COURT OF APPEALS DECISION DATED AND FILED January 26, 2010 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. Keith Caviar Brown, 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. Keith Caviar Brown appeals from a judgment of conviction entered upon his guilty pleas to one count of possessing a firearm as a felon and one count of felony bail jumping. He also appeals from an order denying his postconviction motion. The only issue is whether the circuit court erroneously exercised its sentencing discretion. We affirm.
BACKGROUND
¶2 City of
¶3 The State charged Brown with one count of possessing a firearm as a felon, one count of carrying a concealed weapon, and one count of possessing a controlled substance. The State also charged Brown with felony bail jumping because at the time of his arrest he faced sentencing for a felony conviction, and he was out of custody on bond with a condition that he commit no new crimes. As to each of the four counts, the State charged Brown with the habitual offender penalty enhancer.
¶4 Pursuant to a plea bargain, Brown pled guilty to possession of a firearm as a felon and to felony bail jumping. The circuit court granted the State’s motions to dismiss the habitual criminality penalty enhancers and to dismiss but read-in for sentencing purposes the charges of carrying a concealed weapon and possessing a controlled substance. At sentencing, the State fulfilled its agreement to recommend two concurrent five-year terms of imprisonment.
¶5 The circuit court imposed a ten-year term of imprisonment for possessing a firearm as a felon, bifurcated as five years of initial confinement and five years of extended supervision. The court ordered Brown to serve the sentence concurrently with a jail sentence that he was already serving. The circuit court imposed a consecutive six-year term of imprisonment for bail jumping, bifurcated as three years of initial confinement and three years of extended supervision. Brown sought sentence modification, which the circuit court denied without a hearing. Brown appeals.
DISCUSSION
¶6 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
¶7 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
¶8 The circuit court must “specify the objectives of the
sentence on the record. These objectives
include, but are not limited to, the protection of the community, punishment of
the defendant, rehabilitation of the defendant, and deterrence to others.”
¶9 Brown does not dispute that the circuit court properly
considered the three primary sentencing factors. The court determined that the offenses were
both serious and aggravated. It
explained that Brown not only possessed a firearm but concealed it, and that he
did so while out of custody awaiting sentencing for another felony
offense. Further, the gun was “fully
loaded with a round in the chamber.” The
court characterized Brown as “brash” and “bold,” noting with concern that the
arresting officers found a video on Brown’s cell phone showing Brown handling a
firearm. The court additionally observed
that “at age twenty-three [Brown] sits here with three -- excuse me -- four
felony convictions.” See State v. Fisher, 2005 WI App 175,
¶26, 285
¶10 Brown contends that the circuit court “failed to mention any mitigating circumstances in this case.” As examples of significant mitigating circumstances, Brown points to his claim that he carried a gun because he feared another individual, his prompt surrender of his weapon when the police approached, and his timely guilty plea.
¶11 Brown does not accurately describe the circuit court’s
sentencing remarks. The circuit court
discussed several mitigating factors, including Brown’s employment and his
supportive family. Further, the court
expressly recognized that Brown “came forward and accepted responsibility,” but
the court observed that Brown received “a tremendous break” in exchange for his
guilty pleas because the State dismissed two criminal charges and all of the
penalty enhancers. Nonetheless, the
court explained that it would “give [Brown] credit” for accepting
responsibility, and ordered Brown to serve his sentence on one count
concurrently with a sentence that he was already serving. While Brown would have preferred that the
circuit court place greater weight on the factors that he views as mitigating,
a circuit court has discretion to determine both the factors that it believes
are relevant in imposing sentence and the weight to assign to each relevant
factor. See Stenzel, 276
¶12 Brown also argues that the circuit court relied on an improper
basis for imposing his sentences because the court “hinted” that “it might be
sentencing [him] based on a presumption that he was selling drugs.” We reject this contention. The circuit court appropriately explored why
Brown possessed a controlled substance at the time of his arrest in light of
Brown’s statement to police that he was “making a good faith effort not to
continue to use” narcotics. In response
to the circuit court’s inquiries, Brown acknowledged that he did continue to
use narcotics and that his representations to the contrary were untrue. In the postconviction order resolving Brown’s
sentence modification motion, the circuit court clarified that it accepted
Brown’s explanation that he misrepresented the extent of his drug usage, and
the court stated that it did not rely on its initial supposition that Brown
carried a gun because he sold narcotics.
¶13 Brown next contends that the circuit court failed to provide a
sufficient reason for imposing maximum consecutive sentences. “[T]he sentence imposed in each case should
call for the minimum amount of custody or confinement which is consistent with
the protection of the public, the gravity of the offense and the rehabilitative
needs of the defendant.” Gallion, 270
¶14 Finally, Brown complains that the sentences were unduly harsh
in light of his relatively young age and his family support. A sentence is unduly harsh when it is “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.” Ocanas v. State, 70
¶15 The circuit court properly exercised its discretion by
considering appropriate factors to fashion a reasoned and reasonable
sentence. That the circuit court could
have exercised its discretion differently does not constitute an erroneous
exercise of discretion. See Hartung v. Hartung, 102
By the Court.—Judgment and order affirmed.
This opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)5.