COURT OF APPEALS DECISION DATED AND FILED September 1, 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 |
IN COURT OF APPEALS |
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DISTRICT I |
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State of Plaintiff-Respondent, v. Rodney Deon Lambert, Defendant-Appellant. |
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APPEAL
from a judgment and an order of the circuit court for
Before Curley, P.J., Fine and Brennan, JJ.
¶1 PER CURIAM. Rodney Lambert pled guilty to several crimes, including armed robbery, party to a crime. See Wis. Stat. §§ 943.32(1)(b) and (2), 939.05 (2005-06).[1] The sole issue on appeal is whether the trial court erroneously denied Lambert’s motion for resentencing in which Lambert contended that he was entitled to resentencing because the sentencing court failed to consider the applicable sentencing guidelines. See Wis. Stat. § 973.017(2)(a) (2005-06).[2] The trial court ruled that, even though it did not complete a sentencing guideline form, it considered all of the factors set forth in the guidelines when imposing sentence and, therefore, Lambert was not entitled to resentencing. We affirm.
¶2 For felony offenses, “the court shall consider” applicable
guidelines adopted by the sentencing commission or the criminal penalties study
committee. Wis. Stat. § 973.017(2)(a). A sentencing court fulfills this obligation
“when the record of the sentencing hearing demonstrates that the court actually
considered the sentencing guidelines and so stated on the record.” State v. Grady, 2007 WI 81, ¶30, 302
¶3 Lambert first argues that the trial court erred in denying
his motion without a hearing, suggesting that the “supplement[ation] of the
record with evidence beyond the sentencing hearing,” must be done at a hearing
and not by order, as was done in this case.
Lambert does nothing more than assert error, and he does not develop
this argument. We decline to address
it. See
State
v. Pettit, 171
¶4 We next consider Lambert’s primary argument, that is, that
the trial court’s statement that it considered the factors set forth in the
guidelines is not the same as considering the guidelines and is “legally
insufficient and improper.” Lambert’s
argument is an exercise in semantics. He
does not adequately explain why the guideline differs from the factors set
forth in the guidelines. Lambert may be
suggesting that the court, by referring to “factors,” meant sentencing factors
which, while often overlapping, are technically separate from the
guidelines. See, e.g., State v. Gallion, 2004 WI 42, ¶43,
270 Wis. 2d 535, 678 N.W.2d 197. If
this is Lambert’s argument, however, it is not adequately developed, and we do
not address it. See Pettit, 171
By the Court.—Judgment and order affirmed.
This opinion shall not be published. See Wis. Stat. Rule 809.23(1)(b)5.
[1] All references to the Wisconsin Statutes are to the 2007-08 version unless otherwise noted.
[2] Wis. Stat. § 973.017(2)(a) (2005-06) obligated a sentencing court to consider “the sentencing guidelines adopted by the sentencing commission under s. 973.30.” The sentencing commission had adopted sentencing guidelines for the crime of armed robbery.
[3] Lambert suggests that this court’s orders in a previously-filed no-merit appeal required the trial court to conduct a hearing. Our orders did not impose any such requirement. In an April 4, 2008 order, this court noted that the record showed a potentially meritorious appellate issue under State v. Grady, 2007 WI 81, 302 Wis. 2d 80, 734 N.W.2d 364, and directed Lambert’s counsel to discuss with Lambert whether he wanted to pursue a postconviction motion raising a Grady issue. That order noted that if Lambert filed a postconviction motion, “the trial court would then have an opportunity to make a record on whether it did or did not consider the guidelines.” Nothing in that order, or this court’s subsequent order dismissing the no-merit appeal, required that the trial court conduct an evidentiary hearing.
[4] Completion
of the worksheet is not required to demonstrate consideration of the
guidelines. See Grady, 302
[5] Alternatively,
we would hold there is harmless error, as Lambert has not attempted to
demonstrate the likelihood of a different result following remand. See
State
v. Harvey, 2002 WI 93, ¶46, 254