COURT OF APPEALS DECISION DATED AND FILED December 22, 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. Adan Javier Ramirez, Defendant-Appellant. |
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APPEAL
from a judgment and an order of the circuit court for
Before Curley, P.J., Kessler and Brennan, JJ.
¶1 PER CURIAM. Adan Javier Ramirez appeals from a judgment of conviction entered upon his guilty plea to the charge of possession with intent to deliver more than 1000 but less than 2500 grams of marijuana. See Wis. Stat. §§ 961.01(14), 961.14(4)(t), 961.41(1m)(h)3. (2003-04).[1] He also appeals from an order denying his postconviction motion. The only issue is whether the circuit court erroneously exercised its sentencing discretion by rejecting probation and imposing a five-year term of imprisonment. We reject Ramirez’s arguments and affirm.
BACKGROUND
¶2 City of
¶3 Ramirez was eventually arrested in Monroe County, where the
State charged him on October 6, 2006, with possession with intent to deliver
fifty grams of cocaine. On October 11,
2006, Ramirez appeared before a
¶4 At sentencing, Ramirez urged the circuit court to impose
probation as recommended in the PSI. The
circuit court, however, explained that it could not agree with the recommendation
for probation in light of the
¶5 The parties clarified for the circuit court that Ramirez did
not post bail in
¶6 Ramirez filed a motion for postconviction relief from his sentence. The circuit court vacated a DNA surcharge imposed pursuant to Wis. Stat. § 973.046(1g), and otherwise denied the motion. This appeal followed.
DISCUSSION
¶7 Sentencing lies within the circuit court’s discretion, and
our review is limited to considering whether discretion was erroneously
exercised. State v. Gallion, 2004 WI
42, ¶17, 270
¶8 The circuit court must consider the primary sentencing
factors of “the gravity of the offense, the character of the defendant, and the
need to protect the public.” State
v. Ziegler, 2006 WI App 49, ¶23, 289
¶9 The sentence imposed should represent the minimum amount of
custody that is “‘consistent with the protection of the public, the gravity of
the offense and the rehabilitative needs of the defendant.’” Gallion, 270
¶10 Here, Ramirez contends that the circuit court inadequately justified its decision to reject probation. His position is based on two separate components of the court’s sentencing remarks. The court stated early in its discussion that “what’s most concerning is [Ramirez’s] foolish actions after being released by the court and committing another drug offense in another county.” Later, the court discussed the recommendation for probation contained in the PSI and stated:
In looking at this case, I would have been right with the PSI writer had [Ramirez] not committed these additional offenses. I, too, am rather shocked at the – at what happened in the other county with the quantity of cocaine that we’re talking about and – but – and that’s a direct violation of his bail.
¶11 In Ramirez’s view, the circuit court’s remarks show that the
court rejected probation because the court erroneously believed that Ramirez
committed offenses in Monroe County while out on bail in the instant case. Building on that theory, Ramirez asserts that
the court gave no reason for rejecting probation upon learning that he was not
on bail when he committed offenses in
¶12 The circuit court explained that it could not agree with the
recommendation for probation reflected in the PSI because Ramirez “committed
these additional offenses” after his arrest in
¶13 Moreover, the circuit court’s additional sentencing remarks further explained the court’s reasons for rejecting probation: “[p]robation clearly based on [Ramirez’s] activities is not appropriate. He’s been on probation before. He violated that probation.” Thus, the circuit court concluded that Ramirez was a repeat offender who had squandered the opportunity to reform when he was previously supervised in the community. The circuit court fully explained why it rejected probation in this matter.
¶14 Ramirez also complains that the circuit court failed to explain
either the term of imprisonment imposed or the sentencing objective. Again, we disagree. The circuit court discussed the gravity of
the offense, noting that 1800 grams of marijuana is “rather substantial.” The court determined that the offense was
aggravated because Ramirez’s child was in the back seat of Ramirez’s vehicle
when police found marijuana in the vehicle’s trunk. The court considered Ramirez’s
character. The court recognized
Ramirez’s cooperation with law enforcement and his acceptance of
responsibility, but the court also noted his prior criminal record, which
included burglary, multiple batteries as a habitual offender, and resisting an
officer. See State v. Fisher, 2005 WI App 175, ¶26, 285
¶15 We do not require the circuit court to explain a sentence with
mathematical precision. See id., ¶49. Moreover, we recognize that the amount of
explanation needed varies from case to case.
By the Court.—Judgment and order affirmed.
This opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)5.
[1] All subsequent references to the Wisconsin Statutes are to the 2007-08 version unless otherwise noted.
[2] No
charging documents from