COURT OF APPEALS
DECISION
DATED AND FILED
July 16, 2009
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.
Alfonso Elizalde Santos,
Defendant-Appellant.
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APPEAL
from a judgment and an order of the circuit court for Waukesha County: Linda
M. Van De Water, Judge. Affirmed.
Before Vergeront, Lundsten and Bridge, JJ.
¶1 PER CURIAM. Alfonso Elizalde Santos
appeals a judgment convicting him of repeated sexual assault of a child. He also appeals an order denying his motion
for a sentence modification. Santos contends that the circuit
court erroneously exercised its sentencing discretion. We disagree, and affirm.
¶2 When Santos was 22, he entered into a relationship with
Sophia R., then 14. At one point, Sophia
ran away to Texas with Santos.
When they returned, they shared a bedroom in her mother’s residence for
several months, and regularly engaged in sexual intercourse. Police eventually learned of the relationship,
and the State charged Santos
with repeated sexual assault of a child.
Several months later, Sophia, then 16, gave birth to a child. Santos
is the father.
¶3 While this case was pending, Santos was charged with criminal damage to
property, and two counts of felony bail jumping for missing two appearances in
this proceeding. He missed one of the
appearances because he had travelled to Texas,
where he was arrested and extradited back to Wisconsin.
¶4 Santos
subsequently entered a guilty plea to the sexual assault charge. The State agreed to dismiss the bail jumping
and criminal damage charges, which remained as read-in offenses. The circuit court sentenced Santos to four years of initial confinement,
with 231 days of sentence credit, and three years of extended supervision. Santos
appealed after the circuit court denied his motion for a sentence modification. He contends that the circuit court failed to
give adequate reasons for the sentence, imposed an excessive sentence given the
numerous mitigating factors present in the case, and sentenced him on
inaccurate information as reflected in the court’s comments at sentencing and
its listing of aggravating factors on its sentencing guidelines worksheet.
¶5 Circuit courts exercise discretion at sentencing, and we
review sentences under the erroneous exercise of discretion standard. State v. Gallion, 2004 WI 42, ¶17,
270 Wis. 2d
535, 678 N.W.2d 197. A proper exercise
of discretion requires that the court articulate the reasons for the sentence
on the record. Id., ¶¶8, 38. Additionally, a defendant has a
constitutional due process right to be sentenced upon accurate information. State v. Tiepelman, 2006 WI 66, ¶9,
291 Wis. 2d
179, 717 N.W.2d 1. We review whether a
defendant has been denied this due process right de novo. Id.
¶6 The circuit court adequately explained the sentencing
decision. The court primarily considered
the seriousness of the offense, consisting of repeated acts of sexual
intercourse over a substantial period, the fact that it resulted in pregnancy,
the read-in offenses, the difference in ages between the perpetrator and the victim,
Santos’ knowledge that his sexual relationship with Sophia was criminal, and
the fact that Santos had a prior conviction and used aliases. These were all relevant and proper factors to
consider, and the circuit court clearly explained its reliance on them on the
record. The court’s duty to articulate
its decision is satisfied if the court puts forth a “rational and explainable”
chain of reasoning based on facts in the record. See State v.
Taylor, 2006 WI 22, ¶30, 289 Wis.
2d 34, 710 N.W.2d 466. The court did so
here.
¶7 The circuit court properly exercised its discretion with
regard to the mitigating factors Santos
presented. Santos identifies those
mitigating factors to include (1) the absence of alcohol, drug, or gang
affiliation issues, (2) no history of sexual assaults or felonies, (3) the
voluntary nature of the relationship with Sophia, (4) the victim and her
mother’s advocacy for probation, (5) the fact that Santos and Sophia come from
a cultural background that accepted their relationship, and (6) Santos’
acceptance of responsibility. In Santos’ view, the court
erroneously exercised its discretion by either ignoring or failing to place
adequate weight on these factors. However,
“[i]t remains within the discretion of the circuit court to discuss only those
factors it believes are relevant, and the weight that is attached to a relevant
factor in sentencing is also within the wide discretion of the sentencing
court.” State v. Stenzel, 2004 WI
App 181, ¶16, 276 Wis.
2d 224, 688 N.W.2d 20 (citations omitted).
The court’s decision to give lesser weight, or no weight, to the factors
listed above was a decision within its discretion, and does not provide grounds
for reversal.
¶8 Santos
has failed to demonstrate that he was sentenced on inaccurate information. A defendant raising this claim must show that
the information was inaccurate, and that the sentencing court relied on it. Tiepelman, 291 Wis. 2d 179, ¶26. If the defendant meets this burden, to avoid
resentencing the State must show that the error was harmless. State v. Anderson,
222 Wis. 2d
403, 410-11, 588 N.W.2d 75 (Ct. App. 1998).
An error is harmless if there is no reasonable probability that it
contributed to the outcome. Id. at
411.
¶9 Here, Santos
claims that the circuit court checked off five aggravating factors in its
sentencing guideline worksheet that have no basis in fact: (1) prior domestic abuse, (2) conduct more
serious than the offense of conviction, (3) low education level, (4) previously
on supervision and on legal status at the time of the offense, and (5) lack of
remorse. As to factor (1), there was at
least some evidence of domestic abuse because police first learned of the
relationship between Santos
and Sophia when she called to report that he had struck her. Although Sophia later denied the incident,
the circuit court had the discretion to believe the initial report rather than
the later denials. See State v.
Hubert, 181 Wis.
2d 333, 345, 510 N.W.2d 799 (Ct. App. 1993) (no formal burden of proof
requirement for factual findings which impact on a sentencing). As to factors (2), (3), and (5), the question
was not so much the accuracy of the facts, as it was the court’s interpretation
of them. The court could reasonably
determine that multiple acts of sexual intercourse with a child is conduct more
serious than the charge of repeated sexual acts with a child, which requires
only three instances of sexual contact.
The court could also reasonably consider Santos’ low education level as an aggravating
factor, even if it was, as he contended, not his fault. And the court could also reasonably consider
that Santos did
not show an appropriate level of remorse, given the fact that he offered his
and the victim’s cultural values as a mitigating factor. This court must accept reasonable inferences
drawn by the sentencing judge. See State v. Friday, 147 Wis. 2d 359, 370-71, 434 N.W.2d 85 (1989).
¶10 Only with regard to the court’s checking off prior supervision
and present legal status as an aggravating factor has Santos shown that the court had inaccurate
information. However, there is no
indication that the court relied on the information beyond checking off the
spaces on the sentencing worksheet. The
court made no reference to either factor in its sentencing remarks, and
correctly stated that Santos’
criminal record was limited to one prior misdemeanor conviction. There is no reasonable probability that the
court’s worksheet error resulted in a harsher sentence.
¶11 The remaining claim of inaccurate sentencing information
concerns the circuit court’s expressed opinion that Sophia’s mother agreed to
the relationship and allowed Santos and Sophia
to live together in her home only to induce Sophia to return to Wisconsin after running away to Texas
with Santos. As noted, there is no formal burden of proof
issue with regard to sentencing information.
The prosecutor had previously informed the court of this account of
Sophia’s and Santos’ return to Wisconsin, and the court was entitled to
accept that account, although different accounts were available.
By the Court.—Judgment and order
affirmed.
This
opinion will not be published. See Wis.
Stat. Rule 809.23(1)(b)5.
(2007-08).