COURT OF APPEALS

DECISION

DATED AND FILED

 

September 16, 2009

 

David R. Schanker

Clerk of Court of Appeals

 

 

 

NOTICE

 

 

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.�

 

 

 

 

Appeal No.�

2008AP2905

Cir. Ct. No.� 2006CF63

STATE OF WISCONSIN���

IN COURT OF APPEALS

 

DISTRICT II

 

 

 

 

State of Wisconsin,

 

��������� Plaintiff-Respondent,

 

���� v.

 

Gerald S. Mayek,

 

��������� Defendant-Appellant.

 

 

 

 

 

����������� APPEAL from a judgment and an order of the circuit court for Waukesha County:� j. mac davis, Judge.� Affirmed.�

����������� Before Brown, C.J., Anderson and Snyder, JJ.

�1������� PER CURIAM.   Gerald S. Mayek appeals from a judgment convicting him of two counts of robbery with threat of force and from the order denying his motion for postconviction relief.� He contends he is entitled to a new sentencing hearing because the circuit court failed to consider the sentencing guidelines for robbery.� We agree with the circuit court that in this case the failure to do so was harmless error.� We affirm.

�2������� Mayek pleaded guilty to two counts of armed robbery for staging two bank robberies to support his crack cocaine habit.� As part of the plea agreement, a charge of operating a vehicle without the owner�s consent was dismissed and read in for sentencing. �

�3������� At the April 2008 sentencing, the court first considered the seriousness of the offenses.� The court noted that the robberies were �ordinary, intermediate, and neither particularly aggravated or mitigated,� and the read-in was �an additional separate and serious crime.�� The court next considered Mayek�s character.� It remarked on his thirty-year criminal history, his cocaine addiction, the �accelerating� pace of offenses over the past decade, his probation failures and, over time, the serious nature of all of his uncharged but read-in offenses.� Finally, the court considered the protection of the public.� This consideration took �pole position� because Mayek�s addiction continued and he had been in and out of jail and prison yet continued to offend, leaving the court doubtful that Mayek had any realistic prospects for rehabilitation.� The court concluded that these intermediate-level crimes, with the aggravating factor of the read-in, called for the maximum sentence because �there is no realistic hope Mr. Mayek will quit victimizing the public if he has the opportunity.�� Accordingly, the court imposed a fifteen-year sentence on each count�ten years� initial confinement and five years� extended supervision�but ordered them concurrent to each other and consecutive to previously imposed Milwaukee county sentences. �

�4������� Wisconsin Stat. � 973.017(2)(a) (2007-08)[1] provides that when sentencing a person convicted of a felony committed on or after February 1, 2003, the court �shall consider� the sentencing guidelines adopted by the sentencing commission created under 2001 Wis. Act 109. �The court here did not.

�5������� Mayek filed a postconviction motion asserting that the circuit court�s failure to consider the guidelines entitled him to resentencing.� The court conceded its legal error but concluded it was harmless because it did not interfere with Mayek�s due process rights to have a fair sentencing or prevent consideration of the proper factors.� The court denied the motion, and Mayek appeals.

�6������� Mayek contends the failure to consider the guidelines is not harmless because if they had been considered, his sentence would have been less.� He argues that even for an offender deemed high risk, the guidelines recommend three to seven and one-half years for an intermediate-level crime, which is how the court categorized his offenses.� For several reasons, we are not persuaded.�

�7������� A circuit court satisfies its Wis. Stat. � 973.017(2)(a) obligation when the sentencing hearing record demonstrates that the court actually considered the sentencing guidelines and so stated on the record.� State v. Grady, 2007 WI 81, �3, 302 Wis. 2d 80, 734 N.W.2d 364.� The failure to consider the sentencing guidelines may be harmless error, however. �See State v. Sherman, 2008 WI App 57, �9, 310 Wis. 2d 248, 750 N.W.2d 500. �An error is harmless if it does not affect the defendant�s substantial rights. �Wis. Stat. � 805.18 (made applicable to criminal proceedings by Wis. Stat. � 972.11(1)).� We must be convinced beyond a reasonable doubt that the error was harmless.� State v. Hale, 2005 WI 7, �60, 277 Wis. 2d 593, 691 N.W.2d 637.� To determine harmless error, we review the totality of the circumstances.� State v. Harris, 2008 WI 15, �48, 307 Wis. 2d 555, 745 N.W.2d 397.�

�8������� The guidelines worksheet for robbery plots the severity of the offense against future risk of reoffending by assessing numerous factors and categorizing them as mitigating or aggravating. �The court here considered these factors.� It noted that the offenses were serious and increasing in frequency, that Mayek had a troubled youth, was a �career criminal� with a long-term cocaine addiction, had a poor support network, was out of trouble only when confined, had no realistic prospects of being rehabilitated and was highly likely to reoffend.� Nothing in the transcript suggests to us that the court would have ordered a lesser sentence had it considered the guidelines� sentencing recommendation.

�9������� Moreover, the guidelines� recommendations are a guide, not a mandate.� See State v. Speer, 176 Wis. 2d 1101, 1126, 501 N.W.2d 429 (1993).� A court is not bound to adhere to them.� See Grady, 302 Wis. 2d 80, �16; see also Wis. Stat. � 973.017(10). �The court�s thorough and reasoned explanation of the sentence convinces us that Mayek�s substantial rights were not affected and that the error was harmless beyond a reasonable doubt.�

����������� By the Court.�Judgment and order affirmed.�

����������� This opinion will not be published.� See Wis. Stat. Rule 809.23(1)(b)5.

 

 

 

 

 


[1]  Wisconsin Stat. � 973.017(2), as well as � 973.017(10), cited supra in the text at �9, were repealed effective June 30, 2009.� See 2009 Wis. Act 28, �� 3386m, 3387m.�

All references to the Wisconsin Statutes are to the 2007-08 version unless otherwise noted.�