COURT OF APPEALS DECISION DATED AND FILED February 23, 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. Christian Gerard Smith, 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. Christian Gerard Smith appeals from a judgment of conviction entered upon his guilty plea to one count of armed robbery with threat of force, a Class C felony. See Wis. Stat. §§ 943.32(1)(b), 943.32(2) (2007-08).[1] He also appeals from the order denying his postconviction motion for sentence modification. On appeal, Smith renews his challenges to the sentence, complaining that the circuit court erroneously exercised its sentencing discretion and improperly imposed sentence without the benefit of a presentence investigation report. We affirm.
BACKGROUND
¶2 Smith robbed the cashiers of both a gas station and a convenience store while wearing a woman’s wig and sunglasses and brandishing a .32-caliber handgun. The State charged him with two counts of armed robbery with threat of force. Pursuant to a plea agreement, Smith pled guilty to one count of armed robbery with threat of force, and the second count was dismissed but read in for sentencing purposes. At the conclusion of the plea hearing, Smith and his counsel asked to proceed immediately to sentencing. The circuit court granted the request.
¶3 Smith urged the circuit court to impose time in jail as a condition of a lengthy term of probation. In support, he presented testimony from family members who explained their view that Smith was suffering from depression and from the stress of seeking and maintaining employment. A member of the community submitted a letter expressing her belief that Smith and his mother had experienced “extreme difficulties” leading “to [Smith] performing [a] crime of desperation.” Smith also argued that he was twenty-one years old, that he had a part-time job and strong family support, and that he had no prior criminal record.
¶4 The State recommended prison time in an unspecified amount. The State acknowledged Smith’s lack of prior record and acceptance of responsibility, but the State discounted the suggestion that Smith’s crimes were born of economic necessity, noting that Smith used the stolen money to buy a car stereo. The circuit court imposed a thirteen-year term of imprisonment, bifurcated as five years of initial confinement and eight years of extended supervision.
¶5 Smith moved for sentence modification, arguing that the circuit court imposed an unduly harsh sentence. He further contended that the court erred by conducting the sentencing proceeding without first ordering a presentence investigation because, he argued, the circuit court lacked sufficient information about his mental health. To support his contentions, Smith submitted some of his high school records indicating that he had “learning problems,” a “short attention span,” and difficulty following directions. The circuit court rejected Smith’s contentions, and this appeal followed.
DISCUSSION
¶6 Smith first claims that the circuit court erred when fashioning his sentence by improperly balancing the sentencing factors and by imposing an unduly harsh penalty.
When a criminal defendant challenges the sentence imposed by the circuit court, the defendant has the burden to show some unreasonable or unjustifiable basis in the record for the sentence at issue. When reviewing a sentence imposed by the circuit court, we start with the presumption that the circuit court acted reasonably. We will not interfere with the circuit court’s sentencing decision unless the circuit court erroneously exercised its discretion.
State v. Lechner,
217
¶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 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
¶9 Smith does not assert that the circuit court failed to
consider the primary sentencing factors but rather that the court gave “too
little weight” to his character, family background, age, and mental
health. We disagree. 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
¶10 The record of the sentencing proceeding reflects that the
circuit court discussed the primary sentencing factors as well as other
appropriate considerations and that it specifically addressed the issues that
Smith emphasizes on appeal. The circuit
court deemed the offense in this case “very very serious,” and the court found
that Smith aggravated the seriousness of his conduct by carrying a firearm and
wearing a disguise. Further, the court
told Smith that it could “n[o]t overlook the second armed robbery” that was
dismissed but read in pursuant to the plea agreement. See
State
v. Straszkowski, 2008 WI 65, ¶93, 310
¶11 The circuit court recognized that Smith was only twenty years old when he committed the offenses and that he expressed remorse. Additionally, the court discussed a variety of other mitigating factors, including Smith’s lack of a prior record and his employment history. The court elected, however, to give little weight to the suggestions that Smith was depressed and under pressure from his family to “make something of [him]self.” The court indicated that these problems are common and did not explain Smith’s criminal behavior.
¶12 In the postconviction order denying Smith’s motion for sentence
modification, the circuit court assured Smith that it had considered all of the
information presented at sentencing, including the information that Smith and
his family “were having some hard times,” and that Smith was under stress
because his stepfather “hollered at [Smith] a lot about getting a job.” See
State
v Fuerst, 181
¶13 Although Smith presented facts at sentencing that might have
supported a sentence different from the thirteen-year term of imprisonment
selected by the circuit court, he has not shown that his sentence was the
product of improper considerations.
Smith shows only that the circuit court exercised its discretion
differently than Smith would have preferred. That, however, is not an erroneous exercise of
discretion. See Hartung v. Hartung,
102
¶14 We are also satisfied that Smith’s sentence is not unduly
harsh. 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 In fashioning a sentence here, the circuit court determined that Smith posed “a threat to the community.” The court emphasized that Smith committed two armed robberies while carrying a gun and wearing a disguise, and the court described his conduct as “frightening.” The court explained that it considered probation but rejected that option because it would unduly depreciate the seriousness of Smith’s conduct and “would send the wrong message to [Smith] and to the community.”
¶16 Smith faced a forty-year maximum term of imprisonment upon his
conviction for one court of armed robbery with threat of force. See
Wis. Stat. § 939.50(3)(c)
(establishing the penalty for a Class C felony). The thirteen-year term of imprisonment that
the court imposed does not offend public sentiment under the circumstances. “A sentence well within the limits of the
maximum sentence is unlikely to be unduly harsh or unconscionable.” State v. Scaccio, 2000 WI App 265,
¶18, 240
¶17 We turn to Smith’s contention that the circuit court erred by proceeding to sentencing without first ordering a presentence investigation report pursuant to Wis. Stat. § 972.15(1).[2] Smith argues on appeal, as he did in his postconviction motion, that a presentence report “may have revealed the seriousness and relevance of Smith’s mental health to the acts committed.” We are not persuaded.
¶18 A sentencing court has no obligation to order a presentence
investigation report, and the decision to order one is discretionary. State v. Jackson, 187
¶19 At the sentencing hearing, Smith and his family fully advised the circuit court that they believed Smith’s actions were caused by psychological problems. Smith’s stepfather told the circuit court that he believed Smith was depressed and experiencing stress. Smith’s uncle told the circuit court that Smith would benefit from “some type of mental health program, because obviously something is going on.” Trial counsel drew the court’s attention to the family’s concerns.
¶20 The circuit court examined Smith’s postconviction submissions
and determined that they did not demonstrate the need for a presentence
investigation to assist the court in understanding Smith’s mental state at the
time of the offenses. The court
explained that the high school records Smith submitted reflected only some
learning problems. The court indicated
that the records neither supported Smith’s contentions that he suffered
depression and stress nor “shed[] any more light on the subject [of his mental
health]” than did Smith’s original sentencing presentation. In sum, Smith’s postconviction speculation
about the ways in which a presentence investigation might have aided him at
sentencing offered no concrete reason to believe that such an investigation
would have uncovered any significant information. Accordingly, Smith failed to show that the
circuit court erred by imposing sentence without ordering a presentence
investigation.[3] Cf.
State
v. Cole, 50
By the Court.—Judgment and order affirmed.
This opinion will 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] We note that Smith’s objection to his sentencing on the ground that the circuit court failed to order a presentence investigation report is subject to judicial estoppel. A circuit court may order a presentence investigation “[a]fter a conviction.” Wis. Stat. § 972.15(1). In this case, Smith entered a guilty plea and then requested, both personally and through his attorney, to proceed immediately to sentencing. The circuit court granted the request. In postconviction proceedings, Smith asserts that the circuit court should have delayed sentencing and ordered a presentence investigation. The doctrine of judicial estoppel precludes a party from asserting such inconsistent positions at different stages of litigation. See State v. English-Lancaster, 2002 WI App 74, ¶19, 252 Wis. 2d 388, 642 N.W.2d 627. The State, however, did not raise an estoppel argument in this matter, and we choose to address Smith’s claim on the merits.
[3] In
his appellate brief, Smith states that his trial counsel “failed to request” a
presentence investigation report.
Because trial counsel waived the opportunity to make such a request, the
normal postconviction procedure is to challenge trial counsel’s waiver through the
rubric of ineffective assistance of counsel.
See