepelman, 2006
WI 66, ¶26, 291 Wis.
2d 179, 717 N.W.2d 1 (citations omitted).
¶5 Moreno
contends that the trial court incorrectly recalled that it had imposed a
seven-year sentence on Beserra for committing the exact same offense, when the
trial court actually imposed and stayed that sentence in favor of probation
that included one year of condition time.
Moreno claims that the trial court viewed
Beserra more favorably than it viewed him (Moreno),
and considered the seven-year sentence as less than the minimum sentence it
would impose on the more culpable Moreno. Had the trial court correctly recalled that
Beserra was actually serving one year of condition time, according to Moreno,
that one year condition time or the probationary term would have been the
starting point to determine Moreno’s sentence, rather than starting its
analysis at a seven-year sentence.
¶6 The trial court held a hearing on Moreno’s postconviction motion, and in its
oral ruling, it insisted that it “had no misunderstanding whatsoever and did
not rely on inaccurate information.” The
trial court continued that it “certainly was aware of the fact that Mr. Beserra
was given probation with condition time because I made such a point of it
before I imposed that sentence that I was satisfied that that was the
appropriate sentence under those circumstances.”
¶7 At Moreno’s sentencing hearing, the prosecutor and defense
counsel each discussed the facts of the case, referred to Beserra’s involvement
as general factual background, and explained how Beserra’s degree of
involvement compared to that of Moreno:
the prosecutor argued that Moreno was more culpable than Beserra,
defense counsel argued that Moreno was less culpable than Beserra. The trial court then asked the prosecutor
whether he also prosecuted Beserra because the trial court recalled that “[t]he
story that I heard regarding Mr. Beserra was quite different than what [defense
counsel] described.” The prosecutor
confirmed the correctness of the trial court’s recollection. Then the trial court stated: “And Mr. Beserra actually got seven
years. Three years of initial
confinement and four years of extended supervision. If I recall correctly, he was an older
gentleman. He was from Ohio
and he was coming through Chicago,
correct?” The prosecutor again confirmed
the correctness of the trial court’s recollection. The prosecutor then told the trial court that
Beserra “did receive one year up front condition time as well to the sentence
that the court just [al]luded [to].”
¶8 The trial court’s remarks, recalling Beserra as an “older
gentleman …. from Ohio,”
corroborated its postconviction remarks that
more particularly, and specifically with respect to the
sentencing of this defendant, let me say from the outset that this Court had no
misunderstanding whatsoever and did not rely on inaccurate information as to
anything that I relied upon in sentencing Mr. Moreno, also known as Mr.
Valencia, and I believe that is the name that he has.
¶9 Our review of the sentencing transcript shows that the trial
court referred to Beserra in recalling the facts of the crime and Moreno’s involvement, and
that the prosecutor reminded the trial court that Beserra “receive[d] one year
up front condition time.” One year
condition time referred to the duration of the time imposed as a condition of
probation; a prison term would not be referred to as “condition time.” Consequently, the trial court’s insistence
that it accurately recalled Beserra’s disposition, coupled with the prosecutor’s
reference to “one year up front condition time” persuades us that the trial
court did not sentence Moreno
on inaccurate information.
¶10 Moreno’s
second challenge is that his sentence was disparately harsh as compared to that
of Beserra.
Disparity
alone does not amount to a denial of equal protection. The sentence imposed upon the defendant was
based upon relevant factors with no improper considerations on the part of the
trial court. The sentence was not
excessive. “Undue leniency in one case
does not transform a reasonable punishment in another case to a cruel one.”
Ocanas v. State, 70 Wis. 2d 179, 189,
233 N.W.2d 457 (1975) (footnote omitted).
The trial court is not obliged, however, to consider the sentence
imposed on an accomplice. See id.
at 188-89. The trial court’s sentencing
obligation is to consider the primary sentencing factors (the gravity of the
offense, the character of the offender, and the need for public protection),
and to exercise its discretion in imposing a reasoned and reasonable
sentence. See
State v. Larsen, 141
Wis. 2d
412, 426-28, 415 N.W.2d 535 (Ct. App. 1987).
¶11 The trial court considered the primary sentencing factors. It considered this offense “extremely serious”
because it involved a large amount of cocaine, which is an “extremely
addictive” drug that crossed state lines.
It also considered Moreno’s
character, and its consideration of this primary sentencing factor was what
accounted for much of the disparity in sentences. It was troubled by Moreno’s prior drug conviction, which
resulted in his deportation. Moreno, however, returned
to this country illegally to again sell drugs.
Moreno’s
actions jeopardized the safety of the community because the public does not “want
people coming in from out of state selling drugs or delivering them to be
sold.” The trial court continued that
“[t]his is a situation that deserves the type of penalty that the legislature
obviously had in mind when they crafted this penalty section for the amount of
drugs involved here.” The trial court
properly exercised its sentencing discretion.
¶12 A sentence is unduly harsh when it 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,
70 Wis. 2d at
185. “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. Daniels, 117 Wis. 2d 9, 22, 343
N.W.2d 411 (Ct. App. 1983). We review an
allegedly harsh and excessive sentence for an erroneous exercise of
discretion. See
State v. Giebel, 198
Wis. 2d 207,
220, 541 N.W.2d 815 (Ct. App. 1995).
¶13 The trial court imposed a harsher sentence on Moreno because of his prior drug conviction,
and his return to this country illegally (after he was deported for his prior
conviction) to again engage in drug-trafficking. Beserra had no prior record, and from the
sentencing presentation of the prosecutor and Beserra’s counsel at Beserra’s
sentencing, Beserra’s character was far different from that of Moreno. According to their sentencing presentations,
Beserra was seemingly tricked into doing this with Moreno,
who was portrayed by all except Moreno’s
defense counsel, as the more culpable party.
The trial court was very concerned about the risk Moreno posed to the community, whereas it did
not view Beserra, an older, stable family man with grandchildren, as a
community risk. While the trial court
need not explain its reasons for imposing seemingly disparate sentences, the
reasons for the court’s different sentences for Moreno and Beserra were reasoned and
reasonable. We consequently conclude
that the trial court had valid reasons for imposing different sentences on Moreno and Beserra.
¶14 A twenty-year sentence, comprised of ten-year periods of
initial confinement and extended supervision, was within the maximum potential
penalty for this offense that was forty years, including a twenty-five-year
maximum potential period of initial confinement. See Wis. Stat. §§ 961.41(1m)(cm)4.
(amended Feb. 1, 2003); 939.50(3)(c) (amended Feb. 1, 2003); 973.01(2)(b)3.
& (d)2. (amended Feb. 1, 2003). See Daniels,
117 Wis. 2d
at 22. We also do not view a twenty-year
sentence with a ten-year period of initial confinement as shocking the
conscience of reasonable people, when imposed on a repeat drug offender who
re-entered this country illegally to again sell drugs, and transport them across
state lines.
By the Court.—Judgment and order
affirmed.
This
opinion will not be published. See Wis.
Stat. Rule 809.23(1)(b)5. (2005-06).