COURT OF APPEALS DECISION DATED AND FILED March 9, 2010 David
R. Schanker Clerk of Court of Appeals |
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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. Eddie Lynn Keck, 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. Eddie Lynn Keck appeals from a judgment of conviction entered upon his guilty pleas to two counts of homicide by intoxicated use of a vehicle. See Wis. Stat. § 940.09(1)(a) & (1c)(b) (2007-08).[1] He also appeals from an order denying his postconviction motion. The sole issue is whether the trial court erroneously exercised its sentencing discretion. We conclude that the trial court properly exercised its sentencing discretion. We, therefore, affirm.
I. Background.
¶2 Based on allegations set forth in the complaint, on December 25, 2007, an officer from the Franklin Police Department responded to a report of a personal injury accident. Barbara Kitchen was found at the scene, lying injured on the ground near a vehicle, and was transported to Froedtert Hospital, where she was pronounced dead shortly thereafter. Gary Kitchen was also found at the scene inside a parked pickup truck and was pronounced dead at the scene. Following an investigation, officers concluded that the Kitchens’ vehicle had been legally parked on the side of the road and that the damages to the vehicle were consistent with being hit by another vehicle that had crossed the center line.
¶3 On December 26, 2007, the Franklin Police Department received a phone call from Keck’s girlfriend, informing them that she believed the driver from the accident the night before was located at her residence. An officer responded to the residence, assessed the damage to the van parked behind the residence, and took statements from Keck, his girlfriend, and his employer.
¶4 Keck informed the officer that after drinking at a local tavern, he left, driving his employer’s work van, and hit what he thought was a mailbox. Keck did not stop to see what he had hit. As referenced by the trial court during Keck’s sentencing hearing, Keck was driving his employer’s work van to avoid the interlock system that had been previously placed on his own vehicle. Bartenders at the tavern later confirmed that Keck had been drinking the evening of the accident and that he appeared to be intoxicated before he left to drive home. After hitting what he thought was a mailbox, Keck continued to his girlfriend’s residence, where he parked the vehicle and spent the night. Keck further explained to the officers that he had heard about the accident on the news and informed his girlfriend that he may have been involved, and, as a result, they agreed to contact the police.
¶5 On June 23, 2008, Keck pled guilty to two counts of homicide by intoxicated use of a vehicle. See Wis. Stat. § 940.09(1)(a) & (1c)(b). Pursuant to the plea agreement, the State agreed to dismiss, but read in for sentencing purposes two additional counts of failure to comply with duty upon striking an occupied or attended vehicle resulting in death. See Wis. Stat. §§ 346.67(1) & 346.74(5)(d). The agreement further provided that “the [S]tate w[ould] recommend that the defendant be sentenced to a very substantial period of imprisonment and to a very substantial period of initial confinement and extended supervision, leaving the exact length to the wisdom and discretion of the Court.” The State declined to take a position on whether the trial court should impose the sentences concurrently or consecutively to one another.
¶6 At the sentencing hearing, the State, pursuant to its plea agreement, recommended that “[Keck] be sentenced to a very substantial period of imprisonment.” The trial court imposed consecutive sentences of thirty years on the two counts, each count consisting of eighteen years of initial confinement and twelve years of extended supervision. Keck filed a postconviction motion seeking a new sentencing hearing, which the trial court denied. Keck now appeals.
II. Analysis.
¶7 Sentencing lies within the trial court’s discretion, and our
review is limited to considering whether discretion was erroneously
exercised. State v. Gallion, 2004 WI
42, ¶17, 270
¶8 A trial court is required to 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 At Keck’s sentencing hearing, the trial court properly
considered the requisite sentencing factors and was, therefore, not considering
factors that were “clearly irrelevant or improper.” See
Gallion,
270
[Keck’s] criminal conduct over the years certainly shows [his] character. And it shows it to be one of aggravated offenses from being a party to a homicide to being in possession of weapons and drugs, having numerous OWI convictions and then completely flaunting the law besides obviously the case before the court of [Keck’s] history of driving, 12, 13, whatever the number is of operating after revocations.
See State v. Fisher, 2005 WI App 175,
¶26, 285
¶10 The trial court must also “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.” Gallion, 270
¶11 Keck contends that the trial court erroneously exercised its sentencing discretion in imposing consecutive sentences. We disagree. While Keck admits that the trial court has the discretion to impose consecutive or concurrent sentences, he contends that the trial court erred in not providing adequate reasoning or a proper explanation as to why it imposed consecutive sentences rather than concurrent. Keck specifically argues that “the [trial] court [did] not explain why sentences which were 72% of the legal maximum were needed to fulfill the goals of sentencing.”
¶12 Keck contends that the trial court’s sole explanation for the
imposition of consecutive sentences was the court’s reference to the fact that
there were two victims of the offense, and he argues that this explanation
alone is deficient. This interpretation
of the trial court’s explanation is incorrect.
Although, in its decision denying Keck’s postconviction motion, the trial
court concluded that “[a] separate sentence for each life taken was warranted,”
the transcript from the sentencing hearing reflects that the trial court did
not base its decision solely on the fact that there were two victims of the
offense. Instead, the trial court took
into consideration the requisite primary sentencing factors, as well as
relevant additional factors, and was within its sentencing discretion. See Ziegler, 289
¶13 The trial court took into consideration additional factors, such as the primary objective of punishment, the potential for deterrence, and any rehabilitative aspect sentencing may have on Keck. The trial court’s discussion of these additional factors constitutes an explanation for the trial court’s imposition of consecutive sentences. In regard to the punishment aspect of sentencing, the trial court mentioned that the primary objective in sentencing Keck would be punishment “because of the tragedy and the horrific offense that [Keck] caused to the victims[’] family and this community.” The trial court also provided an explanation for the substantial sentence it would impose as it stated “it is going to be a certain deterrent to [Keck] because of the substantial prison sentence the court is going to impose … [and] hopefully it will be a deterrent to others.”
¶14 After sentencing Keck on count one, the trial court provided an explanation as to its imposition of consecutive sentences, stating “the court is going to impose consecutive sentences for the same reasons the court imposed the first sentence and the factors taken into consideration.” As the trial court had previously articulated the various factors it would take into consideration and the objectives of imposing a substantial sentence on Keck, the trial court provided a reasonable explanation for its imposition of consecutive sentences by extending that same reasoning. We are not persuaded by Keck’s argument that the trial court did not provide sufficient explanation or reasoning for its imposition of consecutive sentences.
¶15 The trial court has an obligation to consider the primary
sentencing factors and to exercise its discretion in imposing a reasoned and
reasonable sentence.
By the Court.—Judgment and order affirmed.
This opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)5.