COURT OF APPEALS DECISION DATED AND FILED October 27, 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. Raymond Bernard Smith, Defendant-Appellant. |
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APPEAL
from a judgment and an order of the circuit court for
Before Fine, Kessler and Brennan, JJ.
¶1 PER CURIAM. Raymond Bernard Smith appeals from a judgment of conviction entered on his guilty plea to one count of burglary in violation of Wis. Stat. § 943.10(1m)(a) (2005-06).[1] He also appeals from an order denying his postconviction motion for sentence modification. Smith alleges that the circuit court erroneously exercised its sentencing discretion by failing to consider the appropriate sentencing factors and failing to explain the linkage between those factors and the sentence. We conclude that the circuit court did not erroneously exercise its sentencing discretion and did not err in denying Smith’s motion for sentence modification. Therefore, we affirm.
BACKGROUND
¶2 Smith burglarized two restaurants, the Charcoal Grill in Ozaukee County on July 7, 2006, and a Culver’s in Milwaukee County on September 6, 2007. The crimes were similar in nature. Both burglaries involved breaking a window from the outside, climbing inside and taking cash. Further, the burglaries both occurred in the early morning hours before anyone was present.
¶3 The cases were consolidated in
¶4 Smith filed a motion for postconviction relief seeking sentence modification on grounds that the circuit court erroneously exercised its discretion when it imposed the sentence. The circuit court denied the motion without a hearing. This appeal follows.
DISCUSSION
¶5 Smith argues that the circuit court erroneously exercised its discretion when it sentenced him. First, he claims the circuit court failed to consider his character factors, such as his upbringing, education and accomplishments. Second, he claims the circuit court failed to explain how the sentence’s component parts promote the sentence objectives, as required by State v. Gallion, 2004 WI 42, 270 Wis. 2d 535, 678 N.W.2d 197. For those reasons, Smith argues that the circuit court should have imposed a concurrent sentence and that his sentence should be modified accordingly.
¶6 The standard of appellate review of sentencing decisions is
well-established. There is strong public
policy against interference with the circuit court’s discretion in sentencing
because the circuit court is best suited to consider relevant factors and the
defendant’s demeanor.
¶7 In order for the sentence to be valid, the circuit court must
make a statement “‘detailing [its] reasons for selecting the particular
sentence imposed.’” Gallion, 270
¶8 Smith argues that the circuit court failed to consider his character and failed to show a linkage between the sentence and the sentencing objectives. Specifically, Smith argues that the circuit court failed to consider mitigating factors such as “his upbringing, his education, athletic accomplishments, family ties and intelligence.” He also contends that the circuit court failed to “credit his effort to cooperate and admit responsibility.” For these reasons, Smith argues, a concurrent sentence should have been imposed. We are not persuaded that the circuit court erroneously exercised its discretion.
¶9 The circuit court considered appropriate sentencing factors, including Smith’s character. It gave proper weight to the various mitigating factors given by Smith. It acknowledged Smith’s education, athletic scholarship, job history and previous stability in his life, but also noted that drugs were a substantial problem for him. It also noted that Smith had other problems which may have led him to commit crimes, but it pointed out that there will likely be things going on every day for the rest of Smith’s life that could potentially spur drug usage or criminal activity. Further, it recognized both Smith’s acceptance of responsibility for the crimes and his rehabilitative needs, but weighed those factors against the rights of the public to be free from these crimes.
¶10 In addition to the circuit court’s recognition of the positive aspects of Smith’s character, it gave particular weight to the fact that Smith had engaged in “significant criminal activity” in a relatively short period of time. Specifically, Smith had been caught in six burglaries; three of the burglaries resulted in convictions (including the conviction in the instant case), and three of the burglaries were read in. Due to the severity of the crime of burglary—a Class F felony that exposed Smith to twelve-and-a-half years of imprisonment, a fine of no more than $25,000, or both, see Wis. Stat. § 939.50(3)(f) (2005-06)—and the right of the public to be free from these crimes, the circuit court concluded that a sentence of eighteen months of initial confinement and two-and-a-half years of extended supervision was appropriate. It also addressed the inappropriateness of probation, although no party argued that probation was warranted.
¶11 For the same reasons as stated above, we reject Smith’s argument that the circuit court did not explain the linkage between the sentence and the sentencing objectives. The circuit court did not find a basis for making the sentence concurrent based on the nature of the offense. Specifically, it acknowledged the fact that although these were not home invasions, they were the latest in a string of six burglaries, three of which were dismissed and read in. Given the frequency and nature of the crimes, the circuit court concluded that a concurrent sentence was not appropriate. Here, the circuit court’s statements were sufficiently detailed in explaining the reasons for the particular sentence and were consistent with the requirements of Gallion.
¶12 In sum, we conclude that the circuit court considered the
appropriate sentencing factors and adequately explained the linkage between the
sentence and the sentencing factors. Moreover,
we conclude that a total sentence of four years out of a possible
twelve-and-a-half year sentence is not “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.” See Ocanas
v. State, 70
By the Court.—Judgment and order affirmed.
This opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)5.